Tara Projects Pty Ltd v Redland Shire Council

[2000] QPEC 77

PLANNING AND ENVIRONMENT COURT

OF QUEENSLAND

CITATION:	Tara Projects Pty. Ltd. v. Redland Shire Council [2000] QPE 077
PARTIES:	TARA PROJECTS PTY. LTD. Appellant And REDLAND SHIRE COUNCIL Respondent
FILE NO:	2660 of 2000
DIVISION:	Planning and Environment
DELIVERED ON:	13 November 2000
DELIVERED AT:	Brisbane
HEARING	19 and 20 October 2000
DATES:
JUDGE:	Skoien S.J.D.C.
ORDER:	Appeal dismissed
CATCHWORDS:	Multiple dwelling unit: boundary clearances, site coverage, streetscape and neighbourhood character; application of code for multiple dwellings
COUNSEL:	Mr C Hughes for appellant Mr S Ure for respondent
SOLICITORS:	McCarthy, Durie Ryan and Neil for appellant King & Co for respondent

1. This is an appeal by Tara against the granting by the Council of a preliminary approval with conditions for a three unit multiple dwelling development at 118 Main Road, Wellington Point.

   History of Application

2. The original application lodged by Tara on 18 June 1999 was for a development permit for a material change of use for a four unit multiple dwelling development. Reports that went to the Development Assessment Committee and to Council recommended refusal of this proposal as, inter alia, the resultant density was in breach of the 75 persons per hectare nominated in the Development Control Plan and in the Strategic Plan.

3. On 17 December 1999 the Council issued a Development Application Decision Notice granting a preliminary approval in respect of a three unit multiple dwelling. Representations continued from Tara with respect to a four unit multiple dwelling and on 22 March 2000 Tara amended its application by submitting plans for a three unit multiple dwelling.

4. On 16 June 2000 the Council advised Tara that a Negotiated Decision Notice in respect of a preliminary approval only had been granted for a three unit multiple dwelling, with attached conditions.

   The Site

5. The site has an area of some 1,075 m² designated Medium Density Residential pursuant to the Strategic Plan, and Residential B-75 person per hectare pursuant to the applicable Development Control Plan. It is zoned Residential B, and a multiple dwelling having a residential density of more than 60 persons per hectare is a consent use in that zone. The site is on the west of Main Road at Wellington Point, at the southern most end of the bulb which forms the northern end of the Wellington Point Peninsula. It enjoys very attractive views to the west over Waterloo Bay. It is essentially level from its road frontage to a little over two-thirds along its east-west axis. It then slopes steeply to the west down to its common boundary with the Shire Esplanade Reserve.

6. Main Road is an attractive, tree lined, avenue which runs down the spine of the peninsula which forms Wellington Point. The buildings on each side of it, in the general area of the site, are a mix of single storey and two storey dwellings most of which are detached single dwellings but some of them being multiple dwellings.

   The Proposal

7. What is proposed is a two storied building which, at a glance, looks rather like a large Victorian mansion. The roof is steeply pitched, it has no verandahs or roof eaves. The front of the building, which is oriented towards Main Road (that is the east elevation), is dominated by two semi-circular "turret" type of structures, each of which has a steep cone shaped roof. At the front of the building are three double garages one for each of the units and also in the front yard are two visitors’ car parks. The restricted area in the front yard would make it very difficult for more than one vehicle to manoeuvre at one time. A high wall (about 1800 mm) is planned on the front boundary which would conceal much of the garages.

8. At the rear of the building (the west elevation), a deck is proposed for each unit. These protrude out over the steeply sloping block and are designed to take advantage of the very attractive views over Waterloo Bay towards Manly through the screening provided by trees in the nature reserve which borders the rear of the site.

   The Planning Scheme

9. The Town Planning Scheme, the Strategic Plan and the Development Control Plan contain statements indicating an intention that land in the residential B zone will contain buildings of a range of densities. It is true to say that the proposal falls within the intents expressed in those provisions. There is, however, a very important qualification which is laid down in the Town Planning Scheme, in Part IV, Division 3, section 8 which relates to multiple dwellings which is:-

“8.	Multiple Dwellings
(i) In addition to the provisions of the standard building law the
following requirements shall apply to any multiple dwelling erected or created by the conversion of an existing building after the appointed day (27 October 1995) whether or not the consent of the Council to the erection or use in question is required under the scheme –
(a) the design and construction shall be in accordance with the Residential Code for Multiple Dwelling Development, a local planning policy of Redland Shire Council.”

1. The Code provides:

“1.1 Context

Over the last decade the increasingly diverse needs and lifestyles of Australians and the associated demographic changes in the structure of Australian families has led to a fundamental change in housing requirements. Associated with these changes has been the introduction of Federal, State and Local Government Initiatives to reduce urban sprawl and facilitate the better use of urban resources.

Multiple dwelling developments will play an increasingly important role in satisfying these changing demands. For that reason, the quality of design of such housing is paramount.

1.2 Purpose of the Residential Code for Multiple Dwelling
Development

The intent of the Residential Code, adopted as a Local Planning Policy pursuant to Section 1A.4 of the Act, is to provide consistency in a high quality design of multiple dwellings within the Shire. It also aims, through the use of design controls, to show how this form of living can provide a functional and attractive residential environment while ensuring community expectations for neighbourhood amenity are achieved. The Code will also provide the basis for the assessment of multiple dwelling applications. The Aims of this Code are to:

· Provide a comprehensive and integrated set of performance and prescriptive standards to cover all aspects of multiple dwelling development;

· Encourage good quality, cost effective design;

· Ensure consistency in the application of design requirements for
multiple dwelling developments;

· Maintain reasonable standards of privacy and solar access for

residents and neighbours;

· Ensure the streetscape amenity of existing residential areas is

enhanced and protected through appropriate design; and

·	Provide for a range of dwelling unit types to satisfy residential choice while maintaining desired amenity standards.
1.3	Where does the Code apply?

The Code applies to all proposals for multiple dwelling development within the Redland Shire with the exception of Point Lookout which is covered by Development Control Plan No. 3.”

1. Before turning to the issues raised on this appeal, I should deal with three matters raised by Mr Hughes, counsel for Tara, which he submitted should be borne in mind as a general overview when considering the application of the specific features of the Code. These were, first, the as-of-right development to which the site could be put, second, the fact that the Code is merely a planning policy, and third, that the Council cannot, in the guise of applying the Code, impose unreasonable or irrelevant conditions on a development.

2. As to the first point, in the residential B zone, because of the size of the site and the effect of the Standard Building Regulations (reg. 43) a detached two storeyed dwelling house could be built having a 50% site cover without the necessity for any Council consent. Furthermore side clearances could be as low as 1.5 m. (reg. 38). So far as those criteria are concerned such a development would be more intense than is allowed for a multiple dwelling unit on the site. That is undoubtedly true, but I consider that, as Mr Ure submitted, quite different considerations legitimately apply to a single detached house compared with a multiple dwelling unit building. The former will have many fewer residents than the latter and consequently much less human activity on site. So even with the greater site coverage and the lesser side setbacks the impact upon neighbours of the single detached house will be much less than that created by a three unit multiple dwelling.

3. The second point, that the Code is merely a planning policy, is again successfully met by a submission by Mr Ure. Originally it was simply a policy, and therefore entitled to less weight than a gazetted statutory document such as a Planning Scheme. But in this instance the Planning Scheme expressly adopted the Code, in mandatory terms by the use, twice, of the word “shall” in s.8(1) (see para [9] above). The effect is as if the terms of the Code were repeated within the Planning Scheme.

[14] On the third point, raised by Mr Hughes I note the provisions of s.3.5.30 of the
Integrated Planning Act 1997 which is:

“3.5.30(1) A condition must –

(a)	be relevant to, but not an unreasonable imposition on, the development or use of premises as a consequence of the development; or
(b)	be reasonably required in respect of the development or use of premises as a consequence of the development.

(2) Subsection (1) applies despite the laws that are administered by, and the policies that are reasonably identifiable as policies applied by, an assessment manager or concurrence agency.”

So if any application of the Code for which the Council argues would indeed amount to a condition which is in breach of s.3.5.30, it will not be permitted.

The Issues

1. The principal issues in the appeal are:

   (i)         the proposal is significantly in excess of the site cover prescribed in design element E3, PM1 of the Code which has resulted in inadequate setbacks from the side boundary;

   (ii)        the proposal is squarely in conflict with design element E7, streetscape, particularly objectives 01, 02, performance criteria PC2, PC4 and basic principles 9 and 10;

   (iii)       the proposal is in conflict with design element E9, dwelling unit design and appearance, and in particular objective 1 and performance criteria PC1, PC5, PC6, PC9 and PM6;

   (iv)       the proposal is in conflict with design element E10, climatic responses, and particularly objective 1 and PC2;

   (v)        the proposal is in conflict with design element E12, car parking vehicular access and pedestrian circulation, particularly PC4.

   In the Code, “E” represents “design element”; “PM” represents “prescriptive measure” and PC represents “performance criterion”.

   Site Cover

2. The Code lays down a maximum site cover for this development of 30%. The site cover of the proposed building, when one includes the decks which are intended is some 39%. That is an excess of nearly 33% over what is permitted.

3. P.M.1 of E3 provides that for a two storeyed building no above-ground level balcony is to be closer to a rear or side boundary than 6 metres unless satisfactorily screened. In such a case the clearance can be reduced to a minimum of 4.5 metres. The extreme edge of the western deck (at the south-west corner) is about 2.7 metres from the western boundary, with that distance increasing gradually as the decks progress to the north. However, much of the rear decks fall foul of the 6 metre requirement. The side clearance for the southern balcony (Unit 3) is a little as 1.5 metres. The side clearance for the northern balcony (Unit 1) varies from about 3 metres to about 5 metres. So there is substantial non-compliance with the code for setbacks to the rear boundary and to both side boundaries.

4. Building setbacks are obviously relevant to a development such as this. Are the setbacks strictly required by the Code reasonable in the circumstances? To my mind, any restriction of the rear setback beyond what Tara proposes would not be reasonable. The ground at the rear slopes away so steeply that the natural ground on the site could not be used for recreational purposes. The land to the west of the site is a public reserve which is heavily vegetated. People enjoying the foreshore would be most unlikely to pay much attention towards the site. Similarly, while the height and length of the balcony of Unit 1 would mean that it would present its underside to the occupants of the land to the north, their attention is also most unlikely to be directed to that but rather to the sea view to the west.

5. However, different considerations apply to the side clearances. As the proposal stands the neighbours to the north and south face the real prospect of having a great deal of human activity taking place on decks which are very close to their respective boundaries. Neither of the current neighbours objected, it is true, but it is reasonable for a planning authority to guard against friction developing between occupiers of the proposed development and the existing development even in the absence of objection. The occupants of the existing developments may not have appreciated the potential danger at the notification stage, or if they did, might well have relied on the Council to take precautions against it. Alternatively those who later may come to be the northern or southern neighbours may be less robust in their tolerance of activities on this site. So the Code relaxation suggested by Mr Curtis, the council's consultant architect on urban design, that the northern and southern edges of the balconies be screened seems to me to be a reasonable compromise. Neighbours to the north and south will be spared having to view the activities of the unit dwellers at close range on frequent occasions, while the occupants of all three units will have their extensive western views unimpeded.

6. So I have decided that the position and size of the rear decks, looked at in isolation, and when fitted with side screens, are not so offensive as to necessitate reduction in their area. However, they are not the sole cause of the excess in site coverage. The bulk of the building, taken as a whole, must be considered.

7. No matter how one looks at it, the building is a very big one indeed. The front elevation, as it appears on the plans of the development, gives the immediate impression of a width and height which might be aptly called massive. It seems barely to fit on the site. It is just such an effect which limits imposed on site coverage are designed to prevent. Such a prescription is clearly relevant to this proposal and in my opinion it is also reasonable to require that a two storeyed multiple dwelling in this zone should not cover more than 30% of the site. The resultant effect of general development if permitted to be in excess of that coverage can easily be imagined, and in my opinion any attempt in a particular case to exceed that site coverage must be considered very carefully and allowed only when good reason for the excess has been demonstrated. None has been shown here.

   Streetscape

8. This issue is closely related to the question of site coverage in para [21] above.

9. I am conscious of the fact that the Council has no statutory power to arrogate to itself the right to design buildings irrespective of the wishes of developers, and nor has this court. The Council is a planning authority, not an aesthetic authority. To seek to usurp that role by purported application of the Code would amount to an attempt to impose conditions which would probably not be relevant and would almost certainly not be reasonable. But different considerations apply to a genuine attempt by the Council to "respect and enhance existing streetscape and neighbourhood character" see E7, objective 02 and PC1). Councils have, in recent times, been universally accepted as appropriate protectors of streetscapes and neighbourhood characters.

10. In seeking to meet those objectives for this Council, PC2 of E7 lays down such considerations as building mass and proportions, roof form and pitch, facade treatment and features such as verandahs, towers and eaves.

11. In considering the mass and proportion of this proposed building I derived assistance from the photo montage, ex. 14, which sought to show what the building would look like on the site, showing also the neighbouring properties. While it is true, as Mr Hughes vigorously pointed out, that it is in some respects deceptive, not being in perspective, nevertheless it gave an idea of the effect of this building if erected on this site and I feel confident I can imagine it in perspective. Taking all that into account, it would be a massive building on this site.

12. It is not easy to define the existing streetscape and neighbourhood character of Main Road so as to be able to describe the type of building which would fit in with that streetscape and neighbourhood character. However it is easy to say that this building would not. It is too big; its roof pitch is too great (adding to the impression of size); it lacks the verandahs and eaves which are common in the area, and very definitely the twin towers are quite unlike anything else in the street and quite out of place with the streetscape and neighbourhood character.

[27] The twin, but allied, issues of site coverage and streetscape are sufficient to cause
me to refuse the appeal. I turn briefly to the other issues.

Design and Appearance

1. E9 deals with dwelling unit design and appearance. PC 1 relates to having the front doors to the unit visible and identifiable and P.C. 5 talks of separate identification of the different units. I cannot see that the proposal falls foul of either of these, nor of P.C. 6 which aims at preventing car ports and garages from dominating the building. These garages are reasonably well integrated and much less visible than many now existing in Main Road. There is relevance in P.C. 9 which talks of appropriate scale and P.M., 6 which provides roof pitch criteria, but I have adequately dealt with these in paras [25]-[26] above.

   Climatic Responses

2. E10 relates to the treatment of sunlight (both summer screening and winter availability), natural light in rooms and cross ventilation. According to the Council, this proposal has an inadequate approach to these matters. If they stood alone as issues I would have to decide on the relevance and reasonableness of the Council’s objections but it is obvious that if Tara wishes to develop a two story multiple dwelling building, substantial re-design will be called for so my discussion of such details is unnecessary.

   Car Parking

3. E12 deals with car parking; vehicle access and pedestrian circulation. The particular matter raised relates to the position of the garages on which I have commented in para [28] above.

   Conclusion

4. Because of the views I have taken on site coverage and streetscape the appeal is dismissed. The appellant is, of course, at liberty to submit to the Council a new design to overcome the objectionable features which I have identified, possibly making use of those which I have considered unobjectionable (for example rear decks to enjoy the western views which, with side screening, can reduce the boundary clearances laid down in the Code.)