Wurtulla Investments Pty Ltd & Hiroc Pty Ltd v Caloundra City Council
[2004] QPEC 73
•8 November, 2004
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Wurtulla Investments Pty Ltd & Hiroc Pty Ltd v. Caloundra City Council [2004] QPEC 073
PARTIES:
Wurtulla Investments Pty Ltd
And
Hiroc Pty Ltd (Appellants)
Caloundra City Council (Respondent)
FILE NO/S:
Appeal Numbers 87 /04 and 88 /04
DIVISION:
Planning and Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
Planning and Environment Court Maroochydore
DELIVERED ON:
8 November, 2004
DELIVERED AT:
Maroochydore
HEARING DATE:
13th and 14th of October, 2004
JUDGE:
K.S. Dodds DCJ
ORDER:
Both appeals allowed. Appeals adjourned to a date to be fixed for final orders to be considered by the parties
CATCHWORDS:
APPEAL against respondent council’s refusal of application for reconfiguration of lots ; material change of use of lots.
Amenity - whether proposals conflict with Strategic Plan;
Legislation Cited:
Local Government (Planning and Environment) Act 1990, ss. 4.4 (3), 4.4 (5A), 5.1 (3) and 5.1 (6A)
Cases Cited:
Broad v. Baptist Union & BCC (1986) QPELR 317;
Cecil E Mayo Pty Ltd v. Sydney City Council (1952) 18 LGR 152;
COUNSEL:
Mr W Cochrane for the appellant
Mr C McGrath for the respondent
SOLICITORS:
P & E Law for the appellant
Heiner & Doyle Solicitors for the respondent
These two appeals against the respondent’s refusal on 18 February 2004 of two development applications were heard together.
The appellant Hiroc Pty Ltd is the owner of Lot 14 on RP 209021 containing 2.388 ha and Lot 9 on SP 161992 containing 803m2. (The subject land).
The two applications the subject of the appeal were:
An application for reconfiguration consisting of a boundary realignment of lots 9 and 14 to create proposed lots 101 and 102;
An application for a material change of use of lots 9 and 14, and for reconfiguration to create 18 residential allotments.
In simple terms lot 101 of 4,015m2 and containing the dwelling on lot 14 where it has frontage to Sahara Road was to be created from Lot 14. The balance of Lot 14 and lot 9 were to become lot 102 with its road access from Macamia Grove through Lot 9. Eighteen (18) housing allotments were to be created on Lot 102.
The respondent’s planning instruments in force at the time of the applications were a transitional planning scheme under the Integrated Planning Act 1997 (IPA). They provided:
Strategic Plan – both lots had a preferred dominant land use of low density residential;
Zoning – lot 14 was zoned rural. Lot 9 was zoned residential A.
The respondent’s current IPA planning scheme, Caloundra Plan 2004, commenced on 29 September 2004, subsequent to the respondent’s refusal of the applications. At the time of the applications it had been through the public advertising process. Relevantly, the plan which came into force was the same as the advertised draft plan. In it both lot 14 and lot 9 are included in the township residential precinct of the Glasshouse Mountains Township Planning Area.
Lot 14 is an irregularly shaped lot with a 54 metre road frontage to Sahara Road at its southern boundary. Both lot 14 and lot 9 are vacant land, except that lot 14 contains a dwelling in its southern portion where it has its frontage to Sahara Road.
On the western side of lot 14 are eight residential allotments containing dwelling houses with frontage to Buzaki Road. Buzaki Road travels north from its intersection with Sahara Road, terminating at rural land a short distance to the north of the most northerly residential lot with frontage to it.
On the northern side of lot 14 is a similarly designated 1.768 ha lot, lot 1 on RP 185245. This lot is bounded on its north by rural land. It has a small frontage to Buzaki Road where the road terminates at the rural land at its northern end. It also has frontage to Alpha Drive. Alpha Drive connects to Sahara Road.
On the south of lot 14 (in addition to its54 metre frontage to Sahara Road) are residential lots with frontage to Sahara Road.
On the east of lot 14 are more residential lots one of which is lot 9.
Lot 9 and lot 14 were created as part of a combined rezoning and residential subdivision of land, lot 1 on RP 202619 for Hiroc Pty Ltd approved in November 1994. Lot 9 (as with other lots in the subdivision) was included in the residential A zone. Lot 14 was included in the rural zone.
Lot 9 which has a common boundary with lot 14 has frontage to a small cul de sac street created as part of the 1994 subdivision, Macamia Grove. Entry to Macamia Grove is from Alpha Drive. Alpha Drive proceeds north from its intersection with Sahara Road. From its intersection with Alpha Drive Macamia Grove slopes down in a westerly direction for a short distance and then bends at right angles to slope upwards for a short distance in a southerly direction. The only level area of Macamia Grove is its cul de sac bulb. Lot 9 may be described as being on the outside of the right angled bend. Three lots with frontage to Alpha Drive also have frontage to Macamia Grove, although primary access to at least two of these lots is from Alpha Drive. Otherwise there are eight lots, including lot 9 with road frontage to Macamia Grove.
The respondent advanced a number of reasons for its refusal of both applications. By the time the appeal came to be heard, the only matter in issue were whether the proposals conflicted with the strategic plan, in particular because of impact on amenity and if so, whether there were sufficient planning grounds to justify approval nonetheless.
Two residents, Mr Bapty and Mr Edmonds, gave evidence explaining their opposition to the proposal to utilise Lot 9 as road access. Mr Bapty lives on the corner of Alpha Drive and Macamia Grove on the southern side of Macamia Grove. His land has frontage to both Alpha Drive and Macamia Grove, although his primary access is to Alpha Drive. Mr Edmonds is building his dwelling at 12 Macamia Grove which is on the northern side of Macamia Grove and one lot removed from Alpha Drive. The primary concern of both was the conversion of what they had thought was a cul de sac into access to a further 18 residences with resultant increase in traffic. I have no doubt their concern is genuinely held.
The area generally is going to urban development. It is occurring on the other side of Sahara Road. There is the 1994 subdivision containing lot 9. There is more urban development established further to the east. The subject land is identified in the respondent’s current planning documents as land for urban residential development. In the now superseded planning instruments, in the strategic plan, the subject land was designated for urban residential development.
Vacant lots still exist in the subdivided land to the east of the subject land. Houses already erected appear of good quality. Purchasers of land in the subdivision which includes Macamia Grove are required to enter into a covenant which marks their lot as “part of a high standard development, the object of which is to establish a modern and well designed residential estate”. Plans for buildings have to be approved by the developer. Size, construction materials, roofing etc are all dealt with.
Construction of the access to the proposed subdivision using lot 9 will potentially affect six lots, Mr Bapty’s and five on the other side of Macamia Grove one of which is Mr Edmond’s lot. Of those lots on the other side of Macamia Grove to Mr Bapty’s lot, the lots on either side of lot 9 are not sold. Any potential buyer would be aware of the proposed roadway to the proposed subdivision.
The evidence in the appellant’s case was to the affect that unless access is gained to the subject land through lot 9 it cannot be developed. That overstates the position. The position is that development of the subject land may be delayed indefinitely and / or more expensive.
The land immediately to the north of Lot 14, Lot 1 on RP 185245 is in different ownership. The appellant had Mr Brameld an experienced traffic engineer investigate and give evidence. Mr Brameld said access from Sahara Road was unsafe because of its present topography and sight lines. He said that even if the land to the north could be used, access to it from Buzaki Road (itself presently a cul de sac) was unsuitable and impractical because of the steep grade. Access to it from Alpha Drive involved low lying land and a water detention basin and thus appeared impractical. Impracticability derived from the cost of an acceptable engineering solution. All these matters are relevant so far as development of the subject land is concerned.
Mr Brameld’s evidence was uncontradicted and there is no reason not to accept it.
There was no explanation about why the appellant or the respondent did not at the time of the subdivision creating Macamia Grove and lot 9 address the question of access to the subject land. As counsel for the respondent pointed out, had the land containing lot 9 been left as a stub road the future would have been appreciated by prospective purchaser’s in Macamia Grove. Perhaps it was thought access could be obtained elsewhere (at one of the points Mr Brameld has discouraged). However in the absence of any evidence it remains speculative.
Mr Brameld’s evidence about increased traffic in Macamia Grove as a result of access to a further 18 residential allotments in the proposed development was that traffic flows would remain extremely low. At the intersection of Macamia Grove and lot 9 traffic flows may be expected to increase from 60 to 240 vehicles per day (VPD). At the intersection of Macamia Grove and Alpha Drive traffic flow may be expected to increase from 100 to 280 VPD. These flows were well below the criteria for a cul de sac such as Macamia Grove in “Queensland Streets” (750 VPD max) and below the standard adopted by the respondent in its current planning instruments (300 VPD max). The increased traffic flow in his opinion did not have any measurable impact on the amenity of Macamia Grove. It would be hardly noticeable to existing residents (although he did understand the perceptions some of those residents may currently hold).
The appellant also had Mr King an experienced acoustic engineer investigate and give evidence. His evidence likewise was uncontradicted. There is no reason not to accept it. Mr King investigated noise and light impact on amenity in Macamia Grove if lot 9 was used as access to the subject land.
The only residence with potential to be directly affected by headlights from vehicles leaving the subject land using lot 9 is Mr Bapty’s. However investigations showed that the headlights would just briefly wash across the blank west wall of the residence and in addition be intercepted by vegetation between Macamia Grove and the house wall. Mr King also considered the increase in traffic numbers turning from Alpha Drive into Macamia Grove at night. His opinion was that headlight impact would be minimal and well within what could be expected in a residential environment.
As to noise increase, Mr King measured noise levels in Macamia Grove, both during the day and at night. In his opinion whilst traffic flow may be expected to increase, increase in ambient noise levels would be minimal.
Regarding amenity, the respondent relied upon evidence from Mr Wilson a senior planner in the employ of the respondent. Mr Wilson’s opinion was that the proposed development utilising access through lot 9 unacceptably impacted on the amenity enjoyed by residents in Macamia Grove. That was because vehicle and pedestrian movement would increase, the continuity of the built residential environment in Macamia Grove would be broken and the sense of exclusivity and containment of the cul de sac would be lost at least to those between Alpha Drive and the proposed access through lot 9. He considered that the proposal conflicted with objective 2 (b) of the Strategic Plan, Section 3.3 of the Transitional Planning Scheme, and overall outcomes (g) and (j) and specific outcome 014 of the respondent’s current planning instrument Caloundra City Plan 2004.
Objective 2 (b) of the Strategic Plan is to “maintain and where possible improve the amenity of residential areas”. A number of implementation measures are set out. In part they provide that “ (a) in order to preserve the amenity of existing …residential areas in considering development proposals in or near such areas (including new residential development proposals)” the respondent would have regard to “ (ii) whether the development proposal is likely to increase traffic on any residential streets to unacceptable levels … (iv) whether the proposal would have unacceptable detrimental impacts on the privacy of existing dwellings”.
When vacant land adjacent to residential development is developed for residential development it is inevitable that the amenity of the area will alter. The alteration may be seen to be adverse or beneficial. When access to the developing land is to be through an existing residential development resulting in traffic increase, that, in isolation, may result in an adverse alteration. In the present case, where access is to utilise the cul de sac through land originally indicated as a building block there will be an adverse alteration. This was recognised by all witnesses in the appeal.
Section 3.3 of the transitional planning scheme is contained in its part dealing with the general requirements of development. It deals with aesthetics and amenity. Its purpose is to “encourage new development which is compatible with the locality in which it occurs.” In pursuance of that purpose it provided that the respondent “in considering any application … may require the redesign of a proposal if it considers that it would affect the amenity or likely amenity of the locality…”
Caloundra City Plan 2004 now in force, deals with residential amenity in the Glasshouse Mountains Township Planning Area Code. In its overall outcomes it provides that “(j), development in the Township Residential… Precincts provides and maintains a high level of residential amenity”. Newly created residential lots maintain the rural township character and provide for a range of residential types…”Specific outcome 014 is that “Development in the Township Residential Precinct … (c) provides for appropriate road connections”.
The appellant put town planning evidence before the court. Mr Ryter a town planner considered the proposal was consistent with the respondent’s planning instruments both the transitional scheme and Caloundra Plan 2004. Relying on Mr Brameld’s conclusions he considered access via Macamia Grove provided the safest access for the development of the subject land. That development was in accordance with the respondent’s published planning intentions for the subject land. Whilst the residents in Macamia Grove and Alpha Drive may not have expected development of the subject land to obtain its access in the manner proposed, the residents of Macamia Grove would continue to enjoy a residential amenity of a high order. Traffic increase would be minimal. There would be no through traffic.
In Broad v. Baptist Union & BCC (1986) QPELR 317, the concept of amenity was discussed at page 319. Thomas J described it as including “the quality which it has of being pleasant and agreeable, Cecil E Mayo Pty Ltd v. Sydney City Council (1952) 18 LGR 152 at 156 and as “that element in the appearance and layout of town and country which makes for a comfortable and pleasant life rather than a mere existence” …and at page 320. Some aspects are practical and tangible, such as traffic generation, noise, nuisance, appearance and even the way of life of the neighbourhood. Other concepts are more elusive, such as the standard or class of the neighbourhood and the reasonable expectation of the neighbourhood”. de Jersey J as he then was said at page 326 that amenity “is wide and flexible. In my view it may in a particular case embrace not only the effect of a place on the senses but also the residents subjective perception of his locality. Knowing the use to which a particular site is or may be put may affect one’s perception of amenity.
The applications must be assessed under the Local Government (Planning and Environment ) Act 1990 (the P & E Act), section 4.4 (3) Rezoning, and Section 5.1(3) Subdivision. If the applications conflict with the strategic plan, they must be refused if “there are not sufficient planning grounds to justify approving the applications despite the conflict” section 4.4(5A) and section 5.1 (6A) of the P & E Act.
Here the conflict with the strategic plan contended for by the respondent is the impact on the amenity of Macamia Grove residents resulting from some increase in traffic and the impact on “sense of place” as a small cul de sac of residential lots.
The evidence was that traffic will by no means increase to unacceptable levels and there will not be unacceptable detrimental impacts on the privacy of existing dwellings.
It may be accepted that the “sense of place” of the residents in Macamia Grove between Alpha Drive and Lot 9 may be affected. In that sense the amenity of those residents may not be maintained or improved. The objective however should be approached in a common sense way. As already observed any development adjacent to an existing residential development will have an effect on amenity which may be adverse. What the strategic plan sets out to achieve is that the issue of amenity be addressed and that there be the containment of any effect within acceptable limits in all the relevant circumstances.
While I can readily understand the feelings of Mr Edmond and Mr Bapty the evidence does not support any real conflict with the respondent’s strategic plan.
Moreover the evidence before me is that the proposed utilization of Lot 9 for access to the proposed development of the subject land is the best access and that there will be minimal impact on existing residents of Macamia Grove from the increase in traffic. When the effect on amenity is weighed in the balance with the need for safe access to the subject land the proposed use of Lot 9 for access outweighs any impact on amenity.
Both appeals will be allowed. I adjourn the appeals to a date to be fixed for final orders to be considered by the parties.
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