Althaus Enterprises Pty Ltd v Ipswich City Council
[2017] QPEC 28
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- Althaus Enterprises Pty Ltd v Ipswich City Council[2017] QPEC 28
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Althaus Enterprises Pty Ltd v Ipswich City Council[2017] QPEC 28
Althaus Enterprises Pty Ltd v Ipswich City Council[2017] QPEC 28
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
CITATION: | Althaus Enterprises Pty Ltd v Ipswich City Council [2017] QPEC 28 |
PARTIES: | ALTHAUS ENTERPRISES PTY LTD (appellant) v IPSWICH CITY COUNCIL (respondent) |
FILE NO/S: | 1546 of 2016 |
DIVISION: | Planning and Environment Court, Brisbane |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Planning and Environment Court of Queensland, Brisbane |
DELIVERED ON: | 22 May 2017 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 9-11 May 2017 |
JUDGE: | Everson DCJ |
ORDER: | The appeal is dismissed. |
CATCHWORDS: | PLANNING AND ENVIRONMENT – APPEAL – appeal against a refusal for a development permit for a material change of use for 18 townhouses – development application modified to 16 townhouses CONFLICT – conflict with planning scheme – whether proposed development conflicts with Ipswich Planning Scheme 2006 and the residential low density zone – whether inconsistent with the existing and desired character of the area – whether the proposed development represents over-development of the site PLANNING NEED – supply of available land for multiple dwellings GROUNDS – whether there are sufficient grounds to justify an approval of the proposed development despite conflicts Sustainable Planning Act 2009 (Qld) ss 36, 326(1), 493(1) 495(1) Brown v Moreton Shire Council (1972) 26 LGRA 310 Isgro v Gold Coast City Council & Anor [2003] QPELR 414 Lockyer Valley Regional Council v Westlink Pty Ltd (2011) 185 LGERA 63 Lockyer Valley Regional Council v Westlink Pty Ltd (as trustee for Westlink Industrial Trust) [2013] 2 Qd R 302 Stappen Pty Ltd v Brisbane City Council & Ors [2005] QPELR 466 Stockland Development Pty Ltd v Sunshine Coast Regional Council [2014] QPELR 52 Weightman v Gold Coast City Council [2003] 2 Qd R 441 Zappala Family Co v Brisbane City Council (2014) 201 LGERA 82 |
COUNSEL: | S.P Fynes-Clinton for the appellant M Williamson for the respondent |
SOLICITORS: | H Drakos & Company for the appellant McInnes Wilson Lawyers for the respondent |
Introduction
- [1]This is an appeal against the decision of the respondent made on 1 April 2016 to refuse an application for a development permit for a material change of use to establish 18 townhouses on land at 15 Stanley Street, Goodna (“the site”). Pursuant to the order of Jones DCJ dated 21 October 2016, the development application has now been modified to 16 townhouses (“the modified application”).
- [2]Despite the modified application, the respondent still contends that the proposed development represents an overdevelopment of the site and that it is in conflict with various provisions of the Ipswich Planning Scheme 2006 (“the planning scheme”), seeking to preserve inner suburban residential character, maintain amenity and restrict the density of dwellings contemplated for the site.
The site and the surrounding locality
- [3]Goodna is an eastern suburb of Ipswich adjacent to the Ipswich Motorway which divides it.[1] The site is located on the southern side of the Motorway and west of the St Ives Shopping Centre in an area which contains a mixture of predominately older housing on larger allotments. Further to the west is a newer residential development on conventional sized allotments, known as Cunningham Rise.[2] The main retail/commercial district is located approximately 600m southeast of the site and this includes the St Ives Shopping Centre further to the southeast. It is within 500m of the western extent of the land included in the Major Centres Zone.[3] The Goodna Railway Station is approximately 1,200m walking distance to the east of the site and the Goodna State School is located approximately 150m southwest of the site.[4] Although the dominant use in the surrounding locality is detached housing, there are a number of low-medium density unit developments throughout the suburb.[5] The site has an area of 4,123m² and is occupied by a single dwelling. It is the largest residential allotment within Stanley Street, being surrounded by allotments mostly 800m² to 1,200m² in size.[6] It is located within the Residential Low Density Zone in the Sub-Area RL2.[7]
The proposed development
- [4]The 16 townhouses, the subject of the modified application are single-storey, sharing a common wall with one other townhouse, resulting in eight individual duplexes. Each townhouse contains two bedrooms.[8] Each townhouse fronts a central driveway and hardstand area. The two townhouses closest to the Stanley Street frontage are set back 4.65m. The density of the development extrapolates to 38.8 dwellings per hectare.[9]
The assessment regime
- [5]Pursuant to the Sustainable Planning Act 2009 (Qld) (“SPA”), the appeal is by way of hearing anew.[10] It is an appeal by the applicant for a development application and therefore it is for the appellant to establish that the appeal should be upheld.[11] The decision of the court must not conflict with the planning scheme unless there are sufficient grounds to justify the decision despite the conflict.[12]
The relevant planning controls
- [6]The planning scheme took effect on 23 January 2006, pursuant to the now repealed Integrated Planning Act 1997.[13] Since this time, the Southeast Queensland Regional Plan 2009-2031 (“SEQRP”) has come into effect. It prevails over the planning scheme to the extent of any inconsistency with it.[14] Relevantly, it nominates Goodna as a major regional activity centre, contemplating residential development densities of 30-80 dwellings per hectare or greater.[15]
- [7]
“1.19 Planning Scheme Seeks to Achieve Outcomes
The planning scheme seeks to achieve outcomes that are identified according to the following levels –
- (a)desired environmental outcomes;
- (b)overall outcomes for zones and overlays, or for the purpose of a code;
- (c)specific outcomes for zones, overlays and codes;
- (d)probable solutions for a specific outcome, or acceptable solutions for complying with a self-assessable code.”[17]
- [8]Relevantly the Assessment Criteria and Assessment Tables for the Residential Low Density Zone include:
“4.5.2 Overall Outcomes for Residential Low Density Zone
…
- (2)The overall outcomes sought for the Residential Low Density Zone are the following:
…
- (c)Uses within the Residential Low Density Zone provide a mix of low to medium density housing types and allotment sizes in response to community housing needs.[18]
…
4.5.3 Effects of Development – General
Residential Uses – Density and Character
(1) Specific outcomes
Uses and works reflect the established built character, maintain amenity and protect and enhance important townscape and landscape elements within local areas having regard to –
…
- (b)dwelling density;
…”[19]
- [9]Paragraph 4.5.4 addresses Effects of Development within Sub Areas. With respect to Sub Area RL2, the following Specific Outcomes are relevant:
“Sub Area RL2
(a) Specific Outcomes
- (i)The established traditional inner suburban residential character is maintained.
- (ii)Uses and reconfiguring of lots provide for select residential consolidation (infill) within 500 metres of existing or committed centres, major open space areas, major employment nodes, concentrations of community facilities, schools and public transport routes and nodes.
- (iii)A mix of housing types and lot sizes are provided in greenfield and outer infill areas.”[20]
And the corresponding Probable Solution states: “The overall dwelling density is 10 to 15 dwellings per hectare.”[21]
- [10]
“4.5.5 Consistent and Inconsistent Uses, Use Classes and Other Development
Specific Outcomes
(1) The following are consistent uses, use classes and other development categories in the Residential Low Density Zone–
…
(j) single residential, if the lot is 450m² or more in area.
(2) The following uses, use classes and other development categories are consistent with the outcomes sought for the Residential Low Density Zone if of a type and scale appropriate for the prevailing nature of the area and the particular circumstances of the site and its surrounds–
…
(p) single residential, if the lot is less than 450m² in area;
…
(3) The following defined uses, use classes and other development categories are inconsistent with the outcomes sought and are not located within the Residential Low Density Zone; and constitute undesirable development which is unlikely to be approved–
…
(o) multiple residential, if a caravan park; or if involving buildings greater than 2 storeys in height, or a dwelling density which exceeds the density range for the relevant Sub Area.”[23]
- [11]It is uncontentious that the modified application, being townhouses, comes within the definition of Multiple Residential in the planning scheme,[24] and that is a consequence of being deemed an inconsistent use “involving a dwelling density which exceeds the density range for the relevant Sub Area”, it is Impact Assessable.[25] It should be noted that Multiple Residential Development involving densities of up to 75 dwellings per hectare is stated to be a consistent use in the Residential Medium Density Zone.[26] The status of Goodna as a “Major Regional Activity Centre and key Transit Orientated Development site” under the SEQRP is acknowledged in the planning scheme.[27] This is reflected in provision being made for intense multiple residential development in the Major Centre Zone and the Residential Medium Density Zone adjacent thereto, including tower developments of up to 12 storeys.[28] Although some parts of the zones in this area are subject to flooding, provision is made for development in circumstances where “flooding impacts are managed through building design and the provision of safe high level access to the site which is available at all times.”[29]
- [12]A number of provisions of the Residential Code are also relevant:
“12.6.3 Overall Outcomes for the Residential Code
…
- (2)The overall outcomes sought for the Residential Code are the following–
(a) Residential uses and works-
- (i)create a pleasant, safe and attractive living environment;
- (ii)maintain, and where possible enhance, residential amenity both internal and external to the site;
- (iii)blend new development into existing streetscapes and neighbourhoods;
…
- (vi)provide for privacy, day lighting, ventilation and natural climate control.
(b) The character, scale and density of development are–
- (vii)commensurate with the intent of the zone or Sub Area in which the development is proposed;
- (viii)compatible with the physical characteristics of the site and its surrounds; and
- (ix)compatible with the desired character of the local area.
12.6.4 Residential Uses and Works – Effects of Development – General Provisions
Density and Character
(1) Specific Outcomes
Uses and works reflect the desired built character, maintain amenity and protect and enhance important townscape and landscape elements having regard to –
- (a)dwelling density;
…
Building Orientation
(5) Specific Outcomes
- (a)Buildings address the street frontage or frontages rather than being aligned at right angles or diagonal to the street.
…
Building Entrances
(8) Specific Outcomes
- (a)Entries to buildings are exposed to the main street frontage and are clearly delineated/legible.
…
- (c)Entrances to buildings are emphasised by–
- (i)a size of entrance of an appropriate scale and presence on the street;
…”
Landscaping
(24) Specific Outcomes
- (a)Landscaping for residential uses is designed and constructed to –
- (i)compliment the existing or intended streetscape character and appearance and thereby to assist with the integration of the development into the streetscape;
- (ii)an appropriate scale, relative to both the street reserve width and the building bulk;
…
- (v)improve privacy and minimise overlooking into private spaces;
…
- (vii)assist in microclimate management and energy conservation and efficiency, with particular regard to maximising summer shade and providing access to winter sunshine for outdoor living and recreation areas and providing protection from winter winds and westerly aspects.”[30]
The disputed issues in this appeal
- [13]The extent of the disputed issues narrowed considerably in the course of the hearing.[31] The respondent alleges conflict with the planning scheme arises in three ways:
- (a)as a consequence of the proposed development representing inconsistent development in the Residential Low Density Zone;
- (b)as a consequence of the proposed development being inconsistent with the existing and desired character of the area; and
- (c)
Conversely, the appellant submits that on a proper construction of the planning scheme as a whole, in circumstances where the proposed development is impact assessable, there is no, or at least, no substantial conflict with the planning scheme. It is further submitted that any conflict which is found to exist is overcome by evidence which demonstrates “a substantive need for the proposal”[33] and any conflicts which arise by virtue of the design of the proposed development are overcome by the public interest in increasing the residential density of the site which is contemplated by the SEQRP.
Is the proposed development in conflict with the planning scheme?
- [14]The proposed development is classified as an inconsistent use in the Residential Low Density Zone and undesirable development, which is unlikely to be approved because the dwelling density exceeds the density range for Sub Area RL2 of 10 to 15 dwellings per hectare.[34] The proposed density of the modified application exceeds by more than 2.5 times the upper end of the density range for Sub Area RL2.[35] However the appellant submits that a strict reading of this density requirement elevates the Probable Solution to s 4.5.4(2)(a) to determinative status in circumstances where non-compliance with a probable or acceptable solution should not give rise to conflict with the planning scheme. It is submitted that no inference can be drawn about a proposal which does not conform to a dwelling density of 10 to 15 dwellings per hectare in an impact assessment context, other than it will require closer scrutiny on its merits.[36]
- [15]The correct approach to the construction of planning documents was considered by the Court of Appeal in Zappala Family Co v Brisbane City Council.[37] Morrison JA relevantly stated:
“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:
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’.
…
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 the statutory provisions. Reconciling conflicting provisions will often require the court ‘to determine which is the leading provision and the subordinate provision, and which must give way to the other’. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
…
However, the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision.
…
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.”[38]
- [16]The appellant urges the court to read the planning scheme as a whole in approaching the question of conflict with the nominated density range. In this regard, emphasis is placed upon the fact that pursuant to s 4.5.5 of the planning scheme, single residential development is a consistent use if the lot is 450m² and may even be less in area in certain circumstances. It is submitted that a house per 450m² equates to a residential density of just over 22 dwellings per hectare and that medium density housing will, inherently, be provided at greater density, all else being equal, than single residential housing.[39] It is submitted further that the proposed density is entirely consistent with providing a mix of housing types, particularly infill residential development within 500m of an existing centre, which is contemplated by the specific outcomes nominated at s 4.5.4(2)(a)(ii) and (iii).[40]
- [17]In response to this argument, the respondent submits that there is no justification for ignoring the plain meaning of s 4.5.5(3) of the planning scheme and seeking to qualify it in circumstances where no such qualification exists. In this regard, the comments of Fraser JA in Lockyer Valley Regional Council v Westlink Pty Ltd are instructive:[41]
“Accordingly, the effect of s 4.12(k) is that the proposed use is ‘not consistent’ with the purpose of the zone for which it was proposed.
…
In the absence of any other provision which qualifies the operation of s 4.12(k) in relation to the proposed use, that paragraph requires the conclusion that a decision to approve the application is at variance with the Planning Scheme.”[42]
- [18]Furthermore, it is submitted that the different treatment of single residential developments in the planning scheme, although curious, does not warrant a departure from the plain meaning of the nominated density range. It is submitted that to do so would be to try and correlate or equate two different metrics, ignoring provision for roads and other elements that would be part of a residential subdivision.[43] This submission is consistent with the evidence of Mr Perkins, which I accept.[44] It also needs to be noted that the site is within the Residential Low Density Zone which seeks the preservation of the established traditional inner-suburban residential character.[45] It is unsurprising that any mix of housing types contemplated within a zone of this description be subject to significant density constraints in order to achieve this and other similar specific outcomes. Giving effect to the plainly expressed language of s 4.5.5(3)(o) is consistent with this wider purpose of the planning scheme.
- [19]As the proposed development involves a density 2.5 times that anticipated in the Residential Low Density Zone, it is in significant conflict with the planning scheme in this regard.
- [20]I now turn to the question of whether the proposed development is inconsistent with the existing character of the area. The provisions of the planning scheme of particular relevance in this regard are the identical specific outcomes at 4.5.3(1)(b)[46] and s 12.6.4(1)(a)[47] which require that the proposed development reflect the established built character, maintain amenity and protect and enhance important townscape and landscape elements within local areas, having regard to dwelling density and also s 4.5.4(2)(a)(i) which states that the established traditional inner-suburban residential character is to be maintained.
- [21]Mr Ovenden, the town planner who gave evidence on behalf of the appellant was of the opinion that “there is no consistent established suburban residential character in this part of Goodna…”[48] Conversely, the town planner who gave evidence on behalf of the respondent, Mr Perkins, described the character of the precinct in which the site is located as “being characterised generally by detached houses of modest scale on relatively large lots with generous spacing between buildings and large informal gardens of open grass and scattered mature trees”[49]. So far as an assessment of the residential character of the area in which the site is located is concerned, I prefer the evidence of Mr Perkins. Mr Perkins further stated:
“Mr Perkins considers that the number of units in the changed proposal leads to a high proportion of built form and hard surface area relative to open space, a small separation between buildings on the site, reduced street setback compared to that prevailing in the locality and inadequate space for planting… lawn and trees. Collectively this means the changed proposal has a visual character that is inconsistent with the character of the precinct in which the subject land is located…”[50]
- [22]Expert visual amenity evidence was also called by the appellant from Mr Elliott, an architect. In his report he stated:
“The scale of built form incorporated into the development and situated proximate to the site frontage… is considered to be consistent with that extent (sic) in the streetscape generally; that being single storey development with a hipped roof over a moderate pitch. Although there is a greater dwelling density evident within the subject site itself, it is noted that the front units at the street frontage of the proposed development effectively serve as the street presentation of the development as the observer moves along the street in either direction on foot or using transportation of some description.”[51]
- [23]Under cross-examination however, Mr Elliott conceded that 38 dwelling units per hectare will present an appreciable difference in terms of building bulk, scale and density compared to a density of 15 dwelling units per hectare.[52] He further conceded that there was a difference in character as a consequence which would result in more built form and more hard surfaces.[53] Under cross-examination, Mr Ovenden also conceded that there would be an appreciable difference between a development at a density of 15 dwellings per hectare and a development at a density of 38 dwellings per hectare.[54]
- [24]In the circumstances, I find that there is a significant conflict with the specific outcomes nominated above. They are designed to maintain the established traditional inner-suburban residential character in Sub Area RL2. They seek to preserve the established built character, maintain amenity and protect and enhance important townscape and landscape elements. For the sake of completeness, on the evidence before me I also find that there is significant conflict with similar overall outcomes for the Residential Code including s 12.6.3(2)(a)(ii) because the proposed development will not maintain or enhance residential amenity internal and external to the site.[55]
- [25]The final area of conflict alleged by the respondent is that the proposed development represents an overdevelopment of the site. In this regard, the respondent identifies a number of conflicts with specific outcomes of the Residential Code, which cannot be cured by the imposition of conditions.
- [26]Firstly, it is submitted that contrary to the specific outcome in s 12.6.4(5)(a) of the planning scheme, the proposed buildings do not address the street frontage and are aligned at right angles to the street. In circumstances where each of the eight distinct duplexes internally face each other across a central driveway, this is undoubtedly correct. The street frontage is addressed by the side walls of unit 1 and unit 16.[56] To ameliorate this, Mr Elliott proposed:
“a minor redesign of the two units… in order [to] provide a more distinctive street address within the side wall… of each unit, which could be integrated with a section of lower fencing and front gate to generate a traditional sense of entry similar to that of an individual dwelling house.”[57]
No plan or any visual representation of this proposal was tendered in the course of the hearing before me and I am not persuaded that what is proposed would overcome the conflict with s 12.6.4(5)(a).
- [27]Secondly, the respondent submits that there is conflict with specific outcomes in s 12.6.4(8)(a) and (c) in that the “entries” to the buildings are not exposed to the main street and are not clearly delineated and legible and that the entrances to the buildings are not emphasised by an appearance of an appropriate scale and presence on the street. For the same reasons stated above, I am of the view that the proposed development remains in conflict with each of these specific outcomes.
- [28]Finally, the respondent asserts that there is a conflict with specific outcomes in s 12.6.4(24)(a), namely (i), (ii), (v) and (vii), which require landscaping for residential uses to be designed and constructed to achieve various amenity outcomes.[58] No landscaping plan has been submitted and I accept that compliance with the above specific outcomes has not been demonstrated.
- [29]Each of the instances of the failure of the proposed development to comply with specific outcomes nominated above confirms the overdevelopment of the site and reinforces the higher order conflicts with the density and character provisions of the planning scheme discussed earlier.
- [30]The appellant led evidence of a small number of other developments in the vicinity which exceeded the density range for Sub Area RL2 in the Residential Low Density Zone.[59] In determining what significance to accord this evidence, it is important to have regard to what was stated in Stappen Pty Ltd v Brisbane City Council & Ors:[60]
“For historical reasons it is rare to find an area which perfectly reflects the character and amenity which planning schemes ascribe to it. Planning Courts are shown, in the majority of cases, concrete examples of structures and developments which are plain aberrations from the designations attached to particular locales and often, as here, presented with a multiplicity of factors and elements in a district which, fairly, lead expert witnesses to advance opinions of the kind presented for the Appellant here.
…
Recent decisions make it clear, however, that if these "real-world" factors and discrepancies are to be taken into account that will, ordinarily, only occur if the local authority has itself diverted from the intent expressed in the Planning Scheme, or the subject land has been given a designation that was, and remained invalid…
…
It cannot be said the designation of this area for character housing is invalid or has been overtaken by events merely because some discordant structures have, in the past, been permitted, or that they signify a diversion from the planning intent for the district. Once that is acknowledged, it must follow that the provisions of the planning scheme are entitled to their full weight and effect.”[61]
- [31]There is no basis for a finding that the site has been the subject of planning controls in the planning scheme that are invalid. Accordingly, I am of the view that the presence of some discordant development in the vicinity of the site does not detract from the nature and extent of the conflicts with the planning scheme which I have identified above. These conflicts are significant.
Planning need
- [32]The appellant submits that there is a need for the proposed development and that this need justifies approval of it despite any conflict with the planning scheme. The concept of planning need was explained by Wilson SC DCJ in Isgro v Gold Coast City Council & Anor:[62]
“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 is not being adequately met…”[63]
- [33]In this regard, the appellant called evidence from Mr Norling, an expert in property economics. The respondent relied upon the evidence of Mr Perkins. Not surprisingly, Mr Perkins took no issue with Mr Norling’s assessment on the demand side of the equation.[64] He agreed with Mr Norling’s assessment that there is a yearly demand for 35 semi-detached and attached dwellings in Goodna.[65] There was however a significant disagreement as to the capacity of the planning scheme to supply land to meet this demand. As a starting point, both experts stated:
“It is agreed that sound planning and economic principles dictate that at the commencement of a Planning Scheme, the Planning Scheme should have sufficient capacity to accommodate at least 15 years’ demand for the major types of land uses. With the Ipswich Planning Scheme commencing in 2006, it should now have capacity to accommodate a further five to ten years’ demand and would be expected to be replaced by a new Scheme.”[66]
- [34]Thereafter, while Mr Norling expressed the view that the planning scheme could accommodate 5 years’ demand for semi-detached at attached dwellings in Goodna,[67] he then reduced that to 3 years supply on the basis that there was “little to no prospect that all of the under-developed lands… would be capable of being redeveloped within this time period.”[68] On the other hand, Mr Perkins pointed out that Mr Norling had overlooked the significant Major Centre area which was capable of accommodating 176 dwelling units, representing a further 5 years’ demand.[69] Mr Perkins also noted that “approximately 25.154ha of land in the Residential Low Density zone is also potentially suitable and available for Multiple Residential development.”[70] He stated that this represented at least 10.8 years of demand.[71] Whereas Mr Norling concluded in the Joint Report that the planning scheme “cannot accommodate the identified demand for Multiple Dwellings at Goodna,”[72] expressing the view that “there is a strong level of community, economic and planning need for the proposed townhouse development on the subject site,”[73] Mr Perkins concluded that “at best there is only a minor level of community, economic and planning need for the extra density sought by the proposed development…”[74]
- [35]Under cross-examination, Mr Norling conceded that supply and demand for multiple dwellings were tracking comfortably relative to the 15 year period contemplated by the planning scheme.[75] He sought to justify his assessment by differentiating townhouse development from other types of potential multiple dwellings, stating that other than townhouse developments, any provision for multiple dwellings “only becomes a theoretical capacity because I’m advising the court that it won’t be realised in the current market conditions.”[76] He stated that development of townhouses needed to occur at a density of greater than 10 to 15 dwellings per hectare, or it would be uneconomic and such development would not occur.[77] Two issues arise as a consequence of this evidence. Firstly, as Rackemann DCJ observed in Stockland Development Pty Ltd v Sunshine Coast Regional Council:[78]
“Ultimately, in managing future growth, the council does not necessarily have to provide for all sub-markets to be continuously developed for every kind of dwelling for which there might be some market demand.”[79]
Secondly, to the extent Mr Norling relied on the economics of developing particular sites for multiple dwellings, he appears to have offended the established principle that private economics are irrelevant. Long ago in Brown v Moreton Shire Council Mylne DCJ stated:[80]
“The appellant’s husband in giving evidence stated that if the appellant was required to do the works required as a condition of subdivision it would be uneconomic to sell the blocks… As counsel for the respondent has carefully pointed out, the economics of subdivision is immaterial…”[81]
- [36]In summary, I prefer the evidence of Mr Perkins concerning the supply of available land for multiple dwellings provided pursuant to the planning scheme and I am not convinced that there is a latent unsatisfied demand for multiple dwellings in Goodna which cannot be satisfied by the planning scheme in its present form. Having said this, I note that Mr Perkins did make the concession that there was at best a minor level of need for the dwellings in the modified application although his precise reasoning in this regard is unclear.[82]
Conflict and grounds
- [37]As noted above, the decision of the court must not conflict with the planning scheme unless there are sufficient grounds to justify the proposed development despite the conflict.[83]
- [38]The term “grounds” is defined in Schedule 3 of SPA in the following terms:
“1. Grounds means matters of public interest.
- Grounds does not include the personal circumstances of an applicant, owner or interested party.”
- [39]
“1. examine the nature and extent of the conflict;
- determine whether there are any planning grounds which are relevant to the part of the application which is in conflict with the planning scheme and if the conflict can be justified on those planning grounds;
- determine whether the planning grounds in favour of the application as a whole are, on balance, sufficient to justify approving the application notwithstanding the conflict.”[86]
The test now applies with the term “grounds” as defined above being substituted for the former term “planning grounds”.[87]
- [40]The grounds relied upon by the appellant are primarily planning need. Also to the extent that there are minor design conflicts with the planning scheme, the appellant relies upon the provision of greater dwelling density by the proposed development as contemplated by the SEQRP. In making its submission that need constitutes a sufficient ground, the appellant submits that evidence of Mr Norling shows that townhouses are a different product to single dwellings. I am prepared to have regard to this submission and accept the evidence of Mr Perkins that there may be a minor level of planning need, presumably because of this. The other ground, it is submitted, is not relied on in the event that I find major conflicts with the planning scheme in terms of density and character issues.[88]
- [41]The nature and extent of the conflict with the planning scheme in terms of density and character is significant. It is confirmed by the overdevelopment of the site for the reasons stated above. In light of the significant conflicts, the only ground which is relevant to the proposed development is planning need. In this regard, I accept the evidence of Mr Perkins that at best there is only a minor level of planning need for the proposed development. It certainly cannot justify the significant conflicts with the planning scheme identified above. This ground, on balance, is not sufficient to justify approving the proposed development notwithstanding the conflict.
Conclusion
- [42]The proposed development, at two and a half times the intended density for the site, is not only in significant conflict with the planning scheme because of this, but also results in other significant conflicts with the intended character and amenity of the area in which the site is situated. These significant conflicts are reinforced by conflicts with design parameters set out in the Residential Code of the planning scheme such that the proposed development constitutes an overdevelopment of the site. Given the extent of the conflicts with the planning scheme, there are no grounds in favour of the proposed development which are remotely sufficient to justify approving it notwithstanding the conflicts.
- [43]The appeal is dismissed.
Footnotes
[1] Exhibit 2, 3 [3.1].
[2] Ibid 3 [3.2].
[3] Exhibit 7(b).
[4] Exhibit 2, 4 [3.6].
[5] Ibid [3.7]; Exhibit 10.
[6] Exhibit 3, 6 [24].
[7] Exhibit 2, 8 [5.2].
[8] Ibid 7 [4.10].
[9] Ibid [4.11]; Exhibit 4, 10 [14].
[10] Sustainable Planning Act 2009 (Qld) s 495(1).
[11] Ibid s 493(1).
[12] Ibid s 326(1).
[13] Exhibit 6, 1.
[14] Sustainable Planning Act 2009 (Qld) s 36.
[15] Southeast Queensland Regional Plan 2009-2031, 97, 99.
[16] Exhibit 6, 23.
[17] Ibid.
[18] Ibid 47.
[19] Ibid. This is in identical terms to Specific Outcome 1(1)(a) in s 12.6.4 of the Residential Code.
[20] Ibid 49.
[21] Ibid.
[22] Ibid 50.
[23] Ibid 50.
[24] Ibid 277.
[25] Ibid 51.
[26] Ibid 60.
[27] Ibid 152.
[28] Ibid 156; Exhibit 7(a).
[29] Ibid 162; Exhibit 3, Appendix D.
[30] Exhibit 4, 243-251.
[31] T 3-5, 3-6.
[32] Submissions of the Respondent, 3-4 [16].
[33] Submissions of the Appellant, 18 [48].
[34] Exhibit 6, 49-50.
[35] Exhibit 5, 14 [58].
[36] Submissions of the Appellant, 5 [19].
[37] (2014) 201 LGERA 82, 94-95.
[38] (2014) 201 LGERA 82, 94-95 [52]-[56].
[39] Submissions of the Appellant, 6 [23]-[24].
[40] Exhibit 6, 49.
[41] (2011) 185 LGERA 63, 76 [33].
[42] Ibid.
[43] T3-11, ll 20-35.
[44] T2-91, ll 35-45; T2-92 ll 1-15.
[45] Exhibit 6, 49.
[46] Ibid 47.
[47] Ibid 243.
[48] Exhibit 2, 11 [7.4].
[49] Ibid [7.5].
[50] Ibid [7.6].
[51] Exhibit 4, 11-12 [16(a)].
[52] T2-28 ll 35-40.
[53] T2-29 ll 10-15.
[54] T2-52 ll 5-15.
[55] Exhibit 6, 243.
[56] Exhibit 4, 10 [14].
[57] Ibid 18 [17].
[58] Exhibit 6, 251.
[59] Exhibit 10.
[60] [2005] QPELR 466, 473 [32]-[34] per Wilson SC DCJ.
[61] Ibid.
[62] [2003] QPELR 414, 418 [21].
[63] Ibid.
[64] He was not qualified to do so.
[65] Exhibit 3, 8 [37].
[66] Ibid 15 [63].
[67] Ibid 15 [64].
[68] Ibid 15 [65].
[69] Ibid 15 [66].
[70] Ibid 15 [68].
[71] Ibid.
[72] Ibid 16 [74].
[73] Ibid.
[74] Ibid 17 [79].
[75] T1-57 ll 25-30.
[76] T1-66 ll 30-33.
[77] T1-63 ll 30-40.
[78] [2014] QPELR 52, 87 [182].
[79] Ibid.
[80] (1972) 26 LGRA 310, 313.
[81] Ibid.
[82] Exhibit 3, 17 [79].
[83] Sustainable Planning Act 2009 (Qld) s 326.
[84] [2013] 2 Qd R 302; [2013] QPELR 188; [2012] QCA 370.
[85] [2003] 2 Qd R 441; [2003] QPELR 43; [2002] QCA 234.
[86] Lockyer Valley Regional Council v Westlink Pty Ltd (as trustee for Westlink Industrial Trust) [2013] 2 Qd R 302, 462 [18].
[87] Synergy Property Partners No. 2 Pty Ltd v Brisbane City Council [2016] QPELR 474, 483.
[88] T 3-7 ll 10-25.