Silverpeach Pty Ltd and Poynter v Cairns City Council
[2008] QPEC 109
•7 August 2008
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Silverpeach Pty Ltd & Poynter v Cairns City Council & Anor [2008] QPEC 109
PARTIES:
SILVERPEACH PTY LTD (ACN 101 437 629)
AND ANDREW ROBERT POYNTER
(Appellants)
v
CAIRNS CITY COUNCIL
(Respondent)
BUCHAN POINT PTY LTD
(Co-Respondent)
FILE NO/S:
264 of 2007; 265 of 2007; 266 of 2007; 267 of 2007; 268 of 2007; 269 of 2007
DIVISION:
PROCEEDING:
Appeal
ORIGINATING COURT:
Planning and Environment Court, Cairns
DELIVERED ON:
7 August 2008
DELIVERED AT:
Cairns
HEARING DATE:
JUDGE:
White DCJ
ORDER:
CATCHWORDS:
COUNSEL:
Mr D P Morzone for the appellants
Mr P J Favell for the respondent
Mr D H Denton SC with Ms P Djohan for the co-respondentSOLICITORS:
Miller Bou-Samra for the appellants
King & Co for the respondent
Marino Moller as Town Agent for H W L Ebsworth Lawyers for the co-respondent
These appeals relate to three parcels of land in respect of which the co-respondent made application to the respondent Council for a development permit to construct multiple dwellings thereon. A separate application was made in respect of each of the three parcels of land. The respondent approved all three applications subject to conditions. The appellants were submitters objecting to the approval. Each of the two appellants filed separate appeals in respect of each of the three approvals, thereby giving rise to six appeals in total. Following are some details of the subject land and the applications:-
(a) Lot 38 on SP 162918, 1086 square metres
(b) Lot 40 on SP162918, 1738 square metres
(c) Lot 41 on SP162918, 1101 square metres
All parcels of land are located in the Parish of Dulamban, County of Nares. They are situated at 21-27 Colonel Cummings Drive, Palm Cove. They are, in fact, on the northern slope of Buchan Point, a prominent coastal headland north of Cairns City. Details of the development approvals are as follows:-
(a) Four multiple dwellings on Lot 38
(b) Four multiple dwellings on Lot 41
(c) Eight multiple dwellings, caretaker’s residence, ancillary gymnasium storage on Lots 40 and 41.
Colonel Cummings Drive winds its way up the hill of Buchan Point and ends in a cul-de-sac at the east. It is on top of the ridge line adjacent to the subject land. The subject land is on the northern side of Colonel Cummings Drive. As may be observed access to the proposed developments will be via a private road leading off colonel Cummings Drive and curving down the northern slope. There are four other allotments which have frontage to the private road. There is approval for a large dwelling house to be constructed on each of those allotments, but they are not yet constructed.
As can be seen, for example, on exhibit 5 there are already substantial multiple dwelling developments on Buchan Point. To the south east of Lot 38 is a multiple dwelling development in three buildings called “Munbilla”. To the south of Colonel Cummings Drive cul-de-sac is a small undeveloped parcel of land which I understand is some sort of reserve. Again, on the southern side of Colonel Cummings Drive going to the west, there is a multiple dwelling development called “Munbilla Pavilion”. Immediately to its west is another multiple dwelling development called “Munbilla Santai”. Under construction at the time of hearing was a further development to the west called “Munbilla Santai Extension”.
I take the description of the subject land and the proposed developments from exhibit 3, the report of Jenny Elphinstone a town planner, for convenience and because I am satisfied that it is accurate. The subject land is visible from the sea, from some coastal points adjacent to the scenic route between Buchan Point and Oak Beach and from some points along the Captain Cook Highway. Along the Captain Cook Highway from Buchan Beach to Buchan Point the land becomes less visible travelling south due to the angle of road aspect and vegetation. In my view the subject land is not visible at all once one reaches a point on the Captain Cook Highway to the west of Buchan Point and then to the south.
The Lot 40/41 development consists of eight multiple dwellings to be constructed on Lot 40 and some carparking to be constructed on Lot 41. The 10 level construction staggers a built form from the level of Colonel Cummings Drive to the base of Lot 40. The upper penthouse level is at the carpark level of the Munbilla Santai development on the opposite side of Colonel Cummings Drive. All levels provide residential accommodation. Three middle levels provide onsite carparking with access from the private road serving 21-27 Colonel Cummings Drive. With the exception of the caretaker’s residence on the lowest level, all dwellings are accessible from the carparking areas via a lift as well as stairs. One dwelling is provided with three carparking spaces while all other dwellings and the caretaker’s residence are each provided with two car spaces. All multiple dwellings have a swimming pool with a private terrace recreational area. Site coverage amounts to approximately 68.2%.
The Lot 41 development consists of a roof level that provides connecting access to the road level of Colonel Cummings Drive, below which is three levels of residential use and then three levels of basement carparking. The lower two levels of basement carparking are associated with a separate application for multiple dwellings on the adjacent Lot 40. The development provides for four multiple dwellings with 10 carparking spaces, two of which are for visitors. The floor of the roof level of the building is at street level and contains a covered connecting walkway (over the internal, private road) to Colonel Cummings Drive. The development will have a site coverage of approximately 47%.
The Lot 38 development consists of four multiple dwellings. The six level building contains two lower levels providing carparking and residential accommodation. The upper four levels provide residential accommodation only. Nine carparking spaces are provided. Level 5 is approximately at ground level to Colonel Cummings Drive. The development is staggered up the slope and the elevation broken up by terraces of open space and overhanging roof eaves. Site coverage is approximately 46%.
I also take for convenience the description in exhibit 3 of the existing buildings. Munbilla has eight multiple dwellings. The buildings have heights of 12-13 metres and one of the buildings is three storeys. The development only slightly rises above the Buchan Point ridge and there is limited exposure of the elevations when viewed from the roadways. However, exposure from the sea is dramatic and unencumbered. Munbilla Pavilion has nine multiple dwellings. The seven storey building is a large building mass which predominantly faces Palm Cove. Three storeys rise above the Buchan Point ridge line. Munbilla Santai has 12 dwellings and the extension under construction has two dwellings. The building is of seven storey structure, three storeys of which rise above the ridge line. The bulk of the building mass faces Palm Cove rather than to the north.
It is necessary to briefly explain the Town Planning history of the subject land. Buchan Point was formerly part of the local government area of the Douglas Shire. A Planning Scheme for the Shire was gazetted on 6 June 1981. Over time the scheme has been amended by the inclusion of by-laws, a Strategic Plan, and Development Control Plans. At the time the scheme was gazetted the subject land was included in the Recreation Reserve Zone. However, the scheme was amended in 1985 and the land included in the Resort Business Zone. Following this, the State Government issued freehold title in respect of a number of allotments. In March 1995 the Mulgrave Shire Council and the Cairns City Council were amalgamated into the Cairns City Council. At that time the subject land and Buchan Point was removed from the local government area of the Douglas Shire council and placed in the local government area of the Greater Cairns City Council.
The co-respondent’s development application were made pursuant to the superseded Planning Scheme. Between 1995 and 2005 when Cairns City Council introduced Cairns Plan that Council had not attempted to introduce any matters concerning Buchan Point into its existing Planning Schemes. It is for that reason that the Planning Scheme applicable to the subject land is the 1981 scheme of the Douglas Shire Council. Pursuant to that scheme the land is in the Resort Business Zone. There is no Statement of Intent for the zone in the Scheme. However, a broad idea of such intent can be ascertained from the name of the zone and the uses provided for in the Table of zones. In the Resort Business Zone the following purposes are listed as those for which buildings or other structures may be erected or used without consent of the Council.
·Camping grounds
·Caretaker’s residences
·Caterers’ rooms
·General Stores
·Health centres
·Indoor entertainments
·Motels
·Off-street car parks
·Recreation centres
·Refreshment services
·Shops
The following are purposes for which buildings or other structures may be erected or used or for which land may be used only with the consent of Council:-
Accommodation buildings
Advertising Signs
Commercial premises
Group housing
Hotels
Multiple dwellings
Places of Assembly
Places of Public Worship
Professional Offices
Public buildings
Public utilities
Service industries
Service stations
Shopping Centres
Showroom
Special Uses
Transport terminals
This latter list of uses became impact assessable upon the coming into force of the Integrated Planning Act. However, subject to impact assessment of an application for a consent use, in my view it may be confidently stated that the Planning Scheme accepted and supported the construction of substantial buildings in the Resort Business Zone. When one then looks at the measurable performance standards contained in the Planning Scheme such as building height, building setback etc I am satisfied that the size or bulk of the buildings involved in the proposed developments fall well within that contemplated by the Planning Scheme, as does the proposed use for residential purposes.
In written submissions Mr Morzone for the appellants summarises the issues arising in the appeal as follows:-
(a) Visual amenity – screening and landscaping
(b) Residential amenity
(c) Traffic and street parking
I am content to deal with the issues under those headings. The appellants contend that the proposed development size, height, design will make it visually prominent from the sea, adjacent land and traffic routes because –
(a) the size of the individual and combined buildings and other structures, with little or no effective screening or landscaping.
(b) the combined height of the buildings and structures will not permit effective screening or landscaping
(c) the bulky design of the built structures will dominate the hillside.
The appellants rely on specific provisions of Chapter 23, the Town Planning By-law of the respondent council. They are as follows:-
2. Without limiting the generality of the provisions of this part, the Council, in respect of any application for its consent to the erection or use of a building or other structure or to the use of land shall take into consideration the following:-
…(f) whether adequate provision has been made for the landscaping of the site.
…
(h) the circumstances of the case and the public interest and public safety
3. In respect of any application for the consent of the Council under the Town Planning Scheme for –
(a) The erection or use of any building or other structure on land or the use of land within view of any waterway or adjacent to any State Highway, main road, secondary road declared pursuant to the provisions of the Main Roads Act, public reserve or land zoned Public Open Space, proposed open space or private open space, the Council shall take into consideration the probable aesthetic appearance of such land or of the proposed building or other structure when used for the proposed purpose and viewed from such waterway, state highway, main road, secondary road declared pursuant to the provisions of the Main Roads Act, public reserve or any such zoned land.
4. Without limiting the generality of the provisions of this Part the Council may refuse an application for consent to use land or to erect or use a building or other structure for any purpose in a zone in which the consent of the Council is to the use of erection in question is required under the Town Planning Scheme if, in the opinion of the Council –
…(b) The proposed building or other structure or use would or would be likely to detrimentally affect the amenity of the neighbourhood or any existing lawful use therein including, but without limiting the foregoing by the emission of smoke, fumes, dust, soot, smell, ash, grit or oil, the discharge of waste products or the creation of noise or vibration.
…
(d) The proposal is not in the public interest.
(e) The proposal does not comply with any provision of the Town Planning Scheme or of any By-law of the Council.”
Paragraphs 2(h) and 4(e) relate to the public interest. Mr Morzone submits that the public interest issue arises out of the provisions of the Wet Tropical Coast Regional Coastal Management Plan December 2003 (the CMP). I will therefore discuss the public interest issue when discussing the contents of that Coastal Management Plan a little later.
With respect to paragraph 3(a) a distinction is made between the erection or use of any building –
(i) Within view of any waterway
(ii) Adjacent to any state highway etc
In my view, none of the subject parcels of land can be possibly described as being “adjacent to any state highway etc”. I accept that the subject land is within view of “any waterway”, because it is accepted that the sea is a waterway and the subject land is clearly within view of the sea, particularly to the north of Buchan Point. I also point out that the paragraph is directed to “the probable aesthetic appearance of such land or of the proposed building”. So far as the buildings are concerned I am satisfied that they are of attractive design and sympathetic to the location and topography of the subject land. The size/bulk of the buildings is appropriate in relation to the zone in which the land is contained. The size/bulk of the buildings is compatible with that of existing buildings in the immediate vicinity and compatible with the substantial dwellings which are to be constructed on the four allotments of Lot 39. In respect of one aspect of the aesthetic appearance of the proposed buildings, I am satisfied that they will be significantly more attractive than some existing buildings in immediate vicinity because they will not extend to any great degree above the ridge line of Buchan Point which cannot be said for some of the Munbilla buildings and, particularly those constructed on the southern side of Colonel Cummings Drive. I am prepared to accept that the landscaping is a relevant aspect of the aesthetic appearance of land and buildings and I will deal with that separately.
In approving the proposed developments the respondent imposed some conditions requiring modifications to some of the building designs and requiring the use of certain colours. The appellant accepts these conditions. I am satisfied by the evidence of Mr Ratcliffe that these conditions can be easily complied with. Subject to what I have to say about landscaping I am satisfied that the buildings will have a pleasing attractive aesthetic appearance quite compatible with the colours and appearance of the surrounding natural landscape. I point out that there is no reference whatsoever to screening as Mr Morzone appears to contend. In my view the question of whether adequate provision has been made for the landscaping of the site has got nothing to do with screening. Nor, in my view, is the term “landscaping” confined to the growing of plants, shrubs and trees. Landscaping could involve the construction of a fence. It could involve the construction of a screen. It could involve the construction of a retaining wall. The nature of landscaping to neighbouring buildings may be relevant to an assessment of the adequacy of landscaping to a proposed building. In my view, it is relevant in this case that the land immediately to the north of the subject land is State owned land upon which mature native vegetation is growing and it seems likely to remain in that state for the foreseeable future. I am satisfied that that vegetation, particularly the taller trees will make a significant contribution to the softening of the overall appearance of the subject buildings and that may therefore be taken into account in assessing the adequacy of landscaping.
It is relevant to both the aesthetic appearance of the buildings and to the adequacy of landscaping that the respondent imposed the following conditions of approval:-
In respect of Lot 38:
3. The following building/development must be redesigned to accommodate the following changes:
(a) Setback of the pool 2 metres from the property boundary and no fill within 2 metres of the boundary to Lot 31 on SP 129117. that is the setback is to be landscaped at existing ground level.
(b) Provision of side boundary fencing to the neighbouring Lot 31 on SP129117. The fencing is to have minimal visual impact;
(c) Details of the proposed building colours and finishes together with details of the proposed landscaping.
The building colours and finishes together with the proposed landscaping must be designed having regard to the prominent position of the site when viewed from the sea and foreshore areas and must be so designed to minimise the visual impact of the buildings on the landscape. Muted, earthy colour tones must be utilised throughout in order to blend the development with the natural elements of Buchan Point.
The building colours must reflect those of the natural rocky outcrop on Lot 31 on SP129117 and the foreshore below.
The landscaping must predominantly use native plants of local providence providing a canopy cover and mid-storey height planting.
Details of the above amendments must be indicated on plans submitted at the time of a development application for a development permit for building work and endorsed by the Chief Executive Officer prior to issue of a development permit for building work.
The applicant/owner must also ensure that the above building exterior requirements are made known to all prospective purchasers and the requirements must be noted on rates notices/records.
In respect of Lots 40/41:
3. The proposed building/development must be redesigned to accommodate the following changes:
(a) variation of the architectural design to break the vertical massing and repetitive design flowing down the slope. That is, provide a break in the design to reduce the overall appearance of bulk and repetitive design. The break should include a strong landscape component.
(b) Setback of all buildings a minimum of 2.5 metres from the northern property boundary and for this area to be landscaped with deep planting. No fill is to occur within the setback. That is, the landscaping is to be at existing ground level.
(c) Provision of side boundary fencing to the neighbouring Lot 31 on SP129117. The fencing is to have minimal visual impact; and
(d) Details of the proposed building colours and finishes together with details of the proposed landscaping.
(The balance of the condition is identical to that for Lot 31).
In respect of Lot 41:
3. The proposed building/development must be redesigned to accommodate the following changes:-
(The terms of this condition are identical to those in relation to Lot 38 paragraph (c) and following.)
Each of the decision notices contained a condition relating to a landscaping plan. They are essentially similar and I will not set them all out in full. The condition in respect of Lot 41 adequately sets out the nature of the condition.
11. The applicant/owner must landscape the subject land and street frontage in accordance with the FNQROC Development Manual and in accordance with a landscape plan submitted to and endorsed by the Chief Executive Officer prior to the issue of a development permit for building work. In particular, the plan must show –
(a) Planting of the footpath with trees using appropriate species with regard to any site constraints.
(b) Landscaping of setback areas to the east boundary and to the street (Colonel Cummings Drive).
(c) Further planting of trees and shrubs.
(d) Provision of canopy and under storey planting.
(e) The predominant use of native plants of local providence (i.e. Pandanus in preference to palms); and
(f) Inclusion of all requirements as detailed in other relevant conditions included in this development permit.
A copy of this development approval must be given to the applicant’s landscape architect/designer.
Two A1 copies and one A3 copy of the landscape plan must be submitted to and endorsed by the Chief Executive Officer prior to the issue of a development permit for building work. Areas to be landscaped must be established prior to the commencement of the use and must be maintained at all times both to the satisfaction of the Chief Executive Officer.
Evidence concerning landscaping came from Mr Andrew Prowse, a landscape architect, on behalf of the co-respondent and Ms Jennifer Neales, a landscape architect on behalf of the appellants. Also relevant to the issue of landscaping is the evidence of Mr Leigh Ratcliffe, the architect who designed the proposed developments on behalf of the co-respondent. I do not propose to engage in the time consuming exercise of analysing the detail of the evidence of Mr Prowse and Ms Neales as to what amount of soil might be needed for a particular species of plant to grow to a particular height. The only real way of determining such issues is to wait until the development is constructed and the landscaping has been carried out and been in place for many years. For the purposes of this judgment it is simply sufficient for me to say that I had the distinct impression that Ms Neales tended to be somewhat conservative and pessimistic about the extent to which plantings might grow and screen the proposed buildings. However, I am also prepared to accept that in some instances Mr Prowse may have been a little over-optimistic.
In respect of both expert witnesses I give no weight whatsoever to their opinions about whether adequate provision has been made for the landscaping of the site, whether it be expressed in those words or by implication. That is an issue for the Court to decide. No doubt the Court may be aided, as I have been in this case, by evidence from Ms Neales and Mr Prowse concerning suitable plant species, where they might be planted, their appearance, how tall or wide they might grow, etc. However, the decision as to whether adequate provision has been made for the landscaping of the site is a decision for this Court, and this Court alone, and not a matter of preference for one or other of the competing views of expert witnesses on that ultimate issue. Having said that I should say that I had the distinct impression that Ms Neales tended to equate landscaping with screening to a substantial degree. As I have indicated earlier I reject this view.
The evidence shows that the soil on the subject land is not of particularly good quality. Nevertheless, native vegetation has been able to grow on such soils. Parts of the subject land have been previously cleared and the evidence shows that there is active regrowth of trees on that land. Also of relevance is that the existing buildings in the area have been landscaped and, in my view, in an attractive fashion. Some of those buildings, particularly Munbilla show that plants in large tubs and planter boxes make an attractive addition to plants planted in natural ground. Mr Morzone submitted that I could not find that adequate provision has been made for the landscaping of the site because the co-respondent has not come up with a detailed landscape plan including a list of plant species and their locations. I do not accept the submission. It is obvious in my view that the officers of the respondent who had the responsibility of assessing the applications gave careful consideration to the issue of landscaping. It is for that reason that specific conditions were imposed requiring some minor amendments and dealing with the way in which landscaping is to be approached. There is no reason to conclude the respondent’s officers will not give similar careful consideration to a final more detailed landscaping plan lodged at the time of the application for building work. In my view that is the most appropriate time to deal with the details of the proposed landscaping.
Although I do not consider it vital to reaching a conclusion on the landscaping issue for completeness I should say that in respect of what might be termed visual reconstruction I prefer the visual imaging of Mr Gregory O’Brien to that of Ms Neales. I consider that Mr O’Brien’s imaging is somewhat more detailed and more thoroughly prepared than Ms Neales’. This is not intended to be a criticism of Ms Neales, I simply take the view on the evidence that Mr O’Brien was able to carry out a more thorough background investigation to his visual imaging. I must say, however, that the conclusion I have reached about the landscaping issue is a conclusion I would have reached without any aid from visual imaging at all. In conclusion I am more than satisfied that adequate provision has been made for the landscaping of the site. I am therefore satisfied on all bases that the probable aesthetic appearance of the land and the proposed buildings will be aesthetically attractive and in no way overly prominent or intrusive.
Mr Morzone also made reference to a number of provisions of the Strategic Plan. Some of those in my respectful view are irrelevant. Others are extremely general in nature. Under the heading Tourism the following appears:-
Aim
To develop the Shire significant tourism potential in a planned and orderly manner so as to preserve the key resources and provide a broad range of facilities and experiences which will appeal to domestic and international tourist markets.B. Objective
To preserve the scenic coastal highway corridor between the Buchan Point and Oak Beach provided that the Council would support progressive upgrading and beautification of the road as required by increased traffic and tourism activities.
Buchan Point is at the southern end of this scenic corridor. I doubt that any tourist driving between Buchan Point and Oak Beach would even see the proposed development. Travelling south, whilst it is possible that from odd points on the Captain Cook Highway the proposed buildings would be visible, in my view they would not be nearly as significant and/or prominent as the existing buildings reaching above the ridge line of Buchan Point. Taking those existing buildings into account in my view the proposed development will make no significant difference to the tourism and scenic values of the coastal highway corridor.
I turn now to the Coastal Management Plan. By reason of s 50 of the Coastal Protection and Management Act 1995 the CMP has legal effect for assessment of the application as if it were a State Planning Policy. The subject land is within what is described as a “key coastal site”, known as the McAlister Range KCS. When one looks at maps 11 and 12 of the CMP, it may be observed that the key coastal site stretches from Buchan Point almost all the way to Port Douglas. Buchan Point therefore constitutes a very small part of the key coastal site and the subject land itself an even smaller part. Almost all of the McAlister KCS is designated as having a very high scenic landscape quality. Land to the north of the subject land at Buchan Point, in particular the state owned land is designated as having a high scenic landscape value. The subject land and other developed land on Buchan Point heading down and into the Palm Cove side of Buchan Point are designated as having a moderate scenic landscape quality. (Exhibit 3 Attachment 4). The subject land is not included in a coastal locality in map 17 of the CMP. In Table 2 of the CMP it is designated a ‘rocky foreshore’ but not designated a ‘headland’. At page 86 the Regional policy paragraph 2.72 provides as follows:-
Regional Direction for implementing State Coastal Plan Policy
To the extent practicable local governments and other relevant planning agencies are to include measures in plans that minimise adverse impacts on regionally important coastal landscape values from incompatible development and activity in areas having “high” or “moderate” landscape quality (Map 26).
Mr Morzone points to the following passages in the CMP as a significant coastal resource –
“Buchan Point is a prominent scenic headland which substantially enhances the visual amenity of this coastal sector.”
desired coastal outcomes –
“Development at Buchan Point does not exacerbate erosion and land instability and has minimal coastal visual impact especially when viewed from the sea. The landscape values of the headland are maintained as natural features.”
By no stretch of the imagination can these provisions be interpreted to require that the subject land either remain in its natural state or appear to be still in its natural state when viewed from the sea. In particular, the two passages immediately above refer to Buchan Point as a headland. And yet in Table 2 (page 14) Buchan Point is listed as a rocky foreshore and not as a prominent headland. In any event, I am satisfied that the design of the buildings and the landscaping, which I am satisfied will be carried out, are such that there will be minimum coastal visual impact on Buchan Point especially when viewed from the sea and just as particularly when viewed occasionally from other places, particularly along the Captain Cook Highway to the north.
Buchan Point is not in its natural state. Since the subject land was alienated by the Crown, subdivided into smaller allotments, designated urban in the Strategic Plan of the Douglas Shire Council and placed in the Resort Business Zone it is inevitable that the subject land and other parcels of land in the vicinity were going to be developed. A number of those other parcels of land have already been developed. The buildings constructed on those other parcels of land form part of the visual impression of Buchan Point. As I have already said those buildings already dominate the ridge line of Buchan Point and will continue to do so. The proposed buildings will not dominate the ridge line, although as I have said I expect that they will be visible to some extent below the ridge line. However, taken overall, in my view the proposed development will have no significant effect.
As to the traffic issue I can deal with that briefly. It appears to have been abandoned by the appellants. However, having heard the evidence of Mr Flannagan, which I accept, I have no hesitation in concluding that the proposed developments will not place any undue strain on parking requirements or increase traffic to any unreasonable degree.
Finally, I turn to the issue of residential amenity. I regret to say that I find the position taken by the appellants in this issue to be breathtakingly unreasonable. The appellant Silverpeach Pty Ltd owns what can only be described as a luxurious unit in the Munbilla building immediately adjacent to the boundary of Lot 38. It is a large unit. Across the north eastern side of the building there is a full length expansive balcony. The building is high up on the slope of the headland. The views from that balcony can only be described as spectacular. They must be some of the best views in the world. None of the proposed developments will interfere in any meaningful way with those views.
What is complained of here is an interference by the proposed development with the residential amenity associated with a very small and rather impractical sized balcony off a bedroom at the north western end of the Silverpeach unit. What is complained of is that the proximity of the proposed building on Lot 38 will interfere with the residential amenity. It needs to be pointed out that this balcony is positioned at the minimum setback from the Munbilla property boundary. As may be observed the condition of approval requires a 2 metre setback of the Lot 38 building. As designed the setback of the Lot 38 building is 1.85 to 6.2 metres. In my opinion this is a generous concession to the privacy of the Munbilla building. It is also required that the area within that setback be landscaped without fill. The elevation drawings for the building on Lot 38 show that it will be not as tall as the Munbilla building. The dwelling units in the building on Lot 38 will have spectacular views over the sea to the north. I have no doubt that any residents of the Lot 38 units will be far more interested in enjoying the view than looking through the window into the bedroom of the Silverpeach unit. It is not to the point to refer to the sorts of developments which might have theoretically been constructed on Lot 38. However, at the very least the owner of the Silverpeach unit should have reasonably anticipated that a building would be constructed on Lot 38 of similar nature, for similar use, and with a similar setback to that building in which the Silverpeach unit is located. I am satisfied that the proposed development on Lot 38 will not interfere in any way with the residential amenity of any occupant of the Silverpeach unit. If such an occupant is concerned about neighbours looking in he or she can shut the door.
I find the complaints primarily advanced by Mr Poynter about the so-called “feel” of the neighbourhood equally unmeritorious. Once again, the buildings on all of the parcels of the subject land are all for a similar purpose to that for which the existing buildings are used, namely residential purposes. The residential density, that is the notional number of people per square metre who are likely to be on the subject parcels of land at any time will be significantly less than the residential density of the pre-existing buildings. I am satisfied that the aesthetic appearance of the buildings on the subject land will be at least as attractive, if not more attractive, than the building in which Mr Poynter resides. I am satisfied that the landscaping treatment of the proposed developments will be at least as attractive, if not more attractive, than the landscaping treatment of the existing developments. I have no doubt that many of the residents of the existing buildings, like Mr Poynter have had their residential amenity enhanced by the fact that the subject land has remained substantially unused and undeveloped. No doubt, their contentment with the status quo would have been enhanced because it cost them nothing, while someone else bore the costs of ownership of the subject land. However, that is irrelevant. His attitude is entirely unreasonable when he must be taken to have known, or should have known, that the subject land was privately owned, the sizes of the parcels of land, and even if he wasn’t aware of the details of the Planning Scheme as to what might be developed and constructed on the subject land he could not possibly or reasonably have expected that it would be substantially less intense than the very building in which he resided.
I propose to order that the appeal be dismissed.
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