Spondor Pty Ltd as trustee v Maroochy Shire Council
[2005] QPEC 23
•8 April 2005
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Spondor Pty Ltd as trustee v Maroochy Shire Council [2005] QPEC 023
PARTIES:
SPONDOR PTY LTD AS TRUSTEE FOR THE GARDINER FAMILY TRUST (Appellant)
AND
MAROOCHY SHIRE COUNCIL (Respondent)
FILE NO/S:
346 of 2004
DIVISION:
Planning and Environment
PROCEEDING:
Development Appeal
ORIGINATING COURT:
Planning & Environment Court of Queensland, Maroochydore
DELIVERED ON:
8 April 2005
DELIVERED AT:
Maroochydore
HEARING DATE:
29 – 31 March 2005
JUDGE:
Judge J.M. Robertson
ORDER:
[1] The appeal is allowed.
[2] Matter adjourned to enable the parties to consider any appropriate conditions in the light of my reasons.
CATCHWORDS:
Application for development permit refused; whether proposal conflicts with planning scheme; proper construction of planning scheme, issues of height density set backs and street appearance.
Cases cited:
Luke & Ors v Maroochy Shire Council & Watpac Developments [2003] QPELR 447
Statutes cited:
Integrated Planning Act 1997
COUNSEL:
P. Lyons QC (for the appellant)
A. Skoien (for the respondent)
SOLICITORS:
Clayton Utz (for the appellant)
Maroochy Shire Council (for the respondent)
INTRODUCTION
The appellant Spondor Pty Ltd as trustee for the Gardiner Family Trust (“Spondor”) appeals against a decision of the Council on 7 September 2004 which refused an application for a development permit to erect a building on land situated at the north-western corner of the Parker Street, Aerodrome Road intersection at Maroochydore, and across this road from the beach. The site is a remnant block comprising an area of 625 square metres. It is irregular in shape and is located generally at the gateway between development that has occurred along Alexandra Parade to the south and development that has occurred along Aerodrome Road and Sixth Avenue to the north-west.
The original proposal was for a seven storey building with roof top terrace and basement car parking. In the course of the IDAS process the proposal changed and at the time of refusal, it was for a seven storey building with one residential unit on each floor, a roof top terrace and basement car parking. Prior to the hearing the proposal changed again as a response to Council concerns, and the plans contained in Exhibit 2 represent the proposal considered by this Court.
Mr Skoien for the Council conceded that the amendments to the proposal were ‘minor’ in the sense in which that term is used in s4.1.52(2)(b) of the IPA.
The decision notice of the Council dated 7 September 2004 sets out the reasons for refusal as:
“1. The proposal is not consistent with the preferred maximum building height for the Precinct as detailed in Maroochy Plan 2000;
2. The proposal is not consistent with the preferred maximum density for the Precinct as detailed in Maroochy Plan 2000;
3. The proposal is not consistent with Acceptable Measures of the code for Multi-storey Residential Premises as contained in Maroochy Plan 2000;
4. The proposal is not consistent with the Intent for the Precinct with regard to the Landscape and Building Form provisions.”
The reasons rely entirely on the Planning Scheme and no separate issue of a general planning nature is raised.
In his written submission, Mr Skoien on behalf of the Council, helpfully summarised the issues in the appeal. He said:
“In short, they relate to questions of conflict with the Planning Scheme and any consequent impacts arising from:
(a) the height of the building at seven storeys, plus a rooftop terrace;
(b) the density of the residential use (both with regard to the number of dwelling units and the gross floor area of the building);
(c) the setbacks of the building from the street frontages (in particular, the street frontage to Alexandra Parade / Aerodrome Road);” (relationship with other buildings, setbacks and building envelopes, balconies)
(d) “design details at street level (in particular, the width of the open space adjoining the public footpath, the raising of the ground level on a podium, and the inadequacy of landscaping).” (relationship with street, landscaping)
It is for Spondor to establish that the appeal should be upheld. As the proposal is impact assessable, any decision must not (relevantly) “conflict with the planning scheme, unless there are sufficient planning grounds to justify it”: s3.5.14(2)(b) of the IPA. Spondor’s case is that there is no conflict with the planning scheme on its proper construction; alternatively if I am against it on that submission, it submits that there are sufficient planning grounds established on the evidence to justify approval of the proposal.
Construction of the Planning Scheme
The Maroochy Plan 2000 is a performance based scheme as regards the regulation of development and the management of impacts of development (Vol 1, p12, 2.2(1)). For assessable development such as this, the Plan provides that applicable acceptable measures:
“provide an opportunity for streamlining approval processes while achieving the criteria and stated purpose. However other ways of achieving the criteria and stated purpose of each and any element of an applicable code may be proposed by the applicants.”
The relevant principles for construing planning schemes generally, and this scheme in particular, are well known and, in this case, uncontroversial. They include:
1. planning schemes are to be construed broadly, rather that pedantically or narrowly, and with a sensible, practical approach;
2. as a whole;
3. in a way which best achieves the apparent purpose and objectives;
4. in light of the IPA’s clear proscription in s2.1.33 against prohibiting development or the use of premises;
5. although planning schemes have the force of law, they are largely the work of town planners, and are not drawn with the precision of an Act of Parliament;
6. ambiguities or inconsistencies are to be determined in context, according to the intent of the Planning Scheme; and
7. a ‘purposive’ approach is to be taken to the construction of the Maroochy Plan 2000.
In Luke & Ors v Maroochy Shire Council & Watpac Developments [2003] QPELR 447, his Honour Judge Wilson S.C. set out these various principles at paragraphs 38-60 in a detailed, and helpful analysis of the Maroochy Plan 2000.
At paragraph 60 his Honour concluded his analysis thus:
“The proper method of construction is that adopted in the authorities set out above, involving identification of those parts of the planning scheme which are germane to the issues in the case, and their consideration to discern the tenor of the scheme, as a whole, and, by that process, to discover whether or not the proposed development accords with the scheme.”
The Planning Scheme – specific provisions
Under the Planning Scheme, the site is:
(a) included in the Multi-storey Residential Precinct Class;
(b) included in Planning Area No. 7 (Alexandra Headlands / Cotton Tree);
(c) included in Precinct 6 (Alexandra Parade North);
(d) immediately across Aerodrome Road from Precinct 4 (Sixth Avenue).
When considering whether there is conflict with the planning scheme, the following propositions are (relevantly) established on the authorities:
“(a) it is unwise to place too much weight on a passage which appears to argue for or against a proposal, and which is found in a statement of intent or of aims or objectives in a planning scheme;
(b) statements of intent or of aims or objectives in planning documents are to be read broadly;
(c) not every objective must be met before a proposal can be approved;
(d) a conflict must be plainly identified.”
The Maroochy Plan 2000 is divided into 4 volumes. Volume 2 contains the Strategic Plan and Volume 3 contains general statements of intent for precinct classes and statements of desired character for planning areas and precincts, and Volume 4 contains the Codes.
Statements applicable to Multi-storey Residential Development in the Strategic Plan (e.g. Volume 2, p15, 3.5.7) are taken up in the general statements of intent for precinct classes in Volume 3 (see p10, paragraph 4) and are relevant to this Court’s decision.
Not surprisingly, the parties focussed on the terms of the Planning Scheme directed at the planning area, and precinct in which the site is located (Vol 3, pp153-154, pp159-160), and the relevant Code for Multi-storey residential premises contained in Volume 4 and commencing at p197, paragraph 4.4.
The issues
(a) Height
The proposed building is not more than 25m but contains 7 storeys. There is no longer any suggestion that the roof top terrace as set out in Exhibit 2 constitutes an eighth storey. In the planning scheme, the “Maximum Building Height” for Precinct 6 in which the site is situated is 6 storeys (but not more than 25 metres). Mr Lyons submits that this should be construed as meaning “preferred” maximum building height, consistently with the purposive approach and by reference to other parts of the scheme. For example, he refers to the relevant Code and, in particular, Element 4 dealing with the building envelope which is at p203 of Volume 4. The maximum height for this precinct is taken up by acceptable measure A1.1. which states:
“Buildings have a height of not more than that stated are preferred for the relevant precinct …” (my emphasis)
I did not understand Mr Skoien to submit otherwise. Indeed, the Council included the word “preferred” in its reasons for refusal. Rather his submission is that what he calls an “accumulation” of conflicts with the planning scheme, including on the issue of height, lead to a conclusion that the appeal must fail.
The relevant performance criteria associated with Acceptable Measure A1.1.provides that premises must provide for “(c) suitable height … taking into account the potential development of adjacent sites and the impact of a development on the character of the area generally.”
The site has only one immediate neighbour and that is the 14 storey Beachfront Towers which stands behind the site with frontages to Parker Street and Aerodrome Road. This building was constructed over 20 years ago under the superseded scheme and its form was subject to some significant criticism in the course of the evidence. Under the present scheme, Beachfront Towers also falls within Precinct 6 and would clearly not comply with the maximum height either in storeys or in actual height. Similarly, a number of buildings previously constructed along Aerodrome Road would be non-compliant. These include Key Largo (adjacent to Beachfront Towers) at 13 storeys and Sebel further down Aerodrome Road at 14 storeys.
The scheme provides for buildings of up to 10 storeys but not more than 37.5m in the adjoining Precinct 4 along 6th Avenue, whereas Precinct 6 (notwithstanding the existence of the buildings referred to above) allows for buildings of up to 6 storeys but not more than 25 metres. Although it is not entirely clear, the drafter of the scheme seems to recognise this tension in the intent provisions for Precinct 6 where it is stated (at 159):
“A substantial amount of redevelopment has occurred recently. New buildings include medium rise apartment buildings, some of which incorporate street level shops. Some of the taller new recent buildings conflict with the scale and character of older development due to their massing and long facades. However, well-designed low to medium scale mixed use residential developments are generally appropriate in this precinct if issues of scale and character are handled with sensitivity having regard to neighbouring development.”
Further along Alexandra Parade and south of the site are the Mylos and Kalua developments (4 storeys) and the Seaforth Apartments of 6 storeys although at least one of the planners Mr Brewer, who gave evidence on behalf of the Council, thought the roof top treatment of Seaforth may be non-compliant with the height provisions.
There was much debate about the effect of another statement in the planning scheme under “Landscape and Built Form” in Precinct 6:
“New premises should provide a transition of scale and density between the higher density premises in the nearby Sixth Avenue Precinct (at Cotton Tree) and the lower density premises in the adjacent Alexandra Parade South precinct.”
It is common ground that Precinct 4 includes 6th Avenue and that Alexandra Parade South is included in Precinct 11. The debate between the planners Mr Brewer and Mr Venn (for the appellant) demonstrates I think, why it is that we construe planning schemes as a whole and not pedantically or too prescriptively.
As Mr Lyons points out in his general submission (dealing with the application of the Codes in the planning scheme in relation to the reasons for refusal on the issues of height, density and character), the scheme itself recognises that acceptable measures are not prescriptive for assessable development, and identify only one means by which the performance criteria can be met. Similarly the scheme recognises that the purpose of a code may be achieved by various means, and the outcomes which best achieve the purpose of the code, and of each element, are identified in the performance criteria. This all harks back to the fact that the Planning Scheme is performance based.
Clearly, the scheme recognises that on the issue of scale (of which height is an important component) regard must be had to neighbouring development, and endeavouring to construe the above passage in isolation is bound to lead to differing views.
What the evidence clearly establishes is that the proposed building will not exceed 25m. It will provide a very attractive transition or gradation in scale from the neighbouring Beachfront Towers, which according to all the experts is an ugly plain building which Mr Robinson (the architect who gave evidence for the appellant) described as “one of the greatest planning blunders” on the Sunshine Coast and “an indictment on the precinct”. I accept Mr Robinson’s evidence (supported as it was by Mr Venn) that “the proposal reinforces the predominate (sic) built form i.e. 6 storey while delivering a very important urban design bonus of gradation between the adjacent Beachfront Towers / Sebel and Cotton Tree Development, and the buildings to the south.” The proposal is also consistent with a constant theme in the planning scheme, and that is that greater intensity of development is favoured near the beach front.
An overly prescriptive construction of the planning scheme particularly in a piece-meal way can lead to some peculiar results, as demonstrated by the debate about a 6 storey, 25m building (and therefore compliant with the maximum building height for the precinct). The appellant arranged for its architect to prepare an elevation plan for such a building, and I agree with Mr Lyons that it is difficult to see how this design for 7 storeys would be unacceptable on height grounds, whereas the 6 storey building of the same height would be acceptable. To be fair, Mr Brewer seemed to accept this in cross-examination, although he continued to maintain (in relation to density and character) that the present design would be more “busy”.
I accept Mr Robinson’s evidence regarding the montage of photographs (Exhibits 1, 5A and 5B) prepared by an expert at Mr Robinson’s direction, which portray the site as it presently appears as one travels down Aerodrome Road and into Alexandra Parade to a point on the headland to the south overlooking the beach, and the same views with the building in place. The photographs show graphically how the building will achieve the transition or gradation in scale referred to earlier; and secondly even more graphically demonstrate the validity of Mr Robinson’s evidence concerning the dynamic visual effect of this new building as contrasted with Beachfront Towers. I accept his evidence supported by Mr Venn that the final photographs in the montage demonstrate how the new building will be associated on the skyline with its taller neighbours in the same precinct, and in the 6th Avenue precinct to the north. I disagree with Mr Skoien that this mitigates against the proposal for the reasons expressed above.
(b) Density
The proposed development is for 7 units. A strict application of the dwelling unit factor (“DUF”) calculated by reference to the table set out at p160 of Volume 3 of the planning scheme, would result in a development limited to two units. Similarly the maximum plot ratio preferred for the site is 1:00 whereas the site ratio of this proposal is 1.8. Mr Venn compared the population densities of existing development; conceding of course that these took place under the superseded scheme, and his unchallenged evidence in this regard is set out in the table on p24 of his report. What this evidence demonstrates is that the proposal compares favourably with these other developments as to population and unit density. It is a discrete piece of evidence that again dramatically demonstrates perhaps why the IPA and the drafters of the schemes under the Act (particularly for impact assessable development) favoured an approach to assessment which is performance based. When Mr Brewer observes (correctly) in his report that the DUF of the proposal is 2.5 times the allowable DUF; it could cause a reader to envisage a proposal which falls dramatically outside the preferred densities of the planning scheme, but that impact evaporates when one looks at the whole proposal in the light all of the relevant parts of the planning scheme.
On this issue of density in particular, there is some evidence that is particularly persuasive when one approaches assessment in the correct way. It is common ground that the site is a special remnant site which is in a significant position as it is at the gateway of the transition from the 6th Avenue precinct to the north and the development along Alexandra Parade to the south. Mr Brewer referred to it as having a “significant position” in his report but he accepted that the site could be described as a gateway location. He accepted as a planner that good urban design planning would seek to have a “top building” or a “marker” or such a site. It is common ground that the building proposed for the site justifiably fits these descriptions. Mr Robinson was effusive in his praise of the design, and thinks that if constructed it will be the best building in Alexandra Parade and second only to the Sebel in Aerodrome Road.
As Mr Lyons points out in his submission, density provisions are to be implemented through applicable codes with the intention of achieving compatibility with the nature, scale and amenity of surrounding development. The DUF is taken up in the relevant code as an acceptable measure, however the acceptable measure is only one way in which the performance criterion might be satisfied.
When one looks at the density issue in the light of the scheme as a whole, it is apparent that despite the DUF and higher than preferred plot ratio, the proposal respects the amenity of the surrounding area and development and is consistent with the intended character for the precinct with more dense development to the north in Precinct 4 and less dense development to the south. It is also consistent with the intent of the planning scheme to have more dense development adjacent to the beachfront.
(c) Relationship to Existing Buildings
A number of the residents of the adjoining Beachfront Towers submitted objections which the respondent considered and which are clearly relevant to the assessment. Beachfront Towers is erected on an elevated podium with a retail floor presumably at ground level and a floor of carparking above. Its character and visual effect have been referred to earlier. It follows that if the proposal goes ahead, occupiers of the residential units from the seventh floor down will have their ocean views interrupted. Mr Venn’s complex evidence on loss of views (set out in Figure 3 of his report) remains unchallenged and I accept it. These units will have their middle rather than the lateral (and more desirable) coastal perspective view obstructed, which on Mr Venn’s calculation is less than 25% from the balconies. As he points out in his report the intent of the planning area recognises that some views to existing residences will be lost to new development but that the relevant performance criteria in the applicable code requires that proposed developments should seek to minimise that loss. As Mr Lyons observes, a development which fully complies with the acceptable measures (height, density, setback etc) would also have an effect on views from Beachfront Towers. I also accept Mr Venn’s evidence dealing with overlooking and shadowing which are factors to be considered having regard to the proposed building’s relationship to existing buildings such as Beachfront Towers. I agree with Mr Venn, that the nature of the site (i.e. having effectively a frontage to three roads and only one immediate neighbour) lends itself well to the type of building proposed, as the shadow encroachment on adjoining buildings is greatly reduced. In the amendments to the proposal during the IDAS process, the appellant moved the building ‘forwards’ so that it was further away from Beachfront Towers. This is also relevant on this particular issue, as is Mr Robinson’s uncontested evidence about the pleasant and appropriate architectural treatment of the back of the building which will face Beachfront Towers.
(d) Relationship with the Street generally
When Mr Brewer wrote his report, he was considering plans which (relevantly) had a more stark proposed treatment of the street frontage than envisaged in the revised plans in Exhibit 2. The provision in the amended plans for a one metre high glazed balustrade on top of a one metre brick podium with planter box, to some extent, met his concerns about the relationship with the street generally. There was considerable evidence from the planners and Mr McGowan (the landscape architect called by the appellant) about the proposal by reference to various parts of the planning scheme. Mr Brewer was still inclined to be critical of the proposal as presenting a “hard edge” to the street frontage and being unacceptably “busy” in its appearance. He properly acknowledged that the site in fact has only very limited frontage to Alexandra Parade, and that the only appropriate access point for any development on the site has to be from Parker Street. He accepted that the design has light tactile edges, and considerable articulation both vertically and horizontally, and that the shades would break up the building facade. He acknowledged (particularly when taken to Exhibits 5, 5A and 5B) that the whole immediate area is already very busy and that this building will achieve considerable improved visual impact at pedestrian level by parking obscuring Beachfront Towers. He agreed that the new landscape concept plan Exhibit 2 Drawing 2743.03D did provide, to some extent, a soft edge to the street. In so as there remained any conflict after Mr Brewer was cross-examined by Mr Lyons, I accept Mr McGowan’s evidence that the design will present a “nice pedestrian space around the entire frontage” and Mr Venn’s evidence that it will present as an interesting and welcoming façade at street level. Mr Skoien did his best to undermine any suggestion that the design at street level would “help transform (Alexandra Parade) into a sub-tropical foreshore boulevard”, but the appellant’s case, on this issue as with many, is that to overly concentrate on these words was to descend to the more prescriptive piece-meal approach not sanctioned by this planning scheme.
(e) Setbacks and Building Envelopes
Again the special on gateway nature of the site and its unusual shape and characteristic as a remnant site are very relevant on this issue. Mr Lyons makes a very telling point in his submission concerning the use of the relevant performance criteria and acceptable measures. The proposed design does not comply with the setbacks referred to in Acceptable Measures A1.2., in Element 4 on p203, Volume 3; whereas the performance criteria P.1. states that premises must provide for:
“(a) the setback of dwellings from the street frontage appropriate to the efficient use of the site, the comfort of residents, and the desired appearance of the streetscape.”
Mr Lyons’ point is that strict adherence to the setbacks provided for in the acceptable measures will not achieve these performance criteria for this special site, and I agree with him.
In an interesting piece of cross-examination he took Mr Brewer carefully through the plans by reference to the setbacks provided for in A1.2., and Mr Brewer agreed it would lead to a crowded development, of much smaller unit size, and one which I find would not satisfy any of the performance criteria set out in P1(a).
I accept Mr Robinson’s evidence (and Mr Venn’s) that this proposal, on this special site, satisfies all of the performance criteria set out in P1(a), notwithstanding its non-compliance with the relevant acceptable measure.
(f) Balconies
Element 6 in the applicable code states as its objective (inter alia):
“To provide sufficient private open space for the recreational needs … of residents, with such open space designed and located to receive sunlight and well integrated with a living area of the dwelling …”
This objective is taken up in Performance Criteria P1:
“Dwellings must be provided with private open space … which facilitates:
(a) active use by residents;
(b) adequate privacy;
(c) access to direct sunlight; and
(d) convenient access from a main level area.”
On this point, the respondent points to the failure of the design to comply with acceptable measure A(1)(b) although it acknowledges that there is compliance with A1(a).
I am satisfied, on the basis of my acceptance of the evidence of Mr Robinson and Mr Venn on this issue, that the proposal achieves the performance criteria. The total balcony area provided is more than twice that called for by the acceptable measure relied upon by the respondent. Again, the position of the site facing the beach is an important consideration on this issue and, as Mr Lyons points out, the performance criteria applies to all Multi-story Residential Development in the Shire, and location will be an important issue in assessing the proposal as it relates to open space.
Other Planning Issues
Both planners and Mr Robinson agreed that the site at present is “under capitalised” and contains an “inappropriate” building, that is the old Budget Rent-a-Car premises now no longer in use. All the evidence points to this proposal being for a “high quality” premises. These are all references to intent provisions for Precinct 6 in the Planning Scheme under the heading “Landscape and Built Form”. The proposal is for residential units only, a preferred use in the locality. The original proposal was for a retail ground floor, but the decision notice related to a development containing a ground floor residential unit. The proposed development capitalises on the beach and ocean views in accordance with the statement of intent for the precinct. Although Mr Lyons did not refer to it in his final submission it is also relevant to note in this context Mr Robinson’s uncontested evidence that this will be the only development on the market which provides one unit per floor and thus a high degree of privacy (which is an element of comfort) for residents.
Conclusions
It follows from these findings that the appellant has satisfied me that the proposal does not conflict with the Planning Scheme and should be approved. Were I to be found to be incorrect in that conclusion, for the planning reasons identified throughout these reasons, I am satisfied that there are sufficient planning grounds to warrant approval notwithstanding conflict.
The appeal is allowed. I will adjourn the matter to enable the parties to consider any appropriate conditions in the light of my reasons.
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