PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

Transcription

1 PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: WOL Projects Pty Ltd v Gold Coast City Council [2018] QPEC 48 PARTIES: WOL PROJECTS PTY LTD ACN (Appellant) FILE NO: 383 of 2018 DIVISION: PROCEEDING: ORIGINATING COURT: v GOLD COAST CITY COUNCIL (Respondent) Planning and Environment Court, Brisbane Appeal DELIVERED ON: 12 October 2018 DELIVERED AT: Planning and Environment Court, Brisbane Brisbane HEARING DATE: 2 4 October 2018 JUDGE: ORDER: CATCHWORDS: Everson DCJ The appeal is dismissed PLANNING AND ENVIRONMENT APPEAL appeal against refusal of development application for material change of use to establish four multiple dwellings ASSESSMENT compliance with the planning scheme whether the proposed development complies with the planning scheme whether there are relevant matters to justify approval of the proposed development Legislation Planning Act 2016 (Qld) ss Planning and Environment Court Act 2016 (Qld) ss Sustainable Planning Act 2009 (Qld) s 326 Cases Bell v Brisbane City Council & Ors [2018] QCA 84 Jakel Pty Ltd v Brisbane City Council [2018] QPEC 21 Zappala Family Co Pty Ltd v Brisbane City Council [2014] QPELR 686

2 2 COUNSEL: SOLICITORS: ANS Skoien and D Jones for the appellant M Batty for the respondent Ceres Law for the appellant MinterEllison Gold Coast for the respondent Introduction [1] This is an appeal against the decision of the respondent to refuse a development application for a development permit for a material change of use to establish four multiple dwellings on land situated at 27 Andromeda Parade Robina ( the site ). [2] Detached two storey dwellings are proposed. One dwelling will present to Andromeda Parade and the other three will be located across the rear boundary of the site. The site contains an area of 2,301m 2. Accordingly the residential density of the proposed development equates to one dwelling per m 2. It will result in a total site cover per cent. 1 [3] The four individual dwellings which are proposed on the site are of varying heights. Dwelling one at the front of the site is to be 6.9 metres above natural ground level. Dwelling two on the northern side of the rear of the site is proposed to be 10.3 metres above natural ground level. Dwelling three which is proposed to be in the middle of the rear of the site is also intended to be 10.3 metres above natural ground level. Dwelling four in the southern part of the rear of the site, is proposed to be 9.3 metres above natural ground level. 2 Landscaping is proposed within the front and rear setbacks and between the dwellings and there is a shared internal vehicular access including visitor car parks. 3 The site and surrounding locality [4] The site is located within the Gallery Estate which is an isolated enclave of residential development surrounded by a golf course. 4 The three proposed dwellings at the rear of the site are designed to overlook the golf course. The site is currently vacant and located at the end of Andromeda Parade which terminates in a cul-de-sac adjacent to it. The site has an irregular shape flaring out from a 20.7 metre frontage to a metre wide rear boundary overlooking the golf course. It slopes down from the street frontage to the rear boundary with a difference of 7.27 metres across the site. 5 [5] The architecture within the estate is predominantly contemporary in nature, incorporating a variety of forms, materials and finishes as is the architecture evident in the proposed development. 6 The site is located over 800 metres from the closest bus stop and is not within easy walking distance of any centre uses or community facilities. 7 The local area contains a mix of attached houses and multiple dwellings. 8 Significantly the site is one of only two vacant blocks on the lower side of Andromeda 1 Exhibit 7, p Exhibit 6, p 5. 3 Exhibit 1. 4 Exhibit 7, p 8. 5 Exhibit 6, p 5. 6 Exhibit 7, p 8 and Exhibit 1. 7 Ibid, p 9. 8 Exhibit 6, p 5.

3 3 Parade and on this side of the street there are eight sites which have been developed with multiple dwellings and only three which have not. On the northern side of the site is a large dwelling house on a large block. The southern boundary of the site adjoins existing multiple dwellings. 9 [6] Pursuant to the Gold Coast City Plan 2016 ( the planning scheme ) which commenced on 17 May 2017 and which remains in force, the site and indeed all of Andromeda Parade, is within the Low density residential zone. The site is designated as within the Urban area in the Suburban neighbourhood pursuant to the Strategic framework in the planning scheme. 10 The multiple dwellings in Andromeda Parade reflect a legacy of superseded zoning and policy which contemplated greater residential density than that in the controls pursuant to the planning scheme. 11 The disputed issues [7] Helpfully the parties appropriately confined the issues for determination in the appeal. They are: 1. Whether the proposed development is an appropriate land use in this location; 2. Whether the proposed development would be compatible with and enhance the planned character of the locality; and 3. Whether there are relevant matters to justify approval of the proposed development in the event that it does not comply with the applicable assessment benchmarks. 12 The assessment regime [8] The development application the subject of the appeal was lodged with the respondent on 14 July At that time the Sustainable Planning Act 2009 ( SPA ) was in force. The respondent did not refuse the development application until 5 January 2018, after the Planning Act 2016 ( PA ) had commenced on 3 July Applying Jakel Pty Ltd v Brisbane City Council & Anor 14 the court must hear and determine the appeal pursuant to the legislative regime in place under the PA and the Planning and Environment Court Act 2016 ( PECA ). [9] As the development application required impact assessment and the relevant assessment benchmark is the planning scheme, 15 the court in determining the appeal: (a) must assess the development application against the planning scheme in place at the time the development application was properly made; (b) may assess the development application against, or having regard to any other relevant matter, other than a person s personal circumstances, financial or otherwise; and (c) may give the weight the court considers appropriate, in the circumstances to any amendment of the planning scheme Exhibit 7, figure Ibid, p 13, and Figures 4 and Ibid, pp 10 and 32 and Exhibit 9, p Exhibit Notice of Appeal, Exhibit 4, part [2018] QPEC 21 at [91]. 15 Planning Act 2016 s Planning Act 2016 s 45; Planning and Environment Court Act 2016 s 46; Jakel Pty Ltd v Brisbane City Council [2018] QPEC 21 at [94].

4 4 [10] This legislative regime is different to that which appertained pursuant to SPA. Whereas under SPA the decision of the court had to not conflict with the planning scheme unless there were sufficient grounds to justify the decision despite the conflict, 17 under the PA the assessment undertaken by the court in determining the appeal is less constrained. [11] The appellant must establish that the appeal should be upheld. 18 The appeal is by way of hearing anew. 19 Relevant planning controls [12] The planning scheme provides that where there is inconsistency between provisions within the planning scheme the strategic framework prevails over all other components to the extent of the inconsistency. 20 [13] Within the Strategic framework, the following provisions are particularly significant in the determination of this appeal. 3.3 Creating liveable places Strategic outcomes (3) Housing is provided in a form, height and scale consistent with the function, amenity and desired future character of local areas and centres, and promotes a sense of community cohesion and wellbeing. Housing is attractive and welldesigned. (11) Suburban neighbourhood areas are maintained as lowintensity, low-rise residential environments that retain and enhance local character and amenity Element Suburban neighbourhoods Specific Outcomes (1) Suburban neighbourhoods are places for low intensity, lowrise, predominantly detached housing that retains and enhances local character and amenity by maintaining existing scale, building height and intensity despite its proximity to public transport or other services. (5) Low intensity, low-rise small lot housing, dual occupancy and multiple dwellings occur in suburban neighbourhoods in low concentrations where they achieve a dispersed or gentlescattering effect. These dwellings are limited to the following lots where they do not adjoin existing or approved small lot housing, dual occupancy or multiple dwellings: (my underlining) (a) corner lots; or (b) lots with both street and rear lane access; or 17 Sustainable Planning Act 2009 s Planning and Environment Court Act 2016 s Ibid, s Section 1.5, Exhibit 5A, p Ibid, pp

5 5 (c) lots within a 400 metre walk of a mixed use centre or specialist centre. Note: Suburban neighbourhoods are not locations included in the Medium density residential and High density residential zone Element Urban design, character and community identity Specific outcomes (1) Development is cognisant of the function and desired future appearance of each individual area and reinforces or reinterprets the character of that area. 23 [14] The following provisions of the Low density residential zone code are also particularly relevant: Low density residential zone code Purpose (1) The purpose of the Low density residential zone code is to provide for dwelling houses, supported by community uses and small-scale services and facilities that cater for local residents. (2) The purpose of the code will be achieved through the following overall outcomes: (a) Land uses (i) consist of a range of low density residential uses such as Dwelling houses, Community residences and Home based businesses to maintain a high level of residential amenity and (ii) protect the local character of the zone; include Rooming accommodation housing no more than four unrelated persons; (iii) such as low density Dual occupancies and low rise Multiple dwellings with a maximum of three dwellings, blend in with the local character and are found on: (A) corner lots; or (B) (C) (b) Character consists of (i) (c) Built form lots with both street and rear lane access; or lots within a 400m walk of a mixed use centre. locally serviced suburban neighbourhoods that offer a high level of amenity and a sense of openness, with buildings that present well to the street and are set amongst generous landscaping; and 22 Ibid, pp Ibid, p 43.

6 6 (i) is low rise. 24 [15] Thereafter the following Performance outcomes and Acceptable outcomes in Table of the Low density residential zone code assumed significance in the course of the hearing of the appeal: Performance outcomes Site cover PO2 Site cover: (a) is balanced between built form and green areas for landscaped private open spaces; and (b) contributes towards neighbourhood character. Height PO3 Building height and structure height is low rise Acceptable outcomes AO2 Site cover does not exceed 50% AO3.1 Building height does not exceed: (a) 2 storeys with a maximum height of 9m. 25 [16] So far as PO3 is concerned, it is noteworthy that Low rise building height is defined as a building up to 9 metres above ground level (intent for up to 2 storeys, with option for partial 3rd if within 9 metres). 26 Assessment of the proposed development [17] The applicable principles for the construction of planning documents were considered by the Court of Appeal in Zappala Family Co Pty Ltd v Brisbane City Council in, inter alia, the following terms: 27 [52] The same principles which apply to statutory construction apply to the construction of planning documents. The High Court in Project Blue Sky Inc v Australian Broadcasting Authority said: 28 [69] The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined by reference to the language of the instrument viewed as a whole. 24 Ibid, pp Ibid, p Planning scheme, Schedule 1, Exhibit 5A, p [2014] QPELR 686 at 698 [52]. 28 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381.

7 7 [70] A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all of the statutory provisions. [56] The fact that planning documents are to be construed precisely in the same way as statutes still allows for the expressed view that such documents need to be read in a way which is practical, and read as a whole and as intending to achieve balance between outcomes. [18] The first issue for consideration is whether the proposed development is an appropriate land use for the site. As a starting point the appellant argues that the purpose of the Low density residential zone code contemplates development which expressly includes multiple dwellings 29 and there is no conflict with the planning scheme in this regard. Alternatively, the appellant submits in the event there is a conflict between the proposed development and the purpose of the Low density residential zone code, then the provision is directly inconsistent with Specific outcome (5) of the Strategic framework. Outcome (5) of the Strategic framework, it is submitted, prevails to the extent of the inconsistency having regard to the hierarchy of assessment in s 1.5 of the planning scheme. 30 Conversely the respondent submits that when the planning scheme is read as a whole there is no such inconsistency, and that the proposed development is clearly inconsistent with the planning scheme read as a whole. [19] In the purpose at the Low density residential zone code only expressly contemplates low rise multiple dwellings with a maximum of three dwellings which blend in with local character, on corner lots, or lots with both street and rear lane access or lots within a 400m walk of a mixed use centre. It is uncontentious that more than three dwellings are proposed in circumstances where the site does not meet any of the locational criteria set out above. These locational criteria are also listed in Specific outcome (5) in the Strategic framework. In a provision designed to limit the development of multiple dwellings, the locational criteria are however in this instance preceded by the sentence that these dwellings are limited to such lots where they do not adjoin existing or approved small lot housing, dual occupancy or multiple dwellings. Because of this preceding sentence the appellant submits that as the site adjoins existing multiple dwellings to the south, the specific locational criteria set out in s (5) of the Strategic framework do not apply and that this outcome is inconsistent with the application of these locational criteria without qualification in s (2)(a) of the Low density residential zone code and the additional restriction of only three dwellings set out therein. Accordingly the Strategic 29 Section (2)(iii). 30 Outline of submissions of the Appellant pp The choice of language, being framed in terms of the former legislative regime in SPA is regrettable.

8 8 framework prevails over the code to be extent of the inconsistency. 31 The appellant submits that the proposed development is thus an appropriate land use for the site. [20] This argument has a superficial appeal to it, however it does not accord with the principles of statutory construction applying to the construction of planning documents which were set out by Morrison JA in Zappala and quoted above. When the planning scheme is viewed as a whole and construed on the prima facie basis that its provisions are intended to give effect to harmonious goals it is clear that a Suburban neighbourhood is intended to be a low-intensity, low-rise residential environment. 32 This is reinforced in the specific outcomes for Suburban neighbourhoods which are not included in the Medium density residential and High density residential zones. 33 The clear prospective planning intent is consistent with Specific outcome (1) that development is cognisant of the desired future appearance of each individual area or reinterprets the character of that area. 34 Unsurprisingly the Low density residential zone code contemplates a range of Low density residential uses and multiple dwellings only in the limited circumstances set out in s (2)(iii). To interpret s (5) of the Strategic framework to give carte blanche opportunity for multiple dwellings to locate without the nominated geographical constraints where they adjoin existing or approved multiple dwellings is at significant variance with the language and purpose of the provisions identified above. Accordingly, the correct approach to interpreting the phrase where they do not adjoin existing or approved small lot housing, dual occupancy or multiple dwellings is that this represents an additional limitation on the opportunity to develop multiple dwellings in Suburban neighbourhoods and not an additional opportunity to do so. [21] As noted above, the court can give the weight it considers appropriate to any amendment of the planning scheme. 35 In this regard, in the latest iteration of the planning scheme, Version 6, the words where they do not adjoin existing or approved small lot housing, dual occupancy or multiple dwellings no longer appear in s of the Strategic framework. There is no longer an arguable basis for justifying the development of multiple dwellings just because they adjoin existing or approved multiple dwellings. To the extent that the amendment of the planning scheme in this regard further reinforces the language and purpose of the restricting of the development of multiple dwellings in Suburban neighbourhoods and in the Low density residential zone, I am of the view that it is appropriate to give it considerable weight. [22] In any event, reading the planning scheme as a whole, it is clear that the proposed development is not an appropriate land use for the site. [23] I now turn to consider whether the proposed development would be compatible with and enhance the planned character of the locality. In this regard the respondent makes much of the fact that by definition, as three of the four proposed dwellings exceed the maximum height of 9 metres above ground level, the proposed development is therefore by definition not low rise. It is submitted that the proposed development does not comply not only with s of the Strategic framework but also fails to 31 Section 1.5(1)(a) of the planning scheme, Exhibit 5A, p Planning scheme s 3.3.1(11), ibid. 33 Planning scheme s 3.3.1(1). 34 Section Planning Act 2016 s 45(7) and Planning and Environment Court Act 2016 s 46(2)(b).

9 9 comply with s of the Low density residential zone code and PO3 and AO3.1. While this submission is technically correct, I accept the evidence of, Mr Hebron, the architect who gave visual amenity evidence on behalf of the appellant: Even though there are penetrations of parts of dwellings 2, 3 & 4 above the metre height above natural ground, the penetrations are very minimal and the position and distance of these penetrations from the adjoining residence to the north and units to the south of the site would mean that there would be very little or no impact on the outlook of the adjoining residence and units. 36 I also accept the evidence of the corresponding expert engaged by the respondent, Mr McGowan that despite the exceedances in building height, the proposed buildings will generally appear as low rise development. 37 [24] I am therefore of the view that there is no meaningful inconsistency with the planning scheme because of the minor exceedances in height of certain dwellings as a consequence of the land sloping towards the golf course at the rear of the site. [25] I also accept the evidence of Mr Enders, the town planner engaged by the appellant and Ms Morrissy, the planner engaged by the respondent that the proposed development will result in a low density outcome for the site. 38 However, the layout of the site, with only one dwelling addressing the street and a shared vehicular access with designated visitor parking areas, is such that the proposed development will add the character of four multiple dwellings and not of four discrete dwelling houses to the locality. I further accept that the proposed development will achieve a dispersed or gentle scattering effect as contemplated by Specific outcome (5) in the Strategic framework, within the site, but reinforce the opposite outcome in Andromeda Parade generally where it will add to the already high concentration of multiple dwellings. [26] While the proposed development may be in accord with the existing pattern of development in Andromeda Parade, it does not accord with the planned character of Andromeda Parade pursuant to the planning scheme. What is planned is dwelling houses supported by other uses in certain restricted circumstances and those circumstances are not satisfied so far as the proposed development is concerned. In saying this I acknowledge the conformity of the proposed development with PO2 of the Low density residential zone code so far as landscaping is concerned. However, the architectural merits of the proposed development and the spatial separation of the proposed dwellings does not overcome the fact that the planned character of the locality no longer supports multiple dwellings for the site. [27] Finally I need to consider whether there are relevant matters to justify the proposed development notwithstanding the failure of it to comply with the important planning outcomes in the planning scheme identified above. 39 As a starting point it must be acknowledged as it was by McMurdo JA in Bell v Brisbane City Council & Ors 40 that a planning scheme must be accepted as a comprehensive expression of what will constitute, in the public interest, the appropriate development of land. The appellant 36 Exhibit 6, p Ibid, p Exhibit 7, p Exhibit [2018] QCA 84 at [66].

10 10 firstly puts forward a number of assertions that the proposed development is appropriate for the site because it would retain and enhance local character and amenity, and further that it would not adversely impact upon or detract from the residential amenity and character of the locality. It is also submitted that it represents low rise infill development in an area already developed by numerous multiple dwellings and dwelling houses which do not comply with the character intended for it in the planning scheme. However, as Mr Enders in my view rightly conceded, there is no public interest in demonstrating compliance with former planning controls. 41 Moreover the proposed development does not accord with the planned character for the site. The other relevant matter put forward by the appellant in this regard is that the development of the site at an intensity less than that envisaged by the proposed development would not be a desirable planning outcome or an efficient use of the site or existing infrastructure. Again there is no merit in this submission as the planning scheme has comprehensively stated what is appropriate development for the site and, for the reasons set out above, it is not multiple dwellings. Conclusion [28] The planning scheme is the manifestation of what will constitute, in the public interest, the appropriate development of the site. It does not contemplate the proposed development occurring on the site. The fact that past planning controls did so and that the site could be seen as having potential for infill development in a street with an abundance of multiple dwellings does not justify a departure from the clear planning intent for the site evident in the planning scheme. [29] The appeal is dismissed. 41 T and exhibit 3.