Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Hill v Sunshine Coast Regional Council[2021] QPEC 59

Hill v Sunshine Coast Regional Council[2021] QPEC 59

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Hill & Ors v Sunshine Coast Regional Council [2021] QPEC 59

PARTIES:

THOMAS STEPHEN HILL, JOHN STEPHEN HILL and EMILY MICHELLE HILL

(appellants)

v

SUNSHINE COAST REGIONAL COUNCIL

(respondent)

FILE NO:

130/19

PROCEEDING:

Appeal against refusal of an application for a development permit for a material change of use

DELIVERED ON:

29 October 2021

DELIVERED AT:

Maroochydore

HEARING DATE:

5 October 2021, 6 October 2021, 8 October 2021, 15 October 2021

JUDGE:

Cash QC DCJ

ORDERs:

  1. The appeal is allowed;
  2. The respondent’s decision to refuse the development application is set aside;
  3. Instead, the development application will be approved, subject to lawful conditions;
  4. The parties are to attempt to reach agreement as to appropriate lawful conditions.

CATCHWORDS:

ENVIRONMENT AND PLANNING – DEVELOPMENT CONTROL – APPEAL AGAINST REFUSAL – where the appellants submitted a development application for a material change of use for use as multiple dwelling units – where the subject site is located in a low density residential zone – where the development is to be located on a battle axe lot – where the respondent refused the application – whether the proposed development is inconsistent with the character of the local area – whether the proposed development would result in an unacceptable negative effect on the amenity of the local area – whether the development should be approved

LEGISLATION:

Planning Act 2016 (Qld), s 60

Planning and Environment Court Act 2016 (Qld), s 43, 45, 46

CASES:

Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2020] 48 QLR, [54]-[58]

Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16; [2019] QPELR 793, [51]

Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253 [2020] 48 QLR, [59]

Jakel Pty Ltd & Ors v Brisbane City Council & Anor [2018] QPEC 21; (2018) 231 LGERA 253; [2018] QPELR 763, [113]

Lennium Group Pty Ltd v Brisbane City Council & Ors [2019] QPEC 17; [2019] QPELR 835, [201]

United Petroleum Pty Ltd v Gold Coast City Council & Anor [2018] QPEC 8; [2018] QPELR 510, [118]

Zappala Family Co Pty Ltd v Brisbane City Council (2014) 201 LGERA 82; [2014] QPELR 686

COUNSEL:

K W Wylie for the appellants
D C Whitehouse for the respondent

SOLICITORS:

P&E Law for the appellants
Sunshine Coast Council Legal Services for the respondent

The proceeding

  1. [1]
    The appellants wish to develop a parcel of land at Bli Bli. The land is located in the Low Density Residential Zone as defined in the Sunshine Coast Planning Scheme 2014 (‘SCPS’) and is subject to that code. The appellants want to build three buildings on the land which will contain five units, each with three bedrooms. Such a use would meet the definition of a multiple dwelling under the SCPS and is inconsistent with the Low density residential zone code. The respondent refused the appellants’ development application for a material change of use, citing this inconsistency along with other matters. The appellants appeal against that refusal.
  2. [2]
    The issues for me to decide may be summarised as follows:[1]
  1. Is the proposed development inconsistent with the character of the locality, a low-density residential zone?
  2. Would the proposed development result in unacceptable negative effects upon the amenity of the locality?
  3. Ultimately, should the court, having regard to the broad, evaluative judgment required by the Planning Act 2016 (Qld),[2] approve the development?
  1. [3]
    I have concluded that the appeal should be allowed, the decision to refuse the development application set aside and instead the development approved, subject to lawful conditions. These are my reasons for coming to this conclusion.

The land and its location

  1. [4]
    The land is located at 44-46 Bli Bli Road at Bli Bli, but it may be accessed from Pelican Place, a small cul-de-sac to the east. It is properly described as Lot 1 on RP159011. The land has a total area of 3,107 m2. The lot has a battle axe shape, with the access handle running from the north-east corner of the land to Pelican Place. The land is burdened by a large easement for the benefit of Telstra. The easement occupies 1,129 m2 on the western side of the land facing Bli Bli Road. On it is located a single storey Telstra exchange building, constructed to resemble a detached dwelling, and a large shipping container. The easement can be accessed from Bli Bli Road via a driveway. Telstra also has the benefit of second easement, for the purpose of light and air, over the balance of the land. The constraints of these easements mean the developable area, practically speaking, is 1,978 m2.[3] There is a third, unregistered easement along part of the south-east boundary.
  2. [5]
    The land slopes down from the north-western corner toward the east. The proposed development would see the land levelled to an extent by cutting from the north-west corner and filling in the east. The land is essentially cleared of vegetation. It is serviced with telecommunications, water, sewer, electricity, and stormwater drainage. Bli Bli Road bounds the land to the west. South of the land is part of the old Bli Bli cane railway line. The line, unused since the early 2000s, runs through a deep cutting adjacent to the land’s southern boundary, and separates the land from properties in Waigani Street. Pelican Place is a small cul-de-sac off Dotterell Drive, providing access to three other properties as well as the subject land. Each of these properties contain a low-rise residential detached house. The property at 3 Pelican Place abuts the land’s eastern boundary. Immediately north of the land is a very large lot – nearly 6,500 m2 – that is improved with a detached house and other structures. It is screened from the subject land to some extent by mature trees.
  3. [6]
    The surrounding area is comprised of mostly detached houses on a mix of lot sizes. The Halcyon Landing retirement community is nearby to the east. This community is composed of 171 manufactured homes set around communal roads and facilities. The western most part of the community is about 50 metres away from the subject land. The rest of the Halcyon Landing community fans out north and south along the Maroochy River. A short distance to the south along Bli Bli Road is Image Lane. This development comprises of 12 dwelling houses on community title lots, each of about 300 m2. Further to the south, about a kilometre from the subject land, is the Bli Bli Local Centre Zone. This consists of a cluster of shops and other services known as the Bli Bli Village River Markets and Town Centre. Bli Bli Road is a major route and is serviced by buses.
  4. [7]
    According to the SCPS the land is located within the Urban growth management boundary. As noted above, this parcel of land is within a Low density residential (‘LDR’) zone but is not within a Protected housing area precinct.[4]

The proposed development

  1. [8]
    The initial proposal was for the construction of three separate buildings that were to contain a total of eight two-storey townhouses. This proposal was amended by the developer and on 21 August 2020, Judge Long SC ordered that the appeal proceed on the basis of the amended development application.[5] The new proposal reduced the number of proposed dwelling units from eight to five. They are still to be contained in three buildings, but each building has a smaller footprint than at first proposed. Compared to the original proposal there has been a reduction in site coverage, increased setbacks from the southern and eastern boundaries, increase to the private and communal open space and changes to the proposed cut and fill.
  2. [9]
    The proposed development would see a building in the south-east corner of the land, designated T1/T2. The building would be two storeys and contain two, three-bedroom units separated by a common wall. The design is for a garage, kitchen and living area on the lower floor and bedrooms on the upper floor. A second and somewhat larger building, designated T3/T4, would be located to the west adjacent to the boundary of the Telstra easement. This building is proposed to be two storey and would also contain two, three-bedroom units separated by a common wall. The plan for these units is a little different. The lower floor would comprise of a garage, lounge area and two bedrooms. The upper floor would house the kitchen, dining and living areas along with a third bedroom. The third building, T5, would be against the northern boundary of the land, also adjacent to the Telstra easement. This would be the smallest building and contain only a single three-bedroom unit. The proposed design is similar to each unit of T3/T4. The balance of the land would be given over to vehicle circulation areas and landscaping. There is provision for private open space (‘POS’) associated with each unit. The entire length of the driveway access to Pelican Place will be screened with an 1800 mm high timber paling fence, as will the boundary the land shares with 3 Pelican Place.

The statutory assessment and decision-making framework

  1. [10]
    The Planning Act 2016 (Qld) (‘PA’) and the Planning and Environment Court Act 2016 (Qld) (‘PECA’) apply. The appeal is by way of hearing anew.[6] The appellants bear the onus of establishing that the appeal should be allowed.[7] I am to determine the appeal as if I were ‘standing in the shoes’ of the assessment manager, applying the law as it presently stands.[8] As such, section 45(5) of the PA requires me to carry out the assessment against the relevant assessment benchmarks and having regard to any other relevant matter. The SCPS, as it was at the time of the application, provides the assessment benchmarks to be considered.[9] In construing the SCPS, the scheme is to be read as a whole, adopting a common-sense approach.[10] The Court’s power to decide the appeal is found in section 47 of PECA. This proposed development is impact assessable.[11] The power of an assessment manager (in whose shoes I stand) to decide an impact assessable development application is found in section 60(3) of the PA. The result of these provisions is that, in determining the appeal, I must confirm the decision to refuse the application, change it (including by imposing conditions), replace it, or set it aside and return the application to the original decision maker with such directions as I consider appropriate.
  2. [11]
    Section 47 of PECA and section 60 of the PA require this Court to exercise a broad, evaluative judgment.[12] The Court is given a discretion to approve a development application even where there is inconsistency with a planning instrument.[13] Thus, the approach required by the PA has been described as one providing ‘flexibility … to approve an application in the face of non-compliance with a planning document’.[14] The relevant planning instruments are to be regarded as the ‘embodiment of the community interest’[15] and the extent to which a proposed development complies with, or departs from, the assessment benchmarks is a relevant matter to be given appropriate weight according to the circumstances.[16]
  3. [12]
    Each code contained with the SCPS has provisions that set out the purpose of the code and the overall outcomes through which the purpose is to be achieved. The codes relevant to this appeal also contain performance outcomes and acceptable outcomes. The appellants submitted that when considering if the proposed development complied with a code, it is sufficient for the appellants to demonstrate compliance with either the purpose and overall outcomes of the code, or the performance outcomes set out in the code, or the acceptable outcomes set out in the code. This is an approach that expressly applies to code assessable development,[17] and there is authority of this Court to the effect that the same approach should be taken to in relation to impact assessable development.[18] The respondent did not submit to the contrary and this is the approach I have taken in the appeal.

What are the relevant assessment benchmarks?

  1. [13]
    The development application is to be assessed against all the relevant parts of the SCPS. The SCPS contains a hierarchy of provisions commencing with the Strategic Framework, which is of broad application, before descending into finer planning controls that have narrower application. These finer controls include the two codes the parties agree are of particular relevance in this appeal: the LDR zone code and the multi-unit residential uses code (‘MURU code’).[19] It is not necessary to discuss every potentially relevant benchmark as there is a degree of overlap and not all benchmarks are of significance to the outcome of this appeal.

Strategic Framework

  1. [14]
    The Strategic Framework, under the heading ‘Settlement Pattern’, emphasises the need to carefully manage growth in the Sunshine Coast region to maintain and advance its character and lifestyle attributes.[20] Urban consolidation is to occur in a way that is compatible with and sympathetic to the preferred character of the local area.[21] When development is considered, the local character and identity of a community is to be recognised and protected.[22] The respondent says the proposed development is inconsistent with these themes. The appellants cite the specific outcome under the Strategic framework of providing diverse and affordable living opportunities.[23] Nothing was said at the hearing about how the proposed development achieves this outcome, and in any event the outcome is expressed in terms that are so abstract it is of little significance in this appeal.
  2. [15]
    The three aspects of the Strategic Framework identified by the respondent all relate to issues of character and amenity. The extent to which the proposed development would diminish the character and amenity of the locality, and whether this should result in refusal of the development application, is connected to issues raised by the relevant codes, and is considered below.

Low density residential zone code

  1. [16]
    The stated purpose of this code is to provide for predominantly low density, low rise residential activities on conventional urban size lots.[24] The purpose of the code is to be achieved through a series of overall outcomes. These promote attractive, open, and low-density urban development,[25] primarily in the form of dwelling houses,[26] that are designed and located in a manner that makes a positive contribution to the streetscape and is sympathetic to the existing and intended scale and character of surrounding development.[27] As may be seen by the use of the words ‘predominantly’ and ‘primarily’, the code allows for other residential activities. This is accommodated in 6.2.1.2(2)(c), which provides

dual occupancies and limited other residential activities such as residential care facilities may be established … where their scale and operation is compatible with, and does not detract from, the residential character and amenity of the zone.

  1. [17]
    A table in the LDR Zone Code provides a list of uses in the zone that are consistent or potentially consistent with the code. Multiple dwelling, a use proposed by this development, is not listed, and is therefore an inconsistent use.[28] The significance of this inconsistency, which is central to the respondent’s case,[29] is also considered below.

Multi-unit residential uses code

  1. [18]
    The second code said to be of relevance raises much the same considerations as the LDR zone code. The purpose of the MURU code is to ensure that multi-unit residential uses, such as the proposed development, are of a high-quality design that appropriately respond to local character, environment, and amenity considerations.[30] The overall outcomes by which this is to be achieved include that multi-unit development is to be visually attractive, with a built form that addresses the street and integrates with surrounding development, and which includes building design that responds to the character of the local area.[31] The relevant performance and acceptable outcomes identified as the parties are extracted below.[32]

Performance Outcomes

Site Layout and Relationship of Buildings to Site Features

PO1

The multi-unit residential use is sited and designed so as to:-

  1. (a)
    take account of its setting and site context;
  2. (b)
    create an attractive living environment for residents; and
  3. (c)
    make a positive contribution to the character of the street and local area.

AO1

 

No acceptable outcome provided.

PO2

The multi-unit residential use is located on a site which has an area and dimensions capable of accommodating a well-designed and integrated multi-unit residential development incorporating:-

  1. (a)
    vehicle access, parking and manoeuvring areas;
  2. (b)
    communal and private open space areas and landscapes; and
  3. (c)
    any necessary buffering to incompatible uses or sensitive environments.

AO2.1

 

AO2.2

The multi-unit residential use is located on a lot having a minimum area of 800m2.

The multi-unit residential use is not located on a hatchet/battle axe lot or a lot otherwise relying upon access via an easement.

Residential Density

PO6

A multi-unit residential use has a residential density that is compatible with the intent of the zone and the preferred character for the local area in which it is located.

AO6

 

Except where otherwise specified in a structure plan or local plan code, the site density for a multi-unit residential use:-

  1. (a)
    is between 30 and 50 equivalent dwellings per hectare where in the Medium density residential zone or Local centre zone;
  2. (b)
    is not less than 50 equivalent dwellings per hectare where in the High density residential zone or Major centre zone.
  1. [19]
    Two matters arising from these extracts should be immediately noted. First, this proposed development is a multi-unit residential use on a battle axe lot. As such it is inconsistent with AO2.2. Secondly, AO6 provides metrics only for development in medium and high density zones. No measure is provided for multi-unit residential use in a low-density zone. I will return to what this means for the proposed development as I consider the issues raised by the parties.

Is the proposed development inconsistent with the character of the locality?

  1. [20]
    The SCPS clearly emphasises the importance of local character. One way in which the scheme protects established character is by identifying uses of land in particular zones as ‘consistent’, ‘potentially consistent’, or ‘inconsistent’. As set out above, the use of the proposed development is categorised as inconsistent. The LDR zone code contains a note to the effect that an inconsistent use ‘is not intended for the Low density residential zone’.[33] The respondent relies upon this as evidencing the ‘strongest level of planning intent’. So much may be accepted. But inconsistency with the planning scheme, even inconsistency with an important provision, does not on its own determine the outcome of the appeal. The significance of the inconsistency is to be determined by understanding the context of the provision within the planning scheme.
  2. [21]
    The provisions of the scheme set out above are ample to demonstrate the planning purpose behind the categorisation of multi-unit residential use as an inconsistent use in a low-density residential zone is concerned with the protection of local character. That being the case, it is relevant to consider the extent to which the proposed development would detract from local character. If the development achieves the planning purpose of maintaining local character, even while being an inconsistent use, it may be appropriate for it to be approved. The broad purpose of protecting the character of the local area may be broken into discrete considerations, having regard to the provisions of the code that have been put in issue in this appeal.

Will the locality remain predominated by low rise, low density uses?

  1. [22]
    In the context of the SPCS, to predominate may be taken to mean to stay ‘the main, most abundant or strongest element’ with the local area.[34] It was agreed by the town planners who gave evidence that the predominant character of the locality is that of detached welling houses. This is so despite the large Halcyon development nearby.[35] The proposed development is for three buildings of ‘dwelling house scale’ and character.[36] There will be limited visibility of the buildings from surrounding private properties.[37] In this context it is unsurprising that Mr Perkins, the town planner who testified on behalf of the respondent, conceded that approval of this one development would not have a significant impact on the predominance of detached dwelling houses in the locality.[38]

Will the proposed development be low-rise and low-density?

  1. [23]
    I have mentioned something of the design of the buildings. There was no dispute that they would represent low-rise development.[39] There was some dispute about whether the development will be low-density. There is no specific definition of ‘low-density’ in the LDR zone code. But a sense of what is intended by the code may be gathered by its reference to dwelling houses on conventional sized urban residential lots. The MURU code provides measures only for medium (30 to 50 equivalent dwellings per hectare) and high (not less than 50 equivalent dwellings per hectare) density zones. Mr Perkins accepted that this hierarchy suggested a reasonable anticipated density for a low-density zone would be something below 30 equivalent dwellings per hectare.[40] Of course, the absence of a metric for multi-unit residential use in a LDR zone may also reflect a deliberate choice, reinforcing that such use is inconsistent with the LDR zone code.[41]
  2. [24]
    Both Mr Perkins and Mr Rayment, the town planner called on behalf of the appellants, did some calculations concerning the density of the proposed development. Each calculation was based on different assumptions about what to include in deciding the area of the land. The results varied considerably depending on whether the Telstra easement and access handle were included in the land area, and whether the numerator in the equation was determined by the number of buildings in the proposed development or the number of equivalent dwellings. In the end, the calculations provide some assistance, but are not determinative. As Mr Perkins acknowledged, the density of the development is but one consideration when assessing its character. The scale and nature of any building, as well as the amount of the site that will be covered, are also relevant considerations.[42] Ms Rayment considered the proposed buildings to be of a scale and form that was compatible with surrounding residential dwellings. She thought they would have a height and footprint that is no more than, and perhaps smaller than, other low-rise detached dwellings in the area.[43] Mr Perkins agreed that the buildings of the proposed development were of house scale.[44] As far as site cover is concerned, the proposed development would result in about 32% of the site (excluding the Telstra easement) being covered. This is considerably less than is allowed for a dwelling house.[45]
  3. [25]
    One matter pressed by the respondent was a calculation by Mr Perkins that resulted in a site density of 34 equivalent dwellings per hectare. This calculation treated the five three-bedroom-units as 6.75 equivalent dwellings and excluded the area of the Telstra easement.[46] As noted, 34 equivalent dwellings per hectare is a density intended for medium-density zones. This is not to be ignored, but it represents just one approach to an assessment of the density of the development, which is itself but one relevant consideration. Where, as here, the proposed development has a scale and site cover consistent with low-density development, Mr Perkins’ calculation does not result in a significant inconsistency with the aims of the scheme.
  4. [26]
    Having regard to these matters, the appellants have demonstrated that the proposed development is generally consistent with the aims of the LDR zone code. That is, the proposed development is low-rise and low-density.

Is the site an appropriate location for the development?

  1. [27]
    This question arises both in terms of general planning principles and because of the acceptable outcome of the MURU code that eschews multi-unit residential use on battle axe lots. Of course, inconsistency with this acceptable outcome cannot, on its own, require refusal of the development application. It is a relevant factor, but one to be given appropriate weight given its context, which includes the following performance outcome:

The multi-unit residential use is located on a site which has an area and dimensions capable of accommodating a well-designed and integrated multi-unit residential development incorporating:-

  1. (a)
    vehicle access, parking and manoeuvring areas;
  1. (b)
    communal and private open space areas and landscapes; and
  1. (c)
    any necessary buffering to incompatible uses or sensitive environments.
  1. [28]
    There is no dispute that the proposed development would achieve these aims. The respondent makes no complaint about traffic issues. This proposed development, being for fewer that 10 dwellings, is not required to provide dedicated communal open space under the MURU code.[47] There is ample private open space,[48] and the proposed development complies with all necessary setbacks.[49] The site is adjacent to a major road the is serviced by public transport, and it is relatively close to the Local centre zone. The site is one which is generally appropriate for this proposed development, and I am satisfied the appellants have demonstrated compliance with the relevant performance outcome.
  2. [29]
    In these circumstances, any concern about the development being on a battle axe lot falls away. It may be readily understood why multi-unit residential use would not usually be desirable on such lots. Often, issues concerning traffic, access, and the effect on the amenity of surroundings lots would be a concern. Traffic is not an issue raised by the respondent. And the site possesses other, almost unique qualities that mitigate the remaining concerns. It is not ‘landlocked’ and has access through the handle onto Pelican Place as well as pedestrian access from Bli Bli Road through the easement. To the south there is the buffer of the old sugar cane railway and cutting, and to the north is a very large block that is screened by mature vegetation. As discussed further below, these characteristics reduce the negative effect on local amenity to an almost negligible degree. Perhaps unusually, the battle axe layout of this site is a positive feature.
  3. [30]
    I am satisfied the appellants have demonstrated the site is an appropriate location for the proposed development.

A positive contribution to the character of the street and local area?

  1. [31]
    Another performance outcome of the MURU code speaks of development that makes a positive contribution to the character of the street and local area. Given the unusual characteristics of the site, this provision is largely irrelevant. As Mr Perkins observed, the proposed development cannot readily address either Bli Bli Road or Pelican Place.[50] There is very little street frontage, and what there is will be improved by a formal driveway. The natural screening offered by the site means there is little opportunity for the proposed development to contribute to local character, whether in a positive or negative way.

Conclusion regarding character

  1. [32]
    The proposed development will be low-rise and low-density. It is on an appropriate site and will not alter the fact that low-rise, low-density uses predominate in the local area. In my view the proposed development is not inconsistent with the character of the local area.

Would the proposed development result in unacceptable negative effects upon the amenity of the locality?

  1. [33]
    The second issue raised by the planning provisions concerns amenity, particularly visual amenity. If the proposed development would result in a substantial negative effect on local amenity, this would be a matter tending against its approval. The position ultimately taken by the respondent seemed to concede that the proposed development would have no substantial adverse impacts on amenity.[51] If so, this was a proper concession to make. The only matter in the SCPS concerning amenity that was raised by the respondent was the purpose of the MURU code that aimed for developments to appropriately respond to local amenity considerations.[52] And, as submitted by the appellants, the abandonment of issues concerned noise, light and traffic leaves only visual amenity to considered.
  2. [34]
    In this regard the appellants relied upon the evidence of Suzie Rawlinson, a visual amenity expert.[53] The respondent did not adduce evidence from a visual amenity expert. In her first report,[54] Ms Rawlinson offered the opinions that:
  1. (a)
    the proposed development was compatible with, and sympathetic to, the low density residential character of the local area,
  2. (b)
    the spatial relationships and intervisibility between the proposed buildings and neighbouring dwelling houses would be similar to that already experienced within the neighbourhood;
  3. (c)
    there would be limited visibility of the proposed development from surrounding roads and houses. As there is no vantage point from which the entirety of the development could be seen, the additional density is absorbed into views from surrounding areas
  4. (d)
    any residual visual amenity concerns could be addressed through landscaping.
  1. [35]
    Ms Rawlinson specifically addressed the concerns of the owner of 3 Pelican Place, Mr Adler, who had provided an affidavit.[55] One of Mr Adler’s concerns, which he shared with the respondent, was that the proposed multi-unit residential use would be inconsistent with local character. I have addressed this concern above. A concern about the effects of a fence and retaining wall proposed to separate the development and Mr Adler’s property was address by Ms Rawlinson. The fence itself would be an ordinary 1.8-metre-high timber fence of a kind that might commonly be constructed on residential blocks. Ms Rawlison did not think the fence, or associated retaining wall, would cause an adverse visual impact.[56] The buildings of the proposed development are to be set back. The nearest building to Mr Adler, T1, would be set back about four metres. The fence and landscaping would filter views from Mr Adler’s property so that what could be seen would not differ much from the view toward any other neighbouring property.[57] Mr Rawlinson’s opinion did not change in cross-examination.
  2. [36]
    Mr Perkins raised a concern about whether the proposed landscaping could be achieved but conceded he would defer to the expertise of others in this area.[58] Ms Rawlinson, who has post-graduate qualifications and 25 years’ experience in landscape architecture, is such an expert. She addressed this concern in a supplementary report and was satisfied the proposed landscaping outcomes can be achieved.[59]
  3. [37]
    The evidence shows that the proposed development will not have an unacceptable effect on the amenity of the local area.

Should the proposed development be approved?

  1. [38]
    The absence of negative impacts from the proposed development is a relevant matter to consider.[60] While the SCPS may be taken to be an expression of community interest, the significance of any departure from the scheme may be measured, in part, by having regard to the adverse effects that might result. Where, as here, there are an absence of adverse effects or negative impacts, the significance of departure from the scheme is considerably lessened.
  2. [39]
    The proposed development will provide infill residential development in a manner that is consistent with the strategic aims of the SCPS.[61] The proposal is well designed and, while representing an inconsistent use for the LDR zone, responds to the essential concerns of the planning scheme.
  3. [40]
    One matter discussed in evidence concerned the possibility that a development of a similar kind might be achieved through a code assessable process of subdivision.[62] This was considered especially relevant by Ms Rayment for the appellants. The rationale was that if a development like this could be built on the site anyway, it was less significant that the present proposal was inconsistent with the LDR zone code. The respondent took issue with Ms Rayment’s opinion about what could be achieved through subdivision, though the difference between the town planner was probably not that great.[63] In the end, it is unnecessary to come to a concluded view about this as I am otherwise persuaded that the appellants have discharged their onus and the development should be approved.
  4. [41]
    There remains a question about what, if any, conditions should be imposed on the approval. The parties agreed that in the event the appeal was allowed, and the development approved, they would seek to settle appropriate conditions.

Conclusion and orders

  1. [42]
    The proposed development is unusual, if not unique. It is to occur on land that is particularly well-suited, and which possesses qualities that will reduce any negative effects on local character and amenity to a negligible level. The proposed development is also designed in a manner unlike many multiple dwelling developments. It is sympathetic to local character both in built form and, generally, in site density. These features combine to produce the result that the proposed development should be approved, despite it representing an inconsistent use within the low-density residential zone.
  2. [43]
    For these reasons the orders will be:
  1. The appeal is allowed;
  2. The respondent’s decision to refuse the development application is set aside;
  3. Instead the development application will be approved, subject to lawful conditions;
  4. The parties are to attempt to reach agreement as to appropriate lawful conditions.
  1. [44]
    In the event the parties reach agreement as to the final orders to be made, the appeal may be listed for mention for the purpose of making orders. Otherwise, I will hear the parties to resolve any remaining dispute.

Footnotes

[1]  The issues in dispute narrowed considerably prior to the hearing. The respondent’s concerns about traffic, noise, lighting, and stormwater were abandoned prior to the hearing – see exhibit 3, pp 14-18. What remained in dispute was identified by the parties in exhibit 1 which can, I think, be summarised as I have set out.

[2] Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253 [2020] 48 QLR, [59].

[3]  T.2-5.36-41.

[4]  The Protected housing area precincts identify areas where the categories of permitted residential activity are further restricted.

[5]  There have since been further amendments to address concerns with traffic and stormwater. They are not material to the appeal and on 15 October 2021 I accepted they were minor changes and ordered the appeal to proceed on the basis of the most recent plans.

[6]  PECA, s 43.

[7]  PECA, s 45.

[8]  PECA, s 46; Jakel Pty Ltd v Brisbane City Council & Anor (2018) 231 LGERA 253, [93].

[9] Planning Act, s 45(7). In this appeal the applicable version of the scheme is Version 16, 19 October 2018. It has not been suggested there have been subsequent changes to the SCPS relevant to this appeal.

[10]  Zappala Family Co Pty Ltd v Brisbane City Council (2014) 201 LGERA 82; [2014] QPELR 686.

[11]  SCPS, Part 5, Table 5.5.1 (Exhibit 8, p 117). According to SCPS Schedule 1, the proposed use is multiple dwelling. This is not a listed use for residential activities in a LDR Zone and is therefore subject to impact assessment.

[12]  Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253 [2020] 48 QLR, [59].

[13]  Ibid, [62].

[14] Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16; [2019] QPELR 793, [51], cited with approval in Abeleda & Anor v Brisbane City Council & Anor [2020] QCA 257; [2020] 48 QLR, [54]-[58].

[15] Abeleda, [54].

[16] Abeleda, [42].

[17]  Section 5.3.3(3)(a)(iii)

[18]  United Petroleum Pty Ltd v Gold Coast City Council & Anor [2018] QPEC 8; [2018] QPELR 510, [118]; Lennium Group Pty Ltd v Brisbane City Council & Ors [2019] QPEC 17; [2019] QPELR 835, [201].

[19]  The respondent had also put in issue the Bli Bli local plan code but in final submission eschewed reliance upon it.

[20]  Section 3.3.1(a) – Exhibit 8, tab 7, p 36.

[21]  Section 3.3.4.1(c) – Exhibit 8, tab 7, p 39.

[22]  Section 3.3.9.1(a) – Exhibit 8, tab 7, p 41.

[23]  Section 3.3.5.1(a) – Exhibit 8, tab 7, p 39.

[24]  Section 6.2.1.2(1) – Exhibit 8, tab 27, p 225.

[25]  Section 6.2.1.2(2)(a) – Exhibit 8, tab 27, p 225.

[26]  Section 6.2.1.2(2)(b) – Exhibit 8, tab 27, p 225.

[27]  Section 6.2.1.2(2)(g) – Exhibit 8, tab 27, p 226.

[28]  Section 6.2.1.2(2)(o) and Table 6.2.1.2.1 – Exhibit 8, tab 27, pp 225-226.

[29]  Respondent’s outline of argument, 12 October 2021, paragraph 16.

[30]  Section 9.3.11.2(1) – Exhibit 8, tab 37, p 266.

[31]  Section 9.3.11.2(2)(a) and (b) – Exhibit 8, tab 37, p 266.

[32]  From table 9.3.11.3.1 – Exhibit 8, tab 37, pp 266-267. The respondent abandoned reliance upon PO8.

[33]  The note follows section 6.2.1.2(2)(o).

[34] Jakel Pty Ltd & Ors v Brisbane City Council & Anor [2018] QPEC 21; (2018) 231 LGERA 253; [2018] QPELR 763, [113], citing Lake Maroona Pty Ltd v Gladstone Regional Council [2017] QPEC 25; (2017) LGERA 166; [2017] QPELR 628, [70].

[35]  T.2-8.1; T.2-43.40-48.

[36]  Report of Suzie Rawlinson, visual amenity expert, exhibit 4, pp 12-13, paragraphs 3.3-3.4.

[37]  Ibid, pp 17-19, paragraphs 4.2-4.3.

[38]  T.2-43.1-4.

[39]  T.2-6.24; T.2-41.9.

[40]  T.2-16.14-27.

[41]  Joint expert report (JER), exhibit 5, p 27, paragraph 104.

[42]  T.2-40.12-27.

[43]  JER, exhibit 5, p 19, paragraph 69(c).

[44]  T.2-41.11-13.

[45]  Up to 50% for a dwelling house and up to 40% for a dual-occupancy: T.2-39.42-46.

[46]  JER, exhibit 5, p 27-28, paragraph 105.

[47]  Table 9.3.11.3.1, AO11.2 – Exhibit 8, tab 37, p 269.

[48]  Supplementary report of Suzie Rawlinson, exhibit 6, pp 2-3, paragraph 2.1-2.5.

[49]  T.2-47.8-9.

[50]  JER, exhibit 5, p 35, paragraph 133(a).

[51]  Respondent’s final submissions, paragraph 47(c).

[52]  Section 9.3.11.2(1) – Exhibit 8, tab 37, p 266.

[53]  The respondent did not produce any evidence concerning visual amenity.

[54]  Report of Suzie Rawlinson, exhibit 4, p 31.

[55]  Court document 38.

[56]  T.1-34.24-37.

[57]  T.1-34.43-T.1-35.4.

[58]  T.2-46.31-33.

[59]  Supplementary report of Suzie Rawlinson, exhibit 6, p 7.

[60] Abeleda, [61].

[61]  JER, exhibit 5, p 21, paragraphs 75-78.

[62]  JER, exhibit 5, p 20, paragraph 69.

[63]  T.2-37.10-T.2-38.23.

Close

Editorial Notes

  • Published Case Name:

    Hill & Ors v Sunshine Coast Regional Council

  • Shortened Case Name:

    Hill v Sunshine Coast Regional Council

  • MNC:

    [2021] QPEC 59

  • Court:

    QPEC

  • Judge(s):

    Cash QC DCJ

  • Date:

    29 Oct 2021

Appeal Status

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

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.