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Infinite Aged Care (Cornubia) Pty Ltd v Logan City Council[2021] QPEC 58

Infinite Aged Care (Cornubia) Pty Ltd v Logan City Council[2021] QPEC 58

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Infinite Aged Care (Cornubia) Pty Ltd v Logan City Council [2021] QPEC 58

PARTIES:

INFINITE AGED CARE (CORNUBIA) PTY LTD

(appellant)

v

LOGAN CITY COUNCIL

(respondent)

FILE NO:

240/2020

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court at Southport

DELIVERED ON:

28 October  2021

DELIVERED AT:

Southport

HEARING DATE:

22 to 25 September 2021

JUDGE:

Kent QC DCJ

ORDER:

  1. The appeal is dismissed
  2. The respondent’s decision to refuse the appellant’s development application is confirmed

CATCHWORDS:

ENVIRONMENT AND PLANNING – DEVELOPMENT CONTROL – CONSENTS, APPROVALS, PERMITS AND AGREEMENTS – REFUSAL AND REASONS FOR REFUSAL – where the appellant appeals against the refusal of an application for land reconfiguration – where the proposed reconfiguration is to split one lot into eight lots – where the development is for a residential care facility – where the local city council refused the application – where there is non-compliance with the existing planning scheme – whether there are adverse consequences due to non-compliance – where respondent submits that the proposed reconfiguration would result in overdevelopment

LEGISLATION:

Planning Act 2016 (Qld) s 45

Planning and Environment Court Act 2016 (Qld) s 43

CASES:

Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257

Ashvan Investments Unit Trust v Brisbane City Council [2019] QPELR 793

Barro Group Pty Ltd v Sunshine Coast Regional Council [2021] QPEC 18

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

Body Corporate for Lindor and Planit Consulting Pty ltd v Gold Coast City Council [2018] QPEC 54

Cheung & Ors v Brisbane City Council [2021] QPEC 39

Clarke v Cooke Shire Council [2008] 1 Qd R 327

Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117

Dreamline Development Corporation Pty Ltd v Brisbane City Council & Ors [2021] QPEC 13

Elan Capital Corporation Pty Ltd v Brisbane City Council [1990] QPLR 209

Good-Mix Concrete Pty Ltd v Brisbane City Council (No. 3) [1975] 31 LGERA 178

Hawkhaven Pty Ltd v Mackay Regional Council & Anor [2017] QPEC 40

HPC Urban Design and Planning Pty Ltd & Anor v Ipswich City Council & Ors [2019] QPEC 56

Lewiac Pty Ltd v Council of the City of Gold Coast (1996) 2 Qd R 266

Magree & Ors v Landsborough Shire Council & Anor [1987] QPLR 149

Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46

Smout v Brisbane City Council [2019] QPELR 684

Yu Feng Pty Ltd v Maroochy Shire Council (2000) 1 Qd R 306

COUNSEL:

Mr B Rix for the Appellant

Mr D Purcell for the Respondent

SOLICITORS:

Self-represented for the Appellant

MacDonnells Law for the Respondent

Introduction

  1. [1]The appellant appeals against the refusal by the respondent of its application for the reconfiguration of a single lot into eight lots, for the subject land at Cornubia.  It seeks that the relevant development application be approved subject to appropriate conditions. 
  2. [2]The proposal is for the subdivision of the presently existing Lot 1 on SP306163, Title Reference 51193780 (“the land”) being zoned low density residential and within the small acreage precinct and being 9718m² in area. 
  3. [3]The proposal commenced by way of an impact assessable application made on 18 October 2019.  There was appropriate public advertising of the application.  There were no submissions against the application and one submission in support.  The respondent issued a Decision Notice on 22 July 2020 refusing the application.
  4. [4]An agreed list of issues was tendered on the first day of the hearing.[1]  These are:
  1. Whether the proposed development represents an acceptable or unacceptable:
    1. combination of lot sizes, boundary clearances and density;
    2. impact (or lack thereof) to the amenity and character of the surrounding locality, having regard to the subject land, its locality and the terms of the planning scheme applicable to the land and as in force at the time the development application was properly made;
  2. Whether any non-compliance with any planning scheme provision(s) ought be determinative in the circumstances of the case;
  3. The weight to be attributed to the proposed major planning scheme amendment which has been submitted to the State for a State-Interest check before proceeding to a public notification, as disclosed to the appellant by way of a letter from the respondent dated 19 August 2021;
  4. To what extent any other relevant matters relied upon by the parties (within the meaning of s 45(5)(b) Planning Act 2016, (“PA”)) are made out, and if they are, support approval or refusal.

Nature of the Appeal

  1. [5]The appeal is by way of a hearing anew.[2]  Infinite Aged Care, as the applicant, carries the onus.[3]
  2. [6]As the application is impact assessable, assessment is to be carried out against the relevant assessment benchmarks in a categorising instrument (in this case the Logan Planning Scheme 2015, version 6, adopted on 15 May 2019, taking effect on 27 May 2019)[4] relating to the development and having regard to any matters prescribed by regulation.  The assessment may be carried out against, or having regard to, any other relevant matter other than a person’s personal circumstances, financial or otherwise.[5] The relevant matters in this case include proposed amendments to the 2015 Scheme that relate to the subject land and its reconfiguration.
  3. [7]The decision of the court on the appeal is thus to be based on the assessment required by s 45(5) to s 45(7) of the PA (pursuant to s 59(3) of the PA, subject to s 46(2) of the PECA).  The approach to such an exercise set out in Ashvan Investments Unit Trust v Brisbane City Council[6] has been more recently affirmed by the Court of Appeal in Abeleda & Anor v Brisbane City Council & Anor.[7]
  4. [8]What is thus required is a balanced decision in the public interest, based upon an assessment of the merits of the application, having regard to established policy and other relevant considerations.[8] It is described as a broad and flexible approach[9] and a “broad evaluative judgement”.[10] The decision must be a balanced one in the public interest considered against the backdrop of the relevant planning scheme and proper planning practice.[11] The evidence and principles touching on the issues is set out below.

The land in context

  1. [9]As the character of the land and the surrounding locality is relevant, the context should be identified. The zoning, precinct and size of the land is mentioned above. It has a frontage of approximately 30m to Cornubia St which is a local residential street. It is elevated, sloping down from the highest point on the north west in two directions, west to east and north west to south east. The fall across the site is approximately 15.5m.
  2. [10]As a result of a previous development by the appellant, the southern boundary of the lot is shared with the appellant’s residential care facility.  The previous subdivision created Lot 3, adjacent to the residential care facility and having a frontage to the service road for Beenleigh Redland Bay Road, which is presently being developed consistently with the large suburban precinct.[12]  Further context is provided by the Council’s reasonably recent decision of 3 June 2021 approving the reconfiguration of Lot 1 into four lots.[13]  This makes it reasonably clear that, consistent with its position as argued on this appeal, the Council accepts a four lot subdivision, consistent with the small acreage precinct, but resists the present appeal saying (at the risk of oversimplification) that it represents overdevelopment in the area. 
  3. [11]The evidence bearing on this issue is expert town planning evidence by Mr Buckley and Ms Burke, as set out in the joint expert’s report, Exhibit 5, the experts’ individual statements/reports, and their oral evidence given at the hearing of the appeal. 

The Planning Framework

  1. [12]The planning framework includes the South East Queensland Regional Plan 2017 (Shaping SEQ).  The site is within the urban footprint of Shaping SEQ, which is intended to identify land within which the region’s urban development needs to 2041 can be accommodated in a way consistent with the goals, elements and strategies of Shaping SEQ.
  2. [13]The Logan Planning Scheme 2015 Version 6.0 (“the planning scheme”) applied at the date of lodgement of the application.  Although Version 8.0 currently applies since 16 November 2020, it seems that differences in versions do not have a material impact on the relevant provisions to be applied.[14]
  3. [14]The development application is subject to impact assessment and is to be assessed against all relevant parts of the planning scheme.  Section 5.3.3(5) provides that impact assessable development (a) is to be assessed against the relevant assessment benchmarks; (b) is to have regard to the whole of the planning scheme, where relevant; (c) is to be assessed against any benchmarks identified in s30 of the Regulation.
  4. [15]Section 1.5 of the planning scheme provides for a hierarchy of provisions, with the strategic framework at the top, followed by relevant codes; relevant overlays; local plan codes prevail over zone codes, use codes and other development codes to the extent of the inconsistency; zone codes prevail over use codes and other development codes to the extent of the inconsistency; and provisions of Part 10 may override any of the above.
  5. [16]The scheme provides tables of assessment benchmarks which inter alia set out performance outcomes and acceptable outcomes.
  6. [17]The subject site is within the residential theme of the strategic framework.  Section 3.4.3.1(1) of the strategic framework states:

“Residential density is in accordance with the intent of the relevant zone except that higher density development might be provided on premises, other than in a local plan area, in a lower density residential zone or Emerging community zone with sufficient infrastructure capacity:

(a) that:

(i) fronts a road on the transit oriented development corridor as identified in Fig 3.11 – Transit Oriented Development; or

(ii) is in a walkable catchment or a transit oriented development hub as identified in Fig 3.11 – Transit Oriented Development; or

(b) where:

(i) environmental land or community infrastructure is secured for public benefit; or

(ii) affordable housing or adaptable housing is secured;

(c) transitions to be compatible with an adjoining lot in a Residential zone category land.”

  1. [18]Relevant overlays applicable to the subject site include bushfire hazard overlay; landslide hazard and steep slope overlay; and residential overlay.  None of the overlay codes are raised as relevant matters on the appeal.

Zone code

  1. [19]The site is in the small acreage precinct of the low density residential zone.  The purpose of the low density residential zone code includes providing for a variety of low density dwelling types, including dwelling houses; and community uses, and small scale services, facilities and infrastructure to support local residents.  The experts disagree as to whether the subject site is part of an identifiable area which can be described as characterised by existing small acreage lots; or whether lots under current development or offering similar features, offer opportunity for subdivision of consistent lot sizes in accordance with the small acreage precinct intent.[15]
  2. [20]The following overall outcomes of s 6.2.5.2(3) of the low density residential zone code are relevant:

“(3) The purpose of the code will be achieved through the following overall outcomes:

 (a) the design of the built form;

(ii) ensures that its size and bulk is consistent with the character of the residential development;

(iii) incorporates appropriate boundary clearances and building separation to protect and provide privacy for residents;

(v) provides a street scape that is attractive, pedestrian friendly and supports the precinct character;

(b) development protects amenity consistent with its location in the low density residential zone and precinct and the surrounding area;

(c) development contributes to the visual amenity of the residential streetscape;

(f) in the small acreage precinct:

(ii) the built form is characterised by dwelling houses in an urban landscape setting where the landscape character dominates the built environment;

(iii) development has a maximum net density of five equivalent dwellings per hectare.”

  1. [21]Section 6.2.5.2(3)(f)(ii) is a significant point of departure between the parties.  The respondent’s stance is that the proposed development would not see the landscape character dominating the built environment, because of its intensity, whereas the appellant takes the contrary position.  This may be seen as the basic point of contention; the respondent sees the proposal as overdevelopment, whereas the appellant denies this is so.
  2. [22]Because the town planning evidence dealt compendiously with most of the issues as identified, it is convenient to refer to it en masse, in dealing with issues 1, 2 and 4 above, and then deal separately with the effect of prospective amendments to the planning scheme.

The Town Planning Evidence

Reasons for Refusal

  1. Lot sizes, boundary clearances and density

Ms Burke’s evidence

  1. [23]The respondent provided reasons for refusal. As the town planning experts have addressed these reasons, consideration of them and the expert evidence dealing with them is an appropriate way to summarise the evidence in the context of the live issues.
  2. [24]The first such reason is that the proposed development would result in unacceptable lot sizes, boundary clearances and density having regard to the Planning Scheme.  Particulars thereof refer to:
    1. Strategic framework, residential theme – strategic outcome 3.4.1(2)(b)(ii) and specific outcome 3.4.3.1(1);
    2. Low density residential zone code – overall outcomes (3)(a)(iii), (3)(f)(iii), PO3, PO4, PO18 and PO19 (and corresponding acceptable outcomes);
    3. Dual occupancy and dwelling house codes – overall outcomes (2)(a)(i), (2)(a)(ii), PO2, PO9 and PO10 (and corresponding acceptable outcomes); and
    4. Reconfiguring a lot code – overall outcomes (2)(a)(i), (2)(a)(ii) and PO3 (and corresponding acceptable outcomes).
  3. [25]Each of the experts spoke to the reasons for refusal.  The details of the particulars and the relevant opinions are set out below.
    1. Strategic Framework
  4. [26]3.4.1 relevantly provides:

“(2) residential density is of an intensity compatible with the local context, public transport provision and infrastructure capacity where:

 (b) low density development is provided;

(ii) where consistent with the intended subdivision pattern, built form, and character of the area.”

  1. [27]In relation to this, Ms Burke opines that for the proposed development the residential density proposed is incompatible with the local context in terms of the small acreage precinct in which the subject site is located.  In particular, the proposed development is inconsistent with the existing and intended subdivision pattern, built form and character within the small acreage precinct to the immediate east.  She acknowledged that the subject site does have some access to public transport provision, with reference to bus stops in the area.  She also acknowledged that the proposed development is capable of being serviced with the necessary infrastructure. 
  1. [28]Specific outcome 3.4.3.1(1) provides:
    1. (1)Residential density is in accordance with the intent of the relevant zone except that higher density development might be provided on premises, other than in a local plan area, in a lower density residential zone or emerging community zone with sufficient infrastructure capacity:
      1. That:
        1. (i)Fronts a road on the transit-oriented development corridor as identified in Figure 3.3.11 – transit-oriented development; or
        2. (ii)Is in a walkable catchment of a transit-oriented development hub as identified in Figure 3.11 – transit-oriented development; or
      2. Where:
        1. (i)Environmental land or community infrastructure is secured for public benefit; or
        2. (ii)Affordable housing or adaptable housing is secured;
      3. Transitions to be compatible with adjoining lot in a residential zone category land. 

On this topic Ms Burke says that the proposed residential density is inconsistent with the intent of the zone and the small acreage precinct because:

  • The site does not front a road on the transit-oriented development corridor; and
  • It is not within a walkable catchment of a transit-oriented development hub; and
  • Environmental land or community infrastructure is not secured for public benefit; and
  • Affordable housing or adaptable housing is not secured; and
  • The site provides the appropriate transition from the large suburban precinct to the west and is the natural entrance to the small acreage precinct extending to the east.  The topography and location of the subject site with a limited frontage on a corner bend on Cornubia Street prevents the site from being truly integrated with the large suburban precinct to the west.  The provision of a through-road connection to the east as part of the proposed development[16] will allow for connection to and consolidation of the small acreage precinct, provided the density of the proposed development is reduced to be consistent with the small acreage precinct.  Ms Burke also notes that the surrounding land in the large suburban precinct is unlikely to be capable of further subdivision and the existing subdivision pattern is likely to remain.
    1. Low density residential zone code
  1. [29]In relation to the low density residential zone code, 6.2.5.2 provides:

“3. The purpose of the code will be achieved through the following overall outcomes:

  1. The design of the built form:

(iii) incorporates appropriate boundary clearances and building separation to protect and provide privacy for residents.”

Ms Burke opines that the proposal seeks to vary the effect of the small acreage precinct by varying the minimum road boundary clearance prescribed by the planning scheme, to be more commensurate with that of the large suburban precinct.  The proposed lot sizes, ranging from 1002m² to 1325m² are significantly less than the minimum 2000m² lot size prescribed by the planning scheme in the small acreage precinct.  The lot sizes range from approximately 50 per cent to 34 per cent smaller than the minimum lot size prescribed.  Coupled with the reduced setbacks and increased site cover, the built form outcomes will, Ms Burke opines, compromise the ability for the proposed development to meet the overall intent of the small acreage precinct, in terms of building separation and privacy for residents.

  1. [30]Code 6.2.5.2 further provides:

“(3) The purpose of the code will be achieved through the following overall outcomes:

  1. (f)
    in the small acreage precinct:

(iii) development has a maximum net density of five equivalent dwellings per hectare.”

In relation to this outcome, Ms Burke opines that the proposed development seeks a maximum net density of five equivalent dwellings per hectare.  The proposed development seeks approval for 8.23 equivalent dwellings per hectare, which is far greater than the 4.86 equivalent dwellings contemplated for the subject site.  Thus it is inconsistent with the purpose and intent for the small acreage precinct.

Performance Outcomes and Acceptable Outcomes

  1. [31]PO3 provides:

“Unless dual occupancy, relocatable home park, residential care facility or retirement facility development provides boundary clearances that:

  1. allow for the separation of buildings or structures necessary to ensure the impacts on residential amenity and privacy are minimised;
  1. (b)
    provide access to natural light and ventilation
  2. (c)
    are consistent with the character for the precinct.”

AO3 provides:

“Unless dual occupancy, relocatable home park, residential care facility or retirement facility development has minimum boundary clearances that comply with Table 6.2.5.3.3 – low density residential zone boundary clearance provisions.”

In relation to this, Ms Burke opines that the proposed boundary clearances are more commensurate with those prescribed for the large suburban precinct.  Coupled with the reduced lot sizes and increased site cover sought, the proposal will not be consistent with the intended character for the small acreage precinct as the density of development is too intense.  This has the effect of impacting on the achievement of the overall character outcomes for the precinct. 

PO4 and AO4

  1. [32]PO4 provides:

“Development achieves a density consistent with that intended for the precinct.

AO4 provides:

“Development has a maximum net density shown in Table 6.2.5.3.4 – low density residential zone net densities.”

Again, Ms Burke opines that the proposal seeks 8.23 equivalent dwellings per hectare which is substantially greater than the intended density of 4.86 equivalent dwellings per hectare and effectively results in twice the number of lots than would be achievable.  Thus the proposal is inconsistent with the maximum net density intended for the small acreage precinct by the scheme.

PO18

  1. [33]The next provision addressed in the Reasons for Refusal is PO18:

“The small acreage precinct has a residential built form, which is characterised by dwelling houses in a urban landscape setting, where the landscape character dominates the built environment.”

  1. [34]In respect of this outcome, Ms Burke opines that the proposal does not achieve an outcome where the landscape character dominates the built environment.  It does not meet the maximum net density required, which impacts the ability to most effectively achieve a landscape character dominating the built environment.  There is simply less site area available to achieve an urban landscape character on larger lots, for example, through the retention of existing vegetation or tree planting, due to the proposed density.  She also notes that the location on a corner bend on Cornubia Street effectively results in a lack of residential streetscape on the Cornubia Street frontage, other than that which can be provided internal to the sub-division.  She does acknowledge that provision of a connecting through road as part of the proposed development provides an opportunity for integration and consolidation of that precinct and for a suitable streetscape to be provided, if the intensity was reduced, consistent with the small acreage precinct.

PO19 and AO19

  1. [35]PO19 provides that development in the small acreage precinct has a site cover that reflects a development intensity that is consistent with the intended character of the precinct. 
  2. [36]AO19 provides that development in the small acreage precinct has a maximum site cover of 35 per cent. 
  3. [37]In respect of these outcomes, Ms Burke opines that the proposed development, which seeks to increase site cover requirements to 50 per cent, a 15 per cent increase than currently stipulated for the small acreage precinct, in conjunction with the request for an increase in density, reduced boundary clearances and reduced minimum lot sizes, will result in the proposal compromising the achievement of the attendant character of the precinct.  She also notes that the site cover in the adjoining large suburban precinct prescribes a maximum of only 40 per cent.

(c) Dual occupancy and dwelling house code

  1. [38]In respect of the dual occupancy and dwelling house code, 9.3.1.2 provides:

“(2) the purpose of the code will be achieved through the following overall outcomes:

  1. (a)a dual occupancy or dwelling house:
    1. (i)is designed and sited to protect the amenity of adjoining premises and the streetscape.”

In respect of this outcome, Ms Burke opines that the proposal seeks to vary the effect of the small acreage precinct by varying the minimum road clearances, minimum lot sizes and maximum site cover.  This will impact on the ability for any dwellings built on the lots to be sited and designed to protect the amenity of adjoining premises and the streetscape, due to a more intensive and dense built form outcome than that anticipated by the planning scheme for the precinct. 

  1. [39]The Code further provides in 9.3.1.2(2)(a)(iii) that a dual occupancy or dwelling house:

“(iii) has an attractive built form that is consistent with the character of the applicable zone, local plan and precinct.”

In relation to this outcome, Ms Burke opines that the proposal does not currently include proposed dwelling designs to demonstrate how the provision can be achieved.  However, the density of development proposed is inconsistent with the desired character of the precinct. 

PO2 and AO2

  1. [40]PO2 provides:

“A dual occupancy or dwelling house has a site cover compatible with adjoining premises.

AO2 provides:

“A dual occupancy (auxiliary unit) or dwelling house has a maximum site cover of:

  1. 60 percent in the low-density residential zone – small lot precinct;
  1. 40 percent in the low-density residential zone – large suburban precinct;
  2. 35 percent in the low-density residential zone – small acreage precinct;
  3. 20 percent in the low-density residential zone – acreage precinct;
  4. In the rural residential zone.

As to these outcomes, Ms Burke again notes that the proposal seeks to vary the site cover requirements to 50 percent, which is not consistent with the relevant site cover requirements for small acreage (35 percent) or even large suburban (40 percent). In her opinion, the increased site cover sought, in conjunction with the increased density, reduced setbacks and reduced lot sizes, will impact on creating an urban landscape setting where the built environment does not dominate over the landscape character.

PO9 and AO9

  1. [41]PO9 provides a dwelling house:
    1. is located to protect existing and planned movements networks;
    1. provides opportunity for appropriate onsite carparking;
    2. has a road boundary clearance compatible with that of adjoining premises.

AO9 provides that a dwelling house:

(a) is located outside planned widening of a road and a new road identified in (road encroachment maps);

(b) being a carport may be built to the front boundary where certain maximum dimensions are not exceeded, and the carport remains entirely unenclosed except where the rear attaches to a structure;

(c) has a minimum road boundary clearance of 10 metres in the low-density residential zone small acreage precinct.

In relation to these outcomes, Ms Burke notes that the proposal seeks to vary the minimum road boundary clearances consistent with the large suburban precinct. This represents a 40 percent variation to the intended road boundary clearance. Again, combined with the other features, the proposal will not be consistent with the intended character for the small acreage precinct.

PO10 and AO10

  1. [42]PO10 provides: a dwelling house has a side and rear boundary clearance that
    1. Is compatible with that of adjoining premises;
    1. Allows for the separation of buildings or structures necessary to ensure impacts on residential amenity and privacy are minimalised;
    2. Provides access to natural light and ventilation;
    3. Provides an area of landscaping;
    4. Is consistent with the character for the relevant zone and precinct.
  2. [43]AO10 provides: a dwelling house has the following minimum side and rear boundary clearances:
    1. Three metres in the small acreage precinct.

In respect of these outcomes, Ms Burke notes that the proposal seeks to vary the minimum side boundary clearances, reducing them by up to 50 percent of what is prescribe by the planning scheme. This will also reduce the area available on each lot for landscaping.

(d) Reconfiguring a lot code

9.4.6.2

  1. [44]9.4.6.2 relevantly provides (2) the purpose of the code will be achieved through the following overall outcomes:
    1. Reconfiguring a lot results in:
      1. Design outcomes that are consistent with the intended character of the applicable zone, local plan, precinct, and adjoining roads;
      2. New lots of appropriate size, shape and dimension.

In respect of these outcomes, Ms Burke opines that the proposal for twice the number of lots contemplated by the planning scheme together with 15 percent increase in site cover will result in design outcomes and lots of a size that are inconsistent with the intended character of the small acreage precinct. Further, the topography and location of the site on a corner bend on Cornubia Street with a limited street frontage effectively prevents the site from being truly integrated with the existing residential development on Cornubia Street.

PO3 and AO3

  1. [45]PO3 provides: reconfiguring a lot results in lots of a size, shape, dimension and density that are consistent with their intended use and the intended character of the applicable zone, local plan and precinct.

AO3 provides: unless involving an approved multiple dwelling, a new lot complies with:

  1. Table 9.4.6.3.2 – reconfiguring a lot; or
  1. Table 9.4.6.3.3 – reconfiguring a lot; local plans; or
  2. A preliminary approval for reconfiguring a lot.

As to these outcomes, Ms Burke opines that the proposed lot sizes are inconsistent with the intended character for the small acreage precinct and do not meet the minimum lot size requirement of 2,000m² as stipulated in the table. She says that the proposal is a significant variation from the assessment benchmarks, purposes and overall outcomes of the zone and precinct in which the site is located, by proposing lot sizes resulting in a much greater lot yield than technically achievable under the planning scheme.

Mr Buckley’s evidence as to Reason 1

  1. [46]Mr Buckley’s opinions diverge from those of Ms Burke and support the application as follows:[17] First he acknowledges what he describes as “the technical misalignment with certain provisions as identified by Ms Burke”. In relation to the criticism of the proposal concerning its density (8 lots rather than a maximum of 5) he opines that the purpose of the relevant provisions against which the effects of non-compliance are said to be unacceptable, are for development to:
    1. ensure the size and bulk of future built form is consistent with the character of the residential environment;
    2. incorporate appropriate boundary clearances and building separation to protect and provide privacy for residents;
    3. provide a streetscape that is attractive, pedestrian friendly and supports the precinct character;
    4. protect amenity consistent with its location in the low-density residential zone and precinct and the surrounding area;
    5. contribute to the visual amenity of the residential streetscape;
    6. in the small acreage precinct, ensure the built form is characterised by dwelling houses in an urban landscape setting where the landscape character dominates the built-in environment.
  2. [47]Mr Buckley says that these outcomes are consistent with accepted planning practice and principles which, in short, require new development to “fit in” and be compatible with local character. He refers to a number of contributors to local character including:
    1. The site’s topographical and physical orientation away from Cornubia Street;
    2. The inescapable effect of proximity to an aged care facility with a very urban built form;
    3. The mix of lot sizes and shapes and varied streetscape throughout the developed large lot residential streets locally;
    4. The subject site’s predominantly cleared and vacant presentation.
  3. [48]His view is that creating a distinction between the large suburban lot precinct and the small acreage precinct has little meaning, having regard to the contributors to character outlined above.
  4. [49]This may represent one of the major points of departure between the parties. The respondent argues that the planning scheme represents the public interest, and the exercise of the relevant discretion requires the balancing of the underlying planning policy intent and other relevant matters, in the public interest. It asks rhetorically what meaningful contribution in the public interest does the addition of four lots achieve; the answer is nothing. The appellant, conversely, points to authorities which warn against slavish and inflexible adherence to a prescribed minimum lot size as if it were an end in itself; it points to the lack of negative impacts on traffic, flooding, bushfire or geotechnical matters, ecology, acoustic, air quality, odour or lighting issues or infrastructure delivery or provision. Such impacts are often typical of overdevelopment, but do not arise in this case. It supports Mr Buckley’s opinion to the effect that the development, in essence, does fit in and is compatible with the local character.
  5. [50]As to the distinction between the large suburban lot precinct and the small acreage precinct Mr Buckley opines that the additional three lots proposed by the application does not cut across the local character nor does it render the outcomes of the zone meaningless. Rather, as the development “settles in” to use his term, it will be consistent with the local character where the landscape, in his opinion, does dominate the built environment and where the character of the residential environment is maintained. He opines that it does “fit in” to its land use, street, and amenity environment and because of its context has a high degree of compatibility with existing and intended character. He considers it is aligned with the relevant purpose of the residential low density zone code. He says that the setbacks will achieve desirable levels of privacy and there are no amenity impacts that higher density developments sometimes cause. Further it is not the type of density increase which the code provisions promoting transport proximity and the like are intended to address. Three additional lots, given the locality, is benign in terms of the impact on infrastructure and general considerations of lifestyle and efficiency.

Reason for Refusal 2 – amenity and character impacts

Ms Burke’s evidence

  1. [51]The second reason is that the proposed development would result in unacceptable impacts to the amenity and character of the surrounding locality having regard to the Planning Scheme.
  1. [52]The particulars of this reason are:
    1. conflict with the low density residential zone code – overall outcomes 3(a)(ii), 3(a)(v), 3(b), 3(c), 3(f)(ii); and
    2. reconfiguring a lot code – PO4.
  1. [53]Again, Ms Burke’s opinions are set out in table form.

Low density residential zone code

  1. [54]6.2.5.2 provides relevantly:

(3) the purpose of the code will be achieved through the following overall outcomes:

“(a) the design of the built form:

(ii) ensures that its size and market is consistent with the character of the residential development.”

  1. [55]Ms Burke expresses the opinion that the proposed development is inconsistent with the intended built form character of the small acreage precinct, due to the proposed density of development, being too intense for the intended residential character envisaged for the precinct, because of the number of lots, density, proposed site cover, road and side boundary setbacks and the ability to provide a landscape character which predominates over the built form.
  2. [56]6.2.5.2 continues in 3(a)(v) that the design of the built form:

“(v) Provides a streetscape that is attractive, pedestrian friendly and supports the precinct character.” 

On this provision, Ms Burke says that eight lots is inconsistent with the intent for the character of the small acreage precinct.  Essentially, the density is greater than that intended for the precinct.

  1. [57]6.2.5.2(3) continues as follows:

“(b) Development protects amenity consistent with its location in the low density residential zone and precinct and the surrounding area.” 

On this topic, Ms Burke points out that the precinct is intended to have lots of a minimum size of 2,000 m2, which is very inconsistent with the proposed range of 1,002 m2 to 1,325 m2.  Thus, the amenity of the small acreage precinct is not protected.  Larger lots would provide for lesser site cover, greater protection and planting of vegetation to achieve a landscape character setting as intended by the planning scheme.

  1. [58]6.2.5.2(3) continues as follows:

“(c) Development contributes to the visual amenity of the residential streetscape.” 

In relation to this provision, Ms Burke again opines that the intensity of the proposed development reduces the desired visual amenity of the residential streetscape in the small acreage precinct.  She says the subject site provides a logical and identifiable entrance point and transition between the large suburban precinct to the west and the small acreage precinct to the east.  This is enhanced by the through road connection provided for.  Thus she says the small acreage precinct would be consolidated and provide better opportunities to contribute to the visual amenity of the streetscape.

  1. [59]6.2.5.2(3)(f)(ii) continues:

“(f) In small acreage precinct:

(ii) The built form is characterised by dwelling houses in an urban landscape setting where the landscape character dominates the built environment.” 

Ms Burke does not accept that this would be achieved, pointing to the reduced lot sizes, the reduced boundary clearances and the increased site cover.

  1. [60]In the reconfiguring a lot code, PO4 provides that reconfiguring a lot is designed to:
    1. protect significant natural features;
    2. protect landscape amenity values;
    3. minimise the amount of excavation and filling.

Ms Burke opines that the protection of landscape amenity values could be better achieved if the proposed density were reduced to comply with the requirements for the small acreage precinct, of which the land is part.

Mr Buckley’s evidence

  1. [61]In relation to the second reason for refusal, Mr Buckley relies on his previously expressed opinions.  He agrees that character is an important element of amenity but does not believe the amenity of the locality is impacted by the proposal at all, much less amounting to unacceptable impacts.  His view is that aspects of the proposal contributing to character support an outcome of the development existing comfortably in its context and with adjoining land uses.

Reason for refusal 3 – cannot be conditioned to comply

Ms Burke’s evidence

  1. [62]The third reason is that the proposed development cannot be conditioned to comply with the Planning Scheme.
  2. [63]On this topic Ms Burke opines that the proposed development of eight lots on the land cannot be conditioned to comply, because it is simply incapable of meeting the density, lot size and boundary clearance provisions prescribed for the small acreage precinct.  Thus, the character and amenity of development intended for the small acreage precinct cannot be achieved by the proposed development.  Appropriate conditions could be imposed if the proposal were to provide lots of a size and density meeting that prescribed for the small acreage precinct.

Mr Buckley’s evidence

  1. [64]Mr Buckley, on the other hand, is of the view that the proposal does meet the purpose of the relevant code, so the complaint as to conditions in his view has little meaning.  He does note that conditions concerning such things as street tree planting and possibly landscaping next to the road frontage would help reinforce the expected character, as would a condition concerning the boundary treatment to the aged care facility.

Reason for refusal 4 – no relevant matters justifying approval

Ms Burke’s evidence

  1. [65]This reason was that there were no relevant matters to justify the approval the proposed development.  Ms Burke’s opinion is that this is correct because the proposed development is fundamentally inconsistent with the intended character, amenity and density of development prescribed by the planning scheme for the relevant precinct.
  2. [66]Although s 3.4.3(1) of the strategic framework does contemplate higher residential densities within lower density residential zones where certain criteria can be met, the requirements are not met here because
    1. the site does not front a relevant transit-oriented corridor;

(b)  it is not within a walkable catchment of a transit-oriented development hub;

  1. environmental land or community infrastructure is not secured for public benefit;
  2. affordable housing or reductible housing is not secured; and
  3. as the subject site is the logical entrance point to the small acreage precinct, compliance with the lot sizes and densities for that precinct allow an appropriate transition between that and the large suburban precinct to the west.

Mr Buckley’s evidence

  1. [67]Mr Buckley’s opinion on this topic refers to the appellant’s list of matters relied upon to support approval.  Relevant matters are inevitably both positive and negative for most applications and traverse the range of planning considerations.  Whatever negative matters arise from technical non-compliance with the “numbers (as to density, lot size etc)”, when the proposal is considered in terms of:
    1. Its alignment with local character;
    2. Ability to “fit in” to its context; and
    3. The absence of any unacceptable impacts;

it meets the outcomes of the relevant zone code and this tips the balance in favour of approval.

Reason for Refusal 5 – Relevant matters favouring refusal

  1. [68]These identified relevant matters are:
    1. The proposed development is inconsistent with the planning intent of the zone and precinct.  Specifically, it contradicts and will negatively affect achieving the desired character and amenity intended to the small acreage precinct;
    2. The scheme recognises and ensures that the city has sufficient housing supply and a range of lot sizes, housing types and housing tenures.  The proposal, if approved, would result in an over-development of the site and reduce the ability of land to achieve the lot size intended in the small acreage precinct;
    3. The lot density and size is incongruous with the pattern of existing surrounding lots, specifically those in the small acreage precinct;
    4. The proposal will negatively impact the respondent’s ability to appropriately plan for infrastructure;
    5. The proposal is inconsistent with the broader community expectations for development in the small acreage precinct;
    6. The land does not front a transit-oriented development corridor, nor is it within a walkable catchment of a transit-oriented development hub.

Ms Burke’s evidence

  1. [69]Ms Burke’s opinion embraces these reasons for refusal, apart from (d) for which she is not qualified to comment.  Her opinion is that the proposal represents a substantial departure from the planning scheme in density and size of lots, which is inconsistent with the intent for the small acreage precinct.  The lot sizes are much smaller than the minimum prescribed and the proposed net density is greater.
  2. [70]Ms Burke further says the proposal does not meet the test in 3.4.3.1(1) of the strategic framework; higher densities are not contemplated where the land does not front a transit-oriented development corridor, nor is it within a walkable catchment of a transit-oriented development hub.
  3. [71]Ms Burke opines that allowing the proposal would significantly compromise the ability of the small acreage precinct to achieve the intent of the built form being characterised by dwelling houses in an urban environment where the landscape character dominates the built environment.
  4. [72]Ms Burke further opines that the topography and location of the land on a corner in Cornubia Street effectively prevents it from being truly integrated into the existing residential development on Cornubia Street.  Rather the land is a logical transition from the large suburban precinct to the west to the small acreage precinct to the east and is a natural entrance point for this precinct.  The provision of a connecting through road as part of the proposal also provides opportunity for the small acreage precinct to be consolidated in the local area, with a direct connection to the rest of the precinct, if the density is reduced consistently with the small acreage precinct.

Mr Buckley’s evidence

  1. [73]On this reason for refusal, Mr Buckley relies on the opinions expressed as to reason for refusal 4, including the appellant’s list of matters relied upon to support approval.[18]

Reason for Refusal 6 – Contrary to purpose

  1. [74]This reason posits that an approval of the proposed development would be contrary to the purpose of the PA.

Ms Burke’s evidence

  1. [75]Ms Burke refers to s 3 of the PA:

“The purpose of establishing an efficient, effective, transparent, integrated, co-ordinated and accountable system of land use planning, development assessment and related matters that facilitates the achievements of ecological sustainability.”

  1. [76]She refers to the planning scheme establishing a framework giving clear guidance on the development intent for land within the city according to (among other things), its designation in particular zones and precincts.  The proposal is inherently inconsistent with the density intended for the small acreage precinct and permitting it would erode the intent of the small acreage precinct in meeting its intended character and amenity, as set out in the scheme. Further, Ms Burke opines that the proposal does not meet the test within the strategic framework which sets out certain criteria under which Council will contemplate higher densities.  The proposal would undermine the transparency of the planning scheme which clearly outlines that the grounds upon which higher densities may be permitted within the low density residential zone.

Mr Buckley’s evidence

  1. [77]Mr Buckley, conversely, opines that because the proposal meets the purpose of the relevant code, and is on land where the respondent says at least five lots is supportable, it is difficult to accept the proposal does not meet the purpose of the Planning Act.

Other Relevant Matters

  1. [78]The assessment is carried out with regard to other relevant matters, pursuant to s 45(5)(b) of the PA. These may support refusal or approval of the proposal. The appellant’s list of matters supporting are in Exhibit 1 at tab 3 and slightly expanded in Exhibit 3.
  2. [79]The first of these matters is the proposition that the proposed development complies with or can be conditioned to comply with the assessment benchmarks contained in the reasons for refusal. As outlined at [63] above, Ms Burke’s opinion is that it cannot be conditioned to comply. Mr Buckley considers that the proposal meets the purpose of the relevant code, so that the complaint as to conditions is immaterial. He does note that conditions concerning such things as street tree planting and possibly landscaping would help reinforce the expected character.
  3. [80]The second matter supporting approval is a proposition that to the extent of noncompliance with the assessment benchmarks, such noncompliance ought not be determinative. As to this matter, Ms Burke is of the view that the proposed development will not result in lot sizes, boundary clearances and density consistent with the intent for the small acreage precinct, as outlined above. The proposal would erode the ability of the small acreage precinct to achieve the desired character and amenity intended. Ms Burke’s opinion is that the non-compliances (particularly, as I understand it, in the aggregate) are determinative. Mr Buckley takes the opposite position; as noted above, his view is that the proposal does meet the purpose of the relevant code and in any case some further conditions could be imposed.
  4. [81]The third identified matter is that the proposal will create lot sizes, boundary clearances and density said by the appellant to be consistent with the policy direction and intent of the planning scheme when read as a whole and consistent with the intent of the South East Queensland Regional Plan 2017.
  5. [82]Consistent with her other conclusions, Ms Burke does not agree with that characterisation. She says it will not result in lot sizes, boundary clearances and density consistent with the intent for the small acreage precinct. She further opines that the location of the land on a corner of Cornubia Street results in a lack of residential streetscape on Cornubia Street, although there would be a streetscape internal to the subdivision. However, fundamentally the proposal does not meet the relevant test within the strategic framework, and it would erode the ability of the small acreage precinct to achieve the desired character and amenity intended.
  6. [83]Ms Burke sets out her opinions in a table in response to these matters, referring to the strategic framework and various scheme provisions. She also notes requirements of the low-density residential zone code; some of these have been noted above. She further notes the dual occupancy and dwelling house code in 9.3.1.2(1); objectives (2)(a) and (b); PO2. Purpose 9.3.1.2(1) and opines that the dwelling houses to be developed would be of an intensity incompatible with the density intended for the small acreage precinct. She refers to objectives (2)(a) and (b) and expresses her view that the built form intensity would be inconsistent with the character intended for the small acreage precinct. She refers to PO2 and again notes that the intended site cover of 50 percent is inconsistent with the requirements for the small acreage precinct (35 percent) or indeed the large suburban precinct (40 percent).
  7. [84]Ms Burke also refers to PO9 and says that the proposed development with its boundary clearances represents a 40 percent variation to the intended road boundary clearance. Combined with reduced lot sizes and increased site cover and density, the proposal is not consistent with the intended character of the small acreage precinct. She also refers to PO10 in relation to side and rear boundary clearances and again says that these are not consistent with the intended character for the small acreage precinct. She refers to PO12 for secondary dwellings and says that with the potential smaller lots then envisaged by the small acreage precinct, secondary dwellings would further impact on the ability of the proposal to meet the intent for character and density of development.
  8. [85]She also considered the reconfiguring a lot code, and as set out above at [61] she considers that the density is inconsistent with the intention for the small acreage precinct.
  9. [86]Mr Buckley relies on his earlier comments in relation to the matters relied upon to support approval, as outlined above.
  10. [87]The fourth matter relied upon to support approval is that the proposal would be consistent and complementary to the amenity and character of the surrounding locality, including when having regard to the planning scheme as a whole. Reference is made to the low-density residential zone code 6.2.5.2 purpose and the reconfiguring lot code – 9.4.6.2, purpose and overall outcomes.
  11. [88]Again, for the reasons outlined above, the evidence of Ms Burke is that the proposal erodes the achievement of the specific variety of low-density dwelling types intended for the small acreage precinct; it does not provide for dwelling houses in an urban landscape setting with a landscape character dominates the building environment. The development, in Ms Burke’s opinion, is simply too intense for the precinct. Again, on this topic, there is further reference to the reconfiguring a lot code.
  12. [89]The fifth matter relied upon to support approval refers to a number of propositions including in summary:
    1. The proposal is effectively infill, completing well-entrenched residential amenity of single houses on larger residential living lots.
    2. The cadastral pattern in the locality, featuring a mix of lot sizes and shapes, blurs any appreciable distinction between the small acreage precinct and the large suburban precinct and, such that the different lot densities anticipated by the different precincts are of little planning purpose.
    3. This distinction is reinforced by the adjoining aged care facility to the south; the proposed four lot subdivision adjoining that facility, and by the differences in topography between the subject land and the aged care facility site, and the residential areas to the west.
    4. The proposal would result in a development entirely consistent with the lot sizes, housing types and housing tenures existing in the immediately adjoining area.
    5. The number of lots proposed is so small it will not have any material effect on the balance of available land for larger lot living.
    6. The amenity and character of the local residential area will be maintained without adverse impacts.
    7. Overall the character of the local area including a pattern of allotment sizes, land use, the positioning and spacing of houses, the local road pattern, vegetation and topography will be maintained.
    8. The proposed development has ready access to infrastructure that can cater to it.
    9. There were no adverse submissions and approval of the proposed development is within the reasonable expectations of the community.
    10. The land is close to public transport and offers rapid access to the public road network and commercial retail and workplaces in the immediate area.
    11. The proposal will generate no unacceptable adverse town planning consequences or impacts.
    12. The proposal is consistent with and furthers the planned intent for the development of the land and locality as evidenced by the proposed major planning scheme amendments which has preceded to the state-interest check stage before going to public notification.
  13. [90]Ms Burke’s opinion, understandably, is that none of these matters do support approval. The proposal in her view erodes the intent of the small acreage precinct because it is simply too dense. Although the cadastral pattern features a mix of lot sizes and shapes, nevertheless the proposal has wider implications for the consolidation of the smaller acreage precinct in the immediate locality. The adjoining aged care facility fulfills a different function from the proposed development. The proposed four lot subdivision approved to the east of the subject site is within the small acreage precinct and does achieve a minimum lot size of at least 2000m², consistent with the precinct. The topography and location of the site on the corner of Cornubia Street with a limited street frontage effectively results in a development removed from having a direct and highly integrated relationship with the existing large suburban precinct and residential area to the west. Rather, it is a logical and identifiable entrance point and transition between those precincts, enhanced by the through road.
  14. [91]Ms Burke also said that the intent of the small acreage precinct is for the landscape character to dominate the built environment, and this is not achieved by the proposal. She opines that the scheme does not contemplate development such as is proposed on the land. The lot sizes and density intended for the small acreage precinct are different and therefore the proposal is not within the expectations of the community insofar as achieving compliance with the planning scheme outcomes is considerate. The proposal does not meet the test in s 3.4.3.1(1) of the Strategic framework as to when higher densities might be contemplated on the site. Although the site is in proximity to public transport, the road network and commercial retail and workplaces in the immediate area, this does not in and of itself warrant approval. Her view is that it would result in development inconsistent with the intent of the Planning scheme or the small acreage precinct and would erode the ability of the precinct to achieve its intended function. Thus, there are adverse town planning consequences.
  15. [92]Again, for the reasons outlined above, Mr Buckley embraces these matters said to support approval and he effectively joins issue with the opinions expressed by Ms Burke. He says that whilst the proposal does not align with the minimum area and siting provisions, principally found in the acceptable outcome components of the codes, nevertheless the layout and intended siting meets the performance outcomes, on consideration of context and character. Again he refers to alignment with local character, ability to fit in with the context, and lack of unacceptable impacts.
  16. [93]The sixth matter relied upon to support approval is that it is consistent with the purpose of the PA and would be in the public interest. Again, Ms Burke does not accept this. She says it would not meet community expectations in terms of achieving the intended character and amenity for the small acreage precinct as articulated by the scheme.
  17. [94]Mr Buckley, as outlined above, takes the contrary view, while acknowledging it is a matter for the court. Balancing the positive and negative inputs, the assessment falls in support of the proposal. Three additional lots does not defeat the purpose of the Planning Act.

Summary of Expert Evidence

  1. [95]Overall, the opinions of the experts may be summarised as follows.  Ms Burke identifies a number of grounds justifying refusal:
    1. the proposal presents overdevelopment and is inconsistent with the character and amenity intended for the small acreage precinct;
    2. the proposal exceeds the maximum net density of five equivalent dwellings per hectare, proposing as it does 8.23 dwellings per hectare;
    3. the proposal includes lot sizes significantly smaller than envisaged for the small acreage precinct, to a significant degree.  Under the planning scheme, four lots is technically achievable rather than twice that number;
    4. the proposal has site coverage exceeding the maximum 35 per cent envisaged, proposing as it does site coverage of 50 per cent for each lot;
    5. the above factors (a) to (d) combined adversely impact the ability for the proposal to meet the desired character and amenity intended for the precinct, that is a residential built form where landscape character dominates the built environment;
    6. the proposal does not meet the test in s 3.4.3.1(1) of the strategic framework which sets out criteria for higher densities in lower density residential zones.  This is because the site does not front a transit oriented development corridor, nor is it within a walkable catchment of a transit oriented development hub as shown in figure 3.11 of the planning scheme.  No environmental land or community infrastructure is secured for public benefit, nor is there affordable housing or adaptable housing.  The proposed density and size of lots are incompatible with lots to the immediate east that are also in the small acreage precinct.  The proposal thus does not meet the strategic framework test for contemplating higher density development on the site.
    7. allowing the proposal has broader implications and undermines the ability for the small acreage precinct to be consolidated, as the site is the logical transition from the large suburban precinct to the west and the entrance point to the small acreage precinct extending to the east.  The planning scheme contains unique and clearly defined outcomes for the small acreage precinct, distinct from those of other precincts.  The proposal is inconsistent with the policy intent for the small acreage precinct and thus conflicts with the Logan Planning Scheme 2015.
    8. there are no relevant matters under the PA warranting approval of the proposed development.
  2. [96]Mr Buckley’s evidence favouring approval is summarised as follows:

He holds the opinion that any non-compliance with the detail of the planning scheme is technical and does not stand up after an examination of the proposal’s alignment with the purpose of the relevant zone code, and importantly its ability to be consistent with a very mixed local character.  The mixed character is made up of residential development on a range of lot sizes and shapes, topographical and road alignment variations, and an adjoining use which is very different to the dominant local use of housing on large lots (that is, the aged care facility).  Mr Buckley opines that the proposal, representing only an additional three residential lots, has no unacceptable impacts on amenity.

The Submissions

Appellant

  1. [97]The appellant acknowledges that the proposal does not comply with some of the quantitative provisions relating to the small acreage precinct. However, many of these standards are met and those that are not are, effectively, at a lower order in the scheme hierarchy. The more pertinent question is whether there are any adverse planning consequences associated with these quantitative noncompliances so as to warrant refusal.[19] The thrust of the appellant’s submission is there are no adverse planning consequences and to refuse the proposal would be an inappropriate “slavish and inflexible adherence to a prescribed minimum … as if it were an end in itself.”[20]
  2. [98]The appellant points to Ms Burke’s evidence where she acknowledged that:
    1. The proposed development is a low (perhaps very low) density residential, detached dwelling development being (at least at a high level) exactly what the 2015 scheme contemplates for the subject land.[21]  It is also precisely what exists, predominately, in the broader locality;[22]
    2. At least 4.86 equivalent dwellings is allowable on the subject land, as compared to the calculated proposed 8.23 equivalent dwellings. Thus in a numerical sense her dispute with the proposal amounts to no more than 3.37 equivalent dwellings; the land is thus appropriate for subdivision of the kind proposed with only the intensity in issue;
    3. Where Ms Burke referred to the orientation of the subject site and its relationship to Cornubia Street and the local area as being material to the appreciation of the site in its context, the appellant submits that the locality presently has a broad range of lot sizes. The existing character of the area is not an irrelevant consideration and the proposed development is entirely consistent with the development to the north and west.[23]  The subject land’s only connection to the outside world was to the west by Cornubia Street, with the small acreage precinct being a considerable distance away by the road.[24]  Thus, as the appellant argues, the land is disconnected from the small acreage precinct, at least “at the moment”, and apart from the immediately adjoining land is invisible from the small acreage precinct.[25]  Thus the appellant emphasises its submission that any impacts that arise from the subject development will be invisible from the small acreage precinct.[26]
    4. The aged care facility adjoining the land was a use contemplated and intended in the zone/precinct and is very intense in its form and is one that impacted on the character of the area.[27]
    5. The “through road” in the development is a positive, an example of “good planning practice”.[28]
    6. Ms Burke relied on numeric standards for her opinions but acknowledged that such standards were “largely found, obviously, within acceptable outcomes of the relevant codes”.[29]  Thus the appellant submits that the quantitative measures are effectively at the lower level in the scheme hierarchy and as a matter of interpretation/application need not be complied with;
    7. Ms Burke could point to no evidence of community concern with respect to the proposal;
    8. In many respects the proposal is remarkably similar to the existing development of Goodenia Street in the small acreage precinct and the proposal will achieve a similar amenity outcome in terms of site cover and setbacks.[30]  The appellant emphasises that Ms Burke acknowledged that many (if not all) of the planning scheme non-compliances she referred to would not be visible from the street or would be entirely consistent with the existing development on Goodenia Street in the small acreage precinct.
    9. Ms Burke criticised the development for being one “effectively seeking approval for a subdivision that is commensurate with the planning scheme provisions for the large suburban precinct”.[31]  That large suburban precinct is one where she also acknowledged that residents enjoy an objectively high level of amenity, a high level of privacy and reasonably attractive neighbourhoods with plenty of landscaping.  The appellant submits that such conclusions are consistent with the qualitative standards that apply to the subject land and its precinct and favour approval.
  3. [99]The appellant commends the evidence of Mr Buckley as outlined above.  In essence, whatever negative matters arise from non-compliance with the “numbers” as to density, lot size etcetera, considering the proposal in terms of:
    1. Its alignment with local character;
    2. Ability to “fit-in” to its context; and
    3. Absence of any unacceptable impacts;

creates strong positives which meet the outcomes of the relevant zone and tip the balancing process required in impact assessment in favour of approval.[32]

  1. [100]Thus it is submitted that any non-compliances with quantitative measures do not result in appreciable negative impacts or consequences sufficient to warrant refusal.  Further, there is compliance with a multitude of planning scheme provisions, including higher order provisions both within the strategic framework and the more codes in issue.  It is submitted that the proposal meets the intention of the planning scheme provisions that are in issue and ought to be approved.
  2. [101]The appellant also relies on other relevant matters bearing on the assessment (s 45 (5)(b) of the PA).[33] These are set out at [78] to [94] above. The appellant advances those matters as favouring approval.

Respondent

  1. [102]The respondent makes the point that the exercise of the discretion requires the balancing of the underlying planning policy intent and other relevant matters, in the public interest.[34]  The present planning scheme is taken to be the expression of the public interest and it is not the court’s function to substitute planning strategies for those which a planning authority in a careful and proper manner had chosen to adopt.[35] 
  2. [103]Reference was also made in Bell v Brisbane City Council to Clarke v Cook Shire Council[36] per Keane JA:

“The terms of a planning scheme inevitably reflect the striking of an overall balance, in the public interest, between the many interests potentially affected by the planning scheme.”[37]

The judgment in Bell continued at [67]:

“It is not for the decision maker (including in this context a Court), to gainsay the expression of what constitutes the public interest that is in a planning scheme.”

And at [70]:

“Consequently, any consideration of the application of s 326(1)(b) of the SPA must proceed upon the premise that it is in the public interest that the planning scheme, in each relevant respect, be applied, unless the contrary is demonstrated.”

In my view the judgment in Bell is a reminder of the primacy of such planning schemes in representing an embodiment of the public interest.

  1. [104]Returning to the respondent’s submissions, it is argued that having regard to the relevant assessment and benchmarks in the Logan scheme and its context, land-use planning and zoning does not contemplate the proposed development at the intensity the appellant contends for.  The Council submits that the proposal would cut across the reasonable community expectations as to the use to which the land might be put, as informed by the scheme, to the benefit of the appellant where no town planning, community or economic need is satisfied in the public interest.  It is submitted that there is no public interest served by the addition of four extra lots on the subject land, with its inevitable conflict with the scheme requirements for lot sizes, setbacks, site coverage, and, generally, intensity.
  2. [105]The respondent refers to s 3.4.1(2) of the Logan scheme, a strategic outcome for the residential theme.  It relevantly provides that residential density is to be of an intensity compatible with the local context, public transport provision and infrastructure capacity where low density residential development is provided, consistent with the intended sub-division pattern built form and character of the area.
  3. [106]It is also submitted that the specific outcome in s 3.4.3.1(1) of the scheme only contemplates higher residential densities where there is sufficient infrastructure capacity to handle the increased density and where one of the exceptions are met.  Thus it is argued that the higher density of the proposed development is not one contemplated by the scheme unless one of the public interest exceptions are met and it transitions to be compatible with an adjoining lot in a Residential zone category land; the submission obviously continues that this is not such a case.  It is submitted that the development compromises the planning intent thus expressed relating to density.  Thus Ms Burke’s opinion is supported, that the proposed density is incompatible with local context in terms of the small acreage precinct.
  4. [107]Further, it is submitted that the broader strategic policy and intent which the strategic framework seeks to achieve is similarly carried through in the lower level planning provisions of the Logan scheme which apply more specifically to the land.[38]
  5. [108]The respondent submits that the intended character and amenity (as opposed to the existing character and amenity) of a particular area is relevantly informed by lot sizes and shapes, siting provisions, boundary setbacks and site cover.  Topography and existing development in the locality relate to existing character.  In orthodox planning practice, planning schemes regulate the intended character and amenity of a particular area through assessment benchmarks.
  6. [109]The respondent submits that, as outlined in the summary of the evidence above, overall outcomes and performance outcomes as to boundary clearances, site cover and lot size reflect a planning intent for the character of the small acreage precinct where the residential built form is characterised by the landscape character dominating the built environment.  This is said to be the intended character of the precinct.  The proposal is for development which is simply too intense when compared with the assessment benchmarks in the Logan scheme; the proposed site cover of 50 percent is far greater than that prescribed for the small acreage precinct of 35 percent, and the minimum road boundary clearance, being proposed as 6 metres rather than the 10 metres required in the precinct represents a 40 percent variation to the intended road boundary clearance.  Similarly the minimum side and rear boundary clearances are proposed at 1.5 metres, 50 percent of the 3 metres required in the precinct. 
  7. [110]These features are not, in the respondent’s submission, a slavish adherence to the prescribed minimums as though they were an end in themselves, rather they reflect the intended character for the precinct.
  8. [111]The respondent also refers to the purpose, overall outcomes and performance outcomes under the Reconfiguring a Lot Code.  Again, the required results in design outcomes are to be consistent with the intended character of the applicable zone and precinct, with new lots of appropriate size, shape and dimension.  Thus the Council submits that the strategic planning intent throughout the Logan scheme is for the protection of the intended character and amenity of the relevant zone or precinct, except where particular criteria are met.  The Council notes Mr Buckley’s concession that there is a technical misalignment with the above provisions which, so it is submitted, relevantly identify the character and amenity intent for the small acreage precinct.[39]  It is submitted that the scheme as a whole sets out not only the planned intent for the character of the small acreage precinct but how the character is to be achieved/delivered; again, dwelling houses in an urban landscape setting, where the landscape character dominates the built environment. 
  9. [112]In this context the respondent points out that:
    1. The proposed lot sizes are some 34 percent to 50 percent smaller than the minimum prescribed by the Logan scheme and more consistent with the 1,000m² lots prescribed for the large suburban precinct;
    2. The proposal seeks approval for eight lots which is twice the density contemplated by the scheme and again more commensurate with the large suburban precinct;
    3. The proposal of site cover of 50 percent is inconsistent with the 35 percent contemplated by the small acreage precinct and indeed, greater than the 40 percent site cover permitted in the large suburban precinct;[40]
    4. The proposed development seeks side boundary clearances varying between 1.5 to 3 metres, that is, as outlined above, 50 percent of the clearance contemplated by the scheme;
    5. The proposal seeks to vary the minimum road boundary clearances as set out above, compromising the ability of the development to protect and provide privacy for residents.
  10. [113]Thus the respondent commends the evidence of Ms Burke that the combination of reduced lot sizes and setbacks and increased site cover and density will be inconsistent with the intended character for the small acreage precinct and adversely impact on achieving the result of the landscape character dominating the built environment.  This is said to be a real and material non-compliance. 
  11. [114]Thus approval is resisted where the proposal does not satisfy one of the exceptions in the strategic framework for higher density development; there is a clearly delineated land use pattern in the small acreage precinct which remains largely intact, the exceptions being developments which are otherwise consistent with the strategic framework and are not integrated with the balance of the small acreage precinct as they gain access directly from Beenleigh-Redland Bay Road.  Further the lack of streetscape to Cornubia Street and the provision of a connecting through road in the future to the balance of the small acreage precinct provides an opportunity for proper integration and consolidation of that precinct.  The small acreage precinct acts as a transition between the higher density large suburban precinct to the west and the lower density park living precinct to the east.  The topography and physical orientation of the subject land away from the large suburban precinct, on a corner bend of Cornubia Street with limited frontage provides a clear physical demarcation between the large suburban and small acreage precincts and effectively prevents physical and contextual integration with the large suburban precinct.  The planning outcome in creating a distinction between the large suburban precinct and the small acreage precinct remains valid and meaningful and is consistent with the scheme. 
  12. [115]Amenity is intertwined with reasonable expectations, as informed by the scheme.[41] Character is an important element of amenity and the Council propounds the evidence of Ms Burke in this regard as to non-compliance with assessment benchmarks.[42] Further, the character of the small acreage precinct is solidified by the assessment benchmarks applicable to the land having regard to its context, both physical and topographical and the underlying policy intent to provide a transition to less dense residential development to the east.  The proposal would be markedly different from the assessment benchmarks and would not achieve the outcome of dwelling houses in an urban landscape setting where the landscape character dominates the built environment.

Appellant’s Relevant Matters

  1. [116]The respondent also refers to the list of relevant discretionary matters relied upon by the appellant and submits that the development cannot be conditioned to comply. Having regard to the assessment benchmarks, the matters identified go no further than forming part of what is already assessed and regulated under the scheme, with which the proposal is fundamentally non-compliant. The relevant matters referred to are not necessarily development or site specific and go no further than what could be achieved elsewhere in an appropriate zone. There is no specific need, role or function that is not able to be more appropriately filled elsewhere.
  2. [117]Further, mere lack of adverse impacts is not determinative. The allocation to the land of a particular zone and precinct is an important planning tool distinguishing between the intended uses for different areas. Residential density is important and an elementary planning concept.[43] The non-compliances are real and warrant refusal.

Discussion – Town Planning Issues

  1. [118]The town planning issues set out above should in my conclusion be resolved in favour of the respondent.  Generally, the opinions of Ms Burke are to be preferred over those of Mr Buckley.  In my view, Ms Burke is correct in saying that the proposal represents, in its context, overdevelopment and is inconsistent with the character amenity intended for the small acreage precinct.  She correctly identifies that the density is unacceptable having regard to the various units of measurement including the number of dwellings per hectare; the significantly smaller lot sizes; the significantly larger site coverage and the reduced setbacks and boundary clearances.  In my view, the appellant has failed to demonstrate that these factors do not, in combination, adversely impact the ability of the proposal to meet the desired character and amenity intended for the precinct, that is, a residential built form where landscape character dominates the built environment. 
  2. [119]Further, in my conclusion, Ms  Burke is correct to say that the proposal does not meet the criteria for higher densities in lower density residential zones, and it would undermine the ability for the small acreage precinct to be properly consolidated.  Ms Burke is correct in her opinion that the proposal is inconsistent with the policy intent or the small acreage precinct and thus conflicts with the Logan Planning Scheme 2015.  In my view, contrary to Mr Buckley’s evidence, non-compliance with the detail of the planning scheme is more than technical and does have the adverse impacts mentioned above. 
  3. [120]Further, I do not consider that the appellant’s list of relevant matters affect the outcome for the reasons identified by the respondent.  As is argued, the mere lack of adverse impacts is not determinative.  Residential density is important and the allocation in the planning scheme of the subject land to the small acreage precinct is an expression of the public interest, and that planning strategy should be paid proper regard.  I accept the respondent’s submissions to the effect that the proposal represents overdevelopment. 

The Major Planning Scheme Amendment

  1. [121]It remains to be determined what, if any, effect on the above analysis flows from the future amendments to the planning scheme. 
  2. [122]The amendments to the scheme have been submitted to the State for a State-Interest Check before proceeding to public notification.[44]  The relevant effect of the amendments is to remove the subject land from the small acreage precinct and place it in the large suburban precinct.  The appellant understandably argues this favours approval; in the future such a proposal would be approved under the amended scheme, assuming it comes into operation in the same form as the draft.
  3. [123]The issue of planning scheme amendments was discussed in Coty (England) Pty Ltd v Sydney City Council:[45]

“It is important in the public interest that whilst the respondent Council’s local scheme is under consideration this court should in the exercise of its appellate jurisdiction avoid as far as possible giving a judgment or establishing any principle which would render more difficult the ultimate decision as to the form the scheme should take.  It is also important in the public interest that during that period this court should in the exercise of the jurisdiction referred to arrive at its judgment as far as possible in consonance with town planning decisions which have been embodied in the local scheme in the course of preparation.”

In other words, a development application should not prejudice the implementation of a new draft planning instrument.[46]

Clearly a new planning scheme can be relevant to the court’s determination of an appeal.  The real issue to be determined is what weight, if any, should be attributed to the new planning scheme “and any assessment carried out against it.”[47]  The planning intent expressed in the amendment should be given some weight in the determination of the appeal, as submitted by the appellant.  It is argued that refusal of the proposal would have the tendency to cut across what the Council intends for the development of the subject land in the future.  The appellant emphasises that if the land was presently in the large suburban precinct, which is the future intention, it would be approved.

  1. [124]In response, the Council submits that the assessment is required to take place against the applicable planning documents in effect as at the date the application was properly made, although weight can be given to any new or amended planning documents (s 45(7) and (8) of the PA).
  2. [125]The respondent acknowledges that it is appropriate for the court in certain circumstances to have regard to a draft planning scheme not yet in effect.  Reference is made to Yu Feng Pty Ltd v Maroochy Shire Council:[48]

“…the weight to be accorded to either consistency or inconsistency between the draft planning scheme and the application will depend on the circumstance, including the stage to which the draft planning scheme has progressed.”

  1. [126]Thus the Council submits that the Coty principle will not be enlivened until after a draft planning instrument has been adopted by Council and subject to public exhibition.  Once this has occurred, the scheme is entitled to be given weight.  The amendment, in this case, has yet to achieve that status and ought to be given no weight.[49]  Thus the Council submits that the present application is somewhat pre-emptive in that, in the event the planned amendment is not adopted as foreshadowed, it tends to entrench ad hoc development inconsistent with the existing planning intent for the land.  Reference is made to Lewiac Pty Ltd v Council of the City of Gold Coast[50] as follows:

“It may of course be possible to give too much weight to such a factor…it is better that such developments await determination of whether the [amendment] is approved, modified or rejected, rather than allow the [scheme] to be pre-empted by an ad hoc development.”[51]

As the respondent acknowledges, Lewiac dealt with the situation where the development was consistent with the existing scheme and inconsistent with the draft, however it argues that the principle equally applies to the present case, which is the reverse. 

Council submits that the planned amendment should have little weight.  It is at the very preliminary stages of progression, for example, there has been no general public notification and opportunity for public submissions.  A refusal of this application notwithstanding the amendment would not affect the underlying policy intent.  The application could be readily re-made if and when the amendment is adopted.  It is argued that the present application is premature, and if the amendment as foreshadowed is ultimately not adopted, it has the tendency to entrench non-compliant development which cuts across the existing planning intent for the land. 

  1. [127]In my view, again the respondent’s submissions should be accepted.  The amendment being at a relatively early stage has little overall weight particularly where approval of the proposal - if the amendment were ultimately not adopted - would tend to entrench a non-compliant development cutting across the existing planning intent for the land and the locality under the scheme.
  1. [128]It follows that the existence of the draft changes to the scheme which may take effect in the future do not affect the determination of the present appeal. Thus in reaching a broad evaluative judgement and a balanced one in the public interest considered against the backdrop of the relevant planning scheme and proper planning practice as outlined above, the appeal should be dismissed.

Footnotes

[1]  Exhibit 3.

[2] Planning and Environment Court Act 2016 (“PECA”), s 43.

[3]  PECA, s 45(2).

[4]  Exhibit 4.

[5]  PECA, s 46(2); Planning Act 2016 (“PA”) s 45(5).

[6]  [2019] QPELR 793.

[7]  [2020] QCA 257 at [52] to [62].

[8] Abeleda at [57].

[9] Dreamline Development Corporation Pty Ltd v Brisbane City Council & Ors [2021] QPEC 13 at [8] to [10].

[10] Barro Group Pty Ltd v Sunshine Coast Regional Council [2021] QPEC 18 at [43].

[11] Cheung & Ors v Brisbane City Council [2021] QPEC 39 (Muir DCJ) at [9], referring to Dreamline (supra) at [10].

[12]  See generally the joint expert’s report – town planning, Exhibit 5, pp 6-7.

[13]  Affidavit of Mr Task, Exhibit 7, Exhibit “BDT5” at p 150.

[14]  See Exhibit 5, p 12.

[15]  Exhibit 5, p 16, para 54.

[16]  This could be consistent with the either the proposed eight-lot development or the four-lot development.

[17]  Exhibit 5, paragraph 59 and following.

[18]  Appeal Book Exhibit 1 – tab 3; also Exhibit 3.

[19]  See Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46 at [22]; Smout v Brisbane City Council [2019] QPELR 684.

[20] Smout at [55].

[21]  T2-42 ll9-20 and T-46 ll12-26.

[22]  T2-49 ll9-12.

[23]  T2-50 l44 to T2-51 l20.

[24]  T2-44 ll17-34.

[25]  T2-44 ll36-39.

[26]  T2-44 ll40-43.

[27]  T2-49 l8 to T2-50 l42.

[28]  T2-46, ll 28-34.

[29]  T2-47, ll 11-12.

[30]  T2-61, ll 1-3.

[31]  Exhibit 10, p 10, para 17.

[32]  Exhibit 5, p 33, para 81.

[33]  Exhibit 3 paragraphs 1-6.

[34] Abeleda at [54].

[35] Elan Capital Corporation Pty Ltd v Brisbane City Council [1990] QPLR 209 as referred to in Bell v Brisbane City Council & Ors [2018] QCA 84 at [56].

[36]  [2008] 1 Qd R 327 at [338].

[37] Bell v Brisbane City Council & Ors, supra, at [66].

[38]  See the hierarchy of assessment benchmarks in s 1.4 of the City Plan 2016.

[39]  Exhibit 5, Joint Expert’s Report at p 27, para 59.

[40]  Exhibit 5, Joint Expert’s Report at p 22.

[41] Body Corporate for Lindor and Planit Consulting Pty Ltd v Gold Coast City Council [2018] QPEC 54 at [125].

[42]  Exhibit 5 p29-31.

[43] Magree & Ors v Landsborough Shire Council & Anor [1987] QPLR 149 at 153.

[44]  Exhibit 7, affidavit of Mr Task, p 5.

[45]  (1957) 2 LGRA 117.

[46] Hawkhaven Pty Ltd v Mackay Regional Council & Anor [2017] QPEC 40 at [53]

[47] HPC Urban Design and Planning Pty Ltd & Anor v Ipswich City Council & Ors [2019] QPEC 56 at [225].

[48]  (2000) 1 Qd R 306 at 328.

[49] Good-Mix Concrete Pty Ltd v Brisbane City Council (No. 3) [1975] 31 LGERA 178; see also Hawkhaven Pty Ltd v Mackay Regional Council  supra at [53].

[50]  (1996) 2 Qd R 266.

[51]  (1996) 2 Qd R 266 at 271 – 272.

Close

Editorial Notes

  • Published Case Name:

    Infinite Aged Care (Cornubia) Pty Ltd v Logan City Council

  • Shortened Case Name:

    Infinite Aged Care (Cornubia) Pty Ltd v Logan City Council

  • MNC:

    [2021] QPEC 58

  • Court:

    QPEC

  • Judge(s):

    Kent QC DCJ

  • Date:

    28 Oct 2021

Appeal Status

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

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