Tamborine Mountain Progress Association Inc v Beaudesert Shire Council
[2006] QPEC 60
•31 May 2006
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Tamborine Mountain Progress Association Inc & Ors v. Beaudesert Shire Council & Anor [2006] QPEC 060
PARTIES:
TAMBORINE MOUNTAIN PROGRESS
ASSOCIATION INC AND ORS
Appellants
and
BEAUDESERT SHIRE COUNCIL
Respondent
and
BRYAN McCUTCHEON
Co-Respondent
FILE NO:
BD 4754 of 2005
BD 4756 of 2005BD 4758 of 2005
DIVISION:
PROCEEDING:
ORIGINATING COURT:
DELIVERED ON:
31 May 2006
DELIVERED AT:
HEARING DATE:
16, 17, 18 May 2006: submissions 24 May 2006
JUDGE:
Skoien ACJDC
ORDER:
Appeals dismissed
CATCHWORDS:
Older persons’ accommodation; DCP preferences for two localities; amenity; need; whether “concentration” because development abuts similar development.
COUNSEL: Mrs J Peat and Ms S Bonnell, lay advocates, for appellants
Mr T Trotter for respondent
Mr S Ure for co-respondentSOLICITORS:
Corrs Chambers for respondent
IPA Law for co-respondent
These are three adverse submitter appeals against the decision of the Council, to approve an application for a material change of use to establish accommodation units (older persons’ housing) in the village of North Tamborine. The three appeals were ordered to be heard together, each raising identical issues.
Site and Locality
The site is at 20-24 Yuulong Road, North Tamborine, approximately 180m. west of its intersection with Main Street. It has an area of 4,047 sq m. and slopes gently upwards from the road frontage to the rear of the site. It is a long rectangle (45m. x 90m.) which runs from the road roughly north to south. The contours are generally parallel to the front boundary of the site with average slopes across it being about 10%. At present an unoccupied and rather neglected brick house stands on it.
North Tamborine Village is in Main Street, to the east of the site and the commercial premises within it vary from 100m to 400m in distance from the site. The village can be reached from the site along reasonably flat roadways and footpaths. The supermarket which anchors an important part of the shopping centre is on the corner of Yuulong Road and Main Street. Associated with this supermarket complex is the local office and library of the Council, the post office, a bank and a bottle shop. In addition, a wide range of retail, commercial and community facilities are available within the village.
Yuulong Road, which runs roughly east to west, is a cul de sac about 350m long and in front of the site is a single carriageway street. There is a commercial development at its junction with Main Street, a nearby residential duplex and (importantly) an older persons’ accommodation development called “Nibunya” containing six units immediately to the east of the site. Apart from that, the street is lined by detached houses of different styles with attractive gardens which are mostly well treed. Further to the west the uses are of the rural residential type. The general impression I had of this area is of a country village street lined by cottages with pleasant gardens.
The Proposal
The development application sought approval for a material change of use for seven single storey dwellings for “older persons”. The proposed plan of development is for two distinct buildings containing, respectively, four and three units, five of which are to have two bedrooms and two of which are to have one. Each unit is to have a single vehicle garage and it is proposed to have three visitor parking spaces within the site. The buildings will cover something like 17% of the site and very generous landscaping is proposed.
The development is to be set back some 15 metres from Yuulong Road and to have generous boundary clearances in the other directions. As with all of the area no reticulated water or sewerage is provided. Rain water tanks are to be used and effluent disposal is to be by way of onsite absorption trenches.
The units will be single storey of a brick or bagged render and oiled hardwood construction with the traditional corrugated iron, colourbond roof. It must be said that the design is quite attractive. The driveway is to be curved and, where visible from the street, to be constructed of a charcoal coloured concrete with crushed blue metal aggregate surface in an attempt to be in keeping with the driveways generally existing in the street.
The curvilinear design of each of the two buildings is intended to enhance the streetscape as, unlike the “Nibunya” units, the buildings on the site will be largely screened by the landscaping and the absence of a direct view up the driveway. Because of the gentle slope no retaining walls will be necessary on the street frontage and any internal retaining walls will be less than a metre in height.
Minor Modification
In an attempt to address some of the concerns of the submitters about the suitability of the premises for older people the original plans have been amended to make all units wheelchair accessible and also to improve the cross-flow of ventilation in the units. No party suggested that the changes were other than minor changes within the meaning of that term as used in s.4.1.52(2)(b) of the Integrated Planning Act 1997 (“IPA”). I agree and am content to consider the appeal on the amended plans.
Other Existing Similar Developments
I have mentioned “Nibunya”, beside the site. Some hundred metres to the west of the site is a narrow frontage to Yuulong Road of a large piece of land on which the “Capo di Monte” retirement complex is presently being developed under the provisions of the Retirement Villages Act 1999. That Act promotes sequential levels of care for people over the age of fifty and attracts government funding. It is likely to have some 48 dwellings plus manager’s residence and a community centre. Its primary access is to Capo Lane and vehicular access to Yuulong Road is restricted to construction vehicles and emergency vehicles. Thus, while it cannot be said that its occupants will always obey that restriction it can be said with reasonable confidence that its impact on Yuulong Road will be minor, perhaps an occasional vehicle and some pedestrian use. As to the “Capo di Monte” residential complex itself, I do not see it as being of the same type of accommodation as the subject proposal. I also regard the two as being substantially geographically separated.
There are a total of six other approved developments on Tamborine Mountain with, on paper, a substantial number of approved units, the details of which are set out in appendix G to the tendered report of Mr Grummit. However all of these are, it seems to me, to be too distant from the site to be classed as competition for the subject development. Of the eighty-nine approved units not yet constructed, and assuming that they will be (which is by no means assured), all are to be within three large complexes. The likely prices of the units, when built, vary markedly. The proximity of the subject site to North Tamborine Village, its small scale and the relatively modest prices expected to be applied to the units are to my mind, powerful attractors to potential occupants.
The Issues
The issues in dispute can be summarised under the headings of planning instruments, amenity, need, concentration and character.
Planning Instruments
The site falls within land designated as “Urban Footprint” in the South East Queensland Regional Plan, and is therefore appropriate for development. The Council’s applicable Planning Scheme is a transitional planning scheme and the site is allocated to the Residential Low Density Zone. The development is impact assessable in that zone.
An IPA compliant planning scheme is in the course of preparation. It has just passed through the public notification stage and is unlikely to be gazetted for six months or more. It is quite impossible to know what its final provisions in relation to a development such as this will be. All three planning consultants agree that no real weight can be given to it, and I agree with them.
Pursuant to the Strategic Plan s.4.16, the site is allocated to the “Special Planning Area’ Preferred Dominant Land Use which calls up the provisions of Development Control Plan 1 (“the DCP”) for development assessment. Under the DCP the site falls within the “Village Area” designation and the DCP recognises that it is important to provide older persons’ housing. See ss. 1.5; 1.7.3 and s.2.3.2 which is:
“2.3.2 Older Persons’ Housing
(a) Intent
It is considered desirable to provide opportunities for a range of housing for older persons (generally those about 60 years of age or older) and people with special housing needs and physical limitations.
The Plan aims to meet the needs arising from within the local community rather than providing opportunities to bring into the Plan Area from elsewhere older people with special housing needs.
Older Persons’ Housing may be permitted on land within the Village Areas of North Tamborine and Eagle Heights.
(b) Implementation
Proposals for older persons housing (including retirement villages, group title detached housing and residential unit development) will not be approved except in the North Tamborine and Eagle Heights Village Areas unless Council is satisfied that there are over-riding town planning reasons.”
Construction of the Planning Instruments
In Woolworths Ltd v Caboolture Shire Council (2004) QPELR 550, Wilson DCJ repeated the principles involved in the construction of planning schemes as follows:
“(18) There is good authority for the proposition that the planning schemes are not, ordinarily, documents which easily admit strict construction. The cases were helpfully collected by Britton SC, DCJ in Westfield Management Ltd v Pine Rivers Shire Council and The Warehouse Group in para [18]:
(a)they should be construed broadly rather than pedantically or narrowly and with a sensible, practical approach (AW Pty Ltd v Peter R Hughes & Partners Pty Ltd (1992) 1 Qd R 352 at 360; Yu Feng Pty Ltd v Maroochy Shire Council (1996) 92 LGERA 41 at 73, 75, 78; Harburg Investments Pty Ltd v Brisbane City Council (2000) QPELR 313 at 318;
(b)they should be construed as a whole (Luke v Maroochy Shire Council & Anor (2003) QPELR 447);
(c)they should be construed in a way that best achieves their apparent purpose and objects (Luke v Maroochy Shire Council & Anor (supra); Nordale Management Pty Ltd v Maroochy Shire Council (1995) QPLR 368 at 370; Acts Interpretation Act 1954 s.14A);
(d)they should be construed in light of the prescription against prohibiting development contained in IPA (s.6.1.2(3));
(e)statements of intents or aims or objectives are intended to provide guidance for the tasks of balancing the relevant facts, circumstances and competing interests in order to decide whether a particular use should be rejected as inappropriate (Degee v Brisbane City Council (1998) QPELR 287);
(f)a strategic plan sets out broad desired objectives and not every objective needs to be met before a proposal can be approved Lewiac Pty Ltd v Gold Coast City Council (1994) 83 LGERA 224 at 230);
(g)a strategic plan should be read broadly and not pedantically (Yu Feng Pty Ltd v Maroochy Shire Council (supra));
(h)although planning schemes have the force of law they are not drawn with the precision of an Act of Parliament (Degee, above);
(i)a conflict alone may not have the effect of ruling out a particular proposal (Fitzgibbon s Hotels Pty Ltd v Logan City Council (1997) QPELR 208 at 212);
(j)implementation objectives must be read sensibly and in context. They are but a function of the principal objective. The purpose of the objective is better understood by reading all of the implementation objectives and understanding the strategy that is inherent (Jenkinson Pty Ltd v Caloundra City Council (2002) QPELR 527 at 528).”
Section 2.3.2 of the DCP (para [15] above) provides the clearest possible indication of the areas in which, prima facie, developments of this type are to be located. The implementation provision of that section shows that a developer wishing to create older persons’ accommodation on Tamborine Mountain other than in North Tamborine Village or Eagle Heights has a very heavy onus to carry.
The appellants specify alleged conflicts between this development and ss.1.6, 1.72; 1.7.3; s.2.3.2, s.2.3.6 and 3.1 of the DCP. Those provisions require the protection of such character items of Tamborine Mountain as natural environmental qualities, semi-rural character, amenity, density of development and avoidance of concentration of older person’s housing.
It is true that the DCP requires that the semi-rural character of Tamborine Mountain is to be protected. However the site does not fall within a semi-rural area and the proposed development therefore cannot threaten that character. Within s.3.1.1., which relates to the North Tamborine Village area, is this provision which the appellants rely on:
“There may be sites within the Village Area where existing rural uses are incompatible with surrounding land uses and which are suitable for older persons’ housing (see section 2.3.2)”
That provision cannot be read on its own so as to suggest that this use should be restricted to rural areas. Indeed it refers specifically to s.2.3.2 which specifies, without restriction, North Tamborine Village as suitable for this use. The quoted extract from s.3.1.1 does not restrict the use to rural areas; rather it recognises that rural areas, generally to be preserved, may in certain circumstances be devoted to the subject use. If it were intended to consign all retirement accommodation to rural areas (which are obviously generally remote from urban facilities), the DCP would have said so expressly.
Density of development is raised. Suffice it to say that the density of the proposed development is within the limits of the specific provision of s.2.3.2 of the DCP that is, thirty bedrooms per hectare and a maximum of forty bedrooms in any single development.
The other alleged conflicts are comprehended within the ensuing discussion of the identified issues.
Amenity
From the tendered photographs of Yuulong Road, the oral evidence and aided by the inspection I had of the area, I formed the view of the Yuulong Road and the area about it of an attractive village with detached cottages set in gardens and often quite heavily treed. It would undoubtedly be a quiet, peaceful neighbourhood.
The design of the proposed buildings is pleasant and not out of keeping with the existing houses which are of quite varied style. As I have said the proposed landscaping is generous, well-designed and the finished, mature result will have an effect rather similar to that of Yuulong Road generally.
Although five of the units are to have two bedrooms, given the age of the occupants (60 plus) it is more likely than not that each unit will generally house only two (and sometimes only one) person. The second bedroom is most likely to be used as an extra living room and occasional guest room.
Although there was debate about it I cannot imagine that the level of noise generated by an elderly couple would be anything like as great as that generated by a young couple, especially those with children. The use of vehicles, and the noise made by those vehicles, would also be less. The evidence is clear that the amount of vehicular traffic generated by this proposed development would be of minimal impact, even in a quiet street like Yuulong Road.
There is no reason to believe that the noise of air conditioning units will be unreasonably intrusive. They can be designed and directed towards insensitive receptors.
It was suggested that the level of “friendliness” of the street would be lowered by the presence in the proposed units of this group of older residents. That seemed odd to me. To begin with no one, friendly or otherwise, now lives on the site, More importantly, I assume that there is a level of community life not just in the village shops but engendered by various social functions and activities. Why would not newcomers meet neighbourly established residents? Why would not civilised acquaintance and some deeper relationships be formed?
Concerns were raised that the units, if built, would not house old people but would be purchased, or rented, by younger people. The approval is subject to a condition restricting ownership to people of 60 years and older. That condition would run with the land and remain in force as long as the units were inhabited. It is possible that the condition would be broken but there are practical arguments against that. The other residents of the units would know of the breach and, I expect, most residents of the street would soon learn of it. A complaint to the Council would require the Council to take enforcement proceedings which, unlike some, would not be difficult to prove.
I am unable to see that there is any recognisable likelihood of this development degrading the amenity of the area.
Need
“Need” in planning terms is not necessarily what is meant when used in general speech, as the following extracts from the cases show:-
“Need in the town planning sense does not mean a pressing need or a critical need or even a widespread desire. A think is needed if its provisions, taking all things into account, improves the physical well-being of the community (see Cut Price Stores Retailers v Caboolture Shire Council (1984) QPLR p. 126 at 131). Need does not connote a pressing urgency but relates to the well-being of the community. A use would be needed if it would, on balance, improve the services and facilities available in a locality (see Roosterland Pty Ltd v Brisbane City Council (1986) 23 APAD p.58 at p.60)
Need, in planning terms, is widely interpreted as indicating a facility which will improve the ease, comfort, convenience and efficient lifestyle of the community (Fitzgibbons Hotel Pty Ltd v Logan City Council (1997) QPLR 208 at 213; Bunnings Building Supplies Pty Ltd v Redland Shire Council (2000) QPELR 193 at 198C). Of course, a need cannot be a contrived one. It has been said that the basic assumption is that there is a latent unsatisfied demand which is either not being met at all or is not being adequately met (Indooroopilly Golf Club v BCC (1982) QPLR 13 at 32-35, William McEwans Pty Ltd v BCC (1981) 1 QPLR 33 at 35).
The question whether need is shown to exist is to be decided from the perspective of a community and not that of the applicant, a commercial competitor, or even particular objectors: Sempf v Gatton Shire Council (1997) QPELR 198, at 199-200; Arksmead Pty Ltd v Gold Coast city Council (1989) QPLR 322 at 330. Nor is the impact of a proposed development on existing like businesses a matter which is to be taken into account adversely to the proposed new facility unless, as Ms Scally noted in her report, the extent of competition will cause an overall adverse effect on the extent and adequacy of facilities available to the community: Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675, at 687.
The weight to be given to the question of need, in assessing the merits of an application, is not fixed. As Moynihan J said in Intrafield Pty Ltd v Redland Shire Council (2001) QCA 116, at para [20]:
…Need is a relative concept to be given a greater or lesser weight depending on all of the circumstances which the planning authority was to take into account.
In some instances public or community need for a service or facility may not be great, and other considerations may be of greater moment.”
A conclave was held by Mr Norling, Mr McCracken (both with a particular expertise in this field) and Mr Paneretos. Mr Paneretos, is a consultant town planner who has some expertise in the field, but not to the extent of those other two experts whose opinions I prefer. I will not set out in detail their findings. They relied on the very high historical growth in the over 60’s population of Tamborine Mountain and the projected high growth of the future. They concluded that there was a strong need for the provision of suitable accommodation for this population now, especially in the form of independent living such as this development, and I accept that.
It was submitted by the appellants that a list of actual purchasers for these units should have been submitted to the Council by the developer. I reject that because it is not a practical suggestion. One could not expect anything but a vague expression of interest in buying a unit which may not be approved, and if approved might not be built for a long time to come, particularly if there were, as here, opposition. Rather, in such cases experts in the field give evidence of probabilities based on census and population growth.
That is what Mr McCracken and Mr Norling did here. Their evidence satisfied me of the existence of need in the planning sense. They were of the opinion that the proposed development provided very attractive options such as proximity to the village, ease of pedestrian access to it, availability of facilities in the village and affordability. These are all valid points. There is also the fact that potential purchasers of such accommodation should have a choice.
I am satisfied that there is a need to provide now for a probable actual need for accommodation of this type and for a definite latent need.
Concentration
The appellants argued that the proposal to develop these seven units on the site, abutting the existing six units at “Nibunya” would create a concentration of older persons’ accommodation and they relied particularly on s.2.3.6 of the DCP which is:
“2.3.6 Multiple Dwellings, Tourist Accommodation and
Accommodation Units for Permanent Occupation
(a) Intent
It is intended that in future the only multiple dwellings (other than duplex dwellings) and accommodation units for permanent occupation permitted in the Plan Are shall be units provided for older persons (e.g. pensioners, retirees etc). Older Persons Housing shall be located in accordance with Section 2.3.2 above. Council does not favour concentrations of such units.
…
Council does not favour a concentration of tourist accommodation at any one location.”
Mr Ure, counsel for the developer and Mr Trotter, counsel for the Council both submitted that the word “concentration”, when applied to older persons’ housing, refers to limiting the number of units within a development rather than the number of developments within a particular location. I do not accept that, because the number of units within a development (i.e. density) is specifically catered for in s.2.3.2.
Rather I consider the provision militates against the creation of a “ghetto” of retirement units, retirement villages and the like. Whether that occurs is of course a question of fact.
In this context I ignore “Capo di Monte” which is out of view of the subject development and is realistically part of another area of North Tamborine. The relevant development in this connection is of course the existing “Nibunya” next door to the site. Each of the two (“Nibunya” and the subject development) is small. Together they would make up a total of only thirteen units. Even viewed as the one development that would be a small retirement complex.
When a development for a use is proposed beside or near an existing use or uses of the same type there may come a time when, as a matter of fact, it will fairly be described as a concentration of that use. Whatever would be the time at which I would say, as a matter of fact, that a concentration of retirement (older persons’ housing) uses were arrived at in Yuulong Road, that time would not be reached by the establishment of the subject development.
The appellants submitted that the creation of the subject development beside “Nibunya” is a concentration, within the meaning of the DCP, by reference to s.3.1.3 which provides for “limited duplex development” and says “and duplexes shall be at least 75m apart. That is, no lot containing a duplex shall be located any closer than 75m to another lot containing a duplex or approval for a duplex.”
That argues for, rather than against, the conclusion I have reached on the question of concentration, for it shows that the drafter of the DCP, in relation to duplexes, chose to provide a specific distance separation but did not do that for developments of the subject type. Instead the more flexible concept of concentration was preferred, without specifying a distance separation.
Character
Section 3.1 to which I referred, relates to the character of Tamborine Village. I have already dealt with one aspect of this in paras [19] and [20] and another aspect under the heading of amenity. Those discussions, to my mind, establish that this development will not alter the character of the Village.
Other Matters
Although they are not identified issues the appellants in their submissions raised two other matters, precedent and the lack of detailed design of the subject units.
Decisions of this Court have said on many occasions that one approved development will not create a precedent for the development of another of the same type. Indeed it could work the other way. Each application is dealt with on its own merits.
It is not necessary at this stage that detailed plans in finished form be provided. That is done at the building approval stage. Of course, those plans may not vary from the approved plans other than in minor matters of detail.
Conclusion
These appeals were conducted by the appellants, none of them lawyers or planners, in an intelligent, open and non-confrontational manner. The effort they put into it actually helped me to understand the issues better and I thank them for that.
The appeals are dismissed.
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