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  • Unreported Judgment

Harta Pty Ltd v Council of the City of Gold Coast

 

[2019] QPEC 37

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Harta Pty Ltd v Council of the City of Gold Coast [2019] QPEC 37

PARTIES:

HARTA PTY LTD (ACN 618 784 697)

(Appellant)

v

COUNCIL OF THE CITY OF GOLD COAST

(Respondent)

FILE NO:

1647/18

DIVISION:

 

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court Brisbane

DELIVERED ON:

16 August 2019

DELIVERED AT:

Brisbane

HEARING DATE:

22-26 July 2019

JUDGE:

Everson DCJ

ORDER:

The appeal will be allowed subject to the imposition of appropriate lawful conditions

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – appeal against deemed refusal of a development application for 27 multiple dwellings

ASSESSMENT – compliance with the planning scheme – whether the proposed development complies with the planning scheme – whether there are relevant matters which should be considered

LEGISLATION:

Planning Act 2016 (Qld)

Planning and Environment Court Act 2016 (Qld)

CASES:

Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16

Bell v Brisbane City Council & Ors [2018] QCA 84

Edwards & Alexander v Gold Coast City Council & Palm Beach Developments Pty Ltd [2005] QPELR 236

Hotel Property Investments Ltd v Council of the City of Gold Coast [2019] QPEC 5

Isgro v Gold Coast City Council & Anor [2003] QPELR 414

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

Wol Projects Pty Ltd v Gold Coast City Council [2018] QPEC 48

Zappala Family Co Pty Ltd v Brisbane City Council [2014] QPELR 686

COUNSEL:

M Batty for the appellant

R Litster QC and H Stephanos for the respondent

SOLICITORS:

Broadley Rees Hogan for the appellant

HopgoodGanim Lawyers for the respondent

Introduction

  1. [1]
    This is an appeal against the deemed refusal of the respondent of a development application for a development permit for a material change of use for multiple dwellings in respect of land located at 19 Sunrise Court Merrimac (“the land”).
  1. [2]
    The proposed development is for 27 multiple dwellings, partly constructed over a constrained part of the site which is subject to flooding. This part of the proposed development utilises a podium with an undercroft area to address this constraint.

The site and the surrounding area

  1. [3]
    The land is rectangular in shape and has an area of 9,937m2.[1]  There is currently a single storey house on the northern portion of the land which has a 13.5m frontage to Sunrise Court at the north-west corner.  The balance of the northern most boundary adjoins an existing residential lot with a single storey detached house.[2]  The western most boundary of the land has a 105m frontage to Ghilgai Road and the balance of this boundary adjoins open space.[3]  The remaining boundaries of the land are on the edge of the extensive Merrimac/Carrara flood plain.[4]  The developed area immediately surrounding the land is predominantly improved with single detached dwelling houses.  There is an aged care facility immediately across Ghilgai Road to the west.[5]  The majority of the buildings within the surrounding area identified by the architects in their joint expert report, include detached dwellings, seven townhouse developments, one multiple residential development under construction and two residential aged care facilities. The buildings within the surrounding area are generally one storey or two storeys in height.[6]
  1. [4]
    The land is in two zones. Approximately 5128m2 is in the Low Density Residential Zone and approximately 4810m2 is in the Limited Development (Constrained Land) Zone.  The immediately surrounding area to the north-east and east is within the Limited Development (Constrained Land) Zone, that to the north-west and south is within the Low Density Residential Zone and that to the west and north-west is within the Medium Density Residential Zone.[7]

The proposed development

  1. [5]
    The 27 townhouses are proposed to be developed within eight two storey building envelopes with each containing between two and four townhouses. A central private road will provide access from Sunrise Court. Common recreational facilities including a pool, a terrace and a barbecue pavilion together with accommodation for car parking and services is also contemplated. A pedestrian access to Ghilgai Road is also incorporated into the proposal. The building envelopes are stepped with no greater than two townhouses proposed in the same alignment.[8]  Separation distances between the building envelopes range between 4m and 8.7m.[9]  The total site cover is proposed to be 4,784m2 equating to approximately 48% of the land.[10]
  1. [6]
    Three of the building envelopes, which host 11 townhouses, are orientated north-east overlooking vacant flood prone land. The other five buildings hosting 16 townhouses overlook the Ghilgai Road reserve.[11]  The common recreational facilities including the swimming pool, nine of the townhouses and 98m of the proposed private road and associated service and landscape areas are proposed to be constructed behind a retaining wall.  All of this part of the proposed development is in the Low Density Residential Zone.  The balance of the built form is proposed to be by way of an elevated construction utilising suspended concrete building platforms supported by concrete columns.  This part of the proposed development is within both of the zones identified above.[12] This method of construction is proposed for 18 of the townhouses and approximately 64m of the private road and associated service areas.[13]  For part of the proposed development behind the retaining wall, private landscaped courtyards orientated towards Ghilgai Road are contemplated.  Private open spaces for the townhouses proposed within the elevated construction area include balcony spaces orientated towards the vacant flood effected land.[14]  The balcony areas of the townhouses within the elevated construction area are proposed to be cantilevered and extend beyond the line of the undercroft structure.  These are to be stepped and covered by low profile rooves.  The undercroft area is intended to be screened with laser cut panels and aluminium batten screens which are to be recessed from the building form above.[15]  Generous setbacks provide sufficient room to accommodate dense screen planting to soften the undercroft beneath the podium for the elevated frontages of the proposed development.  A significant area of open space is contemplated for the southern most boundary of the land which will also incorporate a bio retention area.[16]

The legislative framework

  1. [7]
    It is uncontentious that at the time the development application giving rise to this appeal was lodged, the Planning Act 2016 (“PA”) was in force.  Pursuant to the Planning and Environment Court Act 2016 (“PECA”) s 45 of the PA applies as if the court were the assessment manager for the development application.[17]  As the proposed development was impact assessable, s 45(5) of the PA applies.  It provides that the assessment must be carried out against the relevant assessment benchmarks, which, in the case of the appeal before me, are the relevant provisions of the planning scheme.[18]  Furthermore, the assessment may be carried out having regard to any other relevant matter, other than a person’s personal circumstances, financial or otherwise.[19]  The appeal is by way of hearing anew,[20] and the appellant must establish that the appeal should be upheld.[21]  The court in determining an appeal about a development application is conferred a wide discretion pursuant to s 60 of the PA which relevantly states:

“(3) To the extent the application involves development that requires impact assessment… the assessment manager, after carrying out the assessment, must decide—

  1. (a)
    to approve all or part of the application; or
  1. (b)
    to approve all or part of the application, but impose development conditions on the approval; or
  1. (c)
    to refuse the application.”
  1. [8]
    In undertaking this task it is important to have regard to the observations of McMurdo JA in Bell v Brisbane City Council & Ors that:

“…a planning scheme must be accepted as a comprehensive expression of what will constitute, in the public interest, the appropriate development of land.”[22]

However, as Williamson QC DCJ recently observed in Ashvan Investments Unit Trust v Brisbane City Council & Ors:

“[53] An application must be assessed against the applicable assessment benchmarks, which will invariably include a planning scheme for appeals before this Court. That assessment will inform whether an approval would be consistent, or otherwise, with adopted statutory planning controls. The existence of a non-compliance with such a document will be a relevant ‘fact and circumstance’ in the exercise of the planning discretion under s.60(3) of PA. Whether that fact and circumstance warrants refusal of an application, or is determinative one way or another, is a separate and distinct question. …. It will be a matter for the assessment manager (or this Court on appeal) to determine how, and in what way, non-compliance with an adopted statutory planning control informs the exercise of the discretion conferred by s.60(3) of the PA. It should not be assumed that non-compliance with an assessment benchmark automatically warrants refusal. This must be established, just as the non-compliance must itself be established.”[23]

  1. [9]
    As I observed in Hotel Property Investments Ltd v Council of the City of Gold Coast:

“[13] Accordingly, pursuant to the regime in the PA there is much more scope for a consideration of the site specific benefits of a proposed development in assessing a development application. This in turn leads to greater scope for the use of expert evidence in the assessment process.”[24]

  1. [10]
    Insofar as the assessment benchmarks themselves are concerned, 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:

“[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:

‘[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.”

[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.”[25]

The relevant provisions of the planning scheme

  1. [11]
    As a threshold issue, s 45 of the PA states that the court in carrying out the assessment against the planning scheme in an appeal must carry it out against the planning scheme in effect when the application was properly made but if it is amended, the court may give the weight it considers appropriate, in the circumstances to the amendment.[26]  It is uncontentious that at the time the development application was lodged, Version 4 of the respondent’s 2015 planning scheme (“the planning scheme”) was in effect.  However, at the time the town planners prepared their joint expert report Version 6 of the planning scheme, which materially amended the locational requirements for multiple dwellings on the land, had come into effect.  The appellant submits that the assessment against the planning scheme should be carried out pursuant to Version 6.  The logic of such an approach was explained by Wilson SC DCJ in Edwards & Alexander v Gold Coast City Council & Palm Beach Developments Pty Ltd in the following terms:

“[9] It might be thought that when the laws and policies of a Planning Scheme touching a particular parcel change it would be unusual, if not artificial, to give little weight or credence to the altered provisions.  In the past, this Court has acknowledged that in those circumstances the provisions of a new Planning Scheme may be entitled to considerable weight.  It is a reasonable presumption that Planning Schemes are evolutionary and that a later Scheme would usually (but not necessarily) contain a more informed and timely understanding of all the relevant town planning issues.  Those considerations alone would ordinarily suggest a new Planning Scheme will attract not insignificant weight.  When, as here, the new Scheme becomes effective in the course of deliberations about the proposed development relevant provisions of that new Scheme must attract close attention and considerable weight.”[27]

  1. [12]
    In circumstances where the appellant could simply lodge a new development application for the same development in order to obtain the benefit of the amendments to the planning scheme, it is unsurprising that the respondent does not oppose the court giving weight it considers appropriate to Version 6 of the planning scheme.[28]  Furthermore, the town planner engaged to give evidence by the respondent, Mr Perkins, accepted that determinative weight should be given to Version 6 in the circumstances.[29]  Accordingly, I intend to have regard to and apply Version 6 in undertaking the assessment of the proposed development against the planning scheme.
  1. [13]
    Insofar as the interpretation of the planning scheme is concerned it is noteworthy that s 1.2.2 provides that “notes” form part of the planning scheme.[30]  In s 1.4 it is stated 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 for impact assessment.[31]
  1. [14]
    The introduction to the strategic framework appears at s 3.1. There are six city shaping themes, each of which contains strategic outcomes. These “elements” refine and further describe the strategic outcomes. Thereafter, specific outcomes are sought for each of the elements. However, the strategic framework is to be read in its entirety as the policy direction for the planning scheme. Relevantly, the note at the end of this provision is in the following terms:

“Note: The whole of the planning scheme is identified as the assessment benchmark for impact assessable development.  This specifically includes assessment of impact assessable development against this strategic framework.  The strategic framework may contain intentions and requirements that are additional to and not necessarily repeated in zone, overlay or other codes.  In particular, the performance outcomes in zone codes address only a limited number of aspects, predominantly related to built form.  Development that is impact assessable must also be assessed against the overall outcomes of the code as well as the Strategic framework.”[32]

  1. [15]
    Relevantly, the strategic outcomes for the city shaping theme of “creating liveable places” in the strategic framework include the following strategic outcomes in s 3.3.1:

“(11) Suburban neighbourhood areas are maintained as low-intensity, low-rise residential environments that retain and enhance local character and amenity.

  1. (13)
    The Merrimac/Carrara flood plain special management area retains its appearance as a significant, largely undeveloped remnant of the Nerang River flood plain system.  Limited opportunities for low-to-medium intensity, low-to-medium rise residential and tourism related development exist in the least flood affected and environmentally sensitive areas.”[33]
  1. [16]
    Thereafter, in the “suburban neighbourhoods” element of the strategic framework, specific outcomes in s 3.3.3.1 are relevant:

“(1) Suburban neighbourhoods are places for low intensity, low-rise, 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.  They are less clustered and characterised by a feeling of openness, with buildings positioned in a generous landscaped setting.

...

  1. (4)
    Suburban neighbourhoods provide opportunities for smaller and more affordable housing options.  Low intensity, low-rise, dual occupancy and multiple dwellings and new lots, which are smaller than traditional lots (but not small lots), occur in suburban neighbourhoods in low concentrations where they achieve a dispersed or gentle-scattering effect and are limited to the following:
  1. (a)
    lots with dual frontage.

…”[34]

  1. [17]
    The following specific outcome in s 3.3.5.1 the “Merrimac/Carrara flood plain special management area” element of the strategic framework is also relevant:

“(1) Clustered areas of urban residential and some tourism-related development occur in the least flood affected and environmentally sensitive areas of the Merrimac/Carrara flood plain special management area.  Development minimises disruption to natural systems and maximises opportunities to create visually prominent green space.”[35]

The “note” at the conclusion of the specific outcomes relevantly states that development within this area will be “guided by the development intent identified on Conceptual Land Use Map 10.”[36]  The land is indicated as suitable for low density residential development from a conceptual land use perspective, subject to a detailed site based assessment and an assessment against a number of planning controls including the strategic framework and relevant codes.[37]

  1. [18]
    In the “landscape character element” at paragraph 3.8.2.1, the following specific outcome is relevant:

“(5) The distinctive open space character of the Merrimac/Carrara floodplain special management area is maintained.”[38]

  1. [19]
    As a consequence of s 5.3.3 of the planning scheme, the proposed development is to be assessed not only against the strategic framework but also against the Low Density Residential Zone Code (“LDRZC”) and the Limited Development (Constrained Land) Zone Code (“LDCLZC”).  So far as the code assessable development aspects of the proposed development are concerned, s.5.3.3(4)(c) states that development that complies with:

“(i) the purpose and overall outcomes of the code complies with the code;

  1. (ii)
    the performance or acceptable outcomes complies with the purpose and overall outcomes of the code.”[39]
  1. [20]
    The following provisions of the LDRZC are relevant:

6.2.1.2 Purpose

  1. (2)
    The purpose of the code will be achieved through the following overall outcomes:
  1. (a)
    Land uses –
  1. (i)
    consist of a range of low intensity, low rise, 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;

  1. (iii)
    such as Dual occupancies and Multiple dwellings, occur in low concentrations where they achieve a dispersed or gentle-scattering effect.  They are found on:
  1. (A)
    lots with dual frontages; or …

  1. (b)
    Character consists of –
  1. (i)
    low intensity, 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…

  1. (c)
    Built form –
  1. (i)
    is low rise and blends with local character and amenity.”[40]

  1. [21]
    The following performance outcomes and acceptable outcomes are relevant:[41]

Performance outcomes

Acceptable outcomes

Density

PO5

Development is low density to complement the existing residential development of the neighbourhood and protects its Dwelling house character.

AO5

Residential density is limited to a dwelling house.

OR

Residential density does not exceed that identified on the Residential density overlay map.

OR

Where not identified on the Residential density overlay map, density does not exceed one dwelling per 400m2.

OR

For Residential care facilities and Retirement facilities, no acceptable outcome provided.

  1. [22]
    Following provisions of the LDCLZC are also relevant:

6.2.18.2 Purpose

  1. (1)
    The purpose of the Limited development (constrained land) zone code is to identify land known to be significantly affected by one or more development constraints (such as flooding).

 Such constraints limit the ability to fully develop the land.

  1. (2)
    The purpose of the code will be achieved through the following overall outcomes:

  1. (b)
    Development outcomes within the Merrimac/ Carrara flood plain special management area will be subject to detailed site based investigations and guided by the development intent identified on Conceptual land use map 10 – Merrimac/Carrara flood plain special management area.

  1. (d)
    Land uses –
  1. (i)
    include limited opportunities for low-to-medium intensity, low-to-medium rise residential and tourism related activities in the:
  1. (A)
    least flood affected;
  1. (B)
    least environmentally sensitive areas; and
  1. (C)
    guided by Conceptual land use map 10 – Merrimac/Carrara flood plain special management area; and…
  1. (e)
    Character consists of –
  1. (i)
    a continuous green space area made up of largely undeveloped land with clusters of urban residential and some tourism-related development occurring in the least flood affected and least environmentally sensitive areas of the Merimac/Carrara flood plain special management area.
  1. (f)
    Built form –
  1. (i)
    is low-to-medium intensity, low-to-medium rise in accordance with Conceptual land use map 10 – Merrimac flood plain special management area;

  1. (iii)
    minimises disruption to natural systems and maximises opportunities to create visually prominent green space;

...

  1. (v)
    is of a scale that is not visually dominant on the landscape.”[42]
  1. [23]
    Finally, the following performance outcomes and acceptable outcomes are also relevant:[43]

Performance outcomes

Acceptable outcomes

Site cover 

PO2

Site cover:

  1. (a)
    reduces the dominance of buildings and structures;
  1. (b)
    addresses site constraints;
  1. (c)
    protects the semi-rural character; and
  1. (d)
    minimises the extent of impervious surfaces.

 

AO2

Site cover for dwelling houses, on lots created by a residential reconfiguration of a lot approval, does not exceed 50%.

OR

Site cover does not exceed 10%.

Performance outcomes

Acceptable outcomes

Height

PO3

Building height and structure height is low rise.

AO3.1

Where not identified on the overlay map building height does not exceed:

  1. (a)
     2 storeys with a maximum of 9m; or
  1. (b)
     a partial third storey if within 9m.

 

Performance outcomes

Acceptable outcomes

Design and appearance

PO5

All buildings are designed so their scale and visual prominence do not dominate the landscape.

 

AO5

No acceptable outcome provided.

Performance outcomes

Acceptable outcomes

Land use

PO6

Development outcomes within the Merrimac/Carrara flood plain special management area will be subject to detailed site based investigations, and guided by the development intent identified on Conceptual land use map 10 – Merrimac/Carrara flood plain special management area. 

 

AO6

No acceptable outcome provided.

The disputed issues

  1. [24]
    The respondent contends that the proposed development should be refused because it is inconsistent with the planning intent for development on the land evident in provisions of the LDRZC and the LDCLZC quoted above. The respondent further contends that the substantial departure from the identified planning intent in these respects is reinforced by provisions of the strategic framework, which I have also quoted, and that no basis has been demonstrated for departing from this clear planning intent.
  1. [25]
    In particular, the respondent asserts that the proposed development is inconsistent with the planning intent that multiple dwellings are only established in the Low Density Residential Zone in limited circumstances, which are not satisfied in this case when regard is had to provisions of the LDRZC. It is submitted that this is because the proposed development:
  1. will introduce a high concentration of multiple dwellings and not achieve a dispersed or gentle scattering effect contrary to s 6.2.1.2(2)(a)(iii);
  1. is not low density and low intensity contrary to s 6.2.1.2(2)(a)(i) and PO5;
  1. is not low intensity in character and does not protect (or blend with) the dwelling house character of Sunrise Court contrary to s 6.2.1.2(2)(b)(i) and (c)(i) and PO5; and
  1. does not meet the locational requirements because the proposal does not involve dual frontage contrary to s 6.2.1.2(2)(a)(iii).[44] 
  1. [26]
    Further, the respondent asserts that the proposed development involving 27 multiple dwellings is inconsistent with the planning intent evident in the Limited Development (Constrained Land) Zone when regard is had to provisions of the LDCLZC because the proposed development:
  1. is not consistent with the continuous green space character of the floodplain and does not create visually prominent green space contrary to s 6.2.18.2(2)(e) and (f)(iii); 
  1. is of a scale that is visually dominant on the landscape contrary to s 6.2.18.2(2)(f)(v) and PO2 and PO5; 
  1. it has a site cover of 46.9% which does not reduce the dominance of buildings and structures, protect the semi-rural character or minimise the extent of impervious surfaces contrary to PO2;
  1. is neither low rise nor low density contrary to PO3 and PO4; and
  1. is not supported by the provisions relating to Conceptual Land Use Map 10 called up by the LDCLZC.[45]
  1. [27]
    Conversely the appellant contends that the proposed development is compliant with Version 6 of the planning scheme, is compatible with the amenity and character expectations for the locality, does not cause any unacceptable flooding impacts and meets a need for the proposed development.[46]
  1. [28]
    Following the observation of Williamson QC, DCJ in Ashvan Investments Unit Trust v Brisbane City Council that the court in deciding the fate of a development application in an appeal must do so in a way that advances the purpose of the PA,[47] both parties assert that this requirement favours their case.[48]  The respondent argues that “refusing the development application so as to uphold the adopted planning controls applying to the land where no basis has been demonstrated for departing from the clear planning intent” is consistent with and advances the purpose of the PA.[49]  Conversely the appellant invokes broad statements of purpose,[50] such as “providing for housing choice, diversity and affordability” in asserting that the proposed development advances the purpose of the PA.[51] The difficulty with the arguments of both parties in this regard is that the purpose of the PA and what is said to advance it are expressed in such general terms,[52] that such arguments do not assume any real significance or add in any way meaningful way to the issues I need to resolve in this appeal. 

Assessment of the proposed development against the planning scheme

  1. [29]
    Nothing in the planning scheme prohibits or discourages the utilisation of a podium with an undercroft area, which is the innovative approach utilised by the appellant to avoid impacts relating to flooding. The dispute between the parties relates to the character and density of the proposed development.
  1. [30]
    A number of experts gave evidence to assist the court in determining the issues in dispute. Two architects were called. Mr Peabody gave evidence on behalf of the appellant and Mr Robinson gave evidence on behalf of the respondent. Mr Peabody was of the opinion that the design of the proposed development, including the placement of the building envelopes, was appropriate and that the proposed public frontages made a positive contribution to the surrounding context.[53]  He observed that the proposed development was also consistent with the pattern of development in the surrounding area, which included both detached dwellings and multiple residential developments.[54]  In this regard, he expressed the view that the scale of the proposed building envelopes was consistent with that in Sunrise Court and with other building envelopes in the surrounding area.  Importantly, he observed that the spacing between the proposed buildings far exceeded the predominant spacing between the dwellings in Sunrise Court.[55]  His evidence is unequivocally corroborated in the statement of evidence of Mr Powell, the visual amenity expert called on behalf of the appellant.[56]  Mr Peabody also noted that the proposed development was intended to be both dispersed from other multiple dwelling residential developments within the surrounding area and that the scale of the proposed building envelopes and the proposed density would be similar to the existing built form.  He expressed the opinion that a gentle scattering effect would be achieved within the land.[57] Mr Peabody also expressed the view that there was a generous separation between the building envelopes, ranging between 4m and 8.7m, which maintained site lines through the land and enhanced the sense of permeability which contributed positively towards the integration of the proposed development with the existing general surrounding context.[58] 
  1. [31]
    Conversely, Mr Robinson was of the view that the proposed development will present as a bulky set of buildings with a uniform, regimented character.[59]  He did, however, concede under cross-examination that the locality was dominated by detached dwellings with a very minor scattering of multiple dwellings and that approval of the proposed development would not change the character of the area.[60]  He further conceded that the landscape character of the flood plain will not change regardless of whether the proposed development is approved.[61] 
  1. [32]
    Overall I preferred the evidence of Mr Peabody who seemed far more open-minded and less partisan than Mr Robinson. I also accept the evidence of Mr Buckley, the planner called on behalf of the appellant, that the proposed development would achieve genuine separation from other similar uses and in the context of surrounding development, and that a dispersed or general scattering effect would be the outcome.[62] 
  1. [33]
    Visual amenity evidence was also called by both parties. As noted above, Mr Powell gave evidence on behalf of the appellant, and Mr McGowan gave evidence on behalf of the respondent. At the outset, it should be noted that Mr McGowan conceded under cross-examination that minor exceedances of the prescribed height of 9m above ground level for low rise building height did not justify refusal of the proposed development.[63] Indeed the respondent does not now contend that these exceedances of themselves, which I find to be so minor as to be virtually unintelligible to an observer, justify refusal of the proposed development.  Rather, the respondent contends that it is a factor which supports its argument that an inappropriate use is proposed for the land.[64]  I prefer the evidence of Mr Powell who comprehensively demonstrated, with the assistance of photo montages,[65] that the intended landscaping for the proposed development was such that a responsive interface with roads and open space, which ensured compatibility with landscape and streetscape character and a minimising of the apparent intensity of the built form, would be achieved.[66]  I accept without reservation his evidence that the outcome will be a building form in height and scale that will appear as low rise and at a similar building length to existing buildings in Sunrise Court.  I also accept that the proposed building separations will complement the existing built form character.[67]
  1. [34]
    As noted above, town planning evidence was called on behalf of the appellant by Mr Buckley, and Mr Perkins gave town planning evidence for the respondent.  It is significant that from a town planning perspective Mr Buckley ultimately made the concession that, in his opinion, the proposed development would be a low to medium density development.[68]  Mr Perkins maintained his position that the proposed development did not blend in with local character and amenity, being an attached housing, multiple dwelling development of a significant scale and intensity in a suburban neighbourhood, which would erode the current and intended local character.[69] In terms of questions of character and intensity, I prefer the evidence of Mr Peabody and Mr Powell, summarised above. 
  1. [35]
    Turning to the parts of the LDRZC identified above. Firstly, the term “low density development” is not defined in the planning scheme. The site cover of the proposed development equates to 48 per cent of the land. When regard is had to the fact that the proposed development is essentially low rise in terms of building height and similar in terms of built form character to the existing low density residential development in Sunrise Court, I am satisfied that the overall outcome is low density, low rise development that retains and enhances local character and amenity by maintaining existing scale, building height and intensity. I am further satisfied that the proposed development offers a high level of amenity and sense of openness with appropriate addressing of the street and generous landscaping. I accept that it will blend with the existing character and amenity in circumstances where the result will be low rise multiple dwellings in low concentrations in the neighbourhood and result in a dispersed or general-scattering effect both within the land and within the locality. Subject to what I have to say below about whether the lot has a dual frontage, I therefore find that the purpose of the LDRZC is complied with.[70]  There is also compliance with PO5 of the LDRZC, given my findings of the fact above. 
  1. [36]
    I now turn to consider whether or not the land has dual frontage. The term “dual frontage” is defined in the planning scheme as “[a]n allotment with dual frontage, can be safely accessed from at least two roads in accordance with the Driveways and Vehicular Crossing Code.”[71] The appellant submits that it is able to demonstrate compliance with this requirement in circumstances where s 1.2.1 of the planning scheme states a term used in it has the meaning assigned to it by the PA.[72]  The PA in turn defines road as having the meaning given in the Transport Infrastructure Act 1994 which, includes “a pedestrian or bicycle path”.[73]  It is therefore submitted that in circumstances where the proposed development provides vehicular access to Sunrise Court and pedestrian access to Ghilgai Road, the requirement that the land have dual frontage in s 6.2.1.2(2)(a)(iii)(A) of the planning scheme is satisfied.  Applying the principles set out above in Zappala,[74]  I do not accept this submission.  Reading the planning scheme as a whole it is clear when one has regard to the Driveways and Vehicular Crossings Code,[75] that the definition contemplates a second vehicular access.  That is not the end of the matter, however, as the code seeks in PO3 to minimise the number of vehicular crossings and there is no evidence before me which suggests that there is any warrant for a second vehicular access to Ghilgai Road for reasons of safety, traffic efficiency or any other purpose.  Specifically there is no evidence before me that suggests there would be any utility in providing vehicular access, as opposed to merely pedestrian access, to Ghilgai Road.  I accept the evidence of Mr Buckley that the dual frontage requirement assists in achieving the goal of a gentle scattering effect for multiple dwellings.[76]  I accept that the proposed development contemplates dwellings which appropriately address Ghilgai Road and achieve this general scattering effect.  Therefore, although there is technical non-compliance with this assessment benchmark, I am of the view that, on the facts before me, it does not warrant refusal of the proposed development. 
  1. [37]
    So far as the alleged inconsistencies with the planning intent evident in the LDCLZC are concerned, the findings of fact above are such that I am satisfied that the proposed development is consistent with the continuous green space character of the flood plain, that it is not visually dominant on the landscape, that it is low density as contemplated in Conceptual Land Use Map 10, that it minimises disruption to natural systems, and maximises opportunities to create visually prominent green space having regard to the footprint of the proposed development and the proposed landscaping. I am therefore satisfied that the proposed development complies with the purpose of the LDCLZC. I am also satisfied that the architectural treatment, including the proposed landscaping, complies with PO2, PO3, PO5 and PO6 for the reasons set out above. To the extent that the respondent submits that I should be guided by the requirement in AO2 that the site cover not exceed 10%, this submission must be treated with caution given s 5.3.3(4)(c) of the planning scheme and the various alternatives set out therein.[77]  While I note that in WBQH Developments Pty Ltd v Gold Coast City Council & Anor, the observation was made that the content of an acceptable solution “may indicate what the planning scheme desires or prefers as development in the area”,[78]  AO2 is hardly instructive in this regard where Conceptual Land Use Map 10 contemplates densities ranging from tourism and mixed residential/tourism uses to rural residential uses as well as open space and conservation areas.  I find that the proposed development complies with the relevant parts of both the purpose and the performance outcomes of the LDCLZC and that this is sufficient. 
  1. [38]
    It also follows from the evidentiary findings made above that I am satisfied that the proposed development complies with the relevant provisions of the strategic framework quoted above, with the exception of the dual frontage requirement in s 3.3.3.1(4)(a). Essentially, I am satisfied that it represents low-intensity, low-rise residential development that is consistent with existing character and amenity. I am satisfied that the buildings will be positioned in a generous landscape setting and that they will achieve a gentle, scattering effect both within the land and within the local area. I am satisfied that the proposed development will not detract from the open space character of the Merrimac/Carrara flood plain and will create visually prominent green space, through the proposed landscaping.

Relevant matters

  1. [39]
    The most significant relevant matter advanced by the appellant is that of planning need. The concept of planning need was explained by Wilson SC DCJ in Isgro v Brisbane City Council & Anor:

“Need, in planning terms, is widely interpreted as indicating a facility which will improve the ease, comfort, convenience and efficient lifestyle of the community… Of course, a need cannot be a contrived one. It has been said that the basic assumption is that there is a latent unsatisfied demand which is either not being met at all or not being adequately met…”[79]

  1. [40]
    Expert evidence was called on behalf of the appellant in this regard from Mr Ganly. Mr Leyshon was called by the respondent. The approach of Mr Ganly appeared to be “build it and they will come” in circumstances where the Gold Coast is essentially a growing city. However, Mr Ganly failed to demonstrate that the planning scheme, which is in its infancy, has not appropriately catered for this demand. In other words, as Mr Leyshon observed, there is little doubt that any latent demand for 27 townhouses of the type proposed could be addressed in another location in accordance with the planning scheme.[80]  Further, as Mr Leyshon stated in cross-examination “…as I understand it, the planning scheme enables these sorts of dwellings to be undertaken in quite a number of zones on the Gold Coast”.[81]  I accept the evidence of Mr Leyshon in this regard and am therefore of the view that the appellant has not demonstrated that there is a latent unsatisfied demand for the proposed development which is not being adequately met pursuant to the planning scheme in other locations. 
  1. [41]
    The other relevant matter of significance is that it was not contended that the proposed development would cause any unacceptable flooding impacts or be subject to any unacceptable flooding impacts. In my view, the proposed development has architectural and engineering merit and achieves the provision of housing stock in accordance with the planning controls on land partially constrained by flooding impacts in an architecturally meritorious way.

Conclusion

  1. [42]
    After assessing the proposed development against the planning scheme, I am of the view that there is only technical non-compliance with the requirement in s 3.3.3.1(4) of the “suburban neighbourhoods” element and s 6.2.1.2(2)(a)(iii)(A) of the LDRZC that the proposed development be located on a lot with a dual frontage as defined in the planning scheme.  For the reasons set out above, I am of the view that this non-compliance is of no consequence in circumstances where it has not been demonstrated that there are any adverse impacts from a traffic management or safety perspective and in circumstances where the proposed development appropriately addresses each street frontage.  Further, the architectural and engineering merit of the proposed development and its failure to cause or be subject to any unacceptable flooding impacts is a relevant matter which favours the approval of the proposed development.  Therefore in the exercise of my planning discretion I am of the view that the appeal should be allowed subject to the imposition of appropriate lawful conditions. 

Footnotes

[1]Exhibit 13, para 10. 

[2]Exhibit 11, paras 8-9.

[3]Ibid, para 12; Exhibit 13, para 11; Exhibit 1, vol 1 p 16.

[4]Exhibit 11, paras 16-18; Exhibit 13, paras 14-16.

[5]Exhibit 13, para 13.

[6]Exhibit 11, para 18.

[7]Exhibit 13, paras 46-48.

[8]Exhibit 11, paras 19-21.

[9]Exhibit 13, para 26.

[10]Exhibit 11, para 51.

[11]Ibid para 23.

[12]Ibid para 52 and Figure 7.

[13]Ibid para 25.

[14]Ibid para 26. 

[15]Exhibit 11, paras 27-28.

[16]Exhibit 1, vol 1, p 14; Exhibit 9, para 37.

[17]PECA s 46(2).

[18]PA s 46(5)(a)(i).

[19]PA s 45(5)(b).

[20]PECA s 43.

[21]PECA s 45(1)(a).

[22][2018] QCA 84 at [66].

[23][2019] QPEC 16 at [53].

[24][2019] QPEC 5 at [13].

[25][2014] QPELR 686 at 698-700.

[26]PA s 45(6) and (7).

[27][2005] QPELR 236 at 228 [9].

[28]Written submissions on behalf of the respondent, paras 37-39.

[29]T4-48 ll 26-31.

[30]Exhibit 5, p 3.

[31]Ibid p 4, Section 1.4(1)(b).

[32]Exhibit 5, p 10.

[33]Exhibit 6, p 16.

[34]Exhibit 6, p 21.

[35]Ibid p 26.

[36]Ibid p 27; Exhibit 2, p 6.

[37]Exhibit 2, p 6.

[38]Exhibit 6, p 75.

[39]Exhibit 5, pp 86, 89 and 150.

[40]Exhibit 5, p 150.

[41]Exhibit 5, p 173.

[42]Exhibit 5, pp 231-232.

[43]Ibid pp 234-235.

[44]Exhibit 4.

[45]Ibid.

[46]Ibid.

[47]Op cit at [84].

[48]PA s 5(1).

[49]Exhibit 4.

[50]Ibid.

[51]PA s 5(2)(f).

[52]Ibid ss 3 and 5.

[53]Exhibit 12, para 5. 

[54]Ibid para 7. 

[55]Ibid para 8. 

[56]Exhibit 10, Figure 2. 

[57]Exhibit 12, para 12. 

[58]Ibid paras 13-15 and Figure 1. 

[59]Exhibit 11, para 78. 

[60]T3-16 ll 20-38. 

[61]T3-33 ll 30-31. 

[62]Exhibit 14, para 15 and Map 1. 

[63]See definition of low rise building height in the planning scheme, Exhibit 5, para 323 and Exhibit 1, volume 1, pp 34-35. 

[64]Exhibit 4. 

[65]Exhibit 10, Figures 5-8. 

[66]Ibid para 25. 

[67]Exhibit 9, para 65.

[68]T4-23 ll 40-46.

[69]Exhibit 13, para 96.

[70]Exhibit 6, pp 86-87.

[71]Exhibit 6, p 132.

[72]Exhibit 5, p 3.

[73]Transport Infrastructure Act 1994 schedule 6.

[74]Zappala Family Co Pty Ltd v Brisbane City Council [2014] QPELR 686 at 7698-700.

[75]Exhibit 6, pp 97-103, Section 9.4.2.

[76]T4-35 ll 25-30. 

[77]Exhibit 5 p 86. 

[78][2010] QCA 126 at [36]. 

[79][2003] QPELR 414 at 418 [21]. 

[80]Exhibit 8, para 135. 

[81]T2-53 ll 22-23. 

Close

Editorial Notes

  • Published Case Name:

    Harta Pty Ltd v Council of the City of Gold Coast

  • Shortened Case Name:

    Harta Pty Ltd v Council of the City of Gold Coast

  • MNC:

    [2019] QPEC 37

  • Court:

    QPEC

  • Judge(s):

    Everson DCJ

  • Date:

    16 Aug 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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