Simmonds v Redland Shire Council

[2005] QPEC 7

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Simmonds & Ors v Redland Shire Council & Anor [2005] QPEC 007

PARTIES:

LLOYD JACK SIMMONDS
(first appellant)

And

MARGIE JOYCE SIMMONDS
(second appellant)

And

ASHOK SIHOTA
(third appellant)

v

REDLAND SHIRE COUNCIL
(respondent)

And

PETER VF STELLER AND PATRICIA STELLER
(co-respondents)

FILE NO/S:

Appeal No 2755 of 2003

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Brisbane

DELIVERED ON:

8 February 2005

DELIVERED AT:

Brisbane

HEARING DATE:

2 November 2004, further submissions and material received up to 14 December 2004

JUDGE:

Judge Rackemann

ORDER:

The preliminary question is determined by concluding that the proposal is self assessable development for the purposes of the planning scheme.

CATCHWORDS:

PLANNING AND ENVIRONMENT - CONSTRUCTION OF PLANNING SCHEMES – application to develop single detached dwelling house - whether terms of transitional planning scheme necessitated impact assessable, code assessable or self-assessable development  

Integrated Planning Act
Local Government (Planning and Environment) Act

Cases considered:

Luke v Maroochy Shire Council and Watpac Developments (2003) QPELR 5
Pacific 7 Pty Ltd v City of Sandringham (1982) VR 157
Woolworths Limited v Caboolture Shire Council (2004) QPEC 15
ZW Pty Ltd v Peter R Hughes and Partners Pty Ltd (1992) 1 Qd R 352

COUNSEL:

Mr W Cochrane for the appellants

Mr S Ure for the respondent

Mr S Keliher for the co-respondents

SOLICITORS:

McCarthy Ryan Durie Neil for the appellants

Hopgood Ganim for the respondent

Robert Milne Legal for the co-respondents

1. The appellants appeal against the Council’s approval of an application, by the co-respondents, to develop a single detached dwelling house on land located at 4 Champion Lane, Wellington Point and more particularly described as Lot 8 on RP 14178.  The subject land is located on a promontory that juts northwards from the mainland and is within an established area.  The site is currently vacant, following the demolition of a previous dwelling. 

1. It is common ground that the subject site is an existing allotment of 602 square metres within the Residential B zone, has a frontage of a little more than 10 metres and that, following amendments, the proposed dwelling house does not exceed two storeys in height.

1. The question which has been ordered to be determined prior to trial is whether the proposal, in its current form, is impact assessable, code assessable or self assessable.

1. The Planning Scheme for Redland is a transitional one, to which Chapter 6 of the Integrated Planning Act (IPA) applies.  The relevant level of assessment is determined in accordance with the transitional provisions of IPA which, in turn, refer to the position which would have applied under the now repealed Local Government (Planning and Environment) Act (P&E Act).

1. Assessable development is defined, in s 6.1.1 of IPA, by reference to, amongst other things, development, not inconsistent with Schedules 8 or 9, that under the P&E Act would have required an application to be made either for a continuing approval or under s 4.3(1) of the P&E Act.

1. The expression “continuing approval” is defined by reference to 6.1.23(1) of IPA which refers a number of approvals which could have been obtained under the P&E Act.

1. Self assessable development is defined, in s 6.1.1 of IPA by reference to, amongst other things, development, not inconsistent with Schedules 8 or 9, that would have been required to comply with standards but would not have required a continuing approval under the P&E Act or a development approval by reason of the commencement or amendment of a transitional planning scheme.  The expression “standards” is defined to mean requirements.

1. Pursuant to s 6.1.28 of IPA, an application for assessable development which, under the P&E Act, would have required public notification must be processed as if it were a development application requiring impact assessment.  An application which would not have required public notification under the P&E Act must be processed as if it were a development application requiring code assessment.

1. Pursuant to the P&E Act, public notification was required for applications pursuant to s 4.3, including applications for the amendment of a Development Control Plan Map or Regulatory Map.  Public notification was also required for applications pursuant to s 4.12 requiring town planning consent in respect of permissible uses. 

1. The general structure of the Town Planning Scheme for the Shire of Redland is familiar for planning schemes under the repealed regime.  Permitted, permissible and prohibited uses are identified by reference to the Table of Zones. There is a part which sets out “Performance Standards” applicable to development and provisions relating to rezoning and to the subdivision of land.

1. The Table of Zones for the Residential B zone provides that purposes for which buildings or other structures may be erected or used or for which land may be used without the consent of the Council (a permitted use) include the following:

“Dwelling houses – where erected on a site with an area of 600 square metres (m²) or more and not exceeding two (2) storeys in height”.

1. That mirrors the position in the Residential A zone, subject to one qualification[1].

   [1]     In the Residential A zone dwelling houses must also not be intended to be erected on the Bay Islands in order to be within Column III (a).

1. The subject proposal meets the description of a permitted use within the Residential B zone.  It is on this basis that the respondent and co-respondents submit that the development is self assessable.

1. The appellants’ contention is that the development is impact assessable.  That is a surprising submission given that the development is permitted pursuant to the Table of Zones.  The contention relies on the following two propositions:

(i)         That, by reason of Clause 8B of Division 3 of Part IV of the Planning Scheme, the development can only be undertaken in accordance with a Plan of Development submitted to and approved by the Council; and

(ii)       The submission and approval of a Plan of Development involves an application of a kind referred to in s 4.3 of the P&E Act which would have attracted public notice requirements.

1. The respondent and co-respondent submit that Clause 8B does not apply to the proposed development but that, if it does, the requirement that development be undertaken only in accordance with a Plan of Development submitted to and approved by council, results in an application required to be processed as requiring code assessment.

1. These issues raise for consideration the proper construction of s 8B, read in the context of the Planning Scheme as a whole.  Each of the parties referred me to the well known principles involved in the construction of planning schemes as referred to in cases such as ZW Pty Ltd v Peter R Hughes and Partners Pty Ltd [1992] 1 Qd R 352 at 360, Pacific Seven Pty Ltd v City of Sandringham [1982] VR 157, Luke v Maroochy Shire Council and Watpac Developments [2003] QPELR 5 and Woolworths Limited v Caboolture Shire Council [2004] QPELR 550.

1. Clause 8B applies expressly to development for the purposes of dwelling houses on allotments having an area of less than 600m² or of a width of less than 20m.  The subject site has a width of less than 20m, even though its area exceeds 600m².  While the provision uses the plural in describing dwelling “houses”, that would not prevent its application to a development for a single dwelling house if the provision were otherwise applicable.  In the interpretation of statutory instruments, the plural ordinarily includes the singular[2].  Other clauses of Division 3 of Part IV of the Planning Scheme generally use the plural in describing the developments to which the various requirements apply, notwithstanding that those requirements are intended to apply to single examples of such development[3].

   [2]See s32C of the Acts Interpretation Act.

   [3]     Clause 5 refers to “concrete batching plants”, Clause 6 refers to “extractive industries”, Clause 8 refers to “multiple dwellings”, Clause 9 refers to “poultry farms”, Clause 10 refers to “relative’s apartments” and Clause 11 refers to “service stations”.

1. Sub-paragraph (b) of Clause 8(B) provides that:

“Development shall be undertaken only in accordance with a Plan of Development submitted to and approved by the Council”.

1. ‘Plan of Development’ is defined as follows:

“ “Plan of Development” means any document including a plan or plans which regulates the siting on an allotment or allotments of buildings, roads, services, open space and other applicable design elements of a development in accordance with Part IV Division 5 of this Scheme”.

1. Clause 8B falls within Part IV of the Planning Scheme clause 1(1) of which provides:

“After the coming into force of this Part, the requirements herein shall apply in addition to the requirements of any by-law of the Council whether or not the consent of the Council is required under the Scheme provided that the requirement shall not apply to the uses which were existing lawful uses on the appointed day”.

1. The appellants contend that clause 8B is applicable to the proposal notwithstanding its status as permitted development.  The submission of the respondent and co-respondents is that, read as a whole and in context, s 8B applies to development which involves the creation of small lots but should be construed as not applying in the subject circumstances.

1. Clause 8B was introduced with a number of amendments made to the Planning Scheme in 1995 as part of the Council’s response to the Australian Model Code for Residential Development (AMCORD).  AMCORD provided national guidelines for residential development.  It encouraged a shift from an approach of compliance with prescriptive standards towards a more performance-based approach in order to achieve, amongst other things, flexibility in the provision of diversity and choice in housing.  It contained guidelines with respect to residential development both in new and established areas and dealt with site planning for single sites[4] as well as larger scale developments.  It acted, to a significant extent, as a catalyst for changes to planning schemes, which, amongst other things, permitted development of allotments of smaller lot sizes, subject to a consideration of design issues, including as to buildings which would be erected on such allotments.

   [4]  It would seem that the provisions contemplated new single sites, since the applicable ‘elements’ for such development included those in relation to lot size (see pp 8, 14)

1. In the case of the Planning Scheme for Redland, the amendments (the AMCORD amendments) included amendments to the Statement of Intent for the Residential A and B zones, the Table of Zones, the insertion of Clauses 8A and 8B in the performance standards and amendments to the provisions relating to the subdivision of land.  As counsel for the co-respondents pointed out, the Council minutes relating to the amendments described their purpose as “to allow for the creation of small lots”, although I have determined the construction issues by reference to the detailed provisions.

1. The Council subsequently, in 2001, adopted a transitional planning scheme policy entitled “Small Lot Housing Code” which is expressed to represent “the design criteria identified under Part IV Division 3 Clause 8B of Council’s Transitional Planning Scheme dealing with the building of houses on allotments of areas less than 600 square metres or width of less than 20 metres”. The scope of what is referred to as the design criteria is not entirely clear when one has regard to cl 8B. The purpose of the policy is expressed to be “to provide support to the transitional planning scheme in the design of small lot dwellings”.  The appellants allege that the proposal does not comply with the policy.  I do not consider however, that the policy alters the proper construction of the relevant provisions of the Transitional Planning Scheme in relation to the applicable level of assessment.

1. The AMCORD amendments to the subdivision of land provisions provided for the creation of new allotments of less than 600m² in the Residential A zone in specified circumstances.  Those circumstances included, depending upon the size of the proposed allotments, reference to “where development will consist of allotments designed in accordance with a Plan of Development prepared in accordance with” clause 8B[5] or a written statement in lieu[6].  Similarly the AMCORD amendments to the subdivision provisions permitted the creation of new allotments in the Residential A zone with a frontage of less than 20m in various circumstances which included reference to allotments designed in accordance with cl 8B.[7]  The AMCORD amendments did not introduce any similar provisions with respect to subdivision in the Residential B zone.

[5]     See cl 12(3)(b).

[6]     See cl 12(3)(a).

[7]It might be noted that the provisions dealt with the creation of allotments with an area of less than      600m² and a frontage of less than 20m but not with allotments of a greater area than 600m² – see cl 3(1).

1. The AMCORD amendments also introduced new Statements of Intent for the Residential A and Residential B zones.  In the case of the Residential A zone a new Statement of Intent included the statement that:

“In order that a quality residential environment is provided in an efficient and economic manner development in this zone shall be in accordance with AMCORD.

Only in exceptional circumstances where development consists of infill development within an established suburb will Council give consideration to traditional residential development not in accordance with AMCORD.”

1. The Statement of Intent for Residential B zone contained a statement that “Dwelling houses are permitted” and did not contain the same provision with respect to AMCORD.  Reference to AMCORD appears in the third paragraph of the Statement of Intent dealing with multiple dwellings.  That paragraph has its own construction difficulties, was not the subject of submissions, and there is no need to consider it further. 

1. Following the AMCORD amendments to the table of zones, development of dwelling houses not exceeding two storeys in height on sites of 600m² or more became permitted development within column III(a) in the Residential A and B zones.  Dwelling houses not exceeding two storeys, on sites with an area between 600m² and 450m², with a road frontage of 12m or more, in accordance with an approved plan of development[8] became permitted development subject to an application for notification of conditions (column III(b)) in each of the Residential A and B zones[9].

   [8]I note that Exhibit 2, being the unofficial consolidated copy of the Scheme, uses the word ‘or’ before ‘in accordance with an approved plan of development’ in column III(b) for the Residential B zone, but reference to the relevant amendment suggests that is a misprint.

   [9]In the Residential A zone the dwelling must also not be proposed to be erected on the Bay Islands.

1. The qualifications within column III(b) relative to an approved Plan of Development and relative to minimum frontage do not apply to dwelling houses on sites of 600m² or more which are permitted development in column III(a).  There appears no reason to conclude that the amendments (including to make dwelling houses up to 2 storeys on sites with an area in excess of 600m² permitted development within column III(a) without further qualification) were unintended.

1. The appellants’ construction of clause 8B would, in effect, subject column III(a) development to the qualification that it be in accordance with an approved plan of development where development is proposed on an allotment with a width of less than 20m, even though no such qualification appears in the table of zones.  It is, of course, not unusual for development, including permitted development, to also have to comply with performance standards.  That is reflected in clause 1(1) of Part IV.  In this case, however, qualifications in relation to an approved plan of development are the subject of express reference in Column III(b) of  the table of zones for both the Residential A and B zones but, seemingly intentionally, omitted from column III(a).

1. The AMCORD amendments also inserted ss 8A and 8B in Division 3 of Pt 4 of the Planning Scheme.  Clause 8B provides as follows:

“8B     ‘Dwelling Houses on allotments of area less than six hundred (600) square metres or width of less than 20 metres’:

Development for the purposes of dwelling houses on allotments having an area of less than six hundred (600) square metres or width of less than 20 metres shall comply with the following requirements:-

(a)In assessing the suitability of the existing topography and location of the site the applicant and Council shall have regard to the following matters:

(i)the slope of the land from front to rear not to exceed five (5) per cent;

(ii)the slope of the land from side boundary to side boundary not to exceed ten (10) percent;

(iii)the extent of cut and fill necessary to erect the proposed building and its effect on drainage of the subject and adjoining land;

(iv)whether each building site can be adequately drained without affecting adjoining sites and buildings proposed to be erected thereon;

(v)support given to retaining walls and buildings on adjoining building sites;

(vi)accessibility for vehicles to the site from an adjoining road shall be in accordance with the provisions of A S 2890.1 Off Street Parking;

(vii)the extent of proposed removal of natural vegetation and the proposed replanting of new compatible vegetation.

(b)    Development shall be undertaken only in accordance with a Plan of Development submitted to and approved by the Council.

(c)     Where the development consists of allotments:-

(i)between 600m²-551m², building envelopes that ensure privacy, solar receipt and amenity are achieved to the satisfaction of Council, must be nominated on a plan of development;

(ii)between 550m²-451m² and with a width of less than 20 metres, a minimum length of wall of 5.0m must be constructed up to the boundary nominated on the plan of development;

(iii)between 450m²-300m² and with a width of less than 20 metres, a minimum length of wall 9.0m must be constructed up to the boundary nominated on the plan of development.

(d)     Where the development includes allotments of the following sizes, the Plan of Development shall for each such allotment include the requirements below and those of sub-clause (c) above:-

(i)       Allotments 600m²-450m²

A Plan of Development in a graphical form shall detail allotment boundaries, finished site levels and setback requirements (including nominated built-to-boundary location).  Additional wording is to be attached to the Plan of Development to reinforce that the subsequent detailed housing design must comply with other relevant AMCORD requirements, maximum building height and other relevant requirements of this Town Plan.

(ii)     Allotments 450m²-300m²

A Plan of Development shall for each such allotment indicate the following:-

(i)        allotment area;

(ii)       allotment dimensions;

(iii)front, rear and side boundary setbacks and maximum height of each building structure;

(iv)location and levels of driveway and parking area external to the building;

(v)location of primary private open space area;

(vi)location and maximum eight of any retaining walls;

(vii)finished site levels and proposed retention of natural vegetation;

(viii)landscaping of road and drainage reserves and areas of public and private open space;

(ix)demonstrate drainage paths for overland flow of stormwater.

In providing such information reference shall be made to elements B1, B2, B3, B4 and B5 of AMCORD and proposals should be in accordance with those elements.

(e)    Where the development will include allotments with an area of less than four hundred and fifty (450) square metres or a width of less than fifteen (15) metres in addition to the foregoing Council shall have regard to criterion P2 of Element B1 of AMCORD in determining permissible minimum lot dimensions, and the Plan of Development shall for each  such allotment indicate the following:-

(i)a concept plan for all buildings and structures which demonstrates the relationship between private open space and living areas, solar access, built-to-the-boundary requirements, vehicular access and parking and drainage provisions.

(f)      Building plans for sites sealed under Plan of Development will only be approved where they are in accordance with that Plan of Development.”

1. Clause 8B is expressed to apply to “development for the purposes of dwelling houses on allotments having an area of less than 600m² or width of less than 20m”.  The nominated area is the same as the usual minimum lot size for new allotments for Residential A zone, subject to the exceptions provided for in the AMCORD amendments.  The reference to a “width” of less than 20m might possibly draw upon the minimum frontage requirement in Residential A zone, although the meaning of “width”, as defined, is not the same as frontage.  Clause 8B is not expressed to be limited in its application to the Residential A zone, although there are express links, referred to earlier, between clause 8B and the subdivision provisions permitting the creation of new small allotments in the Residential A zone.

1. Clause 8B refers to “development”, which is defined in the Planning Scheme to mean “the use of any land or the erection or use of any building or other structure” rather than subdivision.  Apart from the reference, in the subdivision provisions, to allotments designed in accordance with clause 8B there are a number of indications within clause 8B that it is directed towards development which involves or includes the creation of allotments.

1. Sub-paragraph (a) contains a list of matters to be considered “in assessing the suitability of the existing topography and location of the site”.  Those matters include the slope of the land and the ability to adequately drain building sites.  Such considerations are appropriate to an assessment of land suitability but are difficult to characterise as “performance standards” to be observed in erecting a building which is permitted development on a site which is already appropriately zoned and subdivided.

1. Sub-paragraphs (c) (d) and (e) contain requirements with respect to the content of a Plan of Development.  The requirements differ depending upon the size and width of the allotments.  As might be expected, the requirements are greater with respect to the smaller lots.  There is no mention of allotments with an area of greater than 600m².  The sub-paras refer variously to development which “consists of allotments” or “includes allotments” or “will include allotments” of a certain size.  Sub-paragraph (d) lists matters which shall be shown “for each such allotment”.  Those matters include, for example in the case of allotments of less than 450m², “landscaping of road and drainage reserves and areas of public and private open space”.  Sub-paragraph (e) provides for additional matters to which Council will have regard in certain circumstances “in determining permissible minimum lot dimensions” and requires only a “concept plan” for buildings and structures to be included in the plan of development for each allotment.  The provisions are consistent with clause 8B being directed towards development which involves or includes the creation of allotments.

1. Sub-paragraph (f) provides that where a site is “sealed under Plan of Development” building plans will only be approved where they are in accordance with that Plan of Development. The reference to “sealed” relates to subdivision.

1. Read as a whole, it is difficult to describe clause 8B(b) as specifying performance requirements to be observed in carrying out the permitted development of the erection of a dwelling house on an existing lot.  There appears to be little indication that the requirement in clause 8B, to undertake development only in accordance with a plan of development submitted to and approved by Council, is to apply to development which does not “consist” of or “include” or “will include” the creation of an allotment or allotments.  A plan of development will, of course, deal with matters of relevance to the ultimate built form on the allotment or allotments.  That is unsurprising in the AMCORD context.  The requirements of clause 8B however appear to be concerned with such matters in the context of development of an allotment or allotments.

1. Clause 8A was not relied upon by the appellants but should be noted.  It is expressed to deal with “dwelling houses on allotments of areas six hundred (600m²) and above on a site covered by a Plan of Development”.  There is no reference to a minimum width or frontage.  The subject site is in excess of 600m², but is not on a site covered by a Plan of Development.  The clause provides as follows:-

“8A     ‘Dwelling Houses on allotments of area six hundred (600) square metres and above on site covered by a Plan of Development’:

(1)In addition to the provisions of the Standard Building Law the following requirements shall apply to any dwelling erected on a site whether or not it is created after the appointed day:-

(a)where the site is included in an approved plan of development the dwelling shall comply with the siting indicated in the approved plan of development unless either the consent of the Council is obtained pursuant to this scheme or application is made to change the plan of development and Council approves the amended plan as the approved plan of development.

(b)an approved plan of development shall indicate for each allotment in addition to the foregoing an area of private open space designed in accordance with the provisions of AMCORD.

(c)where a development consists wholly of allotments exceeding six hundred (600) square metres in area, the plan of development need not indicate proposed buildings or building envelopes but shall indicate the maximum height of permitted retaining walls and the maximum gradient of driveways.

(2)Where the plan of development includes construction of public roads and drainage, water supply and sewerage reticulation and/or street lighting these works shall be designed and constructed in accordance with Redland Shire Council design standards and the provisions of AMCORD.

(3)Whether or not the plan of development includes new roads and/or parks the plan shall include statements and proposal plans for the retention of natural vegetation and the planting of new compatible vegetation in allotments, road and drainage reserves and public and private open areas.”

1. The obligation in sub-paragraph (a) to comply with the siting indicated in an approved Plan of Development applies “where the site is included in an approved Plan of Development”.  That is not the case here.

1. Sub-clauses (b) and (c), other the other hand, appear to contain requirements as to what should be, or need not be, indicated in a Plan of Development[10].  Clause 8A does not however, expressly contain any requirement for such a plan to be submitted for approval.  Sub-para (b) indicates what shall be indicated “for each allotment”.  Sub-para (c) is said to apply “where a development consists wholly of allotments exceeding 600m² in area”, which appears to contemplate the development of allotments.  I do not consider that these provisions, upon which the appellants did not rely, ought to be construed to apply in the subject circumstances.

   [10]  Although paragraph (b) refers to ‘in addition to the foregoing’, what comes before, in sub-para (a), is not a list of matters to be included in a plan of development, but a requirement to comply with the siting indicated, where the site is included in such a plan, unless the plan is amended or a consent is obtained.  Sub-clause 3 also states what the plan ‘shall include’, while sub-clause 2 nominates design standards “where the plan of development includes” certain things.

1. There is no need to traverse all of the complications in the construction of the various provisions of the AMCORD amendments.  When the provisions of clause 8B are considered as a whole and in the context of the balance of the Transitional Planning Scheme, particularly the other AMCORD amendments (including the amendments to the table of zones) and in light of the principles concerning the interpretation of planning instruments, the provisions of sub-para (b) of clause 8B should not be taken as imposing an obligation to obtain an approved Plan of Development upon the owner of an existing site of greater than 600m² in the Residential B zone which is not the subject of a Plan of Development where the proposal is to erect a dwelling which is permitted development within column III(a) of the table of zones and where no new allotment or allotments are involved.

1. I conclude that the subject development is self-assessable development for the purposes of the Transitional Planning Scheme[11].

   [11]It will, of course, still require assessment against the Building Code.

1. Had I concluded that the development was assessable, then the remaining issue would have been as to the level of assessment.  In that event, I would have concluded that the application was one which was required to be processed as if it required code assessment.

1. The central issue, in this regard, is how a requirement for an approved Plan of Development should be treated.  The appellant contends that it is an application of a type referred to in s 4.3 of the P&E Act.  Pursuant to subsection (2), an application under s 4.3(1) was limited to a number of specified applications.  The only one on which reliance was placed was subparagraph (d), being “the amendment of a regulatory map”.  In this context, counsel for the appellant referred to the requirement in s2.3(2) that regulatory maps “are to depict areas which are subject to particular planning controls”.  Reference was then made to the definition of “Plan of Development” in the Planning Scheme to submit that a document which “regulates the siting of an allotment or allotments” of various things answers the description of a regulatory map.

1. Regulatory maps, for the purposes of the P&E Act, formed part of the Planning Scheme itself (s 2.1).  Although, by s 4.3, an applicant was entitled to apply for the “amendment” of such a map, there was no right to apply for a new map.  In my view the submission of a Plan of Development to the Council would not have amounted to an application for the amendment of a regulatory map, nor would a Plan of Development, upon its approval, have become part of the Planning Scheme under the P&E Act.  Rather, an application which included an application for approval of a Plan of Development should be characterised as an application which would have been required for a continuing approval and, in particular, a continuing approval of the type described in s 6.1.23(d) of IPA, being an application for approval “by whatever name called, given under a former planning scheme, but not described in subparagraphs (a) to (c) of s 6.1.23(1)”.  Such an application would not have required public notification under the P&E Act and accordingly should be processed as if an application subject to code assessment.

1. Accordingly the preliminary question is determined by concluding that the proposal is self assessable development for the purposes of the Planning Scheme.  If it had been assessable then it would have been development required to be processed as if subject to code assessment.

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