Young v Maroochy Shire Council
[2011] QPEC 93
•28 June 2011
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Young v Maroochy Shire Council & Ors [2011] QPEC 93
PARTIES:
GREG YOUNG
(Applicant)AND
MAROOCHY SHIRE COUNCIL
(Respondent)AND
CHIEF EXECUTIVE UNDER THE TRANSPORT INFRACTURE ACT 1994
(First co-respondent by election)AND
DEVELOPMENT WATCH INC
(Second co-respondent by election)FILE NO/S:
D206/06
DIVISION:
Planning and Environment Court of Queensland
PROCEEDING:
Application for Appeal
ORIGINATING COURT:
Planning and Environment Court, Maroochydore
DELIVERED ON:
28 June 2011
DELIVERED AT:
Maroochydore
HEARING DATE:
14 & 15 June 2011
JUDGE:
Robertson DCJ
ORDER:
Appeal Dismissed
CATCHWORDS:
ENVIRONMENT AND PLANNING-Developer appeal against refusal for small scale office in residential precinct, where conflict conceded, extent of conflict, whether 2005 Amendment Retail and Commercial Hierarchy included provisions that amount to prohibition, whether sufficient grounds to justify approval.
Legislation
Integrated Planning Act1997(Qld)
Sustainable Planning Act2009 (Qld)
Cases Cited
Australian Capital Holdings Pty Ltd v Mackay City Council [2008] QCA 157
Grosser v Gold Coast City Council [2001] QCA 423
Luke v Maroochy Shire Council & Watpac Developments [2003] QPEC 005
Vynotas Pty Ltd & Anor v Brisbane City Council & Anor [2001] QCA 24
Weightman v Gold Coast City Council & Anor [2002] QCA 234
Woolworths Ltd v Maryborough City Council & Anor [2006] 1 Qd R 273
COUNSEL:
Mr L. Manning (solicitor) for the applicant
Ms S. Holland for the respondent
Mr B. Raison (self- represented) for the second co-respondent by election
SOLICITORS:
p&e Law for the applicant
G.N Phillips for the respondent
On 28 February 2006 Mr Young applied to Council for a material change of use of land situated at 135 Yandina-Coolum Road, Coolum Beach (the property) from its existing use as a residential duplex to professional offices. The proposal was that the building footprint would remain unchanged and there would be 10 car parks with employees from 12 to 16 and operating hours and days identified as Monday to Saturday, 8.30am to 5pm. A minor change was approved on the first day of the hearing by the Court which reduced the car parking to nine spaces and the landscaping buffer from approximately two metres to approximately one metre. During the IDAS process other design changes had been made in response to a concurrence agency response in relation to access and traffic issues. The application was impact assessable and one adverse submitter, Development Watch Inc, elected to join as a co-respondent and to appear and make submissions and support Council’s opposition to the proposal.
Council ultimately refused the application on 3 July 2006. The relevant reasons for refusal are set out later in my judgment. Mr Young’s appeal to this Court against Council’s refusal was filed on 31 July 2006.
The issues in dispute are town planning issues only.
The Planning Scheme
The relevant Planning Scheme is Maroochy Plan 2000. The property is located in Planning Area No. 11, Coolum Beach, and is identified on the relevant land use context plan as being in Precinct 5, Coolum Beach North (Neighbourhood Residential). One of the planning issues in dispute arises because the property is located in a small strip of Precinct 5 which contains a number of existing uses which are not residential, and is divided from the much larger area of Precinct 5 to the north-east by Precinct 6, the Stumers Creek Environmental Area (Special Purpose). To the west across School Road is the Coolum State School which is in Precinct 5, and to the south-west diagonally opposite and still in Precinct 5 is a Council depot, which Mr Adamson described (without challenge) as a pre-existing non-conforming use. Immediately adjoining the property to the north is a childcare centre. There are a number of residential properties in the same strip, at least one of which is used as a home business, and there is one residence to the east before the environmental area. To the south and across the Yandina-Coolum Road on the opposite corner is Precinct 4 in Planning Area 11 which is described in the Planning Scheme as the Coolum West Local Centre, which contains a small shopping complex with a number of retail outlets bordering the road, and to the south are a number of uses which are clearly light industrial and/or commercial in nature. There appears to be one office, a solicitor’s office, in the Local Centre. Further to the west is an area which is in Precinct 9, which is described in the Planning Scheme as Coolum Beach Hills with a Neighbourhood Residential Precinct Class. As a result of a decision of this Court, a large tract of land to the south of and adjoining the Local Centre has been developed as a Woolworths with a number of specialty retail shops and a large at grade car park: Luke v Maroochy Shire Council & Watpac Developments [2003] QPEC 005. Although this was a decision of the court, it was an unsuccessful submitter appeal against a decision by the Council to approve the development of the shopping complex on what was then and still is land in the Neighbourhood Residential Precinct Class. As can be seen from the judgment of Wilson SC DCJ (as his Honour then was), it was conceded by all parties that the proposal was in conflict with the Planning Scheme, however, ultimately his Honour was satisfied that the co-respondent developer had satisfied the onus upon it of demonstrating sufficient “planning grounds” (as was then required by s 3.5.14(2)(b) of the Integrated Planning Act1997 (the IPA)).
The applicable law
It is common ground that as the appeal was instituted before the commencement of the Sustainable Planning Act2009 (the SPA) on 18 December 2009, it is to be heard and determined under the IPA as if the SPA had not commenced: s 819(2) of the SPA.
Section 4.1.52 to the IPA provides:
“(1) An appeal is by way of hearing anew;
(2)However, if the appellant is the applicant or a submitter for a development application, or is a person who has applied for approval of a proposed master plan, the court –
(a)must decide the appeal based on the laws and policies applying when the application was made, but may give weight to any new laws and policies the court considers appropriate …”
The law current at the time of the development application regarding a decision of an impact-assessable development under s 3.5.14(2) of IPA was as follows:
“If the application is for development in a planning scheme area, the assessment manager’s decision must not –
(a)compromise the achievement of the desired environmental outcomes for the planning scheme area; or
(b)conflict with the planning scheme, unless there are sufficient planning grounds to justify the decision.”
Amendments were made to the IPA on 30 March 2006, one month after the application was made. Section 3.5.14(2) of IPA was amended to replace the words “sufficient planning grounds” with “sufficient grounds”. It is conceded therefore that the court may give weight to the broader test of “sufficient grounds”.
As I have noted, it is accepted by Mr Young that this proposal does conflict with the Planning Scheme. The real issue joined in the appeal is the extent of the conflict and whether there are sufficient grounds and/or planning grounds to justify approval notwithstanding the conflict. Mr Young’s case, simply put, is that the conflict is minor and there are grounds to justify the approval. Council’s case is that the conflict is significant and there are no sufficient grounds to justify approval.
Mr Manning, on behalf of Mr Young, also advances an argument that focuses on an Amendment to the Planning Scheme (No. 5 Retail and Commercial Hierarchy) which commenced on 21 January 2005; and submits that particularly some amendments to the Strategic Plan have resulted in what amounts to a prohibition against commercial development outside the Retail and Commercial Centres Hierarchy (which includes Local Centres) identified in the scheme.
Pursuant to s 4.1.50(1) of the IPA, Mr Young bears the onus of proving that the appeal should be upheld.
The proper approach of the court to s 3.5.14(2)(b) in the circumstances is that mandated by the Court of Appeal in Weightman v Gold Coast City Council & Anor [2002] QCA 234. It is not suggested that the approach mandated in Weightman was varied by the subsequent decision of the Court of Appeal in Woolworths Ltd v Maryborough City Council & Anor [2006] 1 Qd R 273, except to the extent that the later Court warned against treating the three-stage approach approved in Weightman as some form of code for the determination of justification.
The extent of conflict
A proper assessment of the extent of conflict involves an assessment of the proposal against relevant application provisions of the Scheme at a whole, broadly with a sensible practical approach and in a way that achieves the Scheme’s apparent purposes and objectives.
The relevant grounds of refusal set out in the decision notice refusing the application are:
‘1. The proposal does not comply with Maroochy Plan 2000 Strategic Plan Strategy for Retail and Commerce. Expansion of the existing Local Centre on the opposite side of Yandina-Coolum Road to the subject land is inconsistent with the Retail and Commercial Centres Hierarchy. Further, Maroochy Plan states that, even if genuine public demand for additional or higher order retail or commercial facilities is demonstrated, it is intended that the Council should consider that matter in terms of whether it justifies a review of the relevant Planning Area provisions to accommodate that demand, and it is not intended that such demand should be met by the ad hoc approval of new or expanded facilities contrary to the structure of the Retail and Commercial Centres Hierarchy.
2. The applicant has not demonstrated that the proposed development complies with Desired Environmental Outcome (DEO) No. 3: Economic Sustainability of the Maroochy Plan 2000 Strategic Plan.
3. The applicant has not demonstrated that the proposed development complies with Desired Environmental Outcome (DEO) No. 6: Urban Design, Heritage and Character of the Maroochy Plan 2000 Strategic Plan.
4. The proposal does not comply with the Maroochy Plan 2000 Strategic Plan Strategy for Urban Development. Objective and Implementation Measures 3.5.6(1) and (2) provide that, inter alia, applications for commercial uses outside of centre precincts will not be supported by Council.
5. The proposed use is inconsistent with the Maroochy Plan 2000 precinct intent for the precinct in which the site is located (Neighbourhood Residential). There are insufficient planning grounds to support variation to the precinct’s preferred and acceptable uses.
6. The applicant has not demonstrated that the proposed development complies with the acceptable measure requirements of Element 3: Distinctive and Legible Centres of the Code for Town and Village Centres. There are insufficient planning grounds to justify approval of the proposal when assessed against the corresponding performance criteria.’.
In Volume 2 (the Strategic Plan) a Retail and Commercial Centres Hierarchy is established which provides for a Principal Activity Centre at Maroochydore, Major Activity Centres at Nambour and Sippy Downs and other lower forms of Retail and Commercial Centres. The Retail and Commercial Strategy refers to Local Centres described in 4.3.4 as “facilities are not shown on the Strategic Plan Map” and (relevantly):
· “Local Centres, which consist of up to 1,000 m2 of gross floor area for commercial uses, may comprise a small scale supermarket, convenience shops and some comparison shopping to satisfy the day-to-day needs of discrete residential areas. The intended location of Local Centres, is particularised in the Planning Area provisions, either by identification of a Local Centre Precinct or by wording which identifies a preferred or anticipated site by reference to boundary streets or other site-specific identifiers;”
and:
· “4.4.1 To Consolidate and Maintain the Integrity of the Retail and Commercial Centres Hierarchy
Implementation
The Council will have regard to the following criteria when assessing relevant applications for development in the centres classified below
…
Local Centres
(26)In most cases, sufficient land has already been allocated for Local centres at the sites identified in the Planning Area provisions, either by designation as a Local centre Precinct or by site-specific identification in the text of the provisions. The Council does not intend to approve applications to establish Local centres at other locations, to expand Local centres beyond their intended scale as set out in s 4.3.5 above, or to establish retail or commercial development beyond the scale of a Local Centre at any locations except those designated in the Planning Area provisions for higher order centres.
(27)Even if genuine public demand for additional or a higher order retail or commercial facilities is demonstrated, it is intended that the Council should consider that matter in terms of whether it justifies a review of the relevant Planning Area provisions to accommodate that demand, and it is not intended that such demand should be met by the ad hoc approval of new or expanded facilities contrary to the structure of the Retail and Commercial Centres Hierarchy as set out in s 4.3 above, and as reflected in the Planning Area provisions.”
It is this provision that Mr Manning argues has led Mr Adamson (and Council) into error in that it amounts to a prohibition.
Section 2.1.23(2) of the IPA provides:
“A local planning instrument may not prohibit development on, or the use of, premises.”
The Court of Appeal in Vynotas Pty Ltd & Anor v Brisbane City Council & Anor [2001] QCA 24 considering this provision said at paragraph [15]:
“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.”
In this case need or public demand for a small scale office development in a neighbourhood residential precinct is not an issue either for or against the proposal. No evidence was called in this regard. Council argues that Mr Young’s proposal is indeed ad hoc development not intended by the Planning Scheme commencing at the level of the Strategic Plan. As I said to Mr Manning in argument, the language of this particular passage does not strike me when one has regard to the ordinary meaning of the words used, as being the language of prohibition. It does not say as he submits that “ad hoc” development “should not be considered”. My interpretation of this passage is that Council intends to discourage such development as part of its implementation of the stated objective in the scheme “to consolidate and maintain the integrity of the Retail and Commercial Hierarchy”. Giving the words their ordinary meaning, it amounts to no more than this; that if “genuine public demand for additional … commercial facilities is demonstrated” (in this case across a main road and outside a Local Centre), Council’s intention is that this be achieved by a review of the scheme and not by “ad hoc approval of … expanded facilities contrary to the structure of the … Hierarchy”. It is not the language of prohibition.
I agree with Mr Adamson that despite the low scale nature of the proposal it does conflict to a significant extent with this part of the Strategic Plan.
The importance of hierarchies is well established, and has recently been reaffirmed by the Court of Appeal in Australian Capital Holdings Pty Ltd v Mackay City Council [2008] QCA 157 at [583], [593] per Muir JA.
I also agree with Ms Holland that the proposal, albeit low key, of a two-office commercial facility conflicts with 3.5.6(2):
“2.It is envisaged that local retail, commercial and service uses will be concentrated into nodes in urban communities. In new communities, these nodes will generally have been established at the conceptual and detailed site planning stage. In older ones, they will be on specifically designated or referenced sites characterised by the existence of shopping groups or centres which are adequately accessible to a locality. In all Planning Areas the preferred site for the Local Centre will be clearly referenced. Applications for retail, commercial and service uses outside these sites will not be supported.”
I also agree with her that as one enters School Road from the roundabout intersection with the Yandina-Coolum Road, the area presents predominantly as the entry to a primary school neighbourhood with the school to the west, the childcare centre adjoining the site and at least 4 residences to the east, one of which is used as a home business, and another residence to the east of the site. The proposal conflicts with this provision of the Strategic Plan and significantly in that “applications for … commercial … uses outside these sites (i.e. the Local Centre) will not be supported”.
It would follow that there is some conflict with DEO (3)(f) and DEO (6)(j), but to a minor degree.
At the Volume 3 Planning Area precinct level there are competing arguments about the extent of conflict. Under 2.2, General Intent for Residential Precincts (2) Neighbourhood Residential, the town planners refer to this statement at p.8 of Volume 3.
“Non-residential purposes that may be appropriate on land in these Precincts include parks, churches, general stores, community facilities, and businesses carried out by residents in their own homes where such a business activity does not adversely affect the amenity of the locality by way of noise, traffic generation or otherwise.
Commercial uses other than general stores are not intended to be established on land in these Precincts, except on sites which are specifically identified in Planning Area provisions as suitable and intended for Local centre development. The Planning Area provisions may describe such sites as suitable or intended for “Local centre”, … development.”
The childcare centre is a community use and it appears to be common ground that its traffic generation is generally highest at the same peak times as the school. The amenity of the site by way of noise and traffic is low in any event and there is no evidence that the traffic generated from such a low scale development with nine car parks will adversely affect the present low amenity of the site. However, the proposal as a commercial use does conflict with this part of the Scheme. Mr Young seeks some comfort from some words in 2.3 General Intent for Centre Precincts (4) Local Centre where it is stated:
“Local Centre Precincts are also the preferred locations for local non-retail facilities which satisfy the needs of a relevant local community, such as community services and recreational facilities.”
In my view the general intent for the precinct class in which the proposed development is to be situated is of more relevance than the general intent for another class. In my view, the location of the childcare centre in its present position is a much better planning outcome in terms of the Scheme as a whole than locating such a centre in the Local Centre.
At the actual Precinct Level (Precinct 5 and Planning Area 11), there is also conflict with the Scheme. An office development is not a preferred and acceptable use on the site in accordance with the Volume 1 Table of Development Assessment (Table 4.2 p.67).
Mr Adamson expressed the opinion that the Yandina-Coolum Road provides an obvious separation line between the Local Centre and retail development to the south, and the residential area to the north of the road which contains the school and childcare centre. Mr Brownsworth opines that a more logical separation is the drainage corridor in Precinct 6. His argument is that when one has regard to the many non-residential uses (school, childcare centre, home business) west of the drainage corridor; this makes it a more logical separation from pure residential uses to the east of the corridor in Precinct 5. I think this opinion ignores the fact that the Scheme itself recognises the existence of the school as being situated in Precinct 5 and the other uses are permitted uses within residential areas in the Scheme itself. I prefer Mr Adamson’s opinion in this regard.
To some extent there is also some minor conflict with codes for Local Centres and general stores which continue the emphasis in the Planning Scheme on ensuring that commercial development is on “suitable sites clearly defined”.
Sufficient grounds
Mr Brownsworth identified the following grounds in his report as being in his opinion sufficient planning grounds to justify approval notwithstanding the conflict:
“(a)the current planning scheme is out of date as it affects the land;
(b)the relevant planning scheme is incorrect;
(c)the proposal positively contributes to the streetscape character and amenity;
(d)the proposal furthers the logical separation of potentially conflicting land uses;
(e)the proposal matches existing amenity values to a more suitable land use outcome for the subject land;
(f)the proposal is a more appropriate design and land use response for a gateway location than current residential development that exists on the land; and
(g)the proposed development is a logical continuation of existing development that has occurred in and around the subject land.”
As to (a) and (b), the court should be cautious in finding that the current Planning Scheme is out of date or is incorrect in the sense that it has been overtaken by events: Grosser v Gold Coast City Council [2001] QCA 423. I have already found against Mr Brownsworth’s characterisation of the locality in which the site is situated and he conceded in cross-examination that a childcare centre was not an incompatible use with a primary school. It is also important to take into account the List of Amendments annexed to the Scheme itself including the Retail and Commercial Centres Hierarchy Amendment introduced 21 January 2005. Throughout the life of the Scheme the site has remained in Precinct 5, and Mr Brownsworth conceded that commercial and retail uses in fact intensify in the southern part of the Local Centre away from the subject site. To some extent he bases his opinion on the use of part of Precinct 5 as a Council depot. This site is to the south-west of the proposed site and across the Yandina-Coolum Road and is a pre-existing non-conforming use. Both planners agree that the best use of this site is for residential, particularly affordable type housing given its low amenity because of its location. Its use does not give any support to Mr Brownsworth’s argument that the Scheme is superseded or incorrect.
He also bases his opinion on a document called the Coolum Integrated and Land Use Transport Plan adopted by Council at an ordinary meeting on 22 June 2005. A very rough Land Use Map is attached to Mr Brownsworth’s report and would have the site in a Village centre if the map had ever found its way into the Scheme. He conceded in his report that the document has not been practically implemented by Council. It has not been implemented at all in fact. Attached to the Minutes was “Attachment C – Planning Scheme Amendments” which Mr Brownsworth did not attach to his report. Council obtained a copy and it became Exhibit 6 in the appeal. All of the Planning Scheme Amendments (as they affect the site) relate to transport changes which have not been implemented. The designations in the “map” attached to Mr Brownsworth’s report are clearly in conflict with the relevant Planning Area 11 map in the Scheme and are therefore irrelevant in my opinion to any issue in the appeal.
In relation to (c) above, in my opinion an office development on the site, albeit on a small scale, would not contribute to what now presents as a primary school neighbourhood. It would present as an intrusion of a commercial use into a relatively in tact primary school and residential environment.
As to (d), I have already rejected Mr Brownsworth’s opinion on this issue for the reasons stated earlier.
As to (e), I agree that amenity at the site, because of its proximity to a very busy road and roundabout is low, however, Mr Brownsworth conceded that the duplex is currently tenanted and has not been difficult to lease. Another form of residential proposal such as that suggested by Mr Adamson may be a better use of the site, but use as an office does not elevate this to a sufficient ground for approval because it “matches existing amenity values”.
In relation to (f), Mr Brownsworth conceded that specific provision is made for a Gateway Precinct in Precinct 7 in Planning Area 11 and given the location of the site in Precinct 5 and the extent of conflict, this is not a ground that would justify approval.
I have already dealt with (g). In my opinion it would in fact not be a logical continuation of existing development that has occurred in and around the subject site to approve development of the site for commercial use.
In all the circumstances the appeal is dismissed.
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