Tralee Properties Pty Ltd v Gold Coast City Council
[2006] QPEC 17
•8 March 2006
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Tralee Properties Pty Ltd v. Gold Coast City Council [2006] QPEC 017
PARTIES:
TRALEE PROPERTIES PTY LTD
Appellant
v
GOLD COAST CITY COUNCIL
Respondent
FILE NO/S:
Appeal No 2029 of 2004
DIVISION:
Planning & Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
DELIVERED ON:
8 March 2006
DELIVERED AT:
Brisbane
HEARING DATE:
20,23 February 2006
JUDGE:
Skoien SJDC
ORDER:
Appeal allowed; new conditions substituted
CATCHWORDS:
Transitional and IPA Planning Schemes; Visual amenity of residential development; steep slopes; whether conflict with Planning Schemes
COUNSEL:
Mr. M Hinson S.C, with Mr B. Job for appellant
Mr. S. Ure for respondent
SOLICITORS:
Phillips Fox for the appellant
Corrs Chambers Westgarth for respondent
This is an appeal by Tralee against some of the conditions imposed by the Council on its approval of an application for material change of use and reconfiguring of a lot.
The Site
The application concerned land on a hill at Nerang on which stands the old “Boonaroo” homestead. The site is otherwise undeveloped, having been once used for grazing cattle. It is now partly cleared to grassland with scattered trees, but parts are substantially timbered, especially on its western side. Other than on its crest where the homestead buildings stand, the site is sloping, in parts quite steeply (up to about 30%). The site contains about 11 ha. There are widespread views from the site, notably to the east, taking in the high rise buildings of the Gold Coast.
Tralee applied to create a residential development (retaining a substantial area for the homestead) with residential lots to the south, east, north and north west slopes of the hill, a substantial area of park to the west and an area for commercial and industrial use to the south west.
No submissions were received during public notification of the application. The application was approved by the Council in May 2004, subject to conditions. Relevantly, conditions 1(a) and 1(b) restricted residential development in an area on the east and north east of the site to park residential lots of 4000m2, much larger than was applied for, with a consequential reduction in the number of lots.
The Locality
The Pacific Motorway runs north/south a few hundred metres to the west of the site and is separated from it by a light industrial and commercial area. That use is the predominant use also to the north west of the site. On the western side of the motorway are large areas of good quality residential development which also stretch to the south and east of the site. To the north and north east are areas of undeveloped rural land. Further to the north, east and south are extensive residential areas. In the distance to the south west and west are the naturally treed mountains of the McPherson Ranges.
Because it forms most of a sizeable hill and because of its trees, the site is a prominent and attractive feature of the local landscape when viewed from all points of the compass.
The Issues
Initially a number of conditions were the subject of the appeal. However agreement was reached by Tralee and the Council on all but condition 1, which is summarised in para [4] above.
Further negotiations narrowed the dispute even further. On the appeal the debate concerning the proposal was related to drawing no 4100BH03-20 (“Tralee plan”) which sets out 65 residential allotments ranging in area from 604 m² to 4038 m², a balance residential allotment containing the homestead and areas set aside for commercial industry, parkland and of course access roads. As the dispute at the hearing related only to 24 of the residential lots, no extra detail of the balance areas need be stated. Of the disputed 24 lots, 17 were in the area referred to in condition 1(a) imposed by the Council and 7 in the area referred to in condition 1(b). The Tralee plan also contemplates building envelopes together with a proposal to limit building heights within those envelopes to 8.5 metres above natural ground level, apart from on Lots 39, 41, 42 and 43 where a 6 metre height limit is proposed.
On the hearing the Council agued in favour of an “indicative plan”, (“the Council plan”) for the two disputed areas which sets out 15 residential lots. Of course that does not mean that the appeal descended to a choice between the Tralee Plan and the Council plan. Tralee has the onus of establishing what residential development would be the subject of a reasonable and relevant condition. The Council has no such onus. But, as counsel for Tralee submitted, the Council plan can be taken as a concession by the Council that residential development, at least to the extent of the Council plan, would be a reasonable and relevant condition of the development.
Statutory Planning Provisions
When the application was lodged the operative planning scheme was the 1995 Albert Shire Council Planning Scheme which was a transitional planning scheme, so the provisions of s.6.1.30 of the Integrated Planning Act (“IPA”) apply.
Pursuant to the Local Government (Planning and Environment) Act of 1990 (the “P&E Act”) the establishment of the Tralee residential subdivision would have required both an application for rezoning and an application for subdivision. Consequently, pursuant to s.6.1.30(3)(a) and (c) of IPA the application must be decided under s.4.4(5) and (5A) and s.5.1(6) and (6A) of the P&E Act.
Section 4.4(5A) of the P&E Act provided (as did s.5.1(6A)):
“(5A) The Local Government must refuse to approve the application if-
(a) the application conflicts with any relevant Strategic Plan or Development Control Plan, and
(b) there are not sufficient planning reasons to justify approving the application despite the conflict.”
The effect of s.4.4(5A) was considered by the Court of Appeal in Weightman v Gold Coast City Council & Anor (2002) 121 LGERA 161. At 173 this appears:
“The proposal must be refused in such a situation if there are not sufficient planning grounds to justify the approval despite the conflict. The discretion, as White J observed in Grosser v Council of the City of the Gold Coast, is couched in negative terms, that is, the application must be dismissed unless there are sufficient grounds. This is a mandatory requirement. If there is a conflict, then the application must be rejected unless there are sufficient planning grounds to justify its approval despite the conflict. The primary judge wrongly held that it was directory only.
In order to determine whether or not there are sufficient planning grounds to justify approving the application despite the conflict, as required by s.4.4(5A)(b) of the P&E Act, the decision-maker should:
(1) examine the nature and extent of the conflict;
(2) determine whether there are any planning grounds which are relevant to the part of the application which is in conflict with the planning scheme and if the conflict can be justified on those planning grounds;
(3) determine whether the planning grounds in favour of the application as a whole are, on balance, sufficient to justify approving the application notwithstanding the conflict.
The first task required of the decision-maker, as the learned primary judge recognized, is to consider the nature and extent of the conflict. The conflict may be minor or major in nature or indeed anywhere on the continuum between those two extremes.”
On 18 August 2003 the Gold Coast 2003 Planning Scheme took effect. Section 4.1.52 of IPA provides, relevantly:
“4.1.52 Appeal by way of hearing anew
(1) An Appeal is by way of hearing anew.
(2) However, if the appellant is the applicant or has submitted for a development application, the Court –
(a) must decide the appeal based on the laws and policies applying when the application was made, but may give weight to any new laws and policies the Court considers appropriate;
(b) must not consider a change to the application on which the decision being appealed was made unless the change is only a minor change.
It was common ground on the hearing of the appeal that the request by Tralee to substitute development according to the Tralee plan, as opposed to its original plan, is a minor change under s.4.1.52(2)(b). I agree that it is.
In assessing whether any conflict with a planning scheme exists, any conflict must be plainly identified (see Fitzgibbons Hotel Pty Ltd v Logan City Council [1997] QPELR 208 at 212). The test to be applied in determining whether an application may be approved despite any conflict is set out in Weightman (see para [13] above). A strategic plan only sets out broad objectives and not every objective in the plan needs to be met before a proposal may be approved (see Harburg Investments Pty Ltd v Brisbane City Council [2000] QPELR 318 at [31(b)]). Recently, the Court has confirmed that those authorities:
“Indicate that where there is clear conflict with the Planning Scheme which is plainly major or substantial, the decision maker must undertake the three stage test set out by Atkinson J in Weightman at 173. It is, with respect, less clear what course decision makers should follow if the conflict is apparently minor or if parts of a planning scheme appear both to support and be contrary to a development proposal or, as here, are largely silent about it”. (See Kotku Education & Welfare Society Inc v Brisbane City Council [2005] QPELR 267 at [47]; see also Luke v Maroochy Shire Council & Anor [2003] QPELR 447).
In my opinion the fact that the apparent conflict is minor, or that parts of the planning scheme support while others discourage a development proposal, are encompassed by the requirement to consider “the nature and extent of the conflict” (Weightman). If the conflict is minor, or if the planning scheme approbates and reprobates, it will be easier to find sufficient planning grounds than if the conflict is major with little encouragement offered to the development anywhere in the planning scheme.
Implementation criteria must also be read sensibly and in context. The purpose of Objectives is better understood by reading all of the implementation criteria and understanding the strategy that is inherent (see Jenkinson Pty Ltd v Caloundra City Council [2002] QPELR 527 at 528).
The test for the lawfulness of conditions is found in s.3.5.30 of IPA. It requires that a condition must be relevant to, but not an unreasonable imposition on, development, or be reasonably required, in respect of the development.
The Issues
The substance of the appeal is not whether residential development should be excluded from the relevant part of the land. Rather, it is the extent of development that is appropriate for that part. Conditions 1(a) and (b) had the effect of restricting the number of lots to 9 lots. The Appellant seeks approval for 24. So the relevance of a condition setting the number of lots is accepted by both parties. The reasonableness of the Council’s conditioned number of lots is in issue.
The basis upon which Tralee submits that the conditions are an unreasonable imposition upon the development is set out in its letter of 24 June 2005. By way of response the Council defended the condition on the grounds that the proposal will adversely affect the visual amenity of the local area and it is not “site responsive” in that it involves development on steep land and vegetation removal.
The Transitional Planning Scheme
In the Transitional Planning Scheme, the site is within the Future Urban zone, the intent of which is to set aside areas which are planned for urban development until all services and all urban facilities can be provided (see s.11.1).
Under the Strategic Plan the site has an Urban Residential designation. Land within that designation includes:
“… existing and future areas of urban housing. It is intended that this housing will be mainly detached, but with limited areas of other higher density housing. The overall urban residential density is intended to be within the range of 10-15 dwellings per hectare.” (See s.1.4.4.1).
Urban Residential Objective 1 is to promote a high standard of amenity in residential areas including “visual attractiveness” (see s.1.4.4.2). Implementation provision (i) for the objective provides that matters to be taken into account include whether development would be “compatible with the existing or prospective scale and character of nearby residential areas” and the effectiveness of the proposed design and landscaping of the development and of any buffer area in reducing any adverse potential visual impact (see s.1.4.4.2(i)(C)). Also relevant is whether the development proposal does or should incorporate the protection of landmarks and features which would preserve the landscape character of the area (see s.1.4.4.2(i)(F)). The “prospective” amenity, taking into account the strategic plan and zoning provisions, is the primary basis of evaluation (see s.1.4.4.2). The implementation provisions in Urban Residential Objective 3 also indicate that “… most Urban Residential land can be expected to be developed for detached housing accommodation …”. It is expected that properly formulated proposals to develop suitable land designated Urban Residential for residential purposes will be approved (see s.1.4.4).
Urban Residential Objective 6 is to establish distinct urban communities, based on topographical criteria, transport, and the existing settlement pattern. They include the “Nerang/Carrara/Mudgeeraba” community (see s.1.4.4.7). Development proposals in those areas and at their periphery are to be assessed on the basis of whether they are consistent with the “desired predominant character” of the urban areas within which they are located. For Nerang that character is a:
“Suburban community whose character is influenced by the open spaces of the Nerang River and the Merrimac flood plain, the tree-covered hilltops of the eastern foothills, and rural-residential communities to the immediate west”. (See s.1.4.4.7(i)(F)).
Other designations in the Strategic Plan include the Park Residential and Open Space designations. The former contemplates larger allotments (s.1.4.6.1). Open Space designated land is to be left predominantly in either a natural, rural or recreational state because of its values, including landscape quality (s.1.4.10). The site is not included in either designation.
Shire Image Objective 1 is to “identify, maintain and enhance elements which constitute and contribute to Shire Image” (see s.1.3.2.2). The built environment is recognised as being an important part of the Shire, although the more important image elements are considered to be those relating more to the non-urban environment and open space areas, including “forested ridgelines, hill faces and other significant forested areas” (see s.1.3.2.2(iv)).
Mr Ure, for the Council, relied on passages in the Transitional Plan which emphasised the importance of the treed, natural appearance of the site. In para 1.3.2.2, Shire Image Objective 1, in Implementation para (i), speaks of the importance of “foothills”; in para (iv) of rural hinterland; in para (vi) of “natural features”, “landform, vegetation and landscape character”. Objective 2 refers to conservation of “significant Open Space or landscape character in appropriate areas along the Pacific Highway, particularly between Beenleigh and Nerang”, and Objective 3 makes similar reference in relation to the Railway corridor. The site, of course, lies between the highway and the railway line and is not located within any of the specifically identified areas in Objective 2, but Objective 3 is relevant.
I do not think that those provisions assist very much. The site is an isolated hill and in my opinion does not constitute a foothill (presumably of the ranges which are many kilometres away). There is a large area of built form between the site and the ranges. From the Pacific Highway and from the railway line the site presents as a knoll, more or less pristine according to the angle of view. From the Pacific Highway, even after development, it will continue to present that way, admittedly with fewer trees visible and the new houses visible. But those areas are not within the disputed areas. The disputed areas do present to the railway line and from that vantage point (or points) there will undoubtedly be fewer trees to see and new houses on view. Does that degrade the natural features, land form, vegetation and landscape character of the area, including the railway corridor? Given that the site is considered suitable for residential development under the transitional plan, and given the Council’s concession that residential development on the site is appropriate, that must depend on the sensitivity of the development, that is, the extent to which natural vegetation is to be preserved and the extent to which the proposed houses will intrude in an unpleasant way.
Conflict with Transitional Plan
Mr Venn, the consultant town planner for the Council, identified two respects in which the Tralee proposal conflicted with the Transitional Plan, steepness of site and visual amenity. Mr Vann, the consultant planner for Tralee did not, so far as I can see, concede any such conflict.
Read literally Urban Residential Objective 1 (s.1.4.4.2 of the Strategic plan) in objectives (viii) and (ix), shows the intention of the Council not to approve residential development on slopes greater than 20% for stable soils. Some of the disputed allotments are on land steeper than that. Whether the objectives are strictly breached by the proposal is highly debatable. The objectives as a whole seem to be devoted to preserving amenity (see implementation provision (i)). Then , objective (ix) specifically relates to access to lots. In favour of the Council however, I accept that there is a literal breach of the Strategic Plan in those matters.
However in all the circumstances it must be seen to be a very minor breach and indeed the Council must be taken to have accepted that, because some of the lots which are not in dispute are on land steeper than 20%. The ability to build high quality houses on all the disputed lots was established by Mr Robinson, the architect. No geotechnical evidence was led to suggest that any of the disputed lots should not be built on. Unchallenged conditions of the Council’s consent are designed to deal with potential problems with steepness and the evidence was that they could be obeyed. Evidence of the ability to comply with the Performance Criteria and Acceptable Solutions of the 2003 Planning Scheme on steepness was to the same effect. Finally, there is the fact that the Transitional Scheme places this land in the Urban Residential Designation and the Future Urban Zone.
On the question of visual amenity the accent was on two things, the loss of trees and the visibility of the ultimately constructed houses.
The conclaves between Messrs O’Brien and Chenoweth, the two experts in the field, resulted in agreement including that:
(a) views from the west of the land will hardly change as the most visually important vegetation on the site, as seen from Nerang west, is contained within the area that will become dedicated parkland;
(b) the proposal is urban in character, similar to and consistent with the scale and patterns of residential development within the local area;
(c) the proposed road layout is acceptable with respect of visual amenity;
(d) a large percentage of existing vegetation within the area referred to in conditions 1(a) and (b) lies outside the proposed building envelopes;
(e) proposed tree planting will provide “some immediate effect of screening by the large trees as well as more dense long term screening by the smaller, faster growing trees” – if adequately maintained those trees could provide some permanent screening of the houses on the disputed lots;;
(f) with respect to Condition 1(a): the development will not break the treed skyline when seen from Nerang Broadbeach Road; the size of Lots 45 to 49 inclusive is not important with respect to visibility of houses on those allotments; proposed tree planting would reduce the visibility of houses on Lots 36 to 44 as viewed from the north, and Lots 41 to 44 as viewed from the south-east; and with the implementation of design controls and landscaping planting, allotments can be developed in the disputed area currently shown as Lots 31 to 44 at sizes smaller than 4,000m2 (provided controls were implemented); and
(g) with respect to Condition 1(b): houses will be constructed, and trees removed, in areas at higher elevations than the disputed Lots 18 to 21 and could be more obvious than the houses on the disputed lots; Lot 17 should be excluded from the conditions; Lots 18 to 21 can be smaller than 4,000m2; and more than one lot can be provided within the area of Lots 18 to 21.
The Council’s case on tree removal referred to some trees to be removed from areas other than the disputed areas. The very detailed evidence on tree removal did not, to my mind, demonstrate that the undoubted and necessary tree loss which would be caused by the building of houses on the 24 lots shown in the Tralee plan (particularly when in the fullness of time the trees to be planted would reach noticeable dimensions) would be substantial in the overall scheme of things.
It is important to remember the presence of a substantial number of undisputed conditions, carefully drawn to protect and preserve trees where possible and, as I have said, to cause Tralee to plant, protect and preserve others. Those plantings will occur not just on the lots themselves (in a 10m wide strip down-slope of the building envelopes) but also in the proposed road reserves. Their effect will be emphasised by the willingness of Tralee to accept height restriction conditions on a number of the proposed houses.
While photomontages may not give a perfectly correct picture of the finished development, I am satisfied that Mr Elliott’s production gives a very fair representation and helps me to conclude, as I do, that from all points of the compass the development, when complete, will present as a substantially treed knoll with houses of high quality, which are visible but not intrusive.
Does this, then, operate as a conflict with the Transitional Planning Scheme’s provisions relating to visual amenity? I find it difficult to recognise one when I have regard to its provisions which I have set out and discussed in paras [22]-[29] above. As I said in para [32] in relation to steepness of the site, I would say that, if some such breach can be identified by an eye more critical than mine, it must surely be of a very minor nature and extent. The overall thrust of the planning scheme is that the site is suitable for residential development and that overall thrust is quite powerful enough to overcome those minor breaches.
Mr Venn’s expressed concern was that conditions, however carefully drawn, cannot ensure compliance with them. That may be true, although it is not unknown for complaints to be made, even proceedings brought, for breach of conditions. But this Court must assume that people will usually obey the law. Otherwise, what is the point of imposing conditions at all? Importantly in these cases, building inspectors will supervise the construction of the houses and they do so under statutory duties and subject to sanctions if they fail to do their duty. And of course, conditions run with the land to subsequent purchasers.
In reaching my conclusions on these matters, while I have naturally been influenced by the Council’s position in agreeing that some residential development in the disputed areas is reasonable, I have not considered myself bound by it. The Court must decide whether a development is lawfully within a planning scheme and, in this case, whether proposed conditions are relevant and reasonably required. But having said that, the appeal is adversarial, not inquisitional, so any concession by the Council will always be an important consideration.
Given the provision of s.4.1.52 of IPA, my conclusion, expressed in para [38], is sufficient to dispose of the appeal, but I should see whether the 2003 Planning Scheme, to which some weight should be given, displaces the reasoning I have used under the Transitional Planning Scheme.
The 2003 Planning Scheme
Under the 2003 Planning Scheme the site is contained within the Nerang Local Area Plan (“LAP”) area. It provides for “the integrated and detailed planning of Nerang as a Regional Activity Centre, with a diverse range of employment functions, urban facilities and services, recreational facilities and residential opportunities” (see Part 6 Division 2, Chapter 18, s.1.0). Nerang is recognised as a successful regional centre (see Part 6 Division 2, Chapter 18, s.1.1).
The site is contained within Precinct 9: Urban Residential which applies to land “currently developed, or intended for, residential purposes”. Residential development is required to be site-responsive and support the area’s “hinterland character” through building design, landscaping, and climatically responsive design (see Part 6 Division 2, Chapter 18, s.5.9). The Nerang LAP Precincts Map reveals that with the exception of the site and land to the south-west across the motorway, land within the Precinct is the most “suburban” in the LAP area, and is to be contrasted for example with lot sizes in the Large Lot Residential Precinct, Precinct 10. The suburban character of the Precinct is confirmed by Planning Scheme Map PS11 which places the land and locality in the “suburban estates” character element.
The site is identified on LAP Map 18.5 as Residential Density Category 1 RD1 which contemplates up to 25 dwellings per net hectare (or 1 dwelling per 400m² of site area), far greater than the density actually proposed in the Tralee plan and greater than the 10 to 15 dwellings per hectare envisaged by the Urban Residential designation in the transitional scheme. Also LAP Map 18.5 indicates that the lowest residential densities are within Precinct 10.
The Nerang LAP Table of Development (see s.6.0) provides that a reconfiguration which “results in no lots with an area less than 600m²” (as is the case under the Tralee plan) represents code assessable development in an RD1 area.
The Nerang LAP Place Code has, as its purpose, to ensure that the scale, density, layout and aesthetic appearance of all development is consistent with “the role of Nerang as a Regional Activity Centre”. It aims at ensuring that Nerang becomes a distinctive and recognisable location within the City, where high standards of “urban design and architecture” are promoted (see Part 6 Division 2, Chapter 18, s.8.1).
Indications of what the Place Code, and the scheme as a whole, intends for the Nerang area, and the various Precincts, can be identified by performance criteria contained within the Code. For example PC2 requires accommodation density to be “consistent with the Regional Activity Centre character of Nerang”; PC3 envisages a site coverage not exceeding 50% in Precinct 9; PC12 requires the design of buildings in the LAP area to promote “the theme of a contemporary, climatically responsive, leisure orientated centre”. PC30 relates to subdivision, and requires that “all lots must be of sufficient size to comfortably accommodate the type of development envisaged in the LAP and the relevant Precinct intent”. For Precinct 9, AS30.2.1 requires lots to be consistent with the requirements for lot size and dimensions for the Detached Dwelling Domain set out in specific Development Code 28 - Reconfiguring a lot. The evidence of Mr Vann was that the proposal complies with that acceptable solution.
The purpose of the Reconfiguring a Lot Code is to provide that new lots are suitable for their intended purpose, are “appropriate to the topography and landscape features of the land” (see Part 7, Division 2, Chapter 28, s.1.0). PC1 requires, in relation to lot size, that lots have the appropriate area and dimensions to enable various outcomes including densities consistent with the intended character of the local area, as expressed through the LAP; retention of ecologically significant areas and other remnant vegetation; retention of cultural features and views; minimisation of earthworks and/or retaining walls associated with building construction on steep sites; provision of private outdoor space and on-site landscaping; and convenient vehicle access and on-site parking. The evidence before me was that the proposed development complies with the corresponding acceptable solutions and so the Performance Criterion is satisfied.
The site is identified as including parts of moderate risk of instability on Overlap Map OM16-22 (Exhibit 18) and is accordingly land to which the “Steep Slopes Code” (see Part 7, Division 3, Chapter 16) applies. The primary purpose of the Code is to regulate development so as to minimise the potential for erosion or slippage; effectively manage stormwater runoff; minimise erosion on slopes exceeding an average of 15%; reduce the visual impacts of buildings and associated works through suitable external building treatment and landscaping; and to encourage safe and efficient vehicular access onto steeply sloping land. The Code is a performance based one which seeks to “regulate” development on steep slopes, rather than preclude it. It is therefore even more amenable to the Tralee plan than was the Transitional Planning Scheme.
Conflict with the 2003 Planning Scheme
Again the dispute related to the steepness of the slopes and to visual amenity.
The steepness issue has been discussed in para [32] above and my conclusion is that the evidence before me establishes that the requirements of the Steep Slopes or Unstable Soils Code can be met and are actually met by the undisputed conditions. The visual amenity aspect of the appeal has been sufficiently discussed in paras [33]-[37].
The LAP provisions, including Precinct 9, do not attribute any landmark or visual importance to the site. That is in direct contrast not only to other LAPs such as the Gurangunbah LAP which identifies important viewsheds and landmark features, but also to other parts of the Nerang LAP area. For example, in Precinct 3 there is contained the clearly expressed intent that tourism uses do not adversely impact on visual amenity and views from the motorway.
Planning Strategy Map PS11 of the IPA scheme identifies the subject land and Nerang as being within the “suburban estates” character district, as opposed, for example, to the rural hinterland character district. Tralee’s landscape architect, Mr O’Brien, considered that the proposal either achieves the specific elements or retains character elements relevant to that district. His opinion in that regard was not challenged. Then I have favourable regard to the site’s location within a highly urbanised setting. The tendered photographs and the oral evidence, interpreted in the light of my inspection of the site and the surrounding area, satisfies me that the Tralee plan will not just fit in with and complement the local residential area (including Precinct 9) but will very probably be an admirable addition to it.
The specific provisions of the Planning Scheme set out in paras [42]-[49] emphasise that the scheme actually specifies the site as suitable for the Tralee proposal. For completeness, if there is a breach of the scheme it is so minor as to be undetectable by me and greatly outweighed by the provisions in favour of the development. Importantly, none of the relevant provisions of the 2003 Planning Scheme lead me to revise my conclusion on the Transitional Planning Scheme.
Conclusion
The appeal will be allowed. I invite counsel to tender a draft order setting out the appropriate new conditions.
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