Sinnamon v Miriam Vale Shire Council
[2002] QPEC 51
•11 September 2002
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Sinnamon v Miriam Vale Shire Council & Anor [2002] QPEC 051
PARTIES:
IAN TREVOR SINNAMON
Appellantv
MIRIAM VALE SHIRE COUNCIL
Respondent
and
STATE OF QUEENSLAND
Co-RespondentFILE NO/S:
1998 of 2001
DIVISION:
Planning and Environment
PROCEEDING:
Submitter appeal
ORIGINATING COURT:
Brisbane
DELIVERED ON:
11 September 2002
DELIVERED AT:
Brisbane
HEARING DATE:
26-30 August 2002
JUDGE:
Skoien SJDC
ORDER:
Appeal dismissed
CATCHWORDS:
Motel development; minor change to application; heritage values; conflict with planning scheme.
COUNSEL:
Appellant in person
Mr B D Job for respondent
Mr M E Rackemann for co-respondentSOLICITORS:
McCullough Robinson Hancock for the respondent
Crown Solicitor for the co-respondent
This is a submitter’s appeal against the decision of the Council to grant to the co-respondent a material change of use permit and preliminary approval for building and operational work for the erection of a motel and restaurant on land at Orton Court in the Town of 1770. At all material times the interest of the co-respondent has been exercised by the Department of Natural Resources (“DNR”) and thus will be referred to in these reasons.
The Site and Locality
The Town of 1770 lies about a kilometre south of the tip of a finger shaped headland which points north and which has Round Hill Head at its tip. To the east lies the Pacific Ocean and to its west is Round Hill Creek which then becomes part of Bustard Bay. The headland rises fairly steeply from the water on both sides to a ridge and is predominantly covered with quite dense vegetation. The town of Agnes Water lies about five kilometres to the south of the Town of 1770.
Captain Cook Drive, a bitumen highway, runs north up the western shoreline from Agnes Water. Within the Town of 1770 it is fringed with a line of residential allotments, mostly built on, and there is a small general store. Just to the left of the highway is a Marina and a Caravan Park and the subject site is just to the north of that, on the right of the highway. To reach the site one turns right into Parkinson Street, which is a short steep street, then right again into Orton Court. The site is at the southern end of Orton Court.
The site has an area of 8,523m² and is unallocated State land, under the custodianship of the DNR. It has frontage to Orton Court of about 20 metres. Orton Court is constructed to the site’s frontage with bitumen, kerb and channel. The site also has a 77 metre frontage to Captain Cook Drive to the west, and is separated from that road by an access restriction strip. Captain Cook Drive itself has a vegetated shoulder, about 6 metres wide between the road surface and the site. The site is on a part of a ridge, and is covered by quite dense vegetation. It slopes down moderately, then with increasing steepness to the south, that is, towards lot 25, a large allotment which lies between the site and Captain Cook Drive in that direction.
The site is permanently listed in the Queensland Heritage Register, together with an extensive area of surrounding land held by the Crown known as ‘Cook’s Landing Place’. This entry occurred on 27 March 1996. No freehold land is included in the Register.
Residential dwellings have been constructed on allotments in Orton Court and Parkinson Street. Mr Sinnamon owns a vacant lot which abuts the site. At least two of the houses in Orton Court are used for holiday letting purposes. Residential development in the Town of 1770 also exists to the north of the site in and around Endeavour Street and to the south in and around Elliot Street. Immediately to the west of, and opposite the site is a lookout and monument that commemorates the landing of Captain Cook on 24 May 1770. It is not, however, suggested that the moment marks the actual place where he landed. The most likely landing place is in the Caravan Park to the south of the site because it is on a protected sandy beach and, importantly, was once where a spring of fresh water rose and flowed to the beach. Cook was in fact in search of fresh water.
Background
In or about 1988/89 land in what is now Orton Court and Parkinson Street was subdivided to create 19 residential lots. The balance area, which comprises the site was created as Lot 20. An application to rezone the site for a motel was approved by the Council on 13 March 1989. An objector appeal which was settled prior to the Court hearing resulted in an Order approving the rezoning of the subject site to the Special Facilities (60 Unit Motel as per Court Order) Zone on 12 February 1991, subject to a number of conditions. A rezoning deed signed in May 1991 reflected that zone. However for reasons unknown, the actual gazettal of the zone for the site on 21 December 1991 was the Special Facilities (60 units in accordance with conditions set down in Council letter of 3 September 1990 to the LAC) Zone.
Certain works were undertaken in compliance with the conditions of approval for the Special Facilities rezoning but the motel development did not proceed on the site. The works undertaken included monetary contributions for water supply and sewerage augmentation, and installation of roadworks, kerbing, table drains etc. Those headworks have in fact been carried out.
In 1997 a firm of consultants prepared a Conservation Plan for the site for the Queensland State Government. The purpose of that document was to provide guidelines for the design and construction of development on the site, with specific reference to a motel. On 18 April 1997 the Queensland Heritage Council resolved to endorse the Conservation Management Plan as an ‘appropriate document to guide the future development of Lot 20’ and supported the recommendations contained in that report, including the recommendation for the vegetation buffer provided by Lot 25.
On 20 June 1997 a review of the Miriam Vale Planning Scheme was undertaken, and the site was included in the Urban Zone. The only other zone in the revised Planning Scheme is the Rural Zone. The Scheme was amended in October 1999 to reflect changes brought about by the Integrated Planning Act 1997(“IPA”). However the Planning Scheme remains a Transitional Planning Scheme under IPA (ss. 6.1.13 et seq).
It was common ground that (at least for the purposes of this appeal) the effect of the gazettal of the revised Planning Scheme on 20 June 1997 was to extinguish the approval for the 60 unit motel.
Proposed Development
The proposal in its presently modified form is for a motel comprising 36 motel units, a manager’s residence, dining room and swimming pool. The dining room will be for motel guests only and will not be open to the general public. The motel units will be developed in three buildings of two levels, each above carparking. These buildings are planned to lie along, but about 7 metres from, the southern boundary of the site. Separate buildings are proposed for the manager’s residence and dining room. The development will have a maximum height of nine metres. Some of the larger units will have kitchen facilities and will adjoin smaller units so as to be available for use by larger groups of occupants.
All buildings are to be of timber construction and finish. Materials and colours will be provided to Council for approval prior to construction and will be designed to blend with the surrounds and to minimise views of the development from key vantage points in the locality. Fourteen carparking spaces are to be located adjacent to the site’s entrance from Orton Court, with a further 36 car spaces to be provided below the motel units. Some area for the parking of boats is to be set aside. The location of most of the parking spaces underneath the motel buildings will have the effect of minimising the extent of cut and fill and vegetation removal at the site’s frontage compared with locating all carparking at the entrance to the site as had previously been proposed. As far as possible existing natural vegetation is to be preserved (exotic vegetation is to be removed) and the construction of paths is expected to deter guests from walking through the retained bushland. The planting of more native species will supplement the existing vegetation.
Modification of Application
While this point of law was not specifically argued by Mr Sinnamon (who is not a lawyer but an architect) it was raised and should be discussed.
The application out of which this appeal rises was lodged on 12 October 1999 and was for a 49 unit motel (as opposed to the earlier approval for a 60 unit motel) arranged in six unit blocks together with a commercial restaurant, pool area and manager’s residence/reception, with 56 carparking spaces located adjacent to the Orton Court frontage.
The Council’s town planner initially recommended refusal of the application as lodged on a number of bases, including his belief that the proposal would result in excessive clearing on land which is visually sensitive and of high scenic quality. However rather than refusing the application, the Council extended the decision making period to enable DNR the opportunity to respond to the concerns which had been raised.
As a consequence, DNR submitted a modified plan which was aimed at reducing the extent of site disturbance and potential impacts on amenity. This modified plan lowered the number of units to 36 arranged in three blocks, changed the commercial restaurant to a guest dining room and relocated most of the carparking to underneath the unit blocks so as to reduce the area which would be disturbed to create carparks. The modified application was then approved by the Council and it is against that approval that Mr Sinnamon appealed.
During the course of the appeal, DNR further modified the proposal to locate the internal driveway away from the common boundary with Mr Sinnamon’s land, to make consequential changes to the arrangements of the carparking near the Orton Court frontage of the site by designating some of those carparking spaces as a grass overflow carpark to alter the positioning of the units and their design in a way which will result in less cut and fill than would have been required by the approved design.
Section 4.1.52(2)(b) of IPA provides that on appeal, the court:
“must not consider a change to the application on which the decision being appealed was made unless the change is only a minor change”.
The term “minor change” is defined in Schedule 10 of IPA as:
“...a change to the approval that would not, if the application for the approval were remade including the change –
(a) require referral to additional concurrence agencies; or
(b)cause development previously requiring only code assessment to require impact assessment; or
(c)for a development requiring impact assessment – be likely, in the assessment manager’s opinion, to cause a person to make a properly made submission objecting to the proposal, if the circumstances allowed.”
The changes which have been effected to the subject proposal do not produce either of the consequences referred to in paragraphs (a) or (b). That leaves the application of paragraph (c) to be considered.
Although the definition of the term “minor change” in Schedule 10 relates to development approvals, it is appropriate to take a comparable view of the concept of “minor change” in the interpretation of section 4.1.52; (Carillon Development Ltd v Maroochy Shire Council & Anor [2000] QPELR 216 at para [9]). The determinative question is whether the change to the proposal “would be likely to attract an adverse submission that was not provoked by the proposal in its original form”; (Carillon at para [14]), that is, whether a person who would not have objected to the original proposal would object to the changed application; (Colman & Ors v Brisbane City Council & Anor [2002] QPEC 003 at para [14]).
The matter is to be determined from the perspective of the members of the community to whom the right of objection extends; (Carillon at para [18]). It is fair to assume that the hypothetical potential objector would take a rational view of the matter; (Ausbuild Pty Ltd v Redland Shire Council [2001] QPELR 409 at para [11]). Recently it has been held that the Schedule 10 definition is unlikely to be the only criterion and that the test is simply whether the change is only a minor change (Baptist Union of Queensland v Brisbane City Council & Anor [2002] QPEC 029, at 11). Although a determination of the issue depends upon the merits of each case, the test is more likely to be satisfied if the changes constitute a “lessening in intensity” (Ausbuild at para [12]).
It is unlikely that any person who was interested in the development proposal in its original form but concluded that it was acceptable and so did not object, would consider that the two sets of changes to the proposal are such as to render it unacceptable and accordingly warrant an objection. Thus, the effect of both alterations to the proposal is a minor modification only.
The Grounds of Appeal
The grounds of appeal which were actively canvassed can be summarised under the headings of heritage, amenity, vegetation, erosion and planning instruments..
Heritage
Mr Sinnamon’s case relied heavily upon the fact that the site formed part of the substantial area which is a registered place under the Queensland Heritage Act 1992 (“QHA”) and although he expressed the view that the development proposal represented a “thoughtful and conscious response” to the heritage significance he attributed to the land, I took him to suggest that no development should be permitted on the land irrespective of the town planning controls in place. I also took him to suggest that heritage issues should override planning scheme designations.
It was not disputed that the site, and particularly the vegetation upon it, is a component of the heritage significance of the Town of 1770. The contribution of the site to that significance should not however be overstated. It has an area of only 8,523 m² which represents a very small part of the total registered area, which comprises approximately 123 hectares. There is no suggestion that the site itself has any heritage significance over and above the balance of the registered area. It is not suggested, for example, that Cook, Banks, Solander, or any other member of the Endeavour party paid any special attention to the site. There is no evidence that any of them actually set foot on it.
The heritage significance of the site is not confined to the association of the Town of 1770 with Cook’s expedition or to the later connection with Matthew Flinders who also landed in the area. The reasons for entry on the Heritage Register include;
“The Town of Seventeen Seventy and its landscape setting and approaches is important in demonstrating the principal characteristics of a small, coastal, Queensland camping and holiday village which began as a camping site for fishing and boating holidays, and continues this function to this day.”
Any suggestion that the site should not be developed at all is inconsistent with its inclusion within both the Urban zone and the Urban (Residential and Future Expansion) designation in the planning scheme. The planning scheme expressly contemplates that the site is suitable for development. Furthermore, QHA specifically contemplates the development of registered places where such development is approved by the Heritage Council. This is acknowledged by the Assessor’s Report (which was included in Mr Sinnamon’s tendered statement) which confirms that the entry of a place on the Heritage Register does not preclude the future development of that place. Finally, the Conservation Management Plan was approved by both the Heritage Council and the respondent Council. That Plan expressly contemplates the development of the site as a motel and sets out guidelines by which heritage values will be maintained.
It is relevant that a separate development approval is required under QHA before the proposal may proceed. Section 35(2) of that Act provides:
“if the effect of carrying out a proposed development would be to destroy or substantially reduce the cultural heritage significance of the registered place, the application may only be granted if there is no prudent or feasible alternative to carrying out the development”.
It is in the context of an application under QHA that the effect of a development proposal upon heritage significance may be considered in isolation of the planning scheme. This hearing of this appeal does not represent an opportunity to pre-empt the decision of that application: Imbercote Pty Ltd v Maryborough City Council [1996] QPLR 376.
Mr Sinnamon appeared to suggest that the heritage significance of the site has not been properly considered. However it is to be noted that because of the site’s inclusion on the Heritage Register the development application required referral co-ordination. The Environmental Protection Agency (“EPA”) was a referral agency and made an information request which was complied with by DNR. The absence of any adverse response from EPA suggests that it was satisfied by the information provided.
In looking at the heritage issues, it must be borne in mind that nowhere, including in the heritage listing, is it said that each and every tree on the site has heritage significance. Rather, the site is simply part of a larger area with cultural heritage significance. Part of the character of that wider area is low-key development which is seen in and around the vegetated environment. Indeed part of the heritage listing acknowledges the importance of the Town of 1770 as demonstrating a holiday or fishing village. It is difficult to see how the development of a relatively small scale motel which will be very substantially screened from view (see paras [39]-[41]) will adversely affect the cultural heritage significance of the Town of 1770.
While the strategic plan does seek to preserve cultural heritage significance generally, in Agnes Water and the Town of 1770 it includes areas of land within the Coastal Protection designation. That designation is intended to “protect areas of environmental, cultural heritage or other significance ... along the coastline that require specific protection as a consequence of the particular characteristics and values of those areas” (s.1.35.1). Such areas are generally intended to remain in their natural state (s.1.35.2(a)). The site is not contained within that designation.
In any event, as is reflected by the Conservation Management Plan, the important consideration regarding impact upon the heritage significance of the site is the ability of the proposal to be absorbed into the site and not create any obvious visual intrusions. Mr Chenoweth’s evidence was that no such visual intrusions would occur. Professor Brannock’s evidence was also that the proposal would not adversely impact upon the heritage characteristics of the site and its locality. I accept their evidence on these points (paras [39] and [41]).
Amenity
The amenity issues related to traffic and noise. The reference to light distribution was too vague to be a real issue. As to the provision of parking spaces, I incline to the view that the proposed grassy “overflow” area to the north east of the block could well be a valuable area for boat parking, and I invite the parties to consider that.
The evidence of Mr Viney on traffic, which related both to the effect on amenity, and to safety aspects was not seriously challenged and certainly not by any conflicting expert evidence. Mr Viney was of the opinion that even if his projected traffic figures were multiplied by a factor of 2 or 3, the impact upon the capacity of Orton Court and Parkinson Street would be negligible. Capacity, in this respect, encompasses both safety and noise. Even with the motel at full capacity I am quite satisfied that the numbers of traffic movements to and from the motel would be well within the tolerances of a quiet residential street.
Similarly, Mr Kamst’s evidence that the slight increase in noise levels at nearby residences would be unlikely to be detected by the average person was not seriously challenged and no expert gave evidence to the contrary of his.
I am satisfied that the proposed development would not to any unreasonable extent degrade the existing very pleasant amenity of the immediate area of the site nor of the more remote parts of the Town of 1770.
Vegetation
The impact of the proposal on visible amenity and upon the natural environment were carefully assessed by Mr Chenoweth. The form of development proposed and the siting of the buildings within the land allows for the vast majority of existing trees to be retained. The footprint of each of the buildings was pegged by surveyors so that the actual trees which would be lost, or even threatened, could be identified and the height, spread and nature of the canopies of those which would remain could be accurately determined. The buildings are to be set back a minimum of seven metres from the southern and western boundaries and that, together with the width of and vegetation upon the land which separates Lot 20 from Captain Cook Drive gives very substantial opportunity for screening of the buildings. Mr Chenoweth proposes further dense planting of appropriate species.
With the retention of most of the existing trees, and the opportunities for supplementary planting, development will be substantially screened from view. Those glimpses of buildings which may be seen will not be obtrusive or out of place in the context of the Town of 1770. For the reasons given by Mr Chenoweth, the development will not occasion any detrimental impact upon the wider environment of the area and indeed the form of development proposed is considerably more sensitive than would be the likely result if subdivision of the site for separate residential allotments took place, an event which the planning scheme would allow
Similarly I regard the possibility of unlawful destruction of vegetation as less likely in a motel development than if separate residences were built. Finally I think that separate residential development of the site would be much more likely to threaten native fauna because of the building of fences and the likely presence of household pets than would the motel at which, as conditions of development, no pets would be allowed and no fences built.
Erosion
An attempt was made to suggest that the site would be adversely affected by erosion should the development proceed. To the extent that such an occurrence is possible, (which I regard as more likely during construction than once Mr Chenoweth’s further plantings have been established), such matters may be adequately dealt with by conditions of approval including, for example, the requirement to submit a construction management plan before the commencement of works and to adhere to that plan.
Planning Instruments
The current Planning Scheme for the Shire is a transitional planning scheme (IPA ss.6.1.2 et seq). Pursuant to the transitional provisions of IPA, the development application is to be assessed having regard to the matters referred to in s. 6.1.29(3), including the transitional planning scheme. Parts of the repealed Local Government (Planning and Environment) Act 1990 (“P&E Act”) still apply (s. 6.1.30(3) IPA).
The planning scheme area is divided into only two zones. The site is contained within the Urban zone, the intent for which expressly contemplates urban development, including tourist development (s. 2.2.1(d)).
The Table of Zones (in s.2.5.1) provides that development for Accommodation Buildings and Multiple Dwellings (and Visitor Accommodation) represents either code assessable development, described as “conditional compatible use” (Columns 4 and 5) or impact assessable development, described as “potentially compatible” (Column 6). Such uses do not fall within the “incompatible use” category of impact assessable development (Column 7). It is apparent therefore that the development of the land for a motel is tantamount to a consent use under the repealed Act rather than a prohibited use. Consequently if s.4.13(5A) of the P&E Act strictly applies, if there is found to be a conflict with the strategic plan, the application must be refused unless there are sufficient planning grounds to justify approval of the application despite such conflict.
The inconsistency with the planning scheme suggested by Mr Sinnamon focuses upon the strategic plan. In general, the provisions which he contends are not “met” by the proposal relate to those which are directed at preservation of amenity, the environment, and heritage and cultural sites.
His Honour Judge Wilson SC recently observed in Stariha V Redland Shire Council & Anor [2002] QPEC 039 at para [18] that the correct approach to the interpretation of planning documents including strategic plans is that summarised in Harburg Investments Pty Ltd [2000] QPELR 313 at 318 in these terms:
“(a) it is seldom appropriate in matters such as these to rely on any specific statement of intent or of aims or objectives in the planning documents as determinative. It is rare that an express imprimatur or injunction can be found in them for a particular proposal. Almost invariably a diligent search of the planning documents can unearth in such statements passages which appear to argue for or against the proposal but generally speaking it would be unwise to place too much weight on such a passage. The planning documents, while they are given the force of law ... are not drawn with the precision of Acts of Parliament and the statements of intent or of aims or of objectives are intended to provide guidance in the difficult task of balancing the relevant facts, circumstances and competing interests in order to decide whether a particular proposal should be approved or rejected. So such statements should be read broadly. Degee v Brisbane City Council [1998] QPELR 287 at 289.
(b)A Strategic Plan only sets out broad desired objectives and not every objective in the plan has to be met before the proposal of an applicant may be accepted (see Lewiac Pty Ltd v Gold Coast City Council (1994) 83 LGERA 224 at 230. The interpretation of the strategic plan ought to involve a ‘common sense approach’ (see ZW Pty Ltd v Hughes & Partners Pty Ltd [1992] 1 Qd. R. 352 at 360); in interpreting a strategic plan the document should not be read too narrowly; it should be read broadly rather than pedantically; and one should adopt a sensible practical approach (see Yu Feng Pty Ltd v Maroochy Shire Council (1996) 96 LGERA 4 at 73, 75 and 78; ... a conflict must be plainly identified and, in any event, such a conflict alone may not have the result of ruling out a particular proposal (see Fitzgibbons Hotel Pty Ltd v Logan City Council [1997] QPELR 208 at 212).”
The “balancing” in this appeal involves a consideration of the broad aims and objectives of the strategic plan with which Mr Sinnamon suggests the development proposal conflicts compared with those aims which seek to facilitate orderly development of Urban areas, through the consolidation, infilling and appropriate expansion of urban centres (ss 1.6.2 and 1.6.3(a) of the strategic plan); develop the Urban areas of the Shire for residential and associated purposes (s 1.12.1 of the strategic plan); and to promote the development of tourism facilities (s. 1.2.1.2(d) of the strategic plan). Agnes Water and The Town of 1770 are nominated as the “main centres for tourism development” (s.1.6.5(a)(ii) of the strategic plan) and the “principal tourism focus within the Shire” (s.1.7.3(b) of the strategic plan). Appropriate locations for tourist facilities include those which are capable of being supplied with adequate and appropriate infrastructure (s 1.7.3(e) of the strategic plan). All of those aims argue strongly in favour of the motel development.
Those aims are supported by the preferred dominant land use designations. The subject land has an Urban (Residential and Future Expansion) preferred dominant land use designation, a designation which relates specifically to Agnes Water and Seventeen Seventy. However, in support of Mr Sinnamon’s contentions, s.1.24.1 of the strategic plan states that land so designated is intended to accommodate low intensity residential development.
Although low intensity multiple dwellings or accommodation buildings are included under the heading “Preferred development” for the designation, s. 1.24.2(d)(i) provides that such development “may be approved provided that the number of dwelling units does not exceed three”. It is in respect of that designation that the only plainly identifiable potential conflict between the proposal and the strategic plan can be said to exist.
The limitation seemingly imposed by s. 1.24.2(d)(i) is a restraint which is difficult to apply to the circumstances of this appeal when one has regard to:
(a) The ambiguity of the provision. A motel does not easily fit within the definition of “multiple dwelling” but rather seems to be “visitor accommodation” which is specifically excluded from the categories set out in the definition of “multiple dwelling”. Similarly the proposal does not easily fit within the definition of “accommodation unit”, because some of the proposed motel units are to be self contained which are excluded in the definition of accommodation unit;
(b) The history of the site. The site was specifically created for a motel development of substantially greater density than that which is now proposed and much greater than the restricted number laid down in s.1.24.2(d)(i);
(c) The pattern of subdivision of the 130 existing allotments within this designation in the Town of 1770. These allotments (excluding the site), range in area from 506 m² to 1,194m², an average of 692 m². The site is accordingly more than 7 times as large as the next largest urban allotment and 12.3 times as large as the average;
(d) The fact that the intended motel development of the land is acknowledged in the planning study prepared for the current transitional scheme. The introductory passages of the planning scheme acknowledge that the scheme is supported by the planning study;
(e) The Council’s approval of the Conservation Management Plan and the development contemplated by that plan immediately after gazettal of the current planning scheme.
For these reasons, I do not interpret 1.24.2(d)(i) of the strategic plan as conflicting with the application to establish the proposed motel on the site.
If that conclusion is wrong, and s. 1.24.2(d)(i) is to be considered a valid control over the site it is of persuasive relevance only: Vynotas v Brisbane City Council [2001] 112 LGERA 206 per Davies JA at p 211.
Further, there are a number of planning grounds which are relevant and highly persuasive including:
(a) the fact that lot 20 (the site) was created expressly for the purpose of a motel, and that it is the only allotment in the Town of 1770 of a size sufficient for the development of a motel;
(b) the land has the necessary infrastructure for the proposal. Indeed the availability of infrastructure to the subject land and to no others in the Town of 1770 is as a direct consequence of contributions paid by DNR following the approval of the rezoning of the land to the Special Facilities zone;
(c) consistency with the intent of the Urban zone, and more particularly consistency with the aims and objectives of the strategic plan to promote tourist development, particularly in Agnes Water and the Town of 1770;
(d) the proposal represents orderly, infill development;
(e) the integrated nature of the proposal represents a more desirable planning outcome than the subdivision of the site into separate residential allotments;
(f) the motel will meet a need for accommodation facilities in the Town of 1770, and in particular will provide a facility which is not presently available.
Accepting for the moment that s.4.13(5A) of the P&E Act strictly applies, the planning considerations I have set out in para [54] are sufficient to justify approval of the application notwithstanding the conflict with the strategic plan (assuming there to be one contrary to my finding in para [52]).
Conclusion
I have considered Mr Sinnamon’s oral submissions and read his written material. As I have said he is not a lawyer but is an architect and a man with considerable heritage expertise. His contribution to the appeal was thoughtful and his attitude was moderate, often conciliatory. Ultimately however the evidence and the law did not support his case.
The appeal must be dismissed.
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