Weightman v Gold Coast City Council
[2002] QPEC 2
•1 February 2002
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION: Weightman v Gold Coast City Council & Anor [2002] QPEC 002
PARTIES: ANNE WEIGHTMAN
Appellant
-v-
GOLD COAST CITY COUNCIL
Respondent
and
GORDON LAKELANDS PTY LTD
Respondent by Election
FILE NO/S: 4246 of 2001
DIVISION: Planning and Environment Court
PROCEEDING: Submitter Appeal
ORIGINATING COURT:
Brisbane
DELIVERED ON: 1 February 2002
DELIVERED AT: Brisbane
HEARING DATE: 12-15 November 2001
JUDGE: Judge Alan Wilson SC
ORDER:
1. APPEAL DISMISSED
2. APPLICATION APPROVED ON THE TERMS AND CONDITIONS SET OUT IN DECISION NOTICE AT EXHIBIT 1, PAGE 112.
CATCHWORDS: LOCAL GOVERNMENT – Town Planning – Approval of development proposal despite conflict with Planning Scheme – Planning grounds justifying approval
BUILDING CONTROL AND TOWN PLANNING – Council Approval – Approval despite conflict with Planning Scheme – Planning grounds justifying approval
Appeal against approval of multi unit dwelling – proposal not complying with transitional planning scheme – whether conflict between proposal and scheme – whether sufficient planning grounds to justify approval despite conflict
Integrated Planning Act s 6.1.30(3)(a)
Local Government (Planning and Environment) Act s 4.14(5A)Vynotas Pty Ltd v Brisbane City Council (2001) 1 Qd R 108, considered
Grosser v Council of the City of Gold Coast (2001) QCA 423, consideredCOUNSEL: Mr A Skoien for the appellant
Mr B Cronin for the respondent
Mr S Ure for the respondent by electionSOLICITORS: Creagh Weightman for the plaintiff
McDonald Balanda & Associates for the respondent
Hickey Lawyers for the respondent by election
This is an adverse submitter appeal brought under s. 4.1.28 of the Integrated Planning Act 1997 (IPA) against a negotiated decision of the respondent, Gold Coast City Council, to approve a development application by the co-respondent, Gordon Lakelands Pty Ltd, for preliminary approval for a material change of use of land at the corner of Connor Street and Park Avenue, Burleigh Heads. The parcel is properly described as Lots 1, 2, 13, 14 and 15 on RP 445, and Lot 106 on BUP 1671. The land is presently vacant, although it formerly contained a Roman Catholic church, with ancillary buildings. Its historical usage means it is classified in the Council’s “Special Facility” Zone.
Under IPA s. 4.1.50 the co-respondent, as applicant for approval, bears the onus of establishing the appeal should be dismissed: s.4.1.50(2). The appeal is by way of hearing de novo: s.4.1.52.
The land is on the western side and, effectively, at the back of the Burleigh Heads retail and commercial area (called, in the Council’s Planning Scheme “James Street Commercial Precinct”). It is bordered to the east by Connor Street, on the opposite side of which is an open air parking station. On the north side, it faces Park Avenue and commercial buildings representing part of the Commercial Precinct. The area to the south and west is mostly residential. Although the land falls within the area defined by the Burleigh Ridge Development Control Plan it is close to, and at the rear of, the relatively flat land flowing back from the beach, and very much at the lower end of the land which rises, with increasing steepness up Connor Street, to form that ridge.
The proposed development, represented in detailed form in a model (Ex. 6) is comprised of a building in an approximate “U” or horseshoe shape, with the opening of the horseshoe facing the Park Avenue frontage, i.e. the northern boundary of the land. It contains 61 residential units, 56 with two bedrooms, and 5 with three; 101 carparking spaces (of which 81 are secure, and 20 will be available for visitors, etc); a restaurant at the corner of Connor Street and Park Avenue (of 180 square metres); and, a church below street level at the north-western corner in Park Street with seating space for 160 people. The “open” section of the horseshoe, i.e. the part of the proposed development facing Park Street and across to the commercial buildings presents, to that street, varying levels of open space, with landscaping. On the western boundary, the higher section of the land, the proposed building is three storeys high. (The land slopes down from west to east, with the lowest part on Connor Street.) On the southern side it varies between two and three storeys. On Connor Street (i.e. the eastern boundary) the building is four storeys. It is the fourth storey to which the appellant Ms Weightman takes strong exception, and which lies at the heart of this appeal.
She does not object to the incorporation of a commercial component (the restaurant), a residential component, or the church in the proposed development nor, generally, does she challenge the nature, form or design of it. Rather, she submits, the inclusion of the four storey component on Connor Street conflicts with the Planning Scheme, is entirely out of keeping with the character of development in the area, and is inconsistent with the legitimate expectations of Burleigh Heads residents in respect of further development of land in this locality. Her counsel Mr Skoien, in helpful and carefully argued written submissions, says that positive aspects of the proposal do not depend upon the inclusion of the four storey component on the Connor Street frontage and would remain even if it was removed; and, that additional relaxations of the Planning Scheme granted by Council in connection with the number of carparks required, and the density of the development, would be obviated if the fourth storey is removed; and hence, the need for those relaxations speaks negatively about the proposal.
Under IPA s. 6.1.2 the Council’s Planning Scheme of February 1994 (Ex. 2) presently continues to have effect, subject to any inconsistency with IPA Chapter 3. Under s. 6.1.3, it becomes a “transitional” planning scheme. Hence the co-respondent’s development application is governed by the provisions of IPA ss. 6.1.29 and 6.1.30. Because the subject land is presently in that Scheme’s “Special Facilities Zone” it would have been necessary, prior to the IPA, to make an application to rezone the subject land under the Local Government (Planning and Environment Act 1990 (LGPEA) s.4.3, with the consequence that IPA s. 6.1.30(3)(a) requires the application be decided by reference to LGPEA ss. 4.4(5) and 4.4(5A). The latter provides:
“(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 grounds to justify approving the application despite the conflict.”
A “strategic plan” under the repealed LGPEA is “... a plan that specifies in general terms the future preferred dominant land uses for the planning scheme area for the progressive development of lands within that area, that conforms with s. 2.4 and is approved by the Governor in Council”: s. 1.4. The City of Gold Coast Planning Scheme of February 1994 is, clearly, a strategic plan within that definition. The former act defined a “development control plan” (DCP) as “... a plan for the orderly growth, development or conservation of an area, that conforms with s. 2.5 and is approved by the Governor in Council”. The planning scheme incorporates, in Part 28, the Burleigh Ridge Development Control Plan which is, again, a relevant document under s.4.4.(5A)(a). Hence both fall for consideration in the context of the “conflicts” envisaged by the subsection.
The land is situated in an area designated, under the Planning Scheme, for “Mixed Resident and Tourist Accommodation” (Ex. 7, Part 1-11) which, under Part 1.3 (“Strategic Planning Statements”) is its “Preferred Dominant Land Use” (PDLU). The Scheme states (Part 1-11):
“It is envisaged that these areas will accommodate both tourists 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”.
The Scheme then identifies objectives for areas in this PDLU, and includes the following statement (Part 1-11):
“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 complement groupings of high or low rise development. This gradation will be achieved both as the result of the maximum permitted and permissible heights stipulated and also through the exercise of the Council’s discretion in assessing permissible development. Accordingly, it is envisaged that development will not achieve the maximum permissible building height in most instances.”
At Part 4-18 the Scheme contains provisions concerning multi unit buildings in the Resort Residential 1 Zone and, in respect of the height of developments, says at 4.1.6.4:
“The purpose: to provide for diversity in the built form of the City and for the orderly development of the City’s townscape through the grouping of high rise structures and the imposition of transitional building heights which complement such groupings”.
In this Zone and, in particular, at this site buildings are limited to three storeys (“H3 (H3)”) in height: Part 4-20, Provisions 4.16.4.1 and 4.16.4.2. It is this height limit which, the appellant says, means the application “conflicts” with the Strategic Plan under LGPEA s. 4.4(5A).
The appellant also contends the development is in conflict with the Burleigh Ridge Development Control Plan (Planning Scheme, Part 28-3), Provision 28.2.3(b)(ii):
“(ii)The height of all development shall be in accordance with the provision of the Planning Scheme and the residential density and building map heights. Council will have regard to this DCP and the Strategic Plan when assessing applications to increase the height of development pursuant to those provisions. The height of all development shall not exceed the maximum height stipulated in the Planning Scheme in any circumstances”.
The respondent Council argued no conflict existed. Mr Ure of counsel for the co-respondent was, however, prepared to concede one arose but argued that there were sufficient planning grounds to justify approval of the application, despite that conflict: s.4.4(5A)(b).
The effect, and proper application of s. 4.4(5A), in the context of its importation under the IPA (s. 6.1.30 (3)(a)) is not a straight forward matter. First, as Thomas J. noted in Lewiac Pty Ltd v Gold Coast City (1994) 83 LGERA 224 at 230 the predominant approach to Strategic Plans is that they simply express objectives, and not every objective in them has to be met before an applicant’s proposal can be accepted. Their general thrust is to specify aims, objectives and strategy. Thomas J. went on to say:
“There is however nothing that prevents a degree of particularity in a statement of something that is after all only an objective. As a forward planning strategy it contains relevant matters for consideration by the court”.
(And see Fitzgibbons Pty Ltd v Logan City Council(1997) QPELR 208 per Skoien SJDC, at 212).
Secondly, there is authority that, post-IPA, the Planning Scheme no longer has binding force. Davies JA. said in Vynotas Pty Ltd v Brisbane City Council (2001) 1 Qd R 108 at 113:
“In any event, the scheme of the Integrated Planning Act appears to be that, so far as it applies to development and use of premises, a transitional planning scheme no longer has binding force but is of persuasive relevance only. Thus s. 2.1.23 provides that a local planning instrument which includes a planning scheme may not prohibit development on, or the use of premises; and more specifically s. 6.1.2(3) provides that a prohibited use in a former planning scheme is taken to be no more than an expression of policy that the use is inconsistent with the intent of the zone in which the use is prohibited. These provisions relate only to prohibitions, but if prohibitions in former planning schemes are now no more than policy statements it is unlikely that the Legislature intended any other provisions in such schemes to continue to have binding effect upon development applications under the Act”. (my italics)
Pincus JA. put the matter a little differently, at 114:
“Apart from that it does not appear to me that the Legislature intended, by the language used in Ch. 6 of the 1997 Act, to make the provisions of transitional planning schemes absolutely binding, in the decision of development applications. On the other hand it is important to note that the 1997 Act did not by Ch. 6 create a planless situation. Citizens expect reasonable stability in the law’s treatment of permitted land use. It would be unfortunate if Ch. 6 were used to defeat the reasonable expectations of those who have relied on, and perhaps expended substantial sums on the faith of, existing planning arrangements. The degree of flexibility which Ch. 6 contemplates does not justify failure to give considerable weight to planning arrangements, as they existed when Ch. 6 commenced, so far as such arrangements are required to be applied by s. 6.1.29(3)”.
More recently, however, in Grosser v Council of the City of Gold Coast 2001 QCA 423 White J., (with whom Thomas and Williams JJA. agreed) remarked there can be little doubt that IPA s. 6.1.2. “maintains the importance of consistency with the intent of a transitional planning scheme” – and, at para. 38, went on to emphasize that the proper approach of this court, when hearing appeals, is one of restraint.
Thirdly the Planning Scheme speaks of “diversity” and “variety” in townscape and urban character, and the Council’s desire to achieve “... gradation in building heights to complement groupings of high or low rise development” (Part 1-11). Broad statements of this kind might be thought to reduce the force of provisions which purport to impose strict height limitations (e.g., Part 4-20). The Scheme itself reflects a significant level of diversity: on the other side of Park Street, directly opposite this development, commercial buildings of up to four storeys are permitted. In nearby “precincts”, some no more than 200 metres from the site, buildings of 7, and even 15 storeys may be allowed (a matter the Council would be obliged to take into account: Planning Scheme, Provision 4.16.4.2(i)).
The word “must” is, in some contexts, one of absolute obligation: see, for example, rules requiring personal service, as in Posner v Collector for Interstate Destitute Persons(Vict) (1947) 74 CLR 461 at 490 per Williams J.; but in others, it may be only directory: Blank’s Law Dictionary, 6th Ed. (1990). In s. 4.5(5A) the conjunctive proviso in ss. (5A)(b) suggests it is to be construed in that manner, and not as an imperative.
In any event, (b) makes it clear the discretion remains if an applicant can establish sufficient planning grounds to justify approval “despite the conflict”. As Mr Ure submitted, the remarks of Davies JA. and Pincus JA. in Vynotas (supra), with their reference to “policy statements” and a “degree of flexibility” under IPA Chapter 6 show the degree of “sufficiency” is likely to vary with the extent to which the proposed application “conflicts” with the Planning Scheme; and when, as here, the development is consonant with the Preferred Dominant Land Use Intent, the hurdle will not be terribly high.
Ultimately, I think it is correct to say a conflict does exist but, for the reasons set out above, does so in a context which means the onus upon the co-respondent to establish sufficient planning grounds to justify approval is not of the highest order. At the end of the four day hearing, the issues had resolved to the height of the Connor Street elevation, of four storeys; the adequacy of the carparking; and, the density of the development. As noted earlier the appellant concedes the last two relaxations would not, themselves, warrant refusal but says the need for them is generated by the inclusion of the fourth storey.
The Scheme contains a definition of “storey”, and some time was taken during the appeal on the question whether, as the co-respondent contends, the four storey section on Connor Street would in fact be within the height “envelope” in which a three storey complying building could be built. Expert witnesses for the parties disagreed whether a developer would necessarily utilize the full extent of the planning permission, and the definition, if a three rather than a four storey building abutted Connor Street. The definition makes it clear the number of storeys is to be calculated either by counting the actual storeys, or by application of a mathematical equation, whichever result is the greater. On any view the proposed development clearly incorporates a very substantial component which has four identifiable storeys, one upon the other, and I am satisfied it exceeds the height limit H3 (H3). At the same time, it is germane that by the use of offsets from the property alignment and in the building itself, (by changes in texture and colour, and the retention of large existing pine trees) the impact on the townscape, streetscape and residential amenity is certainly no worse than a complying three storey building would be, if set back only six metres from the Connor Street boundary (the minimum requirement) as opposed to the 9.5 metres intended here; and that close by, on the other side of Park Street (and in Connor Street), commercial buildings are entitled under the Planning Scheme to be constructed up four storeys and could, thereby, reach a height of 16 metres above natural ground level.
Provision 13.5.1.1 of the Planning Scheme permits the Council to relax requirements for the provision of carparks, when justified by reference to such matters as the location of the site. Two public carparks, close by, contain a large number of spaces: the Alex Black Carpark on the other side of Connor Street has 155, and the Duncan Carpark, again opposite the site but in Park Avenue, has 40. There are 29 street spaces in Connor Street between Park, and Ewart Streets. Park Avenue contains 56 street spaces between Connor, and West Streets, Visitors to the church will include a number of local parishioners and tourists, who are likely to walk to it: (Ex. 4). At worst, there will be “peak” carparking demands at different times but it is reasonable not to waste community resources constructing unnecessary carparking. As Quirk DCJ said in Village Fair Toowoomba Pty Ltd v Toowoomba City Council (1998) QPELR 524 at 526:
“It has to be recognized that the peak parking demands of the cinema complex and the shopping centre do not coincide. The result is that the contemporaneous use of available parking by both leads to a reduction in total demand (such as will occur if each was a ‘stand alone’ facility). It must also be noted that Table 1 represents a ‘stand alone’ assessment of parking requirements. To allow relaxation in such circumstances is not only reasonable, but also avoids unnecessary provision of on site carparking which would be wasteful, costly, and ultimately not in the community’s interests”.
Mr Rytenskild, traffic engineer reported (Ex. 9) that, under the Planning Scheme, there would ordinarily be a requirement for 114 spaces, of which 42 should be freely accessible. The proposed development provides 101 spaces, with 22 accessible. He concluded the proposed on site carparking provisions, in conjunction with surrounding public carparks, would adequately cater for parking for the development, including the proposed church and restaurant. His evidence was not challenged by any other expert.
Under the Scheme, the subject site is allocated a density which would effectively permit one bedroom for every 50 m2 “as of right”, and up to one bedroom per 33 m2 with Council consent. This site has an area of 6,074 m2 and will, if constructed, contain 127 bedrooms at an average, then, of 47.8 m2 for each. This is no more than a slight increase on permitted density which, with consent, could be increased (D2) to 151% of the D1 density. The actual increase is only to 104% of D1. The appellant’s town planner conceded the increase was not unreasonable, nor adverse in the context of the location of the site on the perimeter of the Burleigh Heads CBD, and its proximity (short walking distance) to a large number of services and amenities including Council library and offices, medical services, financial services, a bowls club, public carparks, a beach and surf club, parklands, restaurants, shops, hotels, and public transport.
The words “planning grounds” used in LGPEA s. 4.4(5A)(b) are not defined, and the learned authors of “Planning and Development Queensland” (Fogg Meurling and Hodgetts) merely suggest they are “multiple”. Some cases suggest they are to be identified by reference to the Planning Scheme: see, Beck v Atherton Shire Council (1991) QPLR 56 at 59 per Quirk DCJ. This Scheme, when discussing Preferred Dominant Land Use Designation Intent, refers to two objectives: to provide for the needs of tourists while maintaining existing residential amenity; and, to achieve diversity in townscape and urban character. Logically, the term would include all matters pertinent to those objectives, or addressed by the Planning Scheme, or incidental to the issues and matters it addresses.
It was submitted, for the appellant, that any positive planning grounds which would be present if the building had only three storeys on Connor Street could not be considered as grounds to support approval of a proposal incorporating four but that proposition does not, I think, accord with the proper construction of s. 4.4(5A) which, as White J. said in Grosser (supra) at para. 49, involves a simple two stage process: first, the existence or otherwise of a conflict is identified; then, if conflict is present refusal follows unless there are sufficient planning grounds to justify approval despite the conflict.
The town planner called for the appellant, Mr Veal, concluded the four storey section would have a detrimental impact on the visual amenity, streetscape, and general amenity of the Connor Street area. The appellant’s expert architect Mr Kowalski provided a report (Exhibit 12) which lauded the effects, upon the existing design, of removing the fourth storey but he agreed, in evidence, that the Connor Street facade, as designed, presented a clear residential appearance and perspective and appeared, ultimately, to concede any criticisms he had were not more than those which might arise between professional architects and were, largely, aesthetic.
Against that, the co-respondent’s architect Mr Forgan-Smith, town planner Mr Buckley, and the respondent Council’s town planner Mr Parker advanced a number of matters said to justify the height increase, and associated relaxations in carparking, and density requirements. Their evidence was persuasive that the following matters were consonant with the objectives of the Scheme, and constituted relevant planning grounds:
(a) the proposal amalgamated six allotments in a manner which enabled an integrated development; the less attractive alternative might well be six individual multi unit residential developments constituting a much less coherent contribution to the streetscape;
(b) it incorporated the continuation of a Roman Catholic place of worship in its former location, in Burleigh Heads, to meet the needs of permanent residents, and tourists;
(c) the mixed use nature of the proposal is one which is contemplated by the PDLU provisions of the Strategic Plan;
(d) the Connor Street part of the building has a direct relationship to the commercial, and mixed use area of Burleigh Heads, but has no significant impact on adjoining properties; and, the four storey component has no adverse impact in terms of privacy overlooking other premises or on any other amenity of neighbouring properties;
(e) it will act as an appropriate transition between the commercial development in the CBD, and the more residential development to the south;
(f) it has a positive impact on the residential amenity of the area by bringing the residential development north along Connor Street, to interface with the CBD;
(g) save for the technical non-compliance with the H3 requirement, the proposal complies in all respects with the mixed resident and tourist accommodation objectives;
(h) it provides for the needs of tourists while maintaining existing residential amenity, and achieves diversity in townscape, and urban character;
(i) it will preserve an enhanced view of Burleigh Ridge from Park Street.
As discussed earlier, buildings in the CBD area in Connor Street, immediately opposite this proposed development across Park Street, may legitimately attain greater height. At present, the proposed building provides an appropriate transition between those commercial buildings, and the various multi and sole unit residential buildings further up Connor Street, to the south; and, it will continue to do so in the future. That appropriate transition is achieved, I find, by the significant architectural detail on the Connor Street frontage with articulation, setback, and changes in texture and colour, and the use of enclosed front gardens all of which are consistent with, and will present, the appearance of a residential amenity.
I am also satisfied the proposed development would not have an adverse impact upon the visual amenity of the area and, in particular, upon that amenity by reference to the Burleigh Ridge. The site is at the extreme periphery of the CBD area, close to ground level, and will not impede views of that Ridge. The Connor Street elevation, facing east, would at worst impede a view to the west, but to an area which does not incorporate the Ridge proper. Otherwise, the significant setback on the Park Street frontage leaves an excellent view of the Ridge and, I accept, one which is far better than would remain if compliant three storey buildings had been directly on the Park Street frontage.
Overall, I am persuaded the proposal would present as an attractive residential building with generous setbacks, and significant landscaping which will enhance the visual and residential amenity of the area; and, that it meets the objectives of providing for the needs of tourists while maintaining that residential amenity; and, that it achieves diversity in townscape, and urban character.
This proposal’s general compliance with those relevant objectives of the Planning Scheme, expressed in the PLDU Intent, might be sufficient planning grounds in themselves to overcome the conflict; but, if that is incorrect, I am nevertheless persuaded the matters set out in paragraph [23] are properly categorized, by reference to the Planning Scheme, as planning grounds and that they are sufficient for the purposes of the legislation to justify approval despite the conflict. The associated relaxations are logical and reasonable and do not, themselves, detract from that conclusion.
I order:
(a) the appeal be dismissed;
(b)the application be approved on the terms and conditions set
out in the Decision Notice at Exhibit 1, page 112.
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