Ure and Robertson v Council of the Shire of Noosa and Law

[2002] QPEC 52

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:	Ure & Robertson v Council of the Shire of Noosa & Law [2002] QPEC 052
PARTIES:	RW URE and PJ ROBERTSON     Appellant And COUNCIL OF THE SHIRE OF NOOSARespondent And JOHN LAW   Co-Respondent
FILE NO/S:	Appeal No 4511 of 2001
DIVISION:	Planning and Environment
PROCEEDING:	Appellate
ORIGINATING COURT:
DELIVERED ON:	27 March 2002
DELIVERED AT:	Brisbane
HEARING DATE:	11 March – 15 March 2002
JUDGE:	Senior Judge Skoien
ORDER:	Appeal Dismissed
CATCHWORDS:	Amenity; Disturbance of Vegetation; primacy of Development Control Plan; Gross Floor Area.
COUNSEL:	Mr J Gallagher QC with Mr Job for the Appellants Mr Keim for the Respondent
SOLICITORS:	Corrs Chambers Westgarth for the Appellant Wakefield Sykes, Solicitors for the Respondent

1. This is an appeal by Mr Ure and his sister, Mrs Robertson against the refusal of the Council of their application for a material change of use to permit the construction of a dwelling house on land in Park Road, Noosa.

The Site

1. The site subject of this appeal comprises-

(a)        lot 54 on RP52918 incorporating easement B on RP177551 (12 Park Road – the Ure allotment);

(b)        easement A on RP 177557 over part of Lot 64 on RP52918 (9 Allambi Rise – the Law allotment); and

(c)        

lot 55 on RP52918 (10 Park Road - the Robertson allotment);

Lots 54 and 55 stand side by side, fronting Park Road, lot 54 being to the north of lot 55.  Lot 64 stands behind, and immediately to the east of lot 54.

1. Lot 54, on which the house is intended to be built, is on the east side of Park Road approximately opposite the eastern end of Noosa’s main beach.  Park Road extends from the eastern end of Hastings Street out past the site (forming an important part of Noosa Hill) and then past Little Cove to the Noosa National Park entrance.

1. Lot 54, has an area of 794m² and a frontage to Park Road of 21.44 metres.  It is roughly rectangular with its long axis running approximately east/west. Vehicular access to lot 54 is not proposed from Park Road because of traffic safety, stability of the site and environmental considerations.  Instead vehicular access is proposed from Allambi Rise via Easement A over part of lot 64.

1. Lots 54 and 55 are densely vegetated with a mix of mature trees and undergrowth.  The allotments are part of a dunal system which rises steeply up from west to east, that is from Park Road to Allambi Rise.  This slope generally is in the range of 25 -  35%.

1. Under the Strategic Plan lots 54 and 55 are included in the “Open Space - Conservation & Waterway Protection” preferred dominant land use designation (PDLU), while lot 64 is in the “detached housing” PDLU.  In the Planning Scheme, lots 54 and 55 are in the non-Urban zone in which a dwelling house is a consent use.  They also fall within the land designated by the Noosa Hill Development Control Plan (“the DCP”) as Precinct 1 – Primary Committed.

The Proposal

1. The proposal is for a two-storey residence on lot 54, with an associated garage to contain two cars in tandem on Easement A on lot 64.  The proposed residence is to comprise -

(i)      At the lower floor level – two bedrooms, a bathroom, a rumpus room, a laundry, a deck at the south western corner and external stairs up;

(ii)     At the upper floor level – a main bedroom, with ensuite bathroom, a living/entry room, a dining/kitchen space, a deck on the south western corner of the residence, a deck on the eastern side, and stairs down.

1. Pedestrian access to Park Road is proposed by way of a boardwalk over both lot 54 and lot 55.  While this was a live issue at first, it ceased to be one.  In any event I am satisfied that it could be built without any adverse effect on the trees or the vegetation and give lawful access to the road reserve of Park Road.

1. The planning scheme is a transitional planning scheme (ss. 6.1.2 and 6.1.3 of the Integrated Planning Act 1997 (IPA).  As a consequence, the application the subject of this Appeal is to be processed under IPA (s. 6.1.29) and is to be assessed having regard to the matters set out in that section including the transitional planning scheme.

1. Section 6.1.30(3(b) of IPA requires the application to be decided under s. 4.13(5) and (5A) of the repealed Local Government (Planning & Environment) Act 1990 (the P&E Act) as if it were a consent application.  If there is found to be a conflict with either the Strategic Plan or the DCP, the application must be refused unless there are sufficient planning grounds to warrant approval of the application despite such conflict, P&E Act s. 4.13(5A).

The Issues

1. The matters in dispute finally resolved themselves to two main issues, the effect of the proposed dwelling house on vegetation and amenity with a lesser issue, the use of the easement for garages.  Discussion of the issues must take place in the context of the relevant statutory instruments.  I now set out the most critical provisions, commencing with the DCP which contains the following importantly relevant paragraphs.

1. 1.       Introduction

Noosa Heads is an area of great attraction to resident and tourist alike.  An important element of attraction is the range of hills in which the Hastings Street tourist precinct nestles, known as Noosa Hill.  Resident and Tourist perception of the Noosa Heads area as an area of relatively unspoilt beachfront is due in no small part to these vegetated hillsides which form the visual backdrop to the area.  The maintenance of the area’s attraction as a place to live and visit is crucial for the well being of the Shire’s economy.

Most of the area contained within the Development Control Plan boundaries is private freehold land, parts of which are committed to urban development.  Thus there is significant potential for urban development to irrevocably scar the visual backdrop.  At the same time, sensitive development which is integrated with the natural environment can significantly reduce such impacts.  Accordingly, the aim of this Development Control Plan is:-

“To maintain the natural beauty of Noosa Hill and to ensure that any future development is integrated with the existing environment”.

2.          Definitions

In this Development Control Plan, unless the context otherwise indicates or requires, the terms used have the meanings assigned to them in the Schedule to the Planning Scheme.

3.          Objectives

In order to convert the broad aim of this Development Control Plan into practical guidelines, objectives have been derived from the aim.  These objectives may be grouped into four categories.

(1)     Visual Amenity Objectives

(a)To maintain the natural appeal and landscape character of Noosa Hill.

(b)To encourage landscape treatments which are consistent with the existing natural environments of Noosa Hill.

(c)To restrict development, where possible, in areas of high elevation and visibility.

5.          Precinct 1 – Primary Committed

Intent

This precinct comprises that land which may be regarded as being critically located in terms of potential impact upon visual amenity.  The land forms the immediate backdrop to the Hastings Street tourist precinct and is generally very steep and subdivided into allotments of an urban scale.

The broad intent of the precinct is to preserve existing substantial vegetation, to the exclusion of development if necessary, and to ensure that any development is integrated with the existing natural environment and character of the area.

Implementation

(a)Applications for consent for dwelling houses on land situated at 6-14 Park Road, Noosa Heads described as Lots 2, 55, 56 and 57 on RP 52918 and Lot 3 on RP 122368, Parish of Weyba, County of March may only receive favourable consideration, where the proposed dwelling house:-

(i)Is designed to minimise the impact on existing vegetation and visual amenity of the area;

(ii)Does not exceed a building height in storeys of two (2) storeys and a building height in metres of nine (9) metres;

(iii)Does not comprise more than two (2) levels, excluding garages; and

(iv)Does not exceed a gross floor area of one hundred and fifty (150) square metres; excluding garages.

(c)Subject to (a) above, applications for consent for the development of land within Precinct 1 included in the Non-Urban Zone which would result in significant disturbance of existing vegetation or degrade the visual amenity of the area, are unlikely to be favourably considered by Council.

1. I note that implementation (a), above, does not specify lot 54.  Both parties in the appeal, however, accepted that lot 54 must be included in the land which is the subject of those implementation provisions, as did the consultant town planners who were called.  In my view the view they all took was eminently justified.  The omission of lot 54 must be an error.  It has to its immediate south lot 55 and to its immediate north, lot 3, both of which are mentioned.  The evidence (assisted by my site inspection) suggests no reason for the exclusion of lot 54; on the contrary it is just as sensitive a piece of land as the specified sites.

1. The DCP was promulgated on 19 September 1991, while the Strategic Plan came into existence on 5 September 1999.  The submissions of Mr Gallagher QC and Mr Job of counsel for the appellants sought rather to play down the provisions of the DCP and to emphasise some provisions of the Strategic Plan.

1. The most specifically relevant provision of the Strategic Plan is, in my opinion, s.19.7.5.4 which is:-

“The intent for areas [including the site] is to maintain the environmental values of the land to the exclusion of development which would have impact on those values, irrespective of the peak of impact or the time taken to result in a measurable impact.  Where there are threats to the maintenance of those values or where development is proposed which may result in adverse impacts on those values, actions such as the following will be considered:-

(a)on planning applications over …. land with an Open Space – Conservation and Waterway Protection designation:-

require modifications to or refuse proposals where the development would result in adverse impacts on environmental values.”

1. Those provisions both of the Strategic Plan and of the DCP emphasise the scrutiny to which an application such as this will be put.  The DCP provisions, although they are a decade old, have not been repealed.  They fit well into s.19.7.5.4 of the Strategic Plan and in my view they can be seen as providing the yardsticks by which the scrutiny required by the Strategic Plan is to take place.  So it can be said that the DCP provisions are pre-eminent in the consideration of this application.

Gross Floor Area

1. Implementation 5(a)(iv) requires an examination of the GFA of the proposed house, and is an appropriate place to start because the bigger the house the more severe are likely to be the effect of the house on the environment.  In my opinion implementation (iv), as well as those in paragraphs (ii) and (iii) are all subsidiary to implementation (i), being designed to achieve the object of (i).  In the following paragraphs I have used rounded figures, they being sufficiently accurate in the circumstances.

1. The definition of gross floor area in clause 1.1 of the Planning Scheme provides that from the overall sum of all floor areas some deductions may be made.  Under the provisions defining those deductions, one may exclude:-

“b.1The area of that part of any private balcony, which is within 2.5 metres of external walls of the building adjacent to such balcony; and

b.2Unenclosed areas over which the building cantilevers, of 2.5 metres width or less,

provided that the combined total of b.1 and b.2 does not exceed 15% of the gross floor area of the building”.

“f.Accessible open decks”.

1. It is accepted that the total GFA, measuring all floor areas of the proposed building is 278m².  However the plans indicate that there will be four areas of decking which could fall within b.1 or f.  For the appellants, Mr Thompson, an architect gave evidence that the net result was 189m².  In fact the designing architect had calculated it at 195m².  For the Council, Mr Robinson, an architect, gave evidence that the correct net GFA was 217m².

1. I took one of the points of difference under this topic to be whether a design which included a private balcony under b.1, because of the proviso, lost the right to deduct its area if it exceeded 15% of the GFA or whether it lost only the right to deduct the area by which it exceeded that 15%.  Thus, if GFA were, for example, 200 m² and a private balcony which answered the description under b.1. contained 40m²  (that is 20% of GFA; 15% being 30m²), would the definition still allow the deduction of 30m² making the adjusted GFA 170m² or would no deduction be allowed, leaving the GFA at 200m²?

1. In my view it must be the former.  As Mr Robinson said, the provisions relating to GFA have to do with the bulk of a building.  The planning scheme recognises that balconies have only a limited effect on the bulk of a building, so a reasonably small area of balcony can be ignored.  It would be strange if that concession were totally lost should the balcony exceed, even slightly, the nominated maximum area for exclusion (i.e. 15% of GFA).  On the other hand if that area should be exceeded, the area of excess would be counted in to calculate the adjusted net GFA so that the bulk of the building would be to that extent increased and the building assessed accordingly.

1. The use of the word “private” in paragraph b.1 in relation to the balcony caused some debate.  I agree with Mr Thompson that it was incorporated to deal with the assessment of the GFA of multi-unit accommodation, hotels and the like, in which balconies could be outside public rooms, or could be common to and serve more than one dwelling unit.  Such balconies would not be “private” as required by paragraph b.1 whereas a balcony serving one dwelling unit would be.  In an ordinary domestic house, however, all balconies would be private balconies.

1. A balcony is, according to the Shorter Oxford English Dictionary:-

“A platform projecting from the wall of a house or room supported by pillars, brackets or consoles and enclosed by a balustrade”,

and the Macquarie Concise Dictionary gives:-

“A balustraded or raised and railed platform projecting from the wall of a building.”

Thus the presence of a railing or balustrade is an essential part of a balcony.  And in my view, as the SOED makes clear, another essential feature of a balcony is its elevation above ground level.  Common English usage supports that view.  The Macquarie definition is not quite as clear on the point but that, I think, it is a fault of drafting.

1. In the planning scheme paragraph f. must have been intended to mean a structure other than a balcony.  A balcony is, of course, accessible from a room or rooms so “accessible” in paragraph f. must convey more than that.  And “open” must be intended to convey something more than merely unwalled, or unglazed, which again a balcony usually is.  In my view Mr Robinson was right in restricting the meaning of an accessible open deck to an unbalustraded and unrailed deck (which necessarily puts it at or almost at ground level) and which is thus easily accessible from many points.  Such a deck (unlike a balcony) probably does not add to building bulk and so does not call for the qualification that it be of less than a certain width or less than a certain percentage of GFA. On the evidence, the only accessible open deck for this proposed house is the 16m² deck at the north eastern corner of the proposed house.  That is to be excluded from the calculation of GFA.  But a very small area (1m²) on the upper floor does not qualify under paragraph f.  Nor does the 38m² deck on the south western corner of the upper floor.  Neither of those spaces qualifies as open or accessible in the senses which I have decided are applicable, because neither is at ground level and each is railed.

1. There are, however, some areas which do fall within paragraph b.1 which are therefore able to be excluded, up to an area equal to 15% of the GFA.  In total, as will appear, they easily exceed 15% of GFA so really they do not have to be calculated accurately, although I have attempted to do so more or less.

1. On the lower floor, at the south western corner, is a balcony of total floor area of 29m².  But only so much as is within 2.5m of an external wall qualifies under paragraph b.1.  The two architects differed on the way that should be calculated and, with respect, I think neither of them got it quite right, Mr Thompson calculating it too highly because some deck he included is not within 2.5m² of any part of an external wall.  On the other hand Mr Robinson under-calculated it by overlooking small portions which lie within 2.5m of the wall.  The calculation should be as indicated:

2.5

2.5  2.5

 

2.5  

Hatched area to be counted in GFA.

The deck on the upper level should be assessed in the same way.

1. On these bases the calculation of those two deck areas which potentially fall within paragraph b.1 and are therefore able to be excluded are slightly greater than that arrived at by Mr Robinson.  In his report, exhibit 17, he calculated net areas at the south western lower deck at 19.12m² and the south western upper deck at 26.87m².  I do not have the exact dimensions available to me but my estimate is that the figures should be, say, 23m² for the lower south western deck and, say, 30m² for the upper south western deck.  To those should be added the upper deck on the eastern side of the house, say 10m², which makes a total balcony floor area of 63m² which is potentially able to be excluded under paragaph b.1.

1. The GFA of the entire house is 278m².  Private balcony areas which can be excluded from GFA calculation are limited to 15% of the total GFA, which would be just under 39m².  That is considerably less than the actual balcony floor areas.  The accessible open deck (16m²) should also be deducted under paragraph f.  So the GFA of the house, calculated in accordance with the planning scheme is:-

Total floor areas  278m²

Less open accessible deck      16m²

Private balconies                    39m²    55m²

Deemed net GFA  223m²

1. Given those figures, it is the inescapable conclusion that the plan for this house, has in no way seriously attempted to comply with the GFA of 150m² which implementation clause 5(a)(iv) of the DCP contemplates.  So immediately alarm bells should ring because the larger the house the greater is the risk to the existing vegetation and the more likely it is that the house will be intrusive, rather than hidden, to the detriment of the amenity.  In other words, because of the failure to comply with implementation (iv), compliance with primary implementation clause (i) is put at risk.

1. I am conscious of the fact that the plans for the house do not incorporate a garage and the GFA definition allows the floor area for a garage to be excluded.  Mr Gallagher’s submission was that some 45m² could be allowed for a double garage.  If so, there would still be a substantial excess of 28m².  However in the particular circumstances of this site I consider that it is proper to disregard the absence of an incorporated garage.  If a garage were incorporated the designer would either have to increase the height of the building or the size of the footprint of the building.  The former would certainly make the house more visible and the latter would almost certainly disturb more of the existing vegetation.  So implementation 5(a)(i) of the DCP would be even more seriously compromised.  It is not difficult to infer that these considerations played a large part in the decision to put the garages on the easement over lot 64.

Amenity and Vegetation

1. Anyone who has visited Noosa would agree that the description in the DCP of the beauty of Noosa Hill, especially that part which contains the site, and its contribution to the attractiveness and popularity of Noosa, is by no means overstated.  The fact that the view along the beach to the east is onto areas of virtually pristine forest, rather resembling rain forest, gives Noosa beach a quality which is virtually unique, at least in South East Queensland.  This is the amenity which the planning documents seek to protect and the site is an important part of the area giving rise to that amenity.  It is therefore quite unsurprising that the DCP, while accepting that a dwelling house is within contemplation for the site, should put such emphasis on the need for caution in considering any application for its establishment.

1. Mr Gallagher Q.C., for the appellants, put a deal of stress on the requirement to achieve “integration” of development with landform and landscape, a concept which appears in various sections of the Strategic Plan.  And it must be noted that the concept of integration of development with the existing environment is repeated in the Introduction to the DCP, and with the Intent for Precinct 1 in the DCP.

1. As I have said the most relevant statutory instrument is the DCP, it being a document which deals specifically with the area of Noosa Hill and even more specifically with Precinct 1 in which the site lies.

1. The DCP provisions relating to Precinct 1 are indeed stringent.  The Intent tells us that the site is “critically located in terms of potential impact upon visual amenity”; that it is “the immediate backdrop to the Hastings Street tourist precinct”; that the preservation of existing vegetation will be “to the exclusion of development if necessary”.  In the Implementation provisions, we are told that an application of this type “may only receive favourable consideration where the proposed dwelling house [fulfills the four stated considerations]”; that “applications for consent for the development [of the site] which would result in significant disturbance of existing vegetation or degrade the visual amenity of the area are unlikely to be favourably considered by Council”.

1. I cannot readily recall reading provisions of other planning documents which imposed such stringent cautions on applications for development.  I am unable to read the various references to “integration” whether in the DCP or the Strategic Plan as watering down those cautions.  Rather, the cautions describe what generally will be regarded as proper or satisfactory integration. 

1. It would be wrong to conclude that the stringency of these cautions has the effect of completely preventing the construction of a dwelling house, thus effectively sterilising the land.  If such were the case the Council should, responsibly resume the land for open space.  But in my view the evidence established the probability that a dwelling house could properly be built.  See para. [47], below.

1. To what extent does the proposal comply with the four expressed cautionary criteria?  It does comply with those numbered (ii) and (iii).  I have found that it does not comply with criterion (iv). The question now is to what extent it complies with criterion (i).

1. The evidence on this issue largely revolved around what I took to be an obvious point.  If vegetation, especially tall trees with large canopies, have to be removed to accommodate the house, there would obviously be a loss of greenery on the hillside but more importantly, there would be the possibility, or likelihood, of two results.  First, and most importantly, the new house itself might be visible, to a greater or lesser extent from the west.  Second, the house which fronts Allambi Drive on lot 64 immediately to the east of the site could be revealed to a greater extent to viewing from the west.

1. I would have thought that, despite the difficulties posed by the steep slope of the site, it should have been possible for precise evidence to be led on these points.  No surveyor gave evidence.  It would have been very useful and could have been decisive to have had clear evidence of the accurate identification on the ground of the house footprint so that any actual trees which undeniably would have to be removed could be physically identified.  Any tree about which there could be argument for removal or preservation could be physically identified, for example, a tree trunk which might be able to be built into an exterior deck, a tree trunk very close to the house footprint, or a tree canopy very close to the wall or to the roof of the house.  Furthermore, the height and dimensions of the canopy of any doomed tree or a tree at risk could surely have been quite accurately measured and described and its importance to the sight lines from various points could have been described or illustrated.   In the absence of that sort of evidence I was offered merely opinions based on, or supported by, survey plans which were sometimes quite old (1991) and sometimes, on the evidence, incomplete.  As a result, it seemed to me, the evidence generally was that two, possibly three trees would be removed.  Whether any and which of these trees was of any real importance was a matter of estimation and sometimes, I thought, of guesstimation.

1. For the appellants, the evidence of Mr Chenowith was the most definite, yet even he did not satisfy me that he had located all doomed trees or the trees at risk with certainty.  He said there would be only one lost but he did not describe clearly the loss of canopy protection which that loss would bring about.

1. To illustrate the confused state of the evidence, Mr Chenowith said that the only tree which would certainly be lost was that numbered 54S in ex. 27.  Yet Mr Gould, the engineer, said that the only one which had to be removed was one which he identified in ex. 17 as “20.64”.  They are clearly different trees.

1. An attempt was made by Mr Dillon, the town planner called by the Council, to have a surveyor mark out the footprint of the proposed house and then to locate and mark the doomed or endangered trees.  His evidence was that tree 54S (which Mr Chenowith identified) would be doomed but that another substantial tree, 10^m or so in height, which fell within the house footprint in the proposed bedroom No. 3 would also have to go and that another substantial tree which stood some 900^mm   from the building line would be at risk.  He spoke also of a group of small trees or saplings which stood in the north western corner of the footprint which clearly would be lost.

1. On this evidence I would not be able to make a finding on the number, the height, or the canopy size of the trees which would definitely have to be removed or which were at risk of loss.  As to the damage likely to be caused during construction to other trees and vegetation, I prefer the evidence of Mr Robinson that it would be more substantial than Mr Gould suggested.

1. From all of this it follows that it is quite impossible to find to what extent the proposed building would be visible from different points to the west, along the beach, or from other parts of the neighbourhood in that direction.  On the inspection I noted that even now, with the trees and vegetation quite undisturbed, a balloon at the height of the apex of the proposed house was visible from different vantage points.  It seems obvious that a constructed house of the size and shape which is proposed would surely be even more visible.  Furthermore I consider it likely that the existing house on lot 64 would become more visible because of the loss of canopy which now partly shields it.

1. I am inclined to the opinion expressed by Mr Robinson, that the design of the house is not likely to make it unobtrusive.  It is too bulky and the roof line and materials as well as the western wall make it likely that there will be reflection of the afternoon sun.

1. In the upshot, not only have the appellants failed to satisfy me that the house can be built with minimal impact on the existing vegetation and visual amenity of the area, I conclude that the reverse will probably be the case.

1. While it is merely a sketch, it seems to me that the design Mr Robinson suggests in exhibit 36 would not only adhere to the 150m² criterion in implementation 5(a)(iv) of the DCP but would cause minimal disruption to the vegetation (importantly the tree canopy) and the amenity.  That would result from its smaller size and its modular design. It could be fitted into an area of the site where no substantial tree would be threatened.  It would also be less reflective of afternoon sun.  Although there is no onus on the Council to demonstrate how a house which integrates with the environment of the site might be designed, it is instructive to see the implementation provisions do not impose impossible strictures.

Garages

1. The propriety of designing a tandem garage on easement A over lot 64 was challenged by the Council.  While it is an unusual suggestion, the cautions laid down by the planning documents for the development of this site call for unusual suggestions.  If the developer privately reaches agreement for off-site parking on private land so that the proposed house can properly comply with the DCP, and Strategic Plan, I see that as being reasonable.

Conclusion

1. The failure of the proposal to comply with the guidelines laid down in paragraph 5(a)(i) and (iv) of the DCP means that it is in conflict with the planning scheme.  I see no basis on which it could be said that the appellants have otherwise established sufficient planning grounds to warrant approval of their application despite the conflict.  They have failed to satisfy the necessary onus and their appeal must be dismissed.