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  • Unreported Judgment

Maxwell v Council of the City of Gold Coast

 

[2002] QCA 214

SUPREME COURT OF QUEENSLAND

CITATION:

Maxwell & Anor v Council of the City of Gold Coast & Anor [2002] QCA 214

PARTIES:

IAN CAIRNS MAXWELL and REVELYN MAXWELL
(appellants/applicants)
v
COUNCIL OF THE CITY OF GOLD COAST
(respondent/first respondent)
RIALTO DEVELOPMENTS PTY LTD ACN 084 954 405
(co-respondent/second respondent)

FILE NO/S:

Appeal No 1186 of 2002

P & E Appeal No 622 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

Application for leave Integrated Planning Act

ORIGINATING COURT:

Planning and Environment Court at Southport

DELIVERED ON:

21 June 2002

DELIVERED AT:

Brisbane

HEARING DATE:

4 April 2002

JUDGES:

McMurdo P, Helman and Wilson JJ

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

Application for leave to appeal from Planning and Environment Court granted.

Costs of each party are to be costs in the proceeding.

CATCHWORDS:

ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – DEVELOPMENT CONTROL – CONTROL OF PARTICULAR MATTERS – SUBDIVISION – PRINCIPLES GOVERNING CONSENT OR APPROVAL – CONSIDERATION OF DEVELOPMENT PLAN – where proposed development to subdivide land into six lots in Residential-Dwelling House zone – where proposed development exceeds maximum density permitted under Scheme – where within powers conferred under Scheme to modify development density requirements – where learned primary judge concluded modification of density requirements was appropriate – where learned primary judge relied on an erroneous construction of expression “developing area” in determination – where question of whether land was in a developing area central to determination – whether reviewable question of law raised

Integrated Planning Act 1997 (Qld), s 4.1.56, s 6.1.29

Collector of Customs v Agfa-Gevaert Ltd (1996) 186 C.L.R. 389, referred to

Minister for Immigration and Multicultural Affairs v Singh [2002] H.C.A. 7, referred to

Vynotas Pty Ltd v Brisbane City Council [2002] 1 Qd. R. 108, referred to

COUNSEL:

A N Skoien for the applicants

W G Everson for the first respondent

P J Lyons QC, with T N Trotter, for the second respondent

SOLICITORS:

Robert W. Blank & Associates for the applicants

McDonald Balanda & Associates for the first respondent

Quinn & Box for the second respondent

  1. McMURDO P:  I agree with the orders proposed by Helman J and with his reasons.
  1. HELMAN J:  The applicants seek the leave of this court under s. 4.1.56 of the Integrated Planning Act 1997 to appeal against a decision of the Planning and Environment Court on the ground of error or mistake in law.  The applicants had appealed to the Planning and Environment Court from a decision by the Council of the City of Gold Coast to approve a development application by the second respondent.  The land the subject of the application has an area of 2,586 square metres and a frontage of 60 metres to Durham Street, Southport.  It is in the Residential-Dwelling House zone provided for in the Planning Scheme for the City of Gold Coast gazetted on 11 February 1994.  Until recently there had been one house on the land which had been amalgamated into one lot from six smaller lots in 1985.  The Scheme designates ‘Detached Housing’ as the preferred dominant land use (P.D.L.U.) for land in the Residential-Dwelling House zone.  The proposed development was to subdivide the land into six lots: five with an area of 422 square metres each and each with a frontage of 10.2 metres, and one of 474 square metres with a frontage of 7.5 metres.  The decision of the Council permitted the subdivision in accordance with a plan of development showing details of proposed detached houses on the lots.  The appeal to the Planning and Environment Court was dismissed. 
  1.    Part 1 of the Scheme is the strategic plan.  In s. 1.3, under the heading ‘Detached Housing’, the following inter alia appears: 

The following objectives have been identified for areas designated as Detached Housing:

(a)To maintain the amenity and low density character of detached housing areas in line with the expectations of residents.

In order to maintain a high level of residential amenity and a detached housing character, the Council will only favour proposals for development which are complementary to and compatible with dwelling houses.  The provisions of the Planning Scheme relating to site coverage, development density, building height, on-site open space, car parking and landscaping will set standards for all development which further ensure the maintenance of amenity and character.  Through its own programmes the Council will progressively improve streetscapes and the safety of residential roads.

(b)To provide for a range of accommodation types in developing areas.

Integrated housing may be utilised in developing areas to facilitate and regulate a range of allotment sizes and housing types but development will be required to maintain an overall density which is compatible with dwelling houses on conventional allotments.  Large areas of housing on small allotments is not considered desirable but pockets of such housing as part of an overall integrated development is considered acceptable.  To facilitate a range of housing types, development will be required to be in accordance with an approved plan.

  1. Section 4.3 in Part 4 (Residential Zones) contains provisions concerning the Residential-Dwelling House zone, 4.3.1 providing:

The intent of this zone is to implement the objectives of the Detached Housing P.D.L.U. in the Strategic Plan.  It is intended therefore to provide for the development of detached dwelling houses in an almost exclusively low density residential environment.  All residential development with the exception of dwelling houses, dual occupancy dwellings, aged persons accommodation, townhouse development and integrated housing as well as most non-residential development will be excluded from this zone.  The purpose of these restrictions on development is to provide residents with the assurance that their chosen residential area will remain free from unwarranted intrusion by incompatible development.  All development within the Residential-Dwelling House Zone will be subject to provisions which seek to ensure a pleasant, low density living environment.

Permissible development is restricted to townhouse development, integrated housing and aged persons accommodation at densities compatible with low density dwelling house development, as well as non-residential development which may be compatible with and complementary to residential development.

Integrated housing will constitute an integral component of the residential fabric of developing areas.  It is intended that such development primarily occur in large subdivisions within developing areas, thereby facilitating a variety of housing options in these areas.  To maintain the character of existing detached housing areas, integrated housing will not be favourably considered on sites less than 2000 square metres.  All integrated housing will be required to be in accordance with an approved plan, and to ensure compliance, subdivisional plans will not be sealed by the Council until construction of the dwelling units has substantially commenced.

Within this zone a high priority will be given to maintaining the integrity of residential areas and accordingly permissible development will not be approved if such development can reasonably be located elsewhere.  Permissible development should generally locate in situations which minimise impact on residential amenity and which do not introduce additional traffic onto minor residential roads including residential access culs-de-sac and minor collector roads.  Any permissible development will only be approved if it can be shown that such development is complementary to and compatible with the surrounding area.

  1. Sections 16.1.1 to 16.1.14 in Part 16 (Subdivision and Amalgamation of Land) are provisions applying to subdivision. Section 16.1.1 concerns allotment size, dimensions, and access. So far as it is relevant to this application, s. 16.1.1.1 provides by Table 16.1 that the minimum area of an allotment in the Residential-Dwelling House zone is to be 600 square metres with a minimum frontage of 17 metres, except in the case of a corner allotment which is to have a minimum frontage of 20 metres. There is, however, a proviso in s. 16.1.1.1: the Council ‘may modify the provisions contained in Table 16.1’ with regard to inter alia the minimum area of allotments, and minimum frontage having regard to eight specified matters which include: 

(iii)the zoning of the land and adjoining land;  and

. . .

(vi)the provisions relating to AMCORD and Integrated Housing;  and

(vii)the provision of Section 4.13;  and

(viii)any other matters considered relevant by the Council.

‘AMCORD’ is the Australian Model Code for Residential Development.  Section 4.13 contains provisions concerning integrated housing development.  ‘Integrated housing’ is defined in Part 2 (Definitions) as ‘Integrated residential development undertaken pursuant to the provisions of AMCORD, as amended by the provisions of Sections 4.13 and 16.4’.  Section 16.4 contains provisions concerning subdivision for integrated housing.   Of particular relevance to this application is s. 4.13.2.1 which provides that the development density of dwelling units shall not exceed fifteen units per hectare in the Residential-Dwelling House zone and twenty-five units per hectare in the Residential-Duplex Dwelling zone; and the section continues to provide for two methods of calculating the site area.  Section 16.4.1.4, so far as it is relevant, provides that lots within the Residential-Dwelling House zone shall have a minimum size of 400 square metres, and those within the Residential-Duplex zone a minimum size of 300 square metres.

  1. It can be seen from the relevant provisions of the Scheme that ‘development density’ – in the context, low density – is treated as of paramount importance in the Residential-Dwelling House zone, in which the detached housing preferred dominant land use applies. The objectives identified for areas designated as detached housing and s. 4.3.1 arguably show that although integrated housing may be permitted with consent in existing detached housing areas on sites of not less than 2,000 square metres, it is more appropriate in developing areas. In any event, although lot sizes may be less than the 600 square metres set down as the minimum for the Residential-Dwelling House zone and down to 400 square metres, the development density is still not to be greater than fifteen units per hectare. Even if a proposal is not strictly for integrated housing s. 16.1.1.1(vi) still requires regard to be had to the provisions related to integrated housing. In the second respondent’s proposed development the result is, however, a development density of 25.8 units per hectare, which is well in excess of that permitted within the Residential-Dwelling House zone and is even in excess of that permitted within the higher density Residential-Duplex Dwelling zone. (I should mention that the application of s. 4.13.2.1 to the land in question requires the assessment of development density to be made on nine-tenths of the area of the site.)
  1. The learned judge of the Planning and Environment Court accepted that the land was in a ‘well-established and attractive area’. He recorded that the main attack on the proposal focussed on two points:
  • The proposal is in conflict with the provisions of the scheme for reconfiguration in the Residential Dwelling Housing Zone in that allotment sizes and frontages are less than the minimum specified in the scheme (particularly in Table 16.1);
  • The proposal will impact significantly upon the area’s character and amenity by reason of the intended density of development.

His Honour referred to objective (b) and concluded that:

While the proposed development, seen in isolation, might not meet the density requirements referable to integrated housing, seen as an element of the area as a whole, the result would not, in my view, be inconsistent with the general strategies identified in the Planning Scheme.  Whatever inconsistency might be said to exist with selectively chosen statements in the Planning Scheme I am well satisfied that there are planning grounds demonstrated by the evidence to justify an approval in this case.

In reaching that conclusion his Honour construed the expression ‘developing area’ in objective (b) to include a ‘redeveloping’ area:

There is a trend (evidenced by AMCORD) towards a more flexible approach to lot sizing and configuration to meet community need for greater variety in housing opportunity.  I do not believe that it is correct to deny that this is a “developing area” even though “redeveloping” might be a more apt description.  On the evidence given I am satisfied that the form of development which will result from this proposal will, in respect of its scale and character, not be out of keeping with what can be seen in the area.

  1. In dismissing the appeal to the Planning and Environment Court his Honour necessarily concluded that the requirements of Table 16.1 could be relaxed. Section 16.1.1.1 provided that that could be done, but only after proper consideration of specified matters, and in particular those provisions of the Scheme concerning integrated housing.   His Honour did not go further than saying that the proposal was for ‘a planned development which involves detached housing although . . . it exhibits characteristics of integrated housing’.  His Honour did not expressly treat the proposal as one in relation to integrated housing, not believing that, in assessing the application, it was ‘essential that one become entangled in the technicalities of the Scheme and distracted from a fair appreciation of the application for what it is and where it is’.  Whether or not the proposal was to be treated as one for integrated housing, it was necessary that the provisions of the Scheme relating to minimum lot size (s. 16.4.1.4) and as to development density of dwelling units (s. 4.13.2.1) be considered:  s. 16.1.1.1(vi) and (vii).  Despite his Honour’s reluctance to decide whether the proposal was one for integrated housing, he found it to comply with the requirements for integrated housing except those relating to development density. 
  1. It was within the powers conferred by s. 16.1.1.1 to modify the requirements of Table 16.1, but in concluding that that was appropriate in this case his Honour relied upon a construction of the expression ‘developing area’ which, arguably erroneously, included land which was in a well-established area. That determination – arguably in effect that the expression was used in the sense other than that which it has in ordinary speech, and other than that which it has in the context in which it is used in the Scheme – raises a reviewable question of law: see Collector of Customs v. Agfa-Gevaert Ltd (1996) 186 C.L.R. 389 at p. 397;  and Minister for Immigration and Multicultural Affairs v. Singh [2002] H.C.A. 7, at para. 134 per Kirby J.  The question whether the land was or was not in a developing area was not peripheral to the decision.  It went to the heart of the matter because if the land is not in a developing area the Scheme clearly enough appears to discourage such proposals as that in issue here. 
  1. I should add that I have not overlooked the important point that the Scheme is a transitional planning scheme so that, as s. 6.1.29 of the Integrated Planning Act provides, it is only one factor which a local government and the Planning and Environment Court must take into account when assessing an application:  see Vynotas Pty Ltd v. Brisbane City Council [2002] 1 Qd. R. 108.  Although such a scheme no longer has binding force and is of persuasive relevance only in the assessment process, it must be given proper weight and of course that cannot be done if it is misconstrued. 
  1. On behalf of the applicants it was submitted that his Honour made other errors and mistakes in law, but in the circumstances I do not think it is necessary to consider those submissions further since it is arguable that, for the reasons I have given, his Honour made an error of law of substantial significance which affected the outcome of the appeal. I am not persuaded that there are any discretionary considerations which should prevent our granting the leave sought.
  1. I should grant the applicants leave to appeal against the decision of the Planning and Environment Court and order that the costs of each party be costs in the proceeding.
  1. WILSON J:  I respectfully agree with the orders proposed by Helman J and with his Honour’s reasons.
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Editorial Notes

  • Published Case Name:

    Maxwell & Anor v Council of the City of Gold Coast & Anor

  • Shortened Case Name:

    Maxwell v Council of the City of Gold Coast

  • MNC:

    [2002] QCA 214

  • Court:

    QCA

  • Judge(s):

    McMurdo P, Helman J, Wilson J

  • Date:

    21 Jun 2002

Litigation History

No Litigation History

Appeal Status

No Status