Weightman v Gold Coast City Council (No 2)

[2002] QPEC 67

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Weightman  v Gold Coast City Council & Anor (No 2) [2002] QPEC 067

PARTIES:

ANNE WEIGHTMAN
Appellant

v

GOLD COAST CITY COUNCIL
Respondent 

and

GORDON LAKELANDS PTY LTD
Co-respondent 

FILE NO/S:

4246/2001

DIVISION:

Planning & Environment Court

PROCEEDING:

Submitter Appeal 

ORIGINATING
COURT:

Brisbane  

DELIVERED ON:

24 October 2002

DELIVERED AT:

Southport

HEARING DATE:

19 July 2002

JUDGE:

Alan Wilson SC  DCJ

ORDER:

Appeal dismissed

CATCHWORDS:

ENVIRONMENT AND PLANNING – TOWN PLANNING – DEVELOPMENT PROPOSAL – conflict with Planning Scheme – whether sufficient planning grounds to justify approval of proposal notwithstanding conflict

Integrated Planning Act 1997
Local Government (Planning and Environment) Act 1990

Cases considered:

Weightman v Gold Coast City Council & Anor [2002] QCA 234

COUNSEL:

Mr A Skoien – appellant   
Mr B Cronin - respondent
Mr S Ure - co-respondent 

SOLICITORS:

Creagh Weightman – appellant  
McDonald Balanda & Associates - respondent
Hickey Lawyers - co-respondent 

Background

1. This was a re-hearing of an adverse submitter appeal brought under s 4.1.28 of the Integrated Planning Act 1997 (IPA).  The appeal was originally heard on 12-15 November 2001, and dismissed in a judgment and order handed down on 1 February 2002.  An application for leave to appeal under IPA s 4.1.56 was heard by the Court of Appeal on 26 April 2002.  Judgment was delivered on 26 June 2002.[1]  The Court[2] allowed the appeal, and remitted the matter to this Court.

[1]  Weightman v Gold Coast City Council & Anor (2002) QCA 234

[2]  McMurdo P, and Atkinson J, de Jersey CJ dissenting

1. The first appeal to this Court was 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 land is comprised of six lots, five on RP 445, and one on BUP 1671.  It is presently vacant, although it formerly contained a Roman Catholic church, with ancillary buildings.  Its historical usage meant it was classified in the Council’s “special facility” zone.  It 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, across that street, commercial buildings representing part of the Burleigh business and retail district.  The area to the south, and west, is mostly residential.  The land is within the area defined by the Burleigh Ridge Development Control Plan.  It is close to and at the rear of relatively flat land flowing back from the beach at Burleigh Heads, and at the lower end of the land which rises with increasing steepness up Connor Street to form the Ridge.

1. The land slopes from west to east.  The proposed development is comprised of a building in an approximate 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 five with three; 101 car parking spaces; a restaurant at the corner of Connor Street and Park Avenue; and, a church below street level at the north-western corner in Park Avenue with seating space for 160 people.  The open section, i.e. the part of the proposed development facing Park Avenue presents, to that street, varying levels of open space with landscaping.  On the western boundary, the higher section of the land, the proposed building has three storeys.  On the southern side it varies between two and three storeys.  On the eastern boundary, on Connor Street, it contains four storeys and it was that aspect of the proposal upon which the appeal focused.  This section is, materially, on the lowest part of the land.

1. The respondent Council’s Planning Scheme of February 1994 continues to have effect: IPA ss 6.1.2, 6.1.3 and under the latter, becomes a “transitional” scheme.  The co-respondent’s development application is, then, governed by the provisions of IPA s 6.1.2.9 and 6.1.30.  Because the subject land is presently in that scheme’s “special facilities” zone it would have been necessary, prior to IPA, to make an application for rezoning under the Local Government (Planning & Environment) Act 1990 (LGPE) S 4.3, with the consequence that IPA s 6.1.30(3)(a) requires the application to 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;

(b) there are not sufficient planning grounds to justify approving the application despite the conflict.

1. Two areas of conflict were identified: first, the land is in an area designated under the Planning Scheme for “mixed resident and tourist accommodation” and its “preferred dominant land use” (PDLU) is for multi-unit buildings of varying densities for accommodation of both tourists, and permanent residents.  There is, under the Planning Scheme, a height limitation of three storeys for buildings on this property.  Secondly, the Burleigh Ridge Development Control Plan requires that buildings within the area affected by it comply with the height restrictions in the Planning Scheme.  At first instance, I determined a conflict existed, but that it was not of the highest order; and, that there were sufficient planning grounds to justify approving the application, despite those conflicts.

1. In allowing the appeal from that judgment, the Court of Appeal determined that:

(a)  The conflict with the Planning Scheme in this case is a major one, arising as it does from an absolute prohibition on the height of any development exceeding the maximum stipulated height of three storeys.[3]

[3]  At para 37, per Atkinson J

(b)    The procedure laid down under LGPEA s 4.4(5A)(b) involves:

(i)   an examination of the nature and extent of the conflict;

(ii) a determination 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;

(iii) a determination whether the planning grounds in favour of the application as a whole are, on balance, sufficient to justify approving the application notwithstanding the conflict.[4]

[4]  At para 36

1. In respect of the second step identified in (b) above, the Court also noted that the decision maker has to consider whether there are any planning grounds on which to approve, or which militate against approval, of that part of the application which is in conflict with the Planning Scheme.[5]  Further, Atkinson J said that the “nature and extent of the conflict may be such as to suggest that there are significant planning considerations against that part of the application.”[6]

[5]  At para 44

[6]  At para 44

The Conflict

1. The judgment of the majority confirms that non-relaxable provisions in transitional planning schemes are to be given considerable weight despite IPA s 6.1.2(3), which provides that a prohibited use in a transitional planning scheme is “…taken to be an expression of policy that the use is inconsistent with the intent of the zone in which the use is prohibited.”  Recent decisions of the Queensland Court of Appeal have progressively developed this construction.  As Atkinson J noted:[7]

   [7]  At para 25

In Vynotas Pty Ltd v Brisbane City Council[8] Davies JA held that a transitional planning scheme does not have binding force but is of persuasive relevance only.  Pincus JA, on the other hand, held that the flexibility given by Chapter 6 of IPA does not justify failure to accord considerable weight to the transitional planning scheme.  As White J (with whom Thomas and Williams JJA agreed) more recently observed:[9]

[8] 2001 1 Qd R 108

[9]  Grosser v Council of the City of Gold Coast (2001) QCA 423

There can be little doubt that s 6.1.2 of the IP Act maintains the importance of consistency with the intent of a transitional planning scheme.

1. On appeal, Atkinson J said:

[37]  The first task required of the decision maker, as the learned primary Judge recognised, 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.  The conflict in this case is a major one arising as it does from an absolute prohibition on the height of any development exceeding the maximum stipulated height of three storeys.

…

[39]  Part 4 of the Gold Coast scheme provides a comprehensive planning guide to the residential zones in the Gold Coast.  It sets out the appropriate planning grounds for development in these zones.  It is in s 4.16 (which contains provisions in respect of multi-unit buildings, townhouse development, motel and hostel accommodation in the residential multi-unit zone, resort residential 1 zone and resort residential 2 zone) that the provision prohibiting building height in excess of that specified is found.  Here too are found the provisos which allow relaxation of the height restriction.  Such relaxation is not permitted on the facts of this case.  The learned primary Judge did not specifically refer to the inability to relax under the Gold Coast scheme nor to any of the provisos.

[40] The DCP for the Burleigh Ridge area sets out the considered planning grounds for development in this particular area of the Gold Coast.  It absolutely forbids any development on the site of the proposed development exceeding three storeys in any circumstances.

[41]  The significance of the nature of this conflict is that it demonstrates that the considered planning grounds of the Council show an express intention to forbid a building height of four storeys.  It is not a minor conflict; it is a prohibition and is against each of the planning grounds that the Council itself has determined apply to the height of such a development.

Nature and Extent of Conflict

1. McMurdo P, in a short judgment concurring with Atkinson J, said the discretion conferred by LGPEA s 4.4(5A)(b) could only be properly exercised when the extent of the conflict with the Planning Scheme was appreciated.[10]

[10] At para 15

1. In the judgment at first instance the conflict was described as one in which “…the hurdle will not be terribly high” and “…not of the highest order.”[11] In referring to a “continuum” between two extremes categorised as minor, and major and then describing the conflict here as a major one,[12] and in the second sentence in para 44 of her judgment (set out above) Atkinson J makes it clear that this is a conflict the nature and extent of which is either at, or very close to, that end of the spectrum which tells most strongly for refusal.

[11] Weightman v Gold Coast City Council & Anor (2002) QPEC 2 at paras 15, 16

[12] Court of Appeal judgment, at para 37

1. The majority on appeal did not, however, suggest the conflict was of a kind which meant a sufficiency of planning grounds to justify approval could never arise.  McMurdo P said that the performance of the evaluative exercise in the light of Atkinson J’s findings may not necessarily produce a different result, although the discretion had to be re-exercised.[13]  The order directing that the matter be remitted must, in light of the terms of her judgment, be taken as an acknowledgment by Atkinson J that this is not a case in which the co-respondent must inevitably fail to discharge the onus of establishing the appeal should be dismissed.[14]

[13] At para 15

[14] This onus rests upon the co-respondent: IPA s 4.1.50(2)

1. The conflict here is in quite small compass: the placement of a fourth storey in that section of the appellant’s proposed building at the lowest part of the land, which faces Connor Street, in circumstances where the Planning Scheme and the Development Control Plan contain a height limit of three storeys; and, there was no greater permitted or permissible height.[15]

[15] Planning Scheme, Part 1-11; judgment of Atkinson J, paras 30-34

1. Two additional lesser conflicts arose, in connection with the number of car parks required, and the density of development.  The appellant did not argue, at first instance, that either was itself sufficient to warrant refusal but submitted then, and reiterates now, that they are adverse features militating against the inclusion of a four-storey component, from a planning perspective.

1. A matter not touched upon in the Court of Appeal decision, but a cornerstone of IPA, is the importance of impact assessment.  As Atkinson J pointed out,[16] IPA s 6.1.29(H)(i) provides that where an application for development would formerly have been made under LGPEA s 4.3(1), the Local Government must consider all the matters set out in LGPEA s 4.4(3), which provides:

   [16] At para 28

(3) In considering an application to amend a planning scheme or the conditions attached to an amendment of a planning scheme a local government is to assess each of the following matters to the extent they are relevant to the application –

(a)  whether the proposal, if approved, or building erected in conformity with the proposal, or both the proposal, if approved, and the buildings so erected would -

(i)  create a traffic problem, increase an existing traffic problem or detrimentally affect the efficiency of the existing road network;

(ii)     detrimentally affect the amenity of the neighbourhood;

(iii)    create a need for increased facilities;

(b)     the balance of zones in the planning scheme area as a whole or that part of that area within which the relevant land is situated and the need for the proposed planning scheme amendment;

(d) whether the land or any part thereof is so low-lying or so subject to inundation as to be unsuitable for use for all or any of the uses permitted or permissible in the zone in which the land is proposed to be included;

(e)     whether, having regard to the permitted or permissible uses of the land and the potential for subdivision in the zone in which it is proposed to be included water, gas, electricity, sewerage and other essential services should be made available to the land and to each separate allotment thereof if the land were subsequently subdivided;

(f)   the impact of the proposal on the environment (whether or not an environmental impact statement has been prepared);

(g)     the situation, suitability and amenity of the land in relation to neighbouring localities;

(i) the advice given by it, in respect of any consideration in principle concerning the relevant land pursuant to section 4.2;

(j)   whether any plan of development attaching to the application pursuant to a requirement of the planning scheme should be altered;

(k)     where the land is prescribed pursuant to section 8.3A, the site contamination report in respect of the land;

(l)   such other matters, having regard to the nature of the application, as are relevant.

1. Both respondents argued that in light of findings of fact touching the question of impact made at first instance, and not challenged on appeal, the conflict which arises here is not one which involves any adverse impact, in the sense that those findings did not establish any negative impact in terms of the Planning Scheme or the DCP; and, that there were, in fact, “positive” impacts.  They were emboldened to suggest the nature and extent of the conflict was not such, then, as to warrant it being categorised as major; but that is not a conclusion which can reasonably be drawn in light of the decision on appeal.  Rather, the question of impact, in the relevant senses appearing in LGPEA s 4.4(3)(a)(ii), and (g) is a matter better considered in the context of the second and third parts of the test.

Whether there are Planning Grounds relevant to that part of the Application which is in conflict with the Planning Scheme

1. This question involves planning grounds which militate both for, and against approval of the part of the application in conflict with the Planning Scheme.[17]

[17] Judgment of Atkinson J, at para 44

1. No specific contrary planning grounds were identified at first instance, nor in the decision of the Court of Appeal although Atkinson J said that the “…nature and extent of the conflict may be such as to suggest that there are significant planning considerations against that part of the application.”[18]  The appellant pointed to the fact that the Planning Scheme has been in place for many years and now, presumably, is the repository of certain expectations on the part of the residents of the Burleigh Heads area.  The design of the proposed building does not, the appellant submits, conform with the guidelines for appropriate building design set out in clause 28.2.3(b)(i) of the Burleigh Ridge DCP, which directs that particular attention should be given, in multi-storey buildings, to a terraced building profile receding from the property frontage, or along the line of the slope, and the use of extensive landscape planting beds on all building levels in order to soften the building line.  Further, for reasons already identified, the four-storey component clearly conflicts with permissible height limits in the Planning Scheme, and the DCP, and thus, as Atkinson J noted,[19] conflicts with the perceived objective of the Planning Scheme to achieve diversity in townscape, and urban character by Council exercising its discretion, with regard to permissible building heights, in a way which requires buildings in most instances to be below the maximum permissible height.[20]  The increase in height also, of course,  attracts the need for some minor dispensations in respect of the Planning Scheme’s requirements concerning development density, and parking. 

[18] At para 44

[19] At para 42

[20] Planning Scheme Part 1-11(b); judgment of Atkinson J, paras 30 & 42

1. The appellant submits that the four-storey component running from the return down the southern boundary and along the entire Connor Street frontage, and returning slightly up to the northern boundary, has adverse town planning implications because there are no other buildings of similar bulk and size in the residential precinct to the south of James Street, or the commercial precinct to the north of that street; the predominant building height in the residential precinct is two-three storeys; and, the inclusion of a four-storey component will provide some obstacles to views to, and from Burleigh Ridge.

1. At para 23 of the judgment at first instance, nine other matters were held to constitute 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 at 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 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 Avenue.

1. The majority judgment does not contain any criticism of the categorisation of these matters as relevant planning grounds.  Nor was there criticism of certain other findings made at first instance which can, similarly, be categorised:

(a)      The proposal, by the use of offsets from the property alignment and in the building itself, and by changes in texture and colour and the retention of large existing pine trees in Connor Street will have an impact on the townscape, streetscape and residential amenity of the area which would, at worst, have little or no difference from that of a complying three-storey building if set back only 6m from the Connor Street boundary, (the minimum requirement) as opposed to the 9.5m here.

(b)      Close by, immediately on the other side of Park Avenue (and in Connor Street), commercial buildings may be constructed up to four storeys and could thereby reach a height of 16m above natural ground level.

(c)      The proposal contains significant architectural detail on the Connor Street frontage with articulation, setback, and the use of enclosed front gardens and alterations in texture and colour, all of which are consistent with, and will present the appearance of, a residential amenity.

(d)      The proposal 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 Avenue frontage leaves an excellent view of the Ridge, and one which is far better than would remain if compliant three-storey buildings had been constructed directly on the Park Avenue frontage.

(e)      The fall of the land, from west to east, places the four-storey section at the very lowest point on Connor Street.

(f)       The proposal provides an appropriate transition between the commercial buildings in the James Street commercial precinct and the various multi- and sole-unit residential buildings further up Connor Street to the south and would continue to do so in the future.

(g)      By reference to the definition of “storey” in the Planning Scheme the development could have attained, with only three storeys, a height of 10.5m: 4.5m for the ground floor and 3m for each of the two floors above.  This proposal, however, incorporates a four-storey section which has a height of only 10.2m.

Some of these matters are adjunctive to, or expand upon, the planning grounds listed in para [20] but all are, in my view, relevant to the exercise to be performed under LGPEA s 4.4.(5A).  The matters set out at paras [20](d), (e), (f) and (i), and [21](a), (b), (c), (d), (e), (f) and (g) all relate, in my view, to the specific area of significant conflict, i.e. the addition of a fourth storey on the lowest part of the proposed development , in Connor Street.

Evaluation of the Relevant Planning Grounds

1. The onus upon the co-respondent to establish favourable planning grounds of sufficient weight to tip the balance in favour of approval notwithstanding the identified conflicts is measured against the civil standard of proof.[21]

[21] cf Esteedog Pty Ltd v Council of the Shire of Maroochy (1991) QPLR 7

1. The Court of Appeal did not venture any criticism of the conclusion reached at first instance concerning relaxations in requirements for the provision of car parks, or site density.  The appellant’s own town planner conceded the increase in site density was not unreasonable, and the only expert who gave evidence about the relaxation in car parking provisions said, and it was accepted, that in conjunction with significant public car parks in close proximity to the site, parking was adequately catered for.

1. There were no criticisms of the development other than in relation to the fourth storey; and, some aesthetic matters raised with reference to clause 28.2.3(b)(i) of the Burleigh Ridge DCP.  In reaching the conclusions expressed at first instance I was greatly assisted by a view of the site from various perspectives on foot; a tour by vehicle around various parts of the Burleigh Ridge; and, a high quality scale model of the proposed development seen, at first instance, in close proximity to the site itself.  Those opportunities, and the evidence of the co-respondent’s architect persuaded me, and I remain of the view, that certain opinions ventured by the appellant’s architect were, largely, matters of aesthetics and of little moment; and, that the proposal represented an attractive residential building with generous setbacks, and significant landscaping which would enhance the visual and residential amenity of the area; and, was consistent with diversity in townscape, and urban character.

1. The appellant’s contention that the four-storey component has adverse town planning implications because there are no other buildings of similar bulk and size in the residential precinct to the south of James Street, or the commercial precinct to the north did not accord with the views of the co-respondent’s architect, or its town planner Mr Buckley, or the Council’s town planner, Mr Parker, whose opinions I accepted at first instance, and have no reason to reject now.

1. Central to the appellant’s submission that little weight should be given to those planning grounds which touch only the four-storey element is a submission that the component comprising the fourth storey will provide some obstacles to views to, and from the Burleigh Ridge; but that does not accord with my finding in para 23(i), and 25 at first instance that, inclusive of the fourth storey, the building would in fact preserve an enhanced view of the Burleigh Ridge from Park Avenue and, otherwise, have no adverse impact upon the visual amenity of the area by reference to the Ridge.

1. The appellant did not adduce any evidence which persuaded me that residents on or in the environs of the Burleigh Ridge (or, elsewhere in the vicinity of this proposed development) could reasonably perceive some damage to what was described as their “legitimate and reasonable expectations” based upon the historical form of the Planning Scheme.  Nor was I persuaded that their views, or the views of any person in the vicinity to or from the Ridge would be impeded by the presence of the fourth storey; or, generally, that visual amenity was otherwise injured.  This site is at the extreme northern end of the area of the Burleigh Ridge DCP and reference to existing, and potential future development and actual topographical characteristics, confirmed on the occasion of inspection, show this proposal achieves that end.

1. The matters identified earlier as relevant planning grounds favourable to the proposal are, in my view, of considerable weight and moment.  Those which are properly categorised as contrary to it are, as Atkinson J said, significant, and that significance bears upon the exercise of weighing the competing considerations.  I remain of the view that there is, however, a sufficient combination of relevant considerations, constituting relevant planning grounds (i.e: relevant to the conflict itself) to justify approval notwithstanding the conflict with the Planning Scheme.  While the planning grounds in favour of the proposal identified above vary in weight and force inter se, they represent in totality, I find, matters of gravitas which considerably outweigh those aligned against it and are more than sufficient to justify approving the application, despite the conflict with the Planning Scheme.  It is appropriate to reiterate that, in reaching this conclusion, I have taken into account only those planning grounds which are relevant to the part of the application which is in conflict with the Planning Scheme.

1. The appeal is dismissed.

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