Wagner, Wagner & Byron Glen Design Pty Ltd v Johnstone Shire Council
[1989] LG 617
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- Wagner, Wagner & Byron Glen Design Pty Ltd v Johnstone Shire Council[1989] LG 617
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Wagner, Wagner & Byron Glen Design Pty Ltd v Johnstone Shire Council[1989] LG 617
Wagner, Wagner & Byron Glen Design Pty Ltd v Johnstone Shire Council[1989] LG 617
LOCAL GOVERNMENT COURT CAIRNS |
Appeal - 22 of 1989
WAGNER AND OTHERS -v- JOHNSTONE SHIRE COUNCIL
Appeal - 28 of 1989
HEAVEY LEX NO. 95 PTY. LTD. -v- JOHNSTONE SHIRE COUNCIL
Hearing dates | - | 8, 10, 11 May, 1989 |
Judgment | - | 19 May, 1989 |
Counsel for appellants | - | J.J.G. Haydon |
Counsel for respondent | - | P.J. White |
Catchwords
Building control and town planning – Area outside Brisbane – Development application – Multiple dwelling in Residential zone conforming with existing provisions of development control plan – Weight to be given to proposal to amend that plan so as to make proposed development unlawful.
IN THE LOCAL GOVERNMENT COURT CAIRNS | Appeal No. 22 of 1989 |
BETWEEN:
NOEL KEITH WAGNER, DIANNE MAY WAGNER and BYRON GLEN DESIGN PTY. LTD. | Appellants |
AND:
JOHNSTONE SHIRE COUNCIL | Respondent |
Appeal No. 28 of 1989
BETWEEN:
HEAVEY LEX NO. 95 PTY. LTD. | Appellant |
AND:
JOHNSTONE SHIRE COUNCIL | Respondent |
BEFORE HIS HONOUR JUDGE I. McG. WYLIE Q.C.
JUDGMENT
DELIVERED THE NINETEENTH DAY OF MAY, 1989
- [1]By agreement of the three parties these appeals were heard together as the issues arising were common to both.
- [2]In appeal No. 22 of 1989 the appellants applied to the respondent for consent to use 1215 square metres of land situated at the corner of Cutten Street and Holt Close in the seaside township of Bingil Bay to erect thereon a multiple dwelling containing four two storey units. The application and the objections thereto were reported on by Mr. Batts, town planner, who recommended its refusal on five grounds only two of which became issues on the hearing of the appeal, viz -
“1. The site is in an area which is currently the subject of an amendment to DCP - 2 by way of redesignating the area to ‘D1 Low Density’ which will permit single dwellings only. This being the case, the application is contrary to the Council's intention for the future development of Bingil Bay.
- The proposed development would be out of character with other development in the area which is predominantly detached single unit housing.”
However Mr. Batts issued this caveat -
“However, given that the proposed amendment has not yet been placed on public display, it is possible the applicant could successfully appeal the decision if Council adopts this recommendation. Council may wish to seek legal opinion on this matter.”
He then recommended conditions to which approval could be subjected, if the respondent were to approve the application. In cross-examination Mr. Batts said that it would be a fair comment to say that he had some difficulty making a recommendation to the respondent and really left the options to it to choose between because he did not know what comment (I believe he meant “commitment”) the respondent had made to residents. On February 28, 1989 the respondent, by a majority, refused the application adopting the grounds for refusal recommended by Mr. Batts.
- [2]In appeal No. 28 of 1989 the appellant applied to the respondent for consent to use 3174 square metres of land in Pioneer Street, Bingil Bay to erect thereon a multiple dwelling containing 12 units, six on the ground floor and six on the upper storey. The application and the objections thereto were reported on by Mr. Winsbury, town planner, who recommended its refusal on three grounds only two of which became issues on the hearing of the appeal, viz -
“1. The site is in an area which is currently the subject of an amendment to DCP - 2 by way of redesignating the area to ‘D1 Low Density’. This being the case, the application is contrary to Council's intention for the future development of Bingil Bay.
- The proposed development would be out of character with other development in the area which is predominately detached single unit housing.”
On March 16, 1989 the respondent, by a majority, refused the application adopting the grounds recommended by Mr. Winsbury.
- [3]As the hearing of the appeals progressed to its conclusion it became clear that, had it not been for the respondent's proposal to amend its Development Control Plan No. 2 and so to affect the site population densities allowable on each of the subject lands, each application could be approved.
- [4]Mr. Batts adhered to the view expressed in each report to the respondent that the proposed buildings were out of character with other development in the area. He said that, in terms of the bulk and configuration of the proposed buildings, most of the residential development in the locality of the subject lands, with the exception of the Pacific Motel in Cutten Street, would be single unit dwellings of “an average or normal residential character”; he would describe the difference in character between the proposed and the existing buildings as “significant”, possibly bordering on substantial”. There are also a number of vacant allotments in the area. As counsel for the respondent addressed no submission to me in support of the ground based on the “out of character” ground, I will say little on that subject.
- [5]I am satisfied that each of the proposed buildings will not lead to any detrimental affect upon the amenity of the locality. Indeed, I consider they will be in character with the area and that, both as to scale and form, they are not such as to be a striking contrast with any existing development or of any future development upon any of the vacant allotments. The Town Planning Scheme does not entrench the dimensions and architectural style of existing dwellings; existing residents can neither assume nor expect that any residences which may be erected on the subject lands or on any vacant land will replicate their own dwellings. The design of each building and the size of each subject allotment satisfy me that neither building will dominate any neighbouring building. I find of significance the fact that there are two two-storey dwelling houses in Holt Close one of which has floor area of 412.5 square metres while the floor area of the building proposed for the corner of Holt Close and Cutten Street will be 360 square metres. I had the advantage of a comprehensive inspection of Bingil Bay. As may be expected of a location near Tully and Innisfail, the combination of high rainfall and fertile soil facilitates the growth of luxuriant trees and shrubs which many residents have used not only to enhance the area but also to camouflage their dwellings. An appropriate landscaping condition should quickly produce the same result with these proposed developments.
- [6]To the extent that need in the townplanning sense is a relevant consideration on a consent application, I am satisfied that there is a need for these developments in order to satisfy the accommodation demand attested to.
Town Planning Scheme provisions
- [7]The Town Planning Scheme for the Shire was approved by Order in Council made June 26, 1986 (see Gazette, 28/6/1986, p. 1525). That Scheme provides a Rural Residential zone in which “dwellinghouses” is the principal as of right use; the intent of that zone is to provide areas where dwellinghouses can be erected on large residential allotments for the purpose of low density residential living without necessarily all normal urban facilities. Such zone aside, the Residential zone is the only other one in which “dwellinghouses” is the principal as of right use. The intent of that zone -
“is to provide for a variety of residential accommodation densities. Dwellinghouses may be established without the consent of Council while residential developments of higher densities may be established only with the consent of Council...”
“Accommodation buildings”, “duplexes” and “multiple dwellings” (as defined) are prohibited uses in the Rural Residential zone but permissible uses in the Residential zone. The gradation of “dwelling units” under the Scheme definitions is: dwellinghouse (one household on one allotment), duplex (two households on one allotment) and multiple dwellings (three or more dwelling units on one allotment or units pursuant to the Building Units and Group Titles Act). “Group housing” is treated as a separate purpose: it is defined as premises on a parcel of land comprised in a Group Titles Plan registered or intended to be registered under the Building Units and Group Titles Act used or intended to be used “as duplex dwellinghouses or multiple dwellings”. Group housing is a permissible use in the Residential zone.
- [8]Clause 3 of Part V of the Scheme sets out “special requirements” for the development of accommodation buildings, duplexes, group housing or multiple dwellings which shall apply “unless otherwise stated in the provisions of D.C.P. - 2”. Until March 1988 such a Development Control Plan did not exist. Relevantly clause 3, in providing with respect to the site coverage of a building, contemplates that a building may exceed two storeys in height. Part VI of the Scheme, setting out “special requirements” for any particular development, provides in Division X that in any zone the height of buildings measured above natural ground level shall not exceed 11 metres except with Council permission or in the case of rural buildings in the Rural A and B zones. The Strategic Plan which is part of the Scheme in dealing with the preferred dominant land use of “Urban” states -
“1(d) DCP - 2 - Low, Medium and High Density Residential Development provides for a range of residential densities and housing types in the Shire's townships.” and
“5(a) DCP - 2 - Low, Medium and High Density Residential Development aims at providing for a variety of housing styles in the Residential and some Village zones. Its implementation will allow flexibility in residential development whilst maintaining the amenity in these zones.”
- [9]At the coming into operation of the Scheme the respondent had a residential density policy which it had adopted in June 1976 after display and consideration of objections. That policy recognised Bingil Bay's suitability for medium density development by allowing a site density of 90 persons per hectare. It continued in existence until the coming into operation of a Development Control Plan - 2 (Gazette, 26/3/1988, p. 1679). That Development Control Plan declared its aim as “controlling the height, bulk and distribution of future residential development in areas designated suitable for low, medium or high density development” by, inter alia, dividing Residential zones in the plan area into certain density areas and providing for the control of building heights of multiple unit development within the density area. The term “density” is defined relevantly to mean the number of persons calculated to be resident on a site divided by the area of the site; density is measured in persons per site hectare and is based on an occupancy ratio of persons per multiple dwelling unit as prescribed according to the floor area of each unit. The two relevant “preferred density designations” are: (i) D1 - Low Density Area and (ii) D2 - Medium Density Area. The Development Control Plan provides in the D1 - Low Density Area only for a dwelling house and a relative's flat to be erected. It provides in the D2 - Medium Density Area a site hectare population density of 100 persons per site hectare and a maximum building height of 7.5 metres and two storeys. It is also provided that in a Medium Density Area the spacing between multiple dwellings on the same street frontage shall be five dwellinghouses and that no two multiple dwellings will be directly opposite each other although they may be a minimum of one block removed. The expressed aim of the specification of a range of residential densities was to “plan for a variety of dwelling types satisfying the housing and accommodation needs of residents and visitors”. The Development Control Plan makes it clear that in determining the density for residential development it was considered that “each of the townships within the Shire has its own particular amenity, based on case of access to the sea, recreation, work, community, shopping and transport facilities”. A significant objective of the Plan is the setting of guidelines for the external appearance of multiple dwelling development. Where such a development is proposed on an allotment in an established residential area and will adjoin allotments on which dwellinghouses are erected, “Council prefers that the external appearance of the ... development is compatible with, or compliments the exterior appearance of the existing neighbouring dwellinghouses”.
- [10]That Development Control Plan echoes the longstanding policy so far as multiple dwelling development in Bingil Bay be concerned with an increase in site density of 10 persons per hectare.
- [11]In the case of each proposed development the subject land is designated D2 - Medium Density. In the case of each proposed development, the several performance requirements or guidelines of the Development Control Plan are satisfied. Such compliance does not of itself call for automatic approval of the proposal but, as I wrote in Hay -v- Douglas Shire Council (App. 1/1988 - Cairns - 16/2/1989) -
“... the provisions just mentioned provide a useful starting point when considering questions of amenity since they are clearly intended to have regard for the amenity and healthfulness of the residents in the proposed development and of neighbouring residents ... The provisions represent a general statement of requirements considered necessary to achieve a desirable amenity by the electors of the Area acting through their Council but they do not exhaust the gamut of amenity considerations.”
- [12]The Development Control Plan - 2 provides also for a high density designation in which the maximum density is 300 persons per site hectare.
- [13]This Town Planning Scheme does not provide a number of Residential zones each intended to cater for residential development of a different site population density. It provides only one Residential zone and declares its intent to provide therein a variety of residential densities by means of appropriate development. However Development Control Plan - 2 repreesents an intention to create sub-zones each providing for a different density. I regard that circumstance as significant. The locality of each of the allotments the subject of this appeal is designated D2 Medium Density carrying into effect a twelve year old policy. These appeals proceeded on the basis that there had been no objections lodged against the respondent's proposal so to designate Bingil Bay. It is not designated D1 Low Density so no reasonable expectation could arise that the locality was, or would be, reserved exclusively for single dwellinghouses. Such designation cannot give rise to a reasonable expectation that the respondent would never consent to multiple dwelling development. The device of a D2 designation works not to prohibit therein multiple dwellings but rather it works only to limit the number of units which can be built on an allotment when regard is had to the prescribed occupancy ratio which varies with the floor area of each unit proposed and to others of the prescribed performance standards. Indeed the reasonable expectation in relation to the townplanning of the locality of the subject allotments must be that multiple dwellings may be erected there with consent and that these would conform at the least with the several requirements of the Development Control Plan. The only other reasonable expectation would be that the respondent would consider any development application on its merits and in accordance with law.
- [14]Relevant documents from the respondent's files in relation to six other applications were tendered upon these appeals. These decisions were made prior to the decisions questioned by these appeals:
- November 12, 1987 the respondent approved an application for permission to erect six two-bedroom units on land between Cutten Street and Alexander Drive; the townplanning report to the respondent noted that the proposed development complied with the intent of the then proposed Development Control Plan - 2;
- On November 17, 1988 the respondent approved an application for permission to erect eight two-bedroom units at 35 Bingil Bay Road; the proposal was within 3% of Development Control Plan - 2 requirements; the Shire Engineer advised the respondent that it “cannot refuse the application because it wants the area Density 1”;
- On December 13, 1988 the respondent approved an application for permission to erect six two-bedroom units at 43 Butler Street; the proposal was within 1% of Development Control Plan - 2 requirements; the Shire Engineer gave the same advice as above. These decisions were made after those questioned by these appeals. On April 20, 1989 the respondent approved an application for rezoning of land in Butler Street from Residential to Special Facilities for the purposes of a tourist development and shop of a type justifying resort to that zoning. The majority of the uses proposed were said by the town planning report to be prohibited in the Residential zone. That report notes -
“Notwithstanding Council's current proposal to amend DCP - 2 to ensure that Bingil Bay will develop as essentially an area of single detached dwellings, this application in seeking rezoning of the subject land may be considered to have the effect of removing the site from the provisions of the DCP”
by virtue of a provision therein enabling the respondent to waive any clause or provision of that Plan if the proposed development be one land exceeding 1 hectare in area zoned Special Facilities. The site residential density was 61.6 persons per hectare. On April 21, 1989 the respondent refused an application to rezone land at 9 Cutten Street to Special Facilities for the purpose of 10 holiday units and a manager's residence. The proposed development fell within the definition of multiple dwelling so that rezoning would have converted a consent use into an as-of-right use. The application did not fall within the intent of the Special Facilities zone since the proposed development could be established in the existing Residential zone with consent. I agree with the townplanning adviser's comment that the rezoning application may have been made because the respondent had already granted consent on November 12, 1987 to erect six two-bedroom units on land opposite the subject land while Development Control Plan 2 provided that in a D2 - Multiple Density Area multiple dwellings may not be erected opposite each other. On March 30, 1989 the respondent approved an application for permission to erect three two-bedroom units and two one-bedroom units in Bingil Bay Road and in so doing did not act on a majority recommendation of its Regional Development Committee that the application be refused on the ground that the application was contrary to the Council's intention for the future development of Bingil Bay the proposal being to redesignate the site to D1 Low Density (single dwellings).
- [15]The correctness of those decisions is not here in issue and none of necessity represents a binding precedent. They simply illustrate what has happened recently in the “planning” of Bingil Bay. The information supporting Development Control Plan 2 mentions an existing land use study conducted in September 1982: Bingil Bay was then a locality predominantly of single detached dwellings. The same information notes that in determining the density areas for each township in the Shire amongst the major considerations for Bingil Bay and Mission Beach were -
“These areas must be regarded as potentially most desirable locations for tourist development and the retirement market.”
It appears from the above approvals that they represent recognition of the suitability of Bingil Bay for some development at a density higher than that associated with a single dwellinghouse.
Proposed amendment to Development Control Plan - 2
- [16]It is clear from the material tendered that, even before Development Control Plan - 2 was approved by His Excellency the Governor in Council, some residents of, or owners of land in, Bingil Bay approached the respondent with a view to having Bingil Bay declared a D1 Low Density area for dwellinghouses only. That move seems to have originated in the development application approved by the respondent on November 12, 1987. On April 19, 1988 (some 3 weeks after approval of Development Control Plan - 2) the respondent's Regional Development Committee resolved to “commence action for the back zoning of Bingil Bay to Density Area 1 and the Council's Consultant Town Planners be requested to provide a report on this matter”. The April general meeting of the respondent confirmed that recommendation. The terms of the resolution are not before me but it appears from the Shire Clerk's letter dated May 18, 1988 to Island Coast Real Estate that the resolution was one “to alter the Density of that part of Bingil Bay served by Cutten Street to Density Area 1”. A map depicting such area is page 35 of exhibit 14. Such area, which includes the subject lands, would have left a substantial area of Bingil Bay in Density Area 2. By letter dated November 11, 1988 the Department of Local Government advised the respondent after preliminary review of the proposal to amend that it was “considered desirable to extend the proposed D1 area to include all land in Bingil Bay”. As letter dated December 5, 1988 written by the Shire Clerk to Messrs. Gutteridge Haskins & Davey suggests, the respondent had, shortly before, resolved to back zone, to Density 1, an area delineated on a map marked “B”. The resultant area is considerably larger than that shown in the previous map and encompasses land abutting Bingil Bay Road and Butler Road south of Mor-gan-0 Street. By letter dated February 24, 1989 apparently received by the respondent on February 27, 1989, the Director of Local Government advised -
“With reference to your letter of the 27 January, 1989 concerning the Council's representations in relation to matters raised by the Department, pertaining to certain amendments to Development Control Plan No. 2, I wish to advise that subject to the Council's concurrence with the attached comments the Department would raise no objection to the Council commencing amendment procedures pursuant to the Act.”
The respondent then advertised its intention to declare the area of Bingil Bay Density 1; objections to the proposed amendments were closed on April 4, 1989.
- [17]Remember that the refusals in question in these appeals were made on February 28 and March 16, 1989 and that one of the grounds for each refusal was that as the site was in an area “currently the subject of an amendment to DCP - 2 by way of redesignating the area” the application was contrary to the respondent's intention for the future development of Bingil Bay.
- [18]The development control plan is part of the town planning scheme (Local Government Act, s. 33(2C) and such schemes may be amended from time to time (s.33(5)(a)). Before applying for amendment the Local Authority shall by advertisement published at least once in a newspaper give public notice of its intention to so apply (s.33(5)(b), (c)). The contents of such advertisement are set forth in that subsection. One such is a statement that a copy of the particulars of any amendment “may be procured from the Local Authority on or before the” last day for receipt of objections “upon payment of such sum ... which sum shall be specified in the advertisement”. The advertisement published by the respondent does not contain that information. Another requirement is that the prescribed requirements with respect to objections must be stated. The advertisement published by the respondent does not state that an objection must be signed by each person who makes the objection, be addressed to the clerk, and state the name and address of each person who makes the objection. Such non-compliance may or may not be fatal. Section 33(18C)(1) of the Act provides that if the Govenor in Council considers that there has been substantial compliance with the requirements of s.33(5) and that no person has been adversely affected by such non-compliance, the Governor in Council may direct that it be taken that such provision has been complied with and thereupon he may consider the application for amendment as if there had been full compliance. I simply draw attention to the fact of such non-compliance. The object of such advertisement containing the prescribed particulars is the same as that of the provision considered by Stephen J. in Scurr -v- Brisbane City Council (1973) 133 C.L.R. 242. Whether or not there has been substantial compliance with the advertisements requirements of s.33(5) of the Act is a question of degree and so one of fact for His Excellency the Governor in Council to be decided having regard to the statutory purpose of each particular requirement. Whether non-compliance has caused adverse affect upon others is also a question of fact. Cf. Ridgewood Development Pty. Ltd. -v- Brisbane City Council [1985] 2 Qd.R. 48. It is not for this Court to advise whether the discretion conferred by s.33(18C)(1) could be exercised. It is sufficient for present purposes to record that the present advertisement is defective; unless it be directed that the requirements of s.33(5) be taken as having been complied with, such deficiency means that a necessary prerequisite to the making of an application for amendment of the development control plan is absent. Until the readvertisement of the respondent's intention to amend or until the present advertisement is deemed to comply, the position remains that the respondent has done no more than resolve to alter the density declaration. It cannot be presumed that the respondent will readvertise or seek to have its present non-compliance deemed to be compliance.
- [19]Be all that as it may, the respondent received 101 objections. Although 19 came from the area served by Cutten Street, significantly none came from Holt Close or from Pioneer Street; 10 came from Cutten Street. One of the objectors (Mr. M. Reynolds) is the owner of land also at the corner of Cutten Street and Holt Close who foreshadowed an intention himself to apply for permission to build a multiple dwelling on his land. Some of the “objections” were in fact laudatory of the proposed change. But others were reasoned arguments and some were in fact prepared by experienced townplanners. Such of the objections as were put before me suggest that, as a straw pool, supporters were in the minority.
- [20]The respondent sent the objections to its consultant townplanner. A report thereon was prepared by Mr. Winsbury. It is not for this Court to pass judgment on the merit or otherwise of his response to the several heads of objection. The appellant's townplanner, Mr. Robinson, expressed his opinion in evidence of Mr. Winsbury's views. In turn Mr. Batts, the respondent's townplanner witness, expessed his opinion on Mr. Robinson's views. Much of the debate revolved around the difficult question of just what is a valid townplanning objection. Their evidence is recorded in the transcript of the evidence given upon the hearing of the appeals and so is available to those who have responsibility for making any decision upon the respondent's proposed amendment.
- [21]Mr. Winsbury's conclusion was -
“The objections highlight that there is considerable opposition in the community to the proposed amendments. It appears that much of this opposition is based on the assertion that Council's main reason for proposing the amendment is to concede to the wish of a minority group. However, Council has stated and displayed the reasons for proposing the amendment and in summary it is considered that substantiated facts have not been put forward by objectors to refute Council's reasoning.”
I do not regard it as correct to regard objectors to a Council proposal as having the onus of demonstrating falsity or error in the Council's thinking. The purpose of inviting objections is to enable the public to make its contribution in order that, after the Council's reasons and the sensible townplanning objections have been weighed one against the other, what will emerge for consideration by the Minister and the Executive Council will be a Development Control Plan beneficial to the community in the area affected by that Plan.
- [22]The respondent did, in the document made available for public perusal, explain that “Bingil Bay consists of predominantly single unit dwellings” except for one “old motel development” in Cutten Street and state that Bingil Bay was “predominantly designated Density Area 2 (D2) under DCP 2” to reflect “that previously existing under Council's density policy”. The justification for the change in density designation was stated thus -
“The DCP covers all residential areas throughout the Shire and does not allow for beachfront areas to remain unit free. However, Council is aware that there is a growing demand for some areas to be set aside for single unit dwellings. Based upon the existing development in Bingil Bay it would seem appropriate that Bingil Bay fulfill this role.”
- [23]So far as Bingil Bay be concerned the proposal seeks to reverse a density policy some 13 years old and recently reaffirmed by the 1988 Development Control Plan, itself consistent with the recognition in the 1986 Strategic Plan that there would be a development control plan providing for a variety of housing styles within the Residential zone. It must be presumed that the 1986 Planning Scheme and the 1988 Development Control Plan were the result of careful consideration of all relevant townplanning matters, including any objections lodged and that those documents record the respondent's considered view that, subject to the provisions thereof, medium density residential development was appropriate in Bingil Bay and would not in general be detrimental to the amenity of the Area as a whole or of those residing there in single dwellings. Thus, it may be expected that, in order to reverse a recent view correct on townplanning principles, the proposed amendment would be supported by reasons having a sound townplanning basis and would produce a result consistent with other provisions of the Town Planning Scheme as a whole. Mr. Batts said that Part B of the Development Control Plan was not to be amended as no further work had been done to get information supporting the proposed change.
- [24]The appellant's townplanning witness Mr. Robinson prepared a commentary which Mr. and Mrs. Wagner attached to their objection to the proposed amendment. That commentary will therefore be before the respondent when it considers the amendments and before any other person having responsibility to make recommendations upon, or approve, the proposed amendments. I commend to the respondent and those others a careful reading of Mr. Robinson's thoughtful analysis of the townplanning consequences of the proposed amendments, of the circumstance that Bingil Bay has “many sites well suited to the development of low intensity medium residential development with appropriate performance criteria”, of the fact that Bingil Bay “is not a pristine residential area and in fact contains a surprisingly large proportion of non single family dwelling uses for a township almost exclusively zoned residential” although having a “predominantly residential character”, and of the supporting information which accompanied the 1988 development control plan. Mr. Robinson concluded that -
“The supporting information in the DCP, its Aims and Objectives, all indicate that it is desirable to promote a variety of residential densities and types. In the few years since the DCP was prepared there has been no significant change in employment patterns or the structure of the population in the coastal townships including Bingil Bay, and therefore no change in the fundamentals of the Supporting Information of the original Development Control Plan.
The fact that there is no reference in the statements purporting to justify the amendments to the DCP to changes in the employment, population, or Town Planning characteristics of the area supports the proposition that the DCP should not be changed.”
- [25]The need for an amendment of the type proposed to be justified on townplanning grounds seems obvious. It is clear that the Local Government Department is conscious of that need and will have regard to it when advising the Minister when he comes to consider, as he must, the application for amendment and all objections lodged and the representations by the respondent in respect of those amendments with a view to formulating his recommendation to the Governor in Council (s.33(5)(K)). By letter dated November 8, 1988 the Department advised the respondent of matters arising from its preliminary review of the proposal including -
“The planning intent of the proposed amendment is required. It is noted that proposed amendment has not been substantiated on any planning ground nor does it relate to Aim 2 on the D.C.P.”
(Aim 2 is “To ensure high amenity of Multiple Unit Development”.)
- [26]The documents exhibited before me do not disclose any response to that request for information by the respondent which, as recently as April 18, was seeking information from the Department in relation to the proposed amendments, in particular with respect to amending the advertised map showing the area to be redesignated.
- [27]I am unable to infer, from the careful language of the Department in its letters, that it has formed any view of the application; indeed it would be too early in view of the signalled amendment to the proposed amendment for it to do so.
- [28]The area originally proposed to be redesignated was not the whole of Bingil Bay although it was most of the township: an area north of Mor-gan-O Street and an area east of Pioneer Street together with the motel site in Cutten Street were to remain D2 density.
- [29]Mr. Winsbury's report to the respondent upon the objections pragmatically recommended that, as the greater number of objectors were concentrated to the north in the Bingil Bay Road and Butler Road area, and as “there are more multiple unit applications in the northern area with less objections in the southern area” the area to be designated as D1 density should be amended by leaving the land in that northern area D2 density. So the lands the subject of these appeals were still to be designated D1 density. He further recommended that the respondent -
“resolve that now having given consideration to the grounds listed by objectors the location and number of the objectors in the area affected, and the number of property owners in the area that did not object, Council intends to recommend to the Minister that the proposed amendment be approved in Part as depicted on Map 2.”
- [30]The material before me does not disclose whether the respondent has (i) considered for itself the objections lodged against its proposal, (ii) resolved to amend the area to be redesignated D1 to that recommended by Mr. Winsbury, and (iii) formally made application to the Minister for amendment of the development control plan accordingly.
- [31]In the result, the proposal to amend the designated density applicable to the subject lands is still at an early stage. The respondent has further steps to take which, if taken, call for a decision as to approval or otherwise of the amendment and may even result in an approval in part, but which part remains a question for the future. The preceding review of the proposal is not intended to represent any opinion on the townplanning merits of the respondent's proposal; others have the statutory duty to determine the worth of the proposal and to ensure that the several steps prescribed by s. 33(5) are properly carried out. The function of this Court, in considering an application which while conforming to present planning controls will not conform to controls which may come into effect, is to determine what weight if any should be given to the fact of such proposal to amend the present controls. In this regard the provisions of s. 33(18D) may be noted. For the purposes of that subsection the present D2 designation of the subject lands is a provision of the townplanning scheme affecting these applications. Had the proposed amendment been approved before the respondent decided the applications, that subsection would have required the respondent to decide the applications as though the density designation was still D2 whilst requiring the respondent to “give such weight as it thinks fit” to the new D1 designation (para. (b)). Had the respondent decided the applications and the amendment then been approved before this Court heard appeals against the decisions this Court would have been required to determine the appeals as though the density designation was still D2 whilst being required to “give such weight as it thinks fit” to the new D1 designation (para. (c)). The process of “weighing” the new provision requires a balancing in the mind and that careful consideration be given to the new provision before reaching a decision. “Weigh” emphasises the mental examination of all sides of a question, the making of a careful evaluation, before making a decision or choice between conflicting claims or data. The subsection does not declare that the new provision is to be decisive. If that be the legislative policy with respect to a planning control which has come into force before an application is decided or an appeal determined then the present appellants are in a more favoured position because the amendment is merely a proposal at an early stage of the process which may lead to its having legal operation.
- [32]While arguments can be advanced in favour of the provision of areas in Bingil Bay in which single dwelling houses are the only purpose for which land may be used in order to cater for those persons wishing to reside in such an area, having regard to the relevant performance standards of the present Development Control Plan - 2 designed to ensure that multiple dwellings will be of high amenity and to the merits of the proposed dwelling units, I have come to the conclusion that to approve these applications would not detract from the object sought to be the achieved by the proposed amendment should it come into force. In that regard I have regard to the circumstance that the respondent's advertised map of the area to be redesignated included in the D1 area the land which was approved in November 1987 for six multiple dwellings at the corner of Cutten Street and Alexander Drive while leaving as D2 land the site of the Pacific Motel in Cutten Street. That position still applies with respect to the amended map recommended by Mr. Winsbury on April 20 last. If an exception can be provided with respect to the motel land there is no logical reason why similar exceptions could not be made for the subject lands in any map actually carrying into effect the proposed redesignation. I also have had regard to this concession made by the respondent's townplanning witness, Mr. Batts, in evidence-in-chief -
“BY MR. WHITE: Would the approval of these two developments significantly interfere with the apparent planning intent of the council were they permitted to proceed? I mean, would the effectiveness of the council proposal be reduced slightly or significantly or substantially if these two proposals were to go ahead? .. I think it would be reduced slightly but not significantly.”
That answer deprived the relevant ground for refusal of any worthwhile merit.
- [33]In the result I am satisfied that there exists no reason justifying refusal of these applications. They should be approved. Upon each appeal the respective parties agreed upon a set of conditions to which each approval should be subject in the event each appeal were allowed. I accept such conditions as relevant and reasonable.
Costs
- [34]Counsel for each appellant submitted that, if the appeals be allowed, the appellants should have costs. He submitted that the respondent had erred in refusing each application, refusals essentially based on its proposal to amend Development Control Plan - 2. The appellants had been put to expense answering a ground which, in view of Mr. Batt's concession just referred to by me, was not reasonably arguable. He pointed out that on the evidence -
- before consulting Byron Glen Design Pty. Ltd. in early December 1988 Mrs. Wagner had spoken to the Deputy Shire Engineer who advised her that the respondent intended to redesignate the whole of Bingil Bay but that any application lodged before gazettal of the amendment would be considered in the light of the current development control plan;
- on consulting Byron Glen Design Pty. Ltd. she was shown a copy of a letter dated May 18, 1988 which the Shire Clerk had written to Island Coast Real Estate which had inquired as to the density policy in Bingil Bay; that letter had indicated that the proposed change might take up to 12 months or more to complete and that “Applications will be received by the Council in the meantime, and must be considered in the light of the present provisions of the Development Control Plan”;
- Mr. Anderson, a director of Heavey Lex No. 95 Pty. Ltd., had both in December 1988 before the subject land was purchased and in January 1989 before the application was lodged been advised by the Shire Engineer that the respondent was considering a change but that any application made prior to advertisement of the proposal would be treated under the present density designation.
Counsel expressly did not submit that any estoppel arose therefrom but submitted that those advices demonstrated the reasonableness of the appellants in submitting applications conforming in all respects with the prevailing development control plan which applications were submitted before advertisement of the proposal and were decided before the closing day for objections thereto. Counsel did not, but could have, pointed also to the very clear caveat contained in Mr. Batt's report to the respondent as to the likelihood of a successful appeal were that application refused because of the proposal to amend the development control plan. Counsel did not but could also have referred to the fact that, in his report to the respondent on November 29, 1988 in relation to what was called the Charlwood application the Shire Engineer asked councillors to note -
“As advised to Council at Regional Development Committee meeting on 10/11/88 and again by report on 11/11/88, Council cannot refuse the application because it wants the area Density 1. Council can only apply the law as it exists at the moment, and this does not preclude this type of development anywhere in Bingil Bay. Council is referred to recent Court cases in Cairns which were lost by the City Council on the basis that the existing law applies now, future law applies when it is all approved and okayed by the Governor in Council.”
That attempt to state in simple terms what His Honour Judge Quirk wrote in Stenders Morris & Partners -v- Cairns City Council (Appeal No. 21/1988 - Local Government Court, Cairns - Oct. 1988) is not an accurate precis but the respondent should have been alerted thereby, and by Mr. Batt's caveat, to the need carefully to weigh whether it should give any weight to its proposal to alter the density zoning.
- [35]Counsel for the appellants also pointed to the reasonableness of the appeals in view of the respondent's possible alteration of the boundaries after receipt of the objections.
- [36]Counsel for the respondent submitted that there should be no order as to costs because the applications had been made after the respondent had put in train an intention to amend the development control plan. In fact the respondent had done no more than resolve to change the density. Counsel also submitted that, as the application was for costs of the appeals, the crucial time was that of the institution of the appeals which followed the public advertisement of the respondent's intention to apply for amendment. Because the hearing of the appeals involved consideration anew of their merits, it is proper to take into consideration what had occurred after the applications had been lodged and with respect to costs it would also be proper to consider the applicants' knowledge of those post-application events. So it would be proper to have regard to the circumstance that the appellants were aware (as I find they were) that the proposal had been publicly advertised before the appeals had been instituted. However I consider that nothing in such circumstances made it unreasonable for the appellants to institute and prosecute these appeals. To find to the contrary would be to expect them to have abandoned their applications in the expectation that the respondent would not act on any objections or not act thereon in any relevant way and that ultimately the application for amendment affecting their lands would be made to and approved by the Governor in Council.
In the circumstances of each appeal I consider that the appellants to have orders for costs.
Orders
Appeal No. 22 of 1989
The appeal is allowed. The appellants' application is approved subject to the conditions set forth in exhibit 25. I order the respondent to pay the appellants' costs of and incidental to the proceedings, including allowances to witnesses. I direct that the amount of such costs be ascertained and fixed by the proper costs taxing officer of the Supreme Court at Brisbane according to the scale of costs prescribed by law for the time being in respect of proceedings in the Distrit Court.
Appeal No. 28 of 1989
The appeal is allowed. The appellant's application is approved subject to the conditions set forth in exhibit 26. I order the respondent to pay the appellants' costs of and incidental to the proceedings. I direct that the amount of such costs be ascertained and fixed by the proper costs taxing officer of the Supreme Court at Brisbane according to the scale of costs prescribed by law for the time being in respect of proceedings in the District Court.