SDW Projects Pty Ltd v Gold Coast City Council
[2006] QPEC 74
•27 July 2006
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
SDW Projects Pty Ltd v Gold Coast City Council [2006] QPEC 074
PARTIES:
SDW PROJECTS PTY LTD
Appellant
GOLD COAST CITY COUNCIL
Respondent
STATE OF QUEENSLAND
Co-Respondent
FILE NO/S:
492 of 2005
DIVISION:
Planning and Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
Southport
DELIVERED ON:
27 July 2006
DELIVERED AT:
Southport
HEARING DATE:
28 February and 1, 2 and 31 March 2006
JUDGE:
Rackemann DCJ
ORDER:
Appeal allowed
CATCHWORDS:
Westfield Management Limited v Brisbane City Council & Anor [2003] QPELR 520
COUNSEL:
Mr Hughes SC, with him Mr Williamson, of counsel, for the Appellant
Mr Hinson SC, with him Mr B Job, of counsel, for the Respondent
SOLICITORS:
Phillips Fox for the Appellant
Corrs Chambers Westgarth Lawyers for the Respondent
MA Kent & Associates for the Co-Respondents
Introduction
This appeal is against the refusal of a code assessable application for a development permit for a material change of use to permit the construction of low rise apartment buildings on steeply sloping land in the Residential Choice Domain situated at 1-3 Hinterland Drive, Mudgeeraba.
The site is a vacant parcel of some 4,290m2, with a frontage of approximately 90 metres, situated at the base of a hill which otherwise features residential buildings (principally detached dwellings) in an apparently treed setting.
The site has, in the past, been subject to substantial earthworks, which have altered its natural topography. The site currently has been formed into two terraced platforms which have been cut, and possibly partly filled, to form relatively level platforms with steep batters at the front and back of both platforms. The site is poorly drained, which has resulted in significant erosion of the materials exposed on the excavated batter faces[1].
[1]Exhibit 3, p 47, para 2.1(d)
Tree clearing has also apparently occurred on the site. Regrowth has occurred, but is uneven[2] and bare patches occur[3], but are not obvious from external vantage points. The visual amenity experts’ joint report described the land as “extensively disturbed”. While it retains several tall trees, most of those at the rear (northern) part of the site cannot be seen from the road[4]. Of the larger trees, it is those in the vicinity of the southern boundary which provide substantial screening.
[2]Exhibit 4, p 17
[3]See Exhibit 4, fig 2 & p 17
[4]Exhibit 3, p 67, para 3
The site is steep, with slopes in excess of 25 per cent and, in places, up to 65 per cent.
As Mr Hassall attested, the most significant views to the subject site are the “adjacent” views (within 1 kilometre) from the south and south-east. Those views are afforded to travellers on the adjacent Gold Coast-Springbrook Road (a scenic route designated on planning scheme Map SP 14) and visitors to the neighbouring park and playing fields. Although situated in relatively close proximity to Mudgeeraba Village, the site is not viewed from that location.
“Adjacent” views to the lower part of the site are screened, at least from a number of locations, by intervening vegetation, particularly a line of trees located within the Firth Park and Gold Coast-Springbrook Road verge. Those trees are not yet fully mature. As already noted, the interior of the site is further obscured by the trees at or about the southern boundary of the site.
As the site is at the base of the hill, the proposed development would neither occupy a “skyline” position, as seen from any viewpoint[5], nor be as prominent as would be the case were the site more elevated.
[5]Exhibit 3, p 68, first sentence
Viewed from adjacent areas to the south and south-east, the site gives the appearance of a vegetated hillside. The extent of earthworks and land clearing is not obvious[6]. The same can be said of the developed parts of the hill more generally. The effectiveness of vegetation in providing screening to development on the hill can be appreciated from the aerial photograph (figure 2 to Mr Hassall’s report) which shows the extent of development and vegetation clearing on the hill otherwise, which is not so evident to the viewer at ground level[7].
[6]Exhibit 4, p 23
[7]Exhibit 4, p 5 and digital image F
Viewed from more distant vantage points[8], the site appears as a small part of the apparently vegetated foothills (although the viewer remains aware of the presence of development on the foothills otherwise)[9].
[8]Described by Mr Hassall as “local views” and “distant views”
[9]Exhibit 4, pp 9, 12
The proposal is to develop seven low rise apartment buildings, distributed about the site and stepping up the slope, with basement level car parking and a central open space area. The buildings are proposed to be two storeys, with partial “pop up” third storey and basement car parking. Three of the apartment buildings (blocks A, B and C) are to be located towards the street frontage. Three more (blocks E, F and G) are to be towards the northern (up slope) boundary of the property, while the remaining block (block D) is proposed to be located approximately mid-block towards the eastern boundary (above block C but below block G). It is proposed to form cut and fill building platforms, on several terraces, separated and supported by retaining walls, to accommodate the development.
It is proposed to retain trees along the southern boundary of the site to provide screening, in order to maintain the overall character of the appearance of a vegetated hillside, punctuated by residential buildings. Existing vegetation on the balance of the site would be lost in construction, but it is proposed to carry out landscaping within the site, in conjunction with the development.
The Issues
The issues were identified by reference to the Council’s eight reasons for refusal, together with further and better particulars. The particulars were extensive, running to some 25 pages. Senior counsel for the respondent was however (sensibly) prepared to confine the Council’s case to the matters relied on in final submissions[10]. They may be summarised as relating to the appropriateness of the development in terms of its presentation and response to the constraints of the site. In particular, the Council contended that the development would not appropriately integrate the built form with the slope and vegetation.
[10]See footnote 30 to the outline of submissions on behalf of the respondent
The Planning Provisions
The application was made during the currency of version 1.0 of the 2003 Gold Coast Planning Scheme. While the IPA permits the court to give weight to any subsequent change, it was not suggested that there was any particularly relevant change, made in Version 1.1 of the scheme, which would alter the assessment of the proposal.
The whole of the site is contained within the Residential Choice Domain, the purpose of which is “to support the development of a residential pattern comprising mixed dwelling types, including detached dwellings, attached dwellings and apartment buildings that relate well to each other”. The domain seeks, amongst other things, to support residential densities that are moderately higher than traditional detached dwelling areas. It is common ground that the proposal is code assessable within that domain.
The site is also designated on the Residential Overlay Map (OM4) as having a maximum density equivalent of RD5, which contemplates a density of up to one bedroom per 50m2 of site area, or up to 85 bedrooms on a site of the size of the subject. The current proposal seeks approval for a 72-bedroom development.
Overlay Map OM16 identifies the land as having a “moderate” risk of instability.
The site lies within a locality which features different domain and residential density designations. The subject site is adjoined to the west and north by land within the Detached Dwelling Domain. Further to the west there are some sites included in the Residential Choice Domain with an RD3 designation. The site to the immediate east of the subject is also in the Residential Choice Domain with an RD5 designation. Land immediately to the west of that site is included within the Mudgeeraba Village Local Area Plan, and designated “traditional village”[11] and RD1[12]. Land across the road and to the immediate south-east of that land is also within the LAP, and is designated “core business” and RD5. There is also other land with an RD5 designation in the village. Land to the immediate south of the subject site is Firth Park and is included in the Guragunbah Local Area Plan.
[11]See Mudgeeraba village LAP Map 17.2
[12]See Mudgeeraba village LAP Map 17.3
Since the proposed development is code assessable, it must be assessed against the common material and the applicable codes which, relevantly, are the Residential Choice Place Code, the Low Rise Apartment Code and the Steep Slopes or Unstable Soils Code. Before turning to those however, it is convenient to deal with three matters.
Uncertainty
It was submitted, on behalf of the respondent, that “significant ambiguity surrounded the final location of dwellings and common areas” and that:
“At present there can be no confidence that the development will have an appearance generally in accordance with the depiction contained in the photo montages.”
This is an issue, if it be an issue, that arose at a relatively late stage. The respondent sought, in particular, to rely on the following passage from the geotechnical engineers’ joint report:
“(o)The architectural drawings provided in support of the development application contain elements which are either considered to be not feasible or very difficult to design and construct. These related to the locations of proposed large boulder walls above basement walls, significant earth fill over basement roof slabs and structural loads and earth fill over basement roof slabs. Parts of the proposed development are therefore likely to change and design constraints are likely to result in a different development to that indicated on the drawings.”
and upon a report by a consulting engineer, Mr Gould.
Mr Gould was not involved in the expert meetings and his report was only provided to the appellants at a late stage, after the exchange of other expert reports. The appellant formally objected to its receipt on the basis that it is irrelevant to the issues and on the basis of its late delivery. The appellant nevertheless responded to its contents in the course of the appeal.
Development design is commonly an iterative process. As one would expect, the applicant has not, at this stage, descended to the final detailed design phase. It would not be surprising if there were some changes as the design is refined and settled. That is, no doubt, why many approvals are subject to conditions which require development “generally” in accordance with the approved plans. The respondent does not cavil with that, but suggests that the degree of “latitude,” reserved by the applicant in this case, is excessive.
It is ordinarily appropriate for the applicant, when making an application of this kind, to produce plans which show the development with a reasonable degree of accuracy to permit a proper assessment of the application and to demonstrate that the development is capable of being carried out at least generally in accordance with those plans. Beyond that, the degree of detail and certainty required will depend upon the matters which the decision maker is called upon to assess in granting or withholding approval. In this case, the level of detail should be sufficient for a judgment to be made about whether the proposal will comply, or could be so conditioned as to comply, with the applicable codes.
Various areas where changes might be required at the detailed design stage were canvassed in the evidence. These included the probable need to replace proposed boulder walls with different retaining structures, the removal of earth fill over basement roof slabs, an increase in the floor to ceiling height of the basement (with consequent additional excavation and/or an increase in the absolute height of some of the apartment buildings) and changes at or near the site frontage (including deletion of a previously contemplated retaining wall, the shifting of a drainage line and an increase in building setback) to assist tree retention. Some discrepancies in the floor levels as depicted in the landscape plan and landscape sections were also referred to.
It was not contended that the application was a futility, in the sense that it could not be constructed. If approval were to be granted, it would be subject to conditions, including a condition requiring development generally in accordance with nominated plans. The matters to which the respondent drew attention during the course of the appeal do not lead me to the conclusion that such a condition could not be complied with.
Further, the level of “uncertainty” was not such as to prevent a determination as to whether the proposal would comply, or could be so conditioned as to comply, with the relevant parts of the applicable codes of relevance to the issues in dispute in the appeal. Evidence was given in the course of the case about alternative retaining structures and the landscape treatments which could be applied to them, the likely design solution to the need to remove fill over basement roof slabs and the effect which an increase in height of some of the apartment buildings (if required by reason of an increase in the floor to ceiling heights of the basement) may have on visual impact[13]. Further, insofar as building height is concerned, the maximum height could be set by conditions.
[13]See e.g. T48, 49 and 52
I do not consider that the level of “uncertainty” in this case is to such a degree as to call for a refusal of the application on that basis.
Tree Retention
An important issue was the extent to which the development would be adequately screened by trees proximate to the site frontage. Mr Hassall’s photo montages, depicting the likely visual presentation of the development, assumed tree retention, (and supplementary planting) in that area. His view, which I accept, was that, with tree retention, the “overall character of a vegetated hillside, punctuated by residential dwellings” would be maintained and that the built form, although more highly massed than on neighbouring sites, will be “perceived through an effective, if opaque, vegetation screen”[14].
[14]Exhibit 4, p 22
It would be difficult to take issue with the visual presentation of the development, if it were generally in accordance with that depicted in the photo montages. Indeed, in the course of submissions, I asked learned senior counsel for the respondent whether the Council contended the development would be unacceptable if that were achieved. His response[15] was:
“I don’t think we’re going that far. We’re saying there is real doubt about whether it can be achieved.”
[15]T327, l 15
The “real doubt” was said to arise by reason of the ability (or inability) to preserve frontage vegetation (or, more particularly, for retained vegetation to survive) and the absence of any great desire to do so[16]. As to the second of those concerns, while I appreciate that some have concerns about trees in close proximity to buildings or prefer an unobstructed view to a filtered view, the retention and augmentation of screening vegetation in conjunction with development, enforced by way of a condition on a development approval, is now commonplace. I do not consider that an assumption should be made in this case that tree retention or augmentation, required by a condition of approval, would be sabotaged by the developer or subsequent purchasers.
[16]T327, l 20
The more substantial dispute related to the likelihood of trees being able to be retained and, more particularly, thereafter surviving, in the context of the development and its construction. That was a matter of debate between Mr Hassall and Mr Chenoweth.
The trees within that area are at some risk, given their proximity to the proposed development and its associated construction works. That is not however, a novel risk. As Mr Chenoweth and Mr Hassall agreed in their joint report, “there are various arboricultural measures (which) could be used to maximise their chances of survival”. Measures of that kind are described in Mr Hassall’s report[17].
[17]Exhibit 4, pp 17-18
Further, minor changes to the design could increase the chances of tree survival. The applicant proposes to delete retaining structures which were initially proposed along the frontage. Evidence was also given about the ability to move the basement car park further away from the frontage by a metre[18] and to relocate a drainage line. Conditions could be imposed to require such changes.
[18]T42
Of all the trees shown for retention, Mr Chenoweth ultimately expressed particular concern about four where, he assumed, there would be excavation to as close as within three metres (not allowing for the potentially increased setback referred to above).
After receiving Mr Chenoweth’s report, Mr Hassall conducted further site investigations to consider more carefully the canopies of the trees (which are an indication of the root zone). He found that seven of the trees had canopies that extended only two metres towards the property, whilst seven had canopies of between two and four metres[19]. There was at least one tree with a canopy extending approximately six metres towards the site, which would require careful attention if it were to be retained[20].
[19]T40-41
[20]T42
As Mr Hassall acknowledged, tree retention has, at times, been difficult in the past where not enough care has been taken during the construction process. Given the importance of tree retention in this case, any approval would be subject to stringent conditions about those matters. Subject to hearing submissions, such conditions could include those in relation to a management plan and expert supervision of construction activities proximate to the retained trees, as well as subsequent vegetation maintenance and tree replacement (in the event of any loss).
Reference was made to the fact that some of the trees, in this vicinity, were situated on land just beyond the site boundary, in the road reserve. They do not appear to form an impediment to any planned road widening and do not appear to require removal on account of proximity to infrastructure (such as the overhead powerlines) or for any other particular reason. Their removal does not presently appear to be imminent or even likely, but it would be prudent to subject any approval to a condition which required supplementary planting, within the site boundary, in the event of unexpected tree loss on either side of the boundary.
Subject to the imposition of appropriate conditions, I accept Mr Hassall’s evidence that, on the balance of probabilities, “certainly the vast majority of the trees that we’re recommending for retention here can be kept”[21] and that, in the event of any unexpected losses, a semi-mature replacement tree could be provided. Indeed, I accept Mr Hassall’s evidence generally.
[21]T43, T75
In the circumstances, I am satisfied that the visual presentation of the proposal, developed in accordance with appropriate conditions, will be generally in accordance with Mr Hassall’s photo montage and that there will be no undue impact on visual amenity or character.
The Planning History
There was a deal of debate about the significance of the site’s RD5 designation and, indeed, its planning history.
In 1990, the land was rezoned to the Residential B zone under the then planning scheme. In 2000, the Council approved an application for a material change of use for a 15-unit apartment complex, under its then zoning. The proposal occupied, in effect, the front half of the site and featured a fairly continuous (slab on ground) building form with a mixture of basement and at grade car parking[22]. In 2004 the Council gave an operational works approval for that development. The primary development approval has now expired. In the meantime, the Council, in 2003, included the land in the Residential Choice Domain and assigned an RD5 designation, which effectively increased the maximum permitted development density from what was previously equivalent to an RD3 designation[23].
[22]Exhibit 2, Appendix 6
[23]Exhibit 2, p 10, para 4.5
It was submitted, for the applicant, that the subject proposal (and the extent of vegetation clearing and works associated with it) was a logical response to the encouragement which the Council has given for substantial development of the subject site, up to the density indicated. Further, it was suggested that it was incongruous for the Council to, on the one hand, encourage substantial development of the subject site and then, in the face of an application, seek to so interpret and apply the applicable codes as to deny the suitability of the subject site for development as proposed.
It was submitted, for the respondent, that the maximum density is just that, a maximum. It was submitted that what is achievable on the site is dictated not only by the relevant domain and density designations, but by the constraints imposed by reason of the applicable codes. That is, of course, correct, although it is not immediately apparent why the Council ascribed an RD5 density designation to the subject site, notwithstanding its slope and vegetation, if the constraints to substantial development were regarded as so significant. Mr Hinson SC, in oral submissions, said that “to operate within the totality of the planning controls” presented a “challenge”, at least on the Council’s approach.
I accept that, at least in the context of a code assessable application, it is the provisions of the applicable codes which must be the focus of the assessment of the application. It should be noted that the domain and density designations are not irrelevant to a consideration of at least some of the issues raised in the applicable codes. It would not be appropriate however, to approve an application which did not comply, or could not be so conditioned as to comply, with the applicable codes (and which did not meet the criteria for approval notwithstanding conflict) simply because it was for development of an otherwise appropriate density, given its designation. While the IPA permits approval of a code assessable application which does not comply, or which cannot be so conditioned as to comply, with an applicable code, such a decision must be made having regard to the purpose of the code[24].
[24]See s 3.5.13(3) and Westfield Management Limited v Brisbane City Council & Anor [2003] QPELR 520
Using Codes
The codes in the 2003 Planning Scheme follow a familiar “performance based” structure, similar to codes in other IPA planning schemes. The codes commence with a statement of purpose. The codes also identify the development to which each applies and then contain “development requirements,” which are set out in a table of Performance Criteria and Acceptable Solutions. The planning scheme provides that:
“Development proposals must comply with the performance criteria to meet the objectives of the planning scheme and ensure that the DEOs are not compromised.
...
It is desirable that code assessable development comply with the acceptable solutions to ensure that each performance criterion is met. However, code assessable development may comply with an alternative solution, provided that the alternative solution can be demonstrated to meet the relevant performance criteria, to Council’s satisfaction. Where no acceptable solution is provided for a performance criterion in the code, the development must provide its own solution to meet that particular performance criterion.”
Statements to similar effect can also be found in other IPA planning schemes which adopt performance based codes. 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.
The Applicable Codes
The Residential Choice Place Code
The purpose of this code is stated as follows:
“This place code seeks to support the provision of a range of housing choice that is responsive to the changing demographic structure of the city, whilst maintaining an efficient land use pattern. The purpose of this domain is to support the development of a residential pattern comprising mixed dwelling types, including detached dwellings, attached dwellings and apartment buildings that relate well to each other. This code seeks to:
·support residential densities that are moderately higher than traditional detached dwelling areas;
·facilitate a wide variety of home office, home occupation and residential support services to be located within the domain commensurate with local residents’ needs; and
·achieve a high standard of residential amenity across the range of dwelling types in the domain.”
That statement of purpose mirrors the statement of intent for the Residential Choice domain.
I am satisfied that the proposal is in accordance with and, indeed, supports the purpose of the code, particularly the introductory paragraph and the first and third bullet points.
It will be noted that the purpose is to support a residential pattern which comprises “mixed dwelling types” that “relate well to each other”. Some emphasis seemed to be placed, in the respondent’s case, on the fact that the height, density and form of the proposed development would differ from existing development in the area, particularly the detached houses (which otherwise predominate). The purpose of the code however, is to support a mixture of dwelling types. That such dwelling types are intended to “relate well to each other” does not amount to a requirement for replication or duplication.
It should also be noted that this is an area in which the Council has provided for a range of domain and density designations in close proximity. It is difficult to divine a planning intention that does not admit of some variation in the form of development in this area.
I am satisfied that the proposed development, which has been broken up into a number of low rise articulated buildings distributed across the site, stepping up the slope, which will be screened by retained and supplementary landscaping, would relate well to existing and likely future development and assist in achieving a high standard of residential amenity across the range of dwelling types in the domain.
Some mention was made of the support which the code gives to densities that are “moderately higher” than traditional detached dwelling areas. The subject proposal, I am satisfied, fits that description.
I note that density is subject to a specific performance criterion (PC2) which states:
“Accommodation density must be consistent with the residential character of the local area and contribute to the achievement of a variety of dwelling types in the local area.”
The proposal, being within the specified maximum density for its designation, adopts AS 2.1.3. Counsel for the respondent did not assert non-compliance with that part of the code.
The “Development Requirements” section of the code comprises some 17 performance criteria, only six of which were ultimately referred to in the submissions on behalf of the respondent. The performance criteria at issue relate to the height of buildings, their siting, aesthetic standard, effect on the character of the local area, landscaping and effect on visual amenity. Two of those six, PC1 and PC9, are in identical terms. The second of those, which does not relate to self‑assessable development, features an additional acceptable solution and is the more relevant for present purposes[25].
[25]See the submission of Senior Counsel to the respondent at T320
Insofar as height is concerned, PC9 requires that the height be “in keeping with the predominant residential character in the surrounding area” and not result in a “significant loss of visual amenity”.
The surrounding residential area is low rise, as is the subject proposal. While the proposal features partial third storey “pop ups”, which are not otherwise a feature of the surrounding area, that does not result in conflict with the performance criterion.
The planning scheme contemplates the use of partial third storeys in residential areas such as these. Indeed, the use of partial third storeys (in development up to 11.5 metres in height) is expressly contemplated in AS 9.1.3. Similarly, even in the Detached Dwelling Domain, such development is code assessable.
The Detached Dwelling Domain Place Code contains a performance criterion requiring buildings to be limited in height to “complement the local neighbourhood character and to protect the residential amenity of adjoining lots”. The corresponding acceptable solution also specifically contemplates development up to 11.5 metres in height and to a maximum of three storeys[26].
[26]See PC10 and AS10
Development up to the height and number of storeys proposed is within reasonable expectations, both for the land included in the Residential Choice Domain and for that included in the Detached Dwelling Domain in the surrounding area. That expectation would perhaps be elevated with respect to land on the subject site, given its density designation.
It is difficult to see that the incorporation of partial third storeys results in a height which is, or which the planning scheme regards as, not in keeping with the low rise residential character of the area.
While the subject proposal does not fall within AS 9.1.3, by reason of its non‑adoption of minimum 10 metre setbacks, there is, I am satisfied, nothing about the setbacks in this case which leads to non-compliance with the performance criteria relating to height.
As noted earlier when dealing with the uncertainty issue, a condition could be imposed on any approval setting the maximum height[27].
[27]Subject to hearing submissions on conditions, the 11.5m referred to in the acceptable solution could be used for that purpose
Mr Blake, an architect called by the respondent, drew attention to the entrance to the car park, to suggest that the development would be perceived to be four storeys. The evidence, including the photo montages, satisfies me that the development will “read” as a two storey development, with partial third storeys, over a basement car park.
Reference was also made to the potential for the gaps between buildings to visually “disappear” from certain angles. That is a result of the buildings being stepped up the slope. It is an effect which can be seen even with the current development in the adjoining area[28]. It will not lead to a significant loss of visual amenity. The proposal for screening by tree retention and supplementary landscaping should also be noted.
[28]See Exhibit 16
PC11 requires buildings to be sited to “complement the built form of the surrounding area” and to “maximise the utility of the open space on the site” having regard to a site analysis prepared in accordance with planning scheme policy 17. The site analysis lodged with the application was deficient, but Mr Hinson SC did not rely upon that as a basis justifying refusal of the application[29]. Performance criterion 12 requires that all buildings must be designed and constructed to a “high aesthetic standard” and “complement or enhance” the character of the local area.
[29]T321
I accept Mr Simpson’s evidence to the effect that, from an architectural perspective, the subject proposal is of a high standard, would represent an improvement on the standard displayed in the largely unremarkable detached and medium density development elsewhere in the area and would make a positive contribution to the overall assembly of development in Mudgeeraba. Counsel for the respondent, in their submissions, “conceded that subjective assessment of the aesthetic standard is unlikely, in isolation, to warrant refusal of the application”. I am satisfied that the proposal meets the requirement in relation to a “high aesthetic standard”.
The architects were agreed that the open space provided on the site was as much as was practicable. I am satisfied that there has been compliance with the requirement to “maximise the utility of the open space on the site”.
The matters of greatest debate, in relation to these performance criteria, were whether the buildings were “sited to complement the built form of the surrounding area” or would be designed and constructed to “complement or enhance the character of the local area”. In dealing with those issues, the architects applied the expression “complement” too narrowly. For example, Mr Simpson, the architect called by the appellant, agreed that the proposal would not (and could not) complement the built form of the surrounding area. He thought that was necessarily so because of the nature of the proposal, being for apartment buildings rather than detached dwellings[30]. As already observed, the Residential Choice Domain, and the statement of purpose of the code contemplate a mix of dwelling types, including detached dwellings and apartment buildings, with densities moderately higher than traditional detached dwelling areas. Further, in this locality, the Council has chosen to have a mixture of domain and density designations. Consistency of development type and density is not required or planned. The proposal should not be regarded as failing the performance criteria simply because it proposes a form and density of development which is not the same as adjoining detached houses.
[30]T95
The proposal is, I am satisfied, complementary in terms of its siting of buildings and its design and construction. As has already been noted, the building form has been broken up into a number of buildings which have been distributed about the site in locations which step up the hill. Further, as Mr Simpson pointed out, the design of the building uses “clever articulation” of the roofline, including the “pop ups”, to break down the scale of the development and pay some respect to the immediately adjacent buildings[31].
[31]T83
Reference was made to the Gold Coast City Landscape Strategy (Policy 12)[32] and, in particular, to a part dealing with Mudgeeraba which states that:
“The village character is currently under threat through rapid and unconnected commercial development and an increase in denser housing types on the fringes.”
[32]Exhibit 19
It is difficult to see why that statement should lead to refusal of the subject application. Whatever might be the concern about “denser housing types on the fringes”, the subject proposal is for a site which has been included in the appropriate domain and has the appropriate density designation to permit moderately denser housing types. While such development must be assessed against the applicable code, it is difficult to divine an intention for a developer of the subject land to be limited to the same type and density as the existing development on land with different designations. I do not consider that the proposed development would threaten the village character.
Ultimately, senior counsel for the respondent acknowledged, in the course of oral submissions, that the Council’s concern was not so much about the built form per se, but about the way in which it was (or was not) integrated with the land form and vegetation and the consequence of that from a visual perspective[33].
[33]See T315-316
The way in which the proposal responds to the sloping nature of the site is dealt with in greater detail below, in the context of the Steep Slopes or Unstable Soils Code. While the respondent placed emphasis on the extent to which the site would be subject to cut and fill during construction, it should be noted that is not without some benefit. It permits the development to be “set into” the hill. As the architects agreed, the cutting in of apartment blocks E, F and G would allow those buildings to present, to properties in Firth Place, as equivalent to that expected for a detached residence[34]. The visual amenity experts also referred to the effect of the building being “set into the hillside”[35]. Likewise, where apartment blocks are cut down adjacent to side boundaries, the mass of the buildings would appear to be more consistent with those of adjoining or nearby buildings[36]. The proposal also permits car parking to be hidden from view, in the basement, and the maximisation of areas for open space and landscaping.
[34]Exhibit 3, p 56
[35]Exhibit 3, p 68 para 9
[36]Exhibit 3, p 58
The engineering works will have some visual impact during construction, but that is of a limited duration and should not be determinative of the application. As the photo montages show, the extent of site engineering will not be obvious from the external vantage points, once the development is complete and landscaping established[37].
[37]Compare photo montages G, H, I and J
Performance Criterion 14 requires that landscaping proposals “must clearly contribute to the protection and enhancement of the existing dominant visual features of the locality”. There is no acceptable solution. This performance criterion should not, in my view, be read as requiring the retention of all vegetation or even all trees on the site. That is not what it, in terms, requires and it would be an impractical application of a criterion which applies to land in a Domain which contemplates development, rather than conservation of land in its current state. Mr Hassell’s evidence was that “virtually any development on the site would entail taking out considerable trees”[38].
[38]T 74
The criterion relates to the existing “dominant” visual features of the locality. Relevantly, the dominant visual feature is the hill, with its overall character of an apparently vegetated hillside punctuated by residential dwellings. The proposal respects that, despite the extent of vegetation which would be removed in the construction phase. I am satisfied that the proposed development, with its proposed tree retention and supplementary planting, satisfies the performance criterion.
Performance Criterion 16 requires that the proposed use not detract from the amenity of the local area having regard to a number of things, including visual amenity. For the reasons already discussed, I am satisfied that the proposed use would not detract from the visual amenity of the local area[39]. It would lead to the development of the site for a type and density of development which is within the bounds of reasonable expectations, in a form which is well designed and broken up (into buildings stepping up the slope) and screened by retained trees and supplementary landscaping. As already noted, senior counsel for the respondent did not go so far, in submissions, as to suggest that the visual presentation of the proposal would be unacceptable if it presented as in Mr Hassall’s photo montages.
[39]Insofar as the immediate neighbours are concerned, I note the contents of paragraph 9 and 10 of the joint report of the visual amenity experts
I am satisfied that the proposal meets the development requirements of the Residential Choice Place Code, by reason of meeting the relevant performance criteria. I am also satisfied that the proposal is one which not only respects but which would advance the purpose of the code.
The Low Rise Apartment Building Code
The purpose of the Low Rise Apartment Building Code is to seek to ensure that:
“●low rise apartment buildings provide quality living for residents, whilst contributing to the orderly development of the city and the distinctive character of those areas where this form of development is envisaged;
●low rise apartment buildings are built to a low rise scale that complements the city’s townscape objectives, whilst minimising any adverse impacts on the surrounding area;
●low rise apartment buildings contribute to the development of an interesting and attractive streetscape; and
●a range of medium density accommodation choices are made available that meet the needs of the city’s existing and future households, whilst providing a high level of amenity and convenience for residents.”
The development requirements contain fourteen performance criteria only two of which, PC6 and 8, were relied upon by the respondent. Those performance criteria are concerned with building design and appearance. The respondent referred to its previous submissions with respect to PC12 in Residential Choice Place Code, which is dealt with above.
Mr Blake expressed some concern in relation to the facades of the buildings. While they could be more extensively treated[40], I do not consider that they are appropriately described as “stark and austere”.
[40]Conditions could be formulated in that regard if considered appropriate.
As previously noted, the thrust of the Council’s case was more concerned with the integration with the land form and landscape than with the building form per se. I am satisfied that the relevant development requirements are met. I am also satisfied that the proposal respects the purpose of the code, each paragraph of which, I am satisfied, is supported by the proposal.
The Steep Slopes or Unstable Soils Code
The proposal’s response to the sloping nature of the site was a key area of controversy between the parties. In particular, the respondent asserts that the cut and fill required to accommodate the subject development is too extensive.
The appellant contends that its approach is an obvious and desirable approach to achieving substantial development on the site, consistent with the domain and density designations and that there is nothing in the code which would prevent the extent of cut and fill which would be associated with the proposal.
The purpose of the code is as follows:-
“The primary purpose of this code is to regulate development which occurs on land, or part of any land, containing steep slopes or unstable soils. This code also seeks to:-
‘●minimise the potential for erosion or land slippage, and avoid the risk of land slippage arising from underground streams;
●effectively manage storm water runoff;
●minimise erosion events on slopes exceeding an average gradient of 15%;
●reduce the visual impacts of buildings and associated works through suitable external building treatment and landscaping; and
●encourage safe and efficient vehicular access on to steeply sloping land.’”
It was not contended that the proposed development could not be constructed in a way which satisfied the first three bullet points[41]. For the reasons already discussed, I am satisfied that it would satisfy the fourth. The basement car park will achieve the fifth.
[41]Indeed, appropriate development of the site will present an opportunity to deal with existing erosion potential.
Senior counsel for the respondent pointed out that the bullet points are introduced by the words “this code also seeks to”. He pointed out that the primary purpose of the code “is to regulate development” on steep slopes or unstable soils. I doubt however, that can be taken so far as to deny the power to make a decision, pursuant to s 3.5.13(3), which conflicts with the code by reason of not meeting one of the development requirements.
Insofar as the development requirements are concerned, there are 10 performance criteria, of which the respondent relied upon only four, namely PC1, 2, 3 and 5, which provide as follows:-
“PC1 - Building work must be responsive to the constraints of steeply sloping land.
PC2 - The building style and construction methods used for development on sloping sites must be responsive to the constraints in building designs of steep slopes.
PC3 - Development on steep slopes must minimise any impact on the landscape character of the city’s rural, urban and hinterland areas.
PC5 – All cut and fill work must not create a detrimental impact on the slope stability, erosion potential or visual amenity.”
As to PC5, it would appear that the cut and fill work associated with the proposed development could be done in a way which avoided detrimental impact to slope stability or erosion potential.
Matters concerning the visual impact of the development on landscape character (PC3) and the impact of works on visual amenity (PC5) have been considered earlier. I do not accept Mr Chenoweth’s opinion that the proposed development would have a significant detrimental impact on the landscape character of the urban area of Mudgeeraba by reason of the extent of vegetation to be removed to accommodate development. I do not consider that the proposal fails either of the performance criteria.
The respondent placed some weight on policy 12, including that part of the section dealing with the “River Valleys” character which nominates “minimum clearing and cut and fill works” as one of the “valuable character elements to promote and enhance”.
It should be noted that the “River Valleys” area covers a broader area than the subject locality and not every statement in the policy is easily applicable to every parcel of land within it. The “general character” of the River Valleys is said to be “comprised of two distinct land use types – rural land and the protected natural areas”. It is said that “the undulating topography of the valleys is preserved by large farm holdings and rural residential areas”. Other things said to be “valuable landscape character elements to promote and enhance” include “larger lot development” and “open rural character”. Obviously, the subject site, which lies at the edge of the boundary between the “River Valleys” designation and the “suburban estates” designation on Map PS-10, is not intended for either rural or rural residential development, nor is it (or is it intended to remain) in an undeveloped natural state. Its designations under the planning scheme contemplate substantial urban development.
The policy acknowledges that existing landscape character elements of the River Valleys include “denuded foothill areas with residential development” but also refers to the “vegetated foothills” to the west of the village. The landscape character of this part of the foothills is one of an apparently vegetated and treed setting punctuated by residential development. For the reasons already discussed, the proposal, with its proposed tree retention and supplementary landscaping, minimises the impact of development on, and would not degrade, that character. The extent of cut and fill to accommodate the development proposed would not, in the circumstances, create a detrimental impact on visual amenity.
The remaining performance criteria require development to be “responsive” to the constraints of steeply sloping land and building designs on steep slopes. The proposal does take account of the constraints, but the respondent says that it does not do so in the correct way. It says that the proposal involves excessive cut and fill and is not an example of “slope sensitive design”.
It was pointed out that the Code is one of those which is referred to as a planning measure in support of DEO ECOL 1 which, in part, seeks “to minimise disturbance to natural landscapes and ecologically significant areas, in areas where development is permitted”. It was submitted that “responsive” development is that which minimises the extent to which the natural land form is disturbed by, amongst other things, cut and fill. It was pointed out that the acceptable solutions to PC1 and PC2 contemplate the avoidance of building work on slopes exceeding twenty per cent in urban areas and the adoption of split level building forms (rather than single plane concrete slabs) with areas between floor (or deck) level and ground screened. The height of cut and/or fill referenced in the acceptable solutions to PC5 was also noted.
In response, it was submitted, on behalf of the appellant, that the code does not require adoption of the acceptable solutions and that the criteria do not, in terms, limit the extent of cut and fill.
It is evident that any substantial development on the subject site would likely involve the adoption of alternative solutions, at least for PC1. Further, relying on alternative solutions for PC2 (and PC5) is an understandable and perhaps not unexpected approach from an applicant seeking to obtain something approaching an RD5 density on a site of this nature. The issue however, is whether that is “responsive” for the purposes of PC1 and PC2.
I accept the submission of Mr Hinson SC that the response cannot simply be one which removes the slope completely. To take an extreme example, the performance criteria would not be satisfied by development which simply levelled the site, from boundary to boundary, to accommodate a common single plane concrete slab form of development. On the other hand, the code does not require that the land form be left undisturbed. It does contemplate works, including cutting and/or filling.
As Mr Hinson SC acknowledged, the approach to development in this case, falls between the extremes. It neither completely levels the site nor does it entirely retain the existing modified topography. As he submitted, it is ultimately a question of degree as to whether the proposal is found, on the facts, to be “responsive”[42].
[42]T335
As noted earlier, the site has already had substantial earthworks carried out which have altered the natural topography, created terraced platforms and exposed it to erosion. What is now proposed is further works to accommodate a development which would be neither a single “slab on ground” building nor a single split-level building. Rather, the response is to break the development up into components, set on discrete terraces, to achieve what Mr Simpson referred to as a distinguished stepping configuration of apartment buildings climbing up the hill. Notwithstanding the need for significant excavation, including for the underground car parking[43], I am, on balance, as a matter of fact and degree, satisfied that the proposal does not, in the circumstances, go beyond the point of being “responsive”, either in terms of building work or building style and construction.
[43]From which the scheme benefits in other respects
I am satisfied that the proposal complies with the code by complying with the development requirements. I am also satisfied that it is consistent with the purpose of the code.
Conclusion
I am satisfied that, subject to the imposition of conditions, the proposal will comply with the development requirements in issue by meeting the performance criteria. I am also satisfied that, subject to the imposition of conditions, the proposal is consistent with the purpose of applicable codes. The application must, therefore, be approved[44].
[44]s 3.5.13(2)
Had I found that a decision to approve the application would conflict with one or more of the applicable codes, then I would have considered whether there were enough grounds to approve notwithstanding, having regard to the purpose of the code or codes with which a decision to approve would conflict[45]. While it is unnecessary for me to now consider that question, I note that the proposal is not without merit, having regard to the purpose of the applicable codes, which it not only respects but, in some material respects, supports. I also do not consider that the proposal would compromise the achievement of any DEO.
[45]s 3.5.13(3)
I am satisfied that the appellant has discharged its onus. The appeal will, in due course, be allowed. I will adjourn the further hearing to allow for the formulation of conditions.
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