The Purcell Family v Gold Coast City Council
[2004] QPEC 9
•2/04/2004
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION: The Purcell Family v. Gold Coast City Council & Ors [2004]
QPEC 009PARTIES: THE PURCELL FAMILY (Appellants) v. GOLD COAST CITY COUNCIL (Respondent) And GREG TAYLOR REAL ESTATE PTY LTD (First Co-
Respondent)And RAYMOND KEITH CULPAN and ROSALINE
MARIEA CULPAN (Second Co-Respondents)FILE NO/S: 3835 of 2003 DIVISION: Planning & Environment Court PROCEEDING: Appeal ORIGINATING COURT: District Court Brisbane DELIVERED ON: 2 April 2004 DELIVERED AT: Brisbane HEARING DATE: 1, 2, 3 & 4 March 2004 JUDGE: Quirk DCJ ORDER:
I am satisfied on the evidence given that the onus for showing that the application is one that should be approved has been discharged, and the appeal will be allowed
CATCHWORDS: - COUNSEL: Mr M Hinson SC and Mr S Ure for the Appellant
Mr J Gallagher QC and Mr R Litster for the Respondent
Mr G Taylor Self Represented
Mr R Culpan Self RepresentedSOLICITORS: Phillips Fox for the Appellant
McDonald Balanda & Associates for the Respondent
This appeal is against the respondents’ refusal of an application for a development permit for a material change of use of land at Marine Parade, Miami. The subject land comprises two allotments and occupies a total area of 1133 square metres. The allotments are presently the site of two beach cottages of no particular architectural merit or character.
The proposed development is for a seven storied multiple unit dwelling. The site is located on the section of Marine Parade between Riviera Road and Hyth Street. It faces the ocean across the Esplanade Park. A mix of residential development form is found in the immediate locality. There is a predominance of multiple unit buildings with only three detached houses, two of which will make way for this proposal. The heights of existing buildings range from two to six stories.
Immediately to the north of the subject land there is a six storied multiple unit dwelling named Sanderling (see photograph p.21, Exhibit 5). To the south is a four storied multiplied unit dwelling of somewhat imposing bulk called Ocean Dream, and further to the south is a six storied building, Reef Royale. Photos of these two developments can be seen at p.22 of Exhibit 5. To the rear (the west) of the subject land is a large tourist accommodation resort complex, Grande Florida, which is three stories in height but sprawling in form, occupying a large area of land.
The proposal is intended as a multi unit building comprising six levels each occupied by a single dwelling unit. A seventh level will provide a roof terrace to function as a communal and open space area. The roof of the terrace is of a height equivalent to the lift tower on Sanderling. The highest point of the structure will be up a further metre or so and will constitute a central fin wall. There is a substantial group of Norfolk Island pines in this part of Marine Parade and these trees attain heights in excess of 30 metres. I agree with the evidence given that they soften the impact of the taller buildings found in the immediate locality.
Details of the proposal are to be found in material before the court. Mr Noel Robinson, an experienced and respected architect (who is not responsible for the design) expressed the opinion that the proposal demonstrates a high degree of architectural merit and responded positively to its context. I was impressed by his evidence which I accept.
Mr Mainwaring, also an experienced architect, was called by the respondent. While making no direct attack on the proposed design, he was concerned that its building form was such as to consolidate a group of tall buildings in a way which detracted unacceptably from the “special character” of this area. More will be said about the matter of the area’s character later in the judgment. Mr Mainwaring was prepared to say that the proposal will lead to the creation of an “urban dyke” which will degrade the area’s visual amenity to an unacceptable extent. As I will later explain I see this as an overstatement of the proposal’s impact.
After a careful examination of the proposal, the Council’s planning officers recommended conditional approval of it, but this recommendation was not accepted. No justification for departing from the recommendation is to be found in the minutes, but there appears to have been considerable public pressure from local residents for the exclusion of taller buildings in the area. While this is perhaps understandable, the competing aspirations of those living in the area to continue to enjoy it as it is and those of the land’s proprietors (who equally understandably wish to develop the land to best advantage) can be balanced only by reference to the statutory planning controls in place.
The application was lodged in April 2003. The 1994 Planning Scheme was then in force. The current Scheme came into force on 18 August 2003. Under s.4.1.52(2), the court must decide the appeal on laws and policies applying when the application was made and may give weight to any laws and policies the court considers appropriate.
In the 1994 Scheme the subject land (and other land in the block) is zoned Resort Residential 1. In the Strategic Plan this area was given a Preferred Dominant Land Use designation of “Mixed Resident and Tourist Accommodation”. The Planning Scheme indicated that in respect of this designation:
“It is envisaged that these areas will accommodate both tourist and permanent residents with the result that their intrinsic character will differ from multi-unit development areas because a greater diversity of development will occur. Accordingly, the Preferred Dominant Land Use is Multi unit buildings of varying densities.
…
Development in these areas will be required to accord with the provisions applicable to the Resort Residential 1 zone.”
Two specific objectives for the designation are identified. The first (Objective (a)) is concerned with the suitable location of tourist facilities and the preservation of existing residential amenity. More relevantly the second (Objective (b)) deals with building height in this way:
“Development in these areas will be subject to provisions that establish permitted and permissible residential densities and building heights both of which vary for particular parts of the City so as to achieve variety in townscape and urban character. The Council will seek to achieve gradation in building heights to compliment groups of high or lower-rise development. This gradation will be achieved both as a result of the maximum permitted and permissible height stipulated and also through the exercise of Council’s discretion in assessing permissible development. Accordingly, it is envisaged that development will not achieve the maximum permissible building height in most instances.”
The provisions of the Scheme dealing with the Resort Residential 1 Zone are in harmony with the Strategic Plan. The intent for the zone indicates that it is to implement the objectives of the mixed residential and tourist accommodation PDLU in the Strategic Plan. It is then stated that:
“All land within the Resort Residential 1 Zone is included in a Residential Density and Building Height Category as shown on the Residential Density and Building Height Maps. The basic and maximum development density and any building height control or limit for specific sites is indicated in the provisions. In respect of building heights it is not envisaged that development will achieve the maximum permissible height in most instances. To meet objectives in respect to variation in townscape and urban character the Council will seek to achieve gradation in building heights to compliment groupings of high or low rise development. Development will also be subject to other provisions which seek to maintain residential amenity”.
The relevant Building Height and Residential Density Map shows the area of which the subject land is a part as having a H3 (H7) designation. Section 4.16.4.1 of the Scheme explains the meaning of this:
“The permitted height of any multi-unit building … shall not exceed the number of stories as shown on the Residential and Building Height Maps provided that –
…
(ii) where a height appears in brackets on the Residential Density and Building Height Map, that height shall denote the maximum height to which development may be increased, subject to the town planning consent of the Council.
…”
The contest between the parties really focused upon Objective (b). The emphasis in this Objective is clearly on diversity and gradation in building height. As has been pointed out in other cases where this passage was considered (The Proprietors Park Lane Apartments v. Gold Coast City Council (1997) QPELR 178; The Tugun Joint Venture Pty Ltd v. Gold Coast City Council (2001) QPELR 499) the antithesis of diversity and gradation would be a uniformity of building height, e.g., the “wall of buildings of common height” referred to in Park Lane.
The case mounted by the respondent Council sought to attach special emphasis on
the statement that:
“It is envisaged that development will not achieve the maximum
permissible building height in most instances.”It was suggested that the effect of this was that approval of dwellings of the maximum height allowable must be based on a demonstration of unusual or special circumstances. I read no such notion into this statement in the Objective which I believe is really no more than a statement of the obvious if the aims of diversity and gradation are to be achieved. It is also the position, as was pointed out in Tugun, other controls and constraints will necessarily lead to the maximum heights not being achieved in most instances.
It is quite true that approval here will lead to a further consolidation of taller buildings in an area where they have already made their appearance but the result will, by no means, be a uniformity of height and building form against which the Objective has set itself. I reject the contention that to allow this proposal would lead to the creation of the kind of “urban wall” suggested.
The Scheme of course requires that other factors are to be taken into account (see clause 17.2.22). In the main these amount to fundamental considerations that would be seen to be relevant in any event. Specific reference is made to:
“the character of the proposed development in relation to the character of development on adjacent sites and the size and shape of the site, the siting of the proposed development and the area to be occupied by the development in relation to the size and shape of the adjacent sites and any development thereon.”
Such matters were discussed at great length in the evidence given but having regard to the form and character of the development to be found in this immediate area, it could not be seriously suggested that the form and character of this proposal is so disparate to that now found in the immediate locality as to call for its rejection.
Mr O’Brien, an experienced landscape architect, made a thorough examination of the proposal’s visual impact on behalf of the appellants. He believed:
“The proposed building is an attractive elegant well proportioned structure with generous set-backs to its side and rear boundaries. The height, proportions and massing of the proposed building are quite in character with existing nearby buildings.”
He saw the proposal as complimenting the existing four and six storied buildings in its immediate vicinity and rejected the suggestion that its presence would lead to the creation of any form of “urban wall” or “urban dyke”.
Particularly in respect of matters raised by the first co-respondent he believed that:
• Overlooking from rear balconies will not lead to unreasonable loss of privacy; • The effects of the proposed planning near the rear alignment will be no different to that which presently exists;
The point was made that some of this development was approved prior to planning controls relevant to the determination of this appeal. I do not regard that as being a matter of telling importance. The development that lends character to this area is there on the ground and there is every indication that it will remain there for some considerable time. To suggest that its influence upon the areas visual amenity should be disregarded because it was approved prior to the planning controls we are considering here is, as I see it, a little unrealistic. To do so would attribute to the area a character which it simply does not have.
Some issues were sought to be raised in respect of:
• Front landscape area • Plot ratio and gross floor area • Building height • Shadowing.
Looking at the matter realistically these concerns were relatively trivial and, on the evidence, would lead to little adverse impact upon amenity. Relaxations in respect to some of these matters were called for and thought appropriate by the Council officers who considered the application. The planning evidence given for the appellants supports this approach and I accept that evidence in preference to other evidence which sought to overemphasis the importance of these matters.
Something must be said about a planning study completed on the Council’s behalf in 1997 and to which considerable importance was attached in the respondent’s case. The study was entitled “Gold Coast Urban Heritage and Character Study”. It has to be said at once that it has no status as a planning instrument, although it appears to have been prepared with the later 2003 Planning Scheme in mind. It is recognised in the new Scheme that the study has strongly influenced the urban form built form and landscape provisions of the Planning Scheme.
While this must be accepted when one reads the study as it deals with Miami, it is difficult to see it as being particularly profound. If much was sought to be made of the document’s reference to Miami as having an “outstanding character” what this was meant to convey was not readily apparent. There is no question that the area has its attractions but if the study is saying that there is a uniformity of character of development in the Miami area into which the proposal would be an unwarranted intrusion, it is plainly wrong. One only has to look at the differing PDLU’s, the zonings, height designations etcetera that have been allocated within the area to see this. I believe it would be incorrect to be distracted by the study from the contents of the relevant Planning Schemes and I found it of little assistance in the determination of this appeal.
The 2003 Planning Scheme has been drafted under the regime of the Integrated Planning Act. Its implications for the subject land are not markedly different to those that appeared in the superseded Scheme. The subject land has been included in the Residential Choice Domain, the intent of which is to:
“support the development of a residential pattern comprising mixed dwelling types, including detached dwellings, attached dwellings, and apartment buildings that relate well to each other.”
Under the table of development for the Domain an apartment building is code assessable but if the height of the building exceeds the maximum building height on Overlay Map OM6 it is impact assessable. The subject land is within an area having a maximum building height of three stories on Overlay Map OM6. The performance standards in the Residential Choice Domain Place code are materially similar to the performance standards in s.4.16 of the 1994 Planning Scheme.
The Council’s case in respect of the new Scheme seemed to involve some level of misappreciation of the implementation of Overlay Map OM6. The reasons for refusal refer to the “three story height provisions” of the Scheme. In some ways it almost seemed to be suggested that the Scheme precluded development exceeding three stories in a three story area. Such statements as:
“Buildings over three stories are not expected at all in the 2003
Scheme”
and
“The Overlay Map shows that the subject land is part of an area in
which three story development only will be approved”
were made in the Council’s evidence. Undue emphasis was also placed, in my
view, on the “Acceptable Solution” as it appears in the relevant Code.The Council’s contention that the proposal was in conflict with the 2003 Scheme was based on a proposition similar to that advanced in respect of the superseded Scheme, namely that buildings in excess of three stories are acceptable in areas of this kind only in exceptional circumstances.
I do not see this as a correct understanding of the new Scheme. It is true, as was stressed in the Council’s case, that the relevant “Acceptable Solution” is put in this way:
“The subject site is designated with a specific maximum building height exceeding two stories on Overlay Map OM6 – Maximum Building Height and the building does not exceed the indicated Maximum Building Height.”
A proper understanding of the role of the “Acceptable Solution” and the way in which relevant Codes are to be applied is found in Chapter 2 of Division 1 of Part 7 of the Planning Scheme. Section 4 includes the following passage:
“It is desirable that impact assessable development comply with the Acceptable Solutions to ensure that each performance criterion is met. However, impact assessable development may comply with an alternative solution, provided that the alternative solution can be demonstrated to meet the relevant performance criterion, to Council’s satisfaction”.
The performance criterion which must be examined in this case is expressed in these terms:
“All buildings must be of a height which is in keeping with the predominant residential character of the surrounding area. Building height must not result in a significant loss of visual amenity.”
I agree that in this case, where the proposed building height exceeds the “Maximum Building Height” indicated in the “Acceptable Solution” fairly substantially, any impact upon the predominant residential character of the area and its visual amenity must receive the closest examination. In that context I believe the development that is in place in this particular part of Marine Parade is important because the determinative matter as identified in the Performance Criterion is whether the proposal is in keeping with the predominant residential character of the surrounding area. As I have indicated I am persuaded by the evidence that it would be.
Although, as with most development that takes place, there will be, in absolute terms, some loss of visual amenity to neighbours but, on the evidence given, I do not see the loss in this case to be so significant as to call for the proposal’s rejection. Such fields of view of which neighbours will be deprived was examined in the evidence. I am satisfied that any loss of view that will occur and any visual impact that the proposal might have would not be such as to justify its rejection.
Evidence was given by some local residents who explained why they would not welcome the proposal. There were a large number of submissions which I have examined and a petition against the proposal was gathered. I have no difficulty in understanding the concerns which have been expressed sincerely enough, but I can only repeat that cases in this court invariably call for a resolution of competing expectations. This can be done justly only by reference to the law as it controls the development of land.
I have considered these provisions and have concluded that the proposal is one which is sufficiently consistent with them. I am satisfied on the evidence given that the onus for showing that the application is one that should be approved has been discharged, and the appeal will be allowed.
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