Casinco Pty Ltd v Council of the City of Gold Coast [2022] QPEC 50 [2024] QPELR 184

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Casinco Pty Ltd v Council of the City of Gold Coast [2022] QPEC 50 PARTIES: CASINCO PTY LTD (Appellant) v COUNCIL OF THE CITY OF GOLD COAST (Respondent) FILE NO/S: 432 of 2021 DIVISION: Planning and Environment PROCEEDING: Appeal ORIGINATING COURT: Planning and Environment Court at Southport DELIVERED ON: 6 December 2022 DELIVERED AT: Brisbane HEARING DATE: 31 October and 1 and 2 November 2022 and further written submissions received on 11 November 2022 JUDGE: Jackson KC DCJ ORDER: The appeal is dismissed CATCHWORDS: ENVIRONMENT AND PLANNING – ENVIRONMENTAL PLANNING – APPEAL – PLANNING SCHEMES AND INSTRUMENTS – QUEENSLAND – REZONING APPLICATIONS – GENERALLY – Where the respondent refused an application to reconfigure a freehold lot with an area of 8094m² into two lots – where the two lots would be half of the minimum average lot size in the rural residential area of Tallai – whether or not the proposal would protect the local character and amenity of the rural residential area in line with the planning scheme. LEGISLATION: Planning Act 2016 (Qld) Planning and Environment Court Act 2016 (Qld) CASES: Abeleda & Anor v Brisbane City Council & Anor [2021] QPELR 1003; [2020] QCA 257 Ashvan Investments Unit Trust v Brisbane City Council [2019] QPELR 793 Barro Group Pty Ltd v Sunshine Coast Regional Council -- 1 of 42 -- 2 [2022] QPELR 235; [2021] QPEC 18 Bowyer Group Pty Ltd v Cook Shire Council & Ors [2022] QPEC 33 Brisbane City Council v YQ Property Pty Ltd [2021] QPELR 987; [2020] QCA 253 Jackson v Brisbane City Council [2018] QPELR 264; [2017] QPEC 72 Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2020] QPELR 328; [2019] QPEC 046 Smout v Brisbane City Council [2019] QPELR 684; [2019] QPEC 010 Stenders Morris & Partners v Council of the City of Cairns [1989] QPLR 15 Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Ltd v Fabcot Pty Ltd & Ors [2022] QPELR 309; [2021] QCA 095 Toro v Brisbane City Council & Anor [2020] QPELR 490; [2019] QPEC 53 COUNSEL: D D Purcell for the appellant N D Loos for the respondent SOLICITORS: Hickey Lawyers for the appellant Norton Rose Fulbright for the respondent Introduction [1] The subject site, 2 Alawara Drive, Tallai (formally described as Lot 73 on RP134858) is a freehold lot with an area of 8,094m² situated on the corner of Alawara Drive and Worongary Road. Alawara Drive is a cul-de-sac which (from Worongary Road) provides the only access to what is described in the evidence as a “bounded area” comprising 56 allotments which it is uncontroversial is part of an estate created many years ago. [2] The subject site is in a rural residential area of Tallai. The majority of the properties in the local area are 8,000m² or larger. [3] The appellant, Casinco Pty Ltd (ACN 009 515 413), applied for reconfiguration (one lot into two) of the subject site such that the resulting lots would be approximately half the minimum average lot size provided for in the relevant planning instrument and about half the size of most other blocks in the local area. -- 2 of 42 -- 3 [4] The appellant lodged the development application with the respondent on 11 January 2021 (“the application”).1 It sought approval for a development permit for reconfiguration of a lot. The application was impact assessable under the Gold Coast City Plan (Version 8) (“the City Plan”).2 The respondent issued an information request seeking further information regarding character and amenity on 2 February 2021. A response was provided as to these issues dated 30 July 2021. Public notification occurred between 10 August 2021 and 1 September 2021 eliciting 18 properly made submissions.3 There were 5 submissions opposing the proposal and 13 in support of it. [5] The application was refused by decision notice dated 24 November 2021. The reasons, amongst others, included non-compliance with the planning scheme, that the proposal does not support the lifestyle and amenity aspirations of the residents in the area and is not consistent with the current and desired future character and amenity of the area and it does not meet the average lot size requirement of 8,000m² specified in the planning scheme. [6] This appeal was commenced on 9 December 2021. Issues on appeal [7] The Agreed List of Issues is as follows:4 “The parties agree that, in exercising the Court’s discretion under section 60(3) of the Planning Act 2016 (Qld) to approve or refuse the proposed development, the following matters are the issues in dispute: Planned subdivision pattern 1. Whether the lot size, design and configuration of the proposed development is consistent with the existing and planned subdivision requirements and pattern in the Rural residential zone (or otherwise warrants refusal) having regard to the following assessment benchmarks: Identified assessment benchmarks 1 Part of exhibit 2. 2 Exhibit 7. 3 Exhibit 8. See also the individual statements from 3 submitters opposing the development which are exhibits 9, 10 and 11. Those witnesses were not required for cross-examination. 4 Agreed List of Issues – MFI B. -- 3 of 42 -- 4 (a) Rural residential zone code: Overall Outcome 2(d)(ii) and Performance Outcome PO7 Character and Amenity 1. Whether the proposed development (reconfiguration 1 lot into 2) maintains and supports (or disrupts) the existing, planned and desired future local character and amenity of the Rural residential zone having regard to the following assessment benchmarks: Identified assessment benchmarks (a) Strategic Framework: Strategic Outcome 3.3.1(15) and Specific Outcomes s.3.3.7.1(1) and (3) and s.3.8.3.1(1) (b) Rural residential zone code: Overall Outcomes 2(b)(i) and (ii), 2(d)(i) and (ii) and Performance Outcome PO7 Relevant matters 1. Whether the following matters support approval or refusal of the proposed development in the exercise of the Court’s discretion: (c) Whether the proposed development is consistent with reasonable community expectations for the land. (d) Whether the proposed development would compromise and disrupt the subdivision pattern of the local area. (e) Whether the proposed development results in any adverse planning consequences or amenity impacts. (f) Whether the proposed development is consistent with the draft amendments (Major Update 2 and 3) of the City Plan to the extent relevant.” Nature of the appeal and relevant principles [8] Section 43 of the Planning and Environment Court Act 2016 (“PECA”) provides that an appeal to this Court is by way of hearing anew.5 As is clear from ss 45(1) of the PECA, the appellant bears the onus of proof. 5 PECA ss 45(1). -- 4 of 42 -- 5 [9] Sub-section 46(2) of the PECA provides that when an appeal is being heard s 45 of the Planning Act 2016 (“Planning Act”) is to be read as if the Court were the assessment manager for the development application. [10] Because the assessable development in this matter was subject to impact assessment the assessment must be carried out against the assessment benchmarks in a categorising instrument for the development (here, as I have already identified, the City Plan) and having regard to any matters prescribed by regulation.6 Further, the assessment may be carried out against, or having regard to, any other relevant matter other than the person’s personal circumstances, financial or otherwise.7 [11] In Abeleda & Anor v Brisbane City Council & Anor8 (Abeleda) the Court of Appeal (Mullins JA (as the President then was) with whom Brown and Wilson JJ agreed) endorsed the approach of Williamson KC DCJ in Ashvan Investments Unit Trust v Brisbane City Council9 (Ashvan) in respect of the decision-making process under the Planning Act.10 [12] The assessment by the Court under the Planning Act requires a “broad evaluative judgment”.11 [13] I note the observation of Williamson KC DCJ12 that the discretion under ss 60(3) of the Planning Act permits a more flexible approach in the face of non-compliance with a planning scheme than might have been the case under the previous legislation and secondly that the exercise of discretion is subject to three requirements which were previously referred to by his Honour in Smout v Brisbane City Council.13 [14] Those requirements are as follows: 6 Sub-section 31(1)(g) of the Planning Regulation 2017 identifies the “common material” as being a matter prescribed by regulation, which term, in turn, includes properly made submissions. 7 Sub-section 45(5) of the Planning Act. The matters agreed to be relevant are identified in the Agreed List of Issues which I have set out above. 8 [2020] QCA 257 at [52]-[61]. 9 [2019] QPELR 793. 10 Abeleda at [62]. 11 Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253 at [59] per Henry J with whom Fraser and Morrison JJA agreed. 12 Ashvan at [51]; approved by the Court of Appeal in Abeleda at [53]. 13 [2019] QPEC 10 at [51]. Referred to subsequently in Ashvan at [62] and referred to with apparent approval by the Court of Appeal in Abeleda. See also Barro Group Pty Ltd v Sunshine Coast Regional Council [2021] QPEC 18 at [43]. -- 5 of 42 -- 6 “The planning discretion conferred under the [Planning Act] to decide an impact assessable application is broad. It is to be exercised subject to three requirements: (1) it must be based on the assessment carried out under s 45 of the [Planning Act]; (2) the decision making function must be performed in a way that is consistent with s 5(1) of the [Planning Act], namely the assessment and decision making function must be performed in a way that advances the purpose of the Act; and (3) the discretion is subject to any implied limitation arising from the purpose, scope and subject matter of the [Planning Act].” [15] In Abeleda, Mullins JA stated that: 14 “Subject to the recognition that the Act has not changed the characterisation of a planning scheme as the embodiment of the community interest, I also agree with the observations of Williamson QC DCJ at [53] – [54] of Ashvan on the role of non-compliance with planning scheme in the exercise of the planning discretion under s 60(3) of the Act.” His Honour had said:15 “An application must be assessed against the applicable assessment benchmarks, which will invariably include a planning scheme for appeals before this Court. That assessment will inform whether an approval would be consistent, or otherwise, with adopted statutory planning controls. The existence of a non-compliance with such a document will be a relevant ‘fact and circumstance’ in the exercise of the planning discretion under s.60(3) of PA. Whether that fact and circumstance warrants refusal of an application, or is determinative one way or another, is a separate and distinct question. That question is no longer answered by a provision such as s.326(1)(b) of SPA. It will be a matter for the assessment manager (or this Court on appeal) to determine how, and in what way, non-compliance with an adopted statutory planning control informs the exercise of the discretion conferred by s.60(3) of the PA. It should not be assumed that non- compliance with an assessment benchmark automatically warrants refusal. This must be established, just as the non-compliance must itself be established.” Thus, the existence of non-compliance with the planning scheme will be “a relevant fact and circumstance” in the exercise of discretion called for under s 60(3). The question that then arises is whether that matter warrants a refusal or is determinative. As his Honour said,16 what is called for is: “an assessment manager (or this Court on appeal) to reach a balanced decision in the public interest where two competing considerations are 14 At [54]. 15 At [53]. 16 At [54]. -- 6 of 42 -- 7 at play: (1) the need for the rigid application of planning documents on the one hand; as against (2) the adoption of a flexible approach to the application of planning documents to, inter alia, exercise the discretion in a manner that advances the purpose of the (Planning Act).” [16] Mullins JA and the other members of the Court of Appeal accepted17 as apposite the observations of Williamson KC DCJ in Ashvan18 to the effect that that balance between rigidity and flexibility is not something which lent itself to any kind of descriptive formula. In any particular case: “It will turn on the facts and circumstances of each case, including the nature and extent of the non-compliance, if any, identified with an assessment benchmark.19 [17] In Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Ltd v Fabcot Pty Ltd & Ors20 (Trinity) the Court of Appeal (Brown J, with whom Philippides and Mullins JJA agreed) reiterated the continuing importance of a planning scheme.21 However, it was recognised that while “a planning scheme must be accepted as a comprehensive expression of what will constitute in the public interest the appropriate development of land”,22 the approach otherwise to the decision-making process was quite different than under the legislation that applied in Bell. [18] The decision called for under ss 60(3) of the Planning Act is based upon an assessment carried out under ss 45(5) of the Planning Act. The discretion, although broad, is obviously to be exercised judicially and it must withstand scrutiny as identified by Williamson KC DCJ in Ashvan23 by reference to Stenders Morris & Partners v Council of the City of Cairns.24 In Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional 17 At [56]. 18 At [60]. 19 See Ashvan at [60] extracted in [56] of Abeleda. 20 [2021] QCA 095. 21 At [178] and following. 22 Bell v Brisbane City Council [2018] LGERA 374 (Bell) at [66] per McMurdo JA (with whom Sofronoff P and Philippides JA agreed). 23 At [64]. 24 [1989] QPLR 15 at 18 per Quirk DCJ. -- 7 of 42 -- 8 Council & Anor25 (Murphy) Kefford DCJ said of a planning decision under the Planning Act that:26 “It must strike the balance between the maintenance of confidence in a planning scheme on the one hand and dynamic land use needs and recognition that town planning is not an exact science on the other.” [19] Such confidence in the planning scheme, in my view, has particular significance where a requirement such as that “to protect [or maintain and not disrupt] local amenity and character” permeates the planning scheme in a consistent way from the strategic framework through to the Rural Residential Zone Code being reflected in Overall Outcome 2(b) and Overall Outcome 2(d). [20] I was also referred to the reasons for judgment of Morzone KC DCJ in Bowyer Group Pty Ltd v Cook Shire Council & Ors27 for what proved to be a useful collection of the matters relevant to the decision-making process. [21] I was referred to several authorities concerning the significance or otherwise of an Overall Outcome in a zone being expressed quantitatively (even if perhaps being expressed qualitatively as well) rather than such expression being the subject of a performance outcome or acceptable outcome only. These decisions are Jackson v Brisbane City Council28 (Jackson), Smout29 and Toro v Brisbane City Council & Anor30 (Toro). The land and its surrounds [22] As I have mentioned, the subject site is a corner lot with frontage to Worongary Road and Alawara Drive. The Worongary Road frontage is approximately 110 metres while that to Alawara Drive is about 85 metres. [23] The subject site is presently developed with a house and associated domestic outbuildings situated in the south-western portion of the site. The site is accessed from Alawara Drive and that access would continue to be the access for proposed lot 25 [2020] QPELR 328. 26 At [22]. 27 [2022] QPEC 33 at [30] and following. 28 [2017] QPEC 72. 29 Supra. 30 [2019] QPEC 53. -- 8 of 42 -- 9 1. The eastern portion of the subject site is presently an open grassed area. The land slopes relatively gently from south to north down towards Worongary Road. [24] Worongary Road is a State-controlled road connecting Mudgeeraba Road (and subsequently the Pacific Motorway) to the east and connecting further into the Gold Coast hinterland to the west. Alawara Drive is a long cul-de-sac with branches which travel off giving access to other lots within what I have described as the “bounded area”. [25] To the north of the subject site across Worongary Road is the Mudgeeraba Showgrounds incorporating the Mudgeeraba Pony and Hack Club. Also, on the northern side of the road and approximately 120 metres to the east, is a veterinary surgery located on the corner of Worongary Road and Mudgeeraba Road. Further to the east, situated on the eastern side of Mudgeeraba Road, is a place of worship, childcare centre and aged care facility. [26] To the north-west of the site (again, on the northern side of Worongary Road), are detached houses on rural residential lots which are generally approximately 8,000m² in area and which back onto Worongary Creek. The fact that they back onto Worongary Creek is said in the various reports to have necessitated the location of the houses close to the Worongary Road frontage. The widths of those lots vary between 45 metres and 70 metres. [27] Immediately to the south and to the east there are for the most part dwelling houses on single lots that are approximately the same size as the subject site. [28] Some exceptions to this are noted in the joint expert report prepared by the town planners dated 4 May 2022 (“Town Planners Joint Report”) as follows: “(a) 5 Alawara Drive, which is approximately 35 metres to the west of the site, is a 1,545m² lot with a single detached dwelling and associated outbuildings. (b) 3 Alawara Drive, which is approximately 25m west of the site (immediately to the west across Alawara Drive), is developed with a ‘second detached dwelling’ and includes two, detached dwelling house sized dwellings and associated outbuildings on the site (MCU201401272 approved on 13 March 2015). (This appears to be a group title format). -- 9 of 42 -- 10 (c) 65 Worongary Road, which is approximately 350 metres to the west of the site along Worongary Road, is developed with a ‘second detached dwelling’ and includes two, detached dwelling house sized dwelling units and associated outbuildings on the site (MCU201700462 approved on 26 April 2017). (d) other examples of Dual occupancy (two detached dwelling houses on a single lot) development within the broader area.” [29] It should be noted that it was accepted that 5 Alawara Drive was an anomaly having been created in 1967 well before there was a rural residential area31 and Mr Schomburgk in cross examination explained that the examples of dual or more occupancy involved additional dwellings obscured from view behind the primary or original dwelling.32 Description of the proposal [30] As I have mentioned the proposal is to undertake a one into two sub-division of the subject site, which is presently 8,094m² in area. It is proposed that lot 1, which would include the existing house, would be 4,079m² in area and lot 2, 4,015m². Lot 1 would retain its access to Alawara Drive with a frontage of 85 metres and it would have a frontage to Worongary Road of approximately 50 metres. Lot 2 would include new vehicular access from Worongary Road33 and a frontage of approximately 60 metres. A plan was provided in response to the information request which demonstrates the possibility of locating the new dwelling house on lot 2 on the higher southern part thereby maximising the setback from Worongary Road.34 Relevant assessment benchmarks [31] The development application is to be assessed against the assessment benchmarks in a categorising instrument. Relevantly in this matter that requires assessment against the City Plan. [32] As appears from the material, the respondent is in the process of amending the planning scheme. The nature of the amendments is dealt with in the town planning reports but it is important to identify that it was common ground that the changes proposed in the draft amendment, if adopted, would not significantly change the 31 T2-7/43-46. 32 T2-33/14-21. 33 Depicted on page 194 of exhibit 2. 34 The plan became exhibit 1. -- 10 of 42 -- 11 planning context. So much is clear from the Town Planners Joint Report and a joint report of the visual amenity experts dated 24 April 2022 (“Visual Amenity Joint Report”). In those circumstances it is unnecessary to consider this issue further. [33] Relevant provision of the strategic framework include:35 “(a) Strategic outcome 3.3.1(15) – ‘Rural residential area (sic) are very low intensity and low-rise environments with a semi-rural landscape character and protected natural features. They are not expanded.’ (b) Specific outcome 3.3.7.1(1) – ‘Rural residential area (sic) continue to support the lifestyle and amenity aspirations of residents in a semi-rural or bushland environment on very low intensity lots. They are not part of the urban area.’ (c) Specific outcome 3.3.7.1(3) – ‘Rural residential areas maintain their amenity and very low intensity and low-rise living environment. Subdivision is limited to existing rural residential areas. Development does not disrupt local amenity and character. Sustainable eco-villages may be appropriate where landscape character and ecological value are maintained.’ (d) Specific outcome 3.8.3.1(1) – ‘Development is cognisant of the function and designed future appearance of each individual area and reinforces the character of that area.’” [34] The subject site is situated in the rural residential zone under the planning scheme. The relevant part of the rural residential zone extends across a large area, generally east of Mudgeeraba Road including most of the suburb of Tallai. The area is identified on the strategic framework Map 2 – Settlement Pattern.36 As I have indicated, on the northern side of Worongary Road are the showgrounds which are included within the open space zone. [35] Provisions of the Rural Residential Zone Code include:37 “(a) Overall outcome 2(b) – ‘Character consists of: (i) Very low intensity and low-rise environments; and (ii) private acreage or bushland living, typically situated along natural landscape settings like ridgelines or valleys with the intention of being separated from urban services and providing a high amenity lifestyle choice.’ (b) Overall outcome 2(d) – ‘Lot design: (i) results in lots sizes and dimensions appropriate for the large lot residential locality that 35 Town Planners Joint Report at paragraph 5.8. 36 See page 343 of exhibit 7. 37 Town Planners Joint Report at paragraph 5.12. -- 11 of 42 -- 12 recognise the site’s inherent values, constraints and character and supports very low density; (ii) provides an average lot size of no less than 8,000m² to protect local amenity and character. To respond to the various constraints in the zone the lot sizes may vary provided that no lot has an area less than 4,000m²…; and (c) PO7 – ‘Average lot size is no less than 8,000m² and no lots have an area less than 4,000m².’” [36] The respondent filed Reasons for Refusal dated 16 March 2022 and the appellant filed the Appellant’s Reason for Approval dated 23 March 2022. [37] It is unnecessary to set out the detail of either of those documents having regard to the Agreed List of Issues, to which I have referred above and the definition otherwise of the issues within the below consideration of the expert evidence in the matter. Town planning evidence [38] There are relatively few issues between the town planning experts. It is convenient to summarise the material by topic and deal with those topics in turn, including in some respects expressing my views as to the merit of the different positions.38 The Town Planners Joint Report is dated 4 May 2022. They each subsequently prepared individual reports, Mr Schomburgk on 23 June 202239 and Mr Ovenden on 7 July 2022.40 They each also gave evidence. The requirements of the City Plan and lot size [39] The experts’ views as to this issue may be briefly captured as follows: (a) Mr Ovenden, on behalf of the appellant, considers that the proposal provides for two lots greater than 4,000m² and each having a frontage in excess of 50 meters and that the planning scheme clearly contemplates a lot size of not less than 4,000m².41 As to this he says the proposal satisfies all but one of the assessment benchmarks for rural residential sub-division of the land - the requirement that the average lot size be 8,000m² or greater. 38 I deal more fully with my views of the expert evidence in the context of the submissions based upon it. 39 Exhibit 12. 40 Exhibit 6. 41 Exhibit 4, paragraph 6.4. -- 12 of 42 -- 13 (b) his evidence was that average lot size is a measure of the overall density of development.42 Hypothetically, had one been considering sub-division of a 2.4 hectare lot into three lots including two 4,000m² lots and a larger lot (with some areas of constraint), there would have been no clash with the City Plan.43 Of course, that is not what is being considered in the present matter. The appellant did not put its appeal on the basis that the lot sizes were responsive to any constraint as opposed to being necessary because of the size of the lot sought to be reconfigured. There was no particular reference to there being any constrained land in the area other than where the creek is on the northern side of Worongary Road. An example such as this with varying lots sizes responsive to constraints and which achieves the minimum average lot size requirement (itself tied to the purpose “to protect local amenity and character”) is an interesting illustration but not one that seems to me to bear much resemblance to the issues in this matter, where it is not said that such variation is driven by constraints. (c) Mr Schomburgk, on behalf of the respondent, considers a fundamental issue in this appeal related to the requirement in the City Plan for “very low intensity” of development and the protection of local amenity and character.44 As he observes those requirements are present from the strategic framework provisions through to zone provisions. His view is that while “very low intensity” is not defined, guidance as to its meaning might be gleaned from the zone code which seeks an average lot size of not less than 8,000m².45 (d) Mr Schomburgk considers that 4,000m² lots are only permitted in response to constraints found in the zone. He observes that there are no such constraints on the subject site. 46 Mr Ovenden says that constraints (where they exist) lead to larger lots with smaller lots being permitted on unconstrained land.47 It is unnecessary for me to express any view as to this given it was not the appellant’s case that the proposed lot sizes were responsive to constraints. 42 Exhibit 4, paragraph 6.7. 43 Exhibit 4, paragraph 6.7. 44 Exhibit 4, paragraph 6.13. 45 Exhibit 4, paragraph 6.13. 46 Exhibit 4, paragraph 6.14. 47 Exhibit 4, paragraph 6.7. -- 13 of 42 -- 14 (e) Mr Schomburgk goes on to say in his statement of evidence,48 that in his view there is a fundamental inconsistency with a rural residential estate being developed with an average lot size greater than 8,000m² in compliance with the planning scheme and then allowing one of those average sized lots to be split in two thereby permitting non-compliance with the average lot size requirement for the subsequent development despite there being no overriding need in the public interest for taking that action.49 (f) Mr Ovenden produced the documents that became exhibit 13 in response to this which show that across the whole local area the average lot size would be maintained above 8,000m² despite this development proceeding. In my view, while that is a mathematically interesting result it says nothing as to the effect or otherwise on local amenity or character at a micro level, nor as to community expectations in the absence of some evidence as to any constraints said to be a part of the local area. (g) Mr Schomburgk says that there is no town planning need for the approval. It is a significant departure from the important assessment benchmarks and the only need seems to be an opportunistic application by the proponent of the proposal.50 (h) in his statement of evidence, Mr Ovenden seeks to address the town planning purpose of minimum and average lot size provisions, what is meant by the terms “very low intensity” and “low rise”, what are the “reasonable community expectations” regarding subdivision in the relevant locality and the character of the locality and the consistency of the proposed development with that character.51 (i) minimum average lot sizes are described as a means of delivering a consistent overall density of development.52 He also says that they are relevant to providing flexibility in terms of the outcome.53 48 Exhibit 12. 49 Exhibit 12, paragraph 22. 50 Exhibit 4, paragraph 6.19. 51 Exhibit 6, paragraph 1.5. 52 Exhibit 6, paragraph 2.2. 53 Exhibit 6, paragraph 2.4. -- 14 of 42 -- 15 Whilst undoubtedly that is true, the flexibility adopted in respect of the present requirements of the zone is that lot sizes may vary to respond to various constraints in the zone although not below 4,000m². (j) he disagrees with Mr Schomburgk’s view that the proposal for a 4,000m² is not “low very intensity”,54 although that view was not really maintained. A very important feature of the proposed development which became a focus of the expert evidence was the visual accessibility of the subject site which is considered by the visual amenity experts as well as the town planners. (k) as to reasonable community expectations, Mr Ovenden reiterates in his statement of evidence that the planning scheme explicitly permits 4,000m² lots. It is said to follow that the community reasonably expect that there are, or there is, intended to be 4,000m² lots in the area.55 I have already dealt above why I doubt there would be any such expectation in this area or as to this site. The requirements of the City Plan as to local amenity and character [40] As to character and amenity, Mr Ovenden: (a) expresses the view that the context of the proposal is of relevance to character and amenity.56 He says as to this that this proposal is on a major road and across the road from an expansive area of open space which might be a counter- balance to the built form and that the fact of the location of the showgrounds and other non-residential uses makes this an area of significantly different character than might be so in relation to the “bounded area”.57 In this respect it is said that this part of the rural residential area is not a place of quiet tranquillity.58 (b) is critical of Dr McGowan’s concern (with which Mr Schomburgk agrees) as to the potential for “a much more intense built form outcome” on the basis that 54 Exhibit 6, paragraph 3.7. 55 Exhibit 6, paragraph 4.1. 56 Exhibit 4, paragraph 6.21. 57 Exhibit 4, paragraph 6.21. 58 Exhibit 4, paragraph 6.22. -- 15 of 42 -- 16 it does not balance this observation with the fact that 4,000m² lots are expressly envisaged in this area under the planning scheme.59 I consider it is a different question as to whether the planning scheme envisaged a lot of only just the minimum average size being able to be divided in two where there was no compelling reason for that to occur and where it was not suggested such lots sizes were responsive to constraints. (c) expresses the view that, in the particular context of the subject site, the characteristics of the proposal and compliance with other assessment benchmarks, the failure to comply with Rural Residential Zone Code Overall Outcome 2(d) and PO7 is a “technical non-compliance” having no negative consequence in respect of character or amenity.60 [41] As to character and amenity, Mr Schomburgk says the following: (a) he accepts that the fact that the proposed new lot would front onto Worongary Road would have lesser impact on the character and amenity of houses contained internally within the estate and that there are other lots which have a similar frontage. However, he says that those lots were created many years ago and have little or no relationship with the Alawara Drive estate in which the subject site is located. 61 (b) the topography of the subject site (rising as it does away from Worongary Road) will accentuate the non-compliance to passers-by who will be able to perceive the shallow depth of the block, in contrast to those lots further west along the northern side of Worongary Road.62 I consider there is substantial force in this view and consider the consequences in respect of character and amenity to be an important issue. (c) he shares Dr McGowan’s concerns given the prospect of a secondary dwelling on either or both the proposed lots, as to further exacerbation of the apparent 59 Exhibit 4, paragraph 6.25. 60 Exhibit 4, paragraph 6.30. 61 Exhibit 4, paragraph 6.32. 62 Exhibit 4, paragraph 6.33. -- 16 of 42 -- 17 intensity and thus further erosion of the very low intensity character which exists.63 (d) he accepts that even on a 4,000m² lot, tangible amenity such as noise and lighting can be mitigated but considers that intangible impacts on the perception as to character cannot be easily mitigated or counter balanced.64 (e) he disagrees with Mr Ovenden’s view that non-compliance is limited to Overall Outcome 2(d)(ii) and PO7. He maintains his view that the proposed development does not comply with the higher order strategic framework provisions seeking to achieve and maintain a very low intensity of development,65 and, it might be added, protect local amenity and character. (f) as to planning reasons why the character of an area might appropriately be the focus of maintenance, it is suggested that maintenance of public confidence in the planning scheme is a key consideration. As to this he says the following in paragraph 13: “As is evident from aerial photography and from a drive/walk around the estate, residents have developed lots in this locality for a range of reasons, including having a large home with space around the home for other buildings and structures, and/or for the keeping of animals, and/or for greater privacy and a sense of amenity (i.e.: character). The planning scheme provides a sense of security for this type of investment by the various statements of intent for the Rural Residential Zone and Strategic Framework designation.”66 (g) he expresses the view that the minimum average lot size allows for a wide range of aspirations and ensures, as much as a planning scheme can, that the overall experience of living in a semi-rural area is achieved and maintained.67 [42] In terms of relevant matters: (a) Mr Ovenden reiterates the location on a State-controlled road opposite significant non-residential uses and open space.68 Mr Schomburgk disagrees 63 Exhibit 4, paragraph 6.34. 64 Exhibit 4, paragraph 6.35. 65 Exhibit 4, paragraph 6.38. 66 Exhibit 12, paragraph 13. 67 Exhibit 12, paragraph 21. 68 Exhibit 4, paragraph 6.39. -- 17 of 42 -- 18 with Mr Ovenden’s analysis regarding the showgrounds because he expresses doubt that a passer-by would seek to compare the two sides.69 (b) Mr Ovenden expresses the view that reasonable community expectations are to be informed by not only the planning scheme, but also by the (existing) development in the area and the context of each development proposal. As to community expectations it is contemplated that there will be reconfiguration of lots allowing lots to have an area of 4,000m². The density in the proposal is appropriate when taking into account the context and location along a main road, the significant area of open space, the proposed width of the frontage being consistent with existing development in the rural residential area and that the proposed lots would blend into the areas character.70 (c) Mr Schomburgk states that in his view there are adverse town planning consequences that would flow from approval being disruption to the established character and amenity that existing residents enjoy, dilution of the important planning philosophy of the respondent being to achieve and maintain very low intensity of development and dilution of the confidence of the community in the planning scheme. (d) Mr Ovenden says that a limitation on the extent of building, if warranted, could effectively be implemented through conditions and this should not form a basis for refusal. Mr Schomburgk says that the observation that a limitation could be placed on the extent of building serves only to reinforce the possible increased intensity that is otherwise permitted by the proposal. (e) Mr Schomburgk says no evidence exists of an economic need, planning need or community need for the proposal. He disagrees with Mr Ovenden that simply adding an additional high amenity rural residential lot translates to meeting or satisfying a planning and/or community need.71 (f) There are in his opinion no matters in the public interest which overcome or outweigh the significant non-compliance.72 69 Exhibit 4, paragraph 6.46. 70 Exhibit 4, sub-paragraphs 6.40(a)-(c). 71 Exhibit 4, paragraph 6.50. 72 Exhibit 4, paragraph 6.51. -- 18 of 42 -- 19 [43] In my view, the point that Mr Ovenden makes as to reasonable community expectations being informed not only by the planning scheme but also “by the (existing) development in the area and the context of each development proposal” is an important one. I refer below in more detail to the evidence as to the way the area has so far been developed and to its intact nature as an attractive example of a rural residential estate. [44] Each of the town planners gave brief additional evidence in chief and was cross- examined. Some of their evidence is considered below when considering the parties’ submissions but for the moment it may be summarised as follows. [45] Mr Ovenden: (a) expressed the view that, while not necessary, any concerns about visual exposure of the block could be met with relevant and reasonable conditions including landscaping or a building location envelop.73 (b) initially described the estate as a mixed bag,74 but later conceded that the yellow highlighted area in exhibit 13 was not a ‘mixed bag’ with respect to lot size.75 (c) said that an open character76 and low intensity outcome is still achieved by the proposal.77 The average lot size would remain over 8000m².78 (d) said that looking at things more broadly, he thought the character of the rural residential area would not be lost, but it would be if the proposal was a 2000m² block.79 (e) agreed that lot size is important to the local character and amenity as it contributes to the sense of spaciousness in the rural residential area.80 However, he described the character and amenity of Alawara Drive and the cul-de-sacs to be different to the context in which the site is.81 He also added that elements 73 T2-9/16-21 and 38-40. 74 T2-12/10. 75 T2-15/4-19. 76 T2-20/18. 77 T2-16/3-4. 78 T2-7/39-46. 79 T2-18/25-27. 80 T2-19/6-8. 81 T2-20/2-5. -- 19 of 42 -- 20 including the number of houses on a property, the look of houses with fences and their presentation to the street contribute to character,82 and that it is not possible to tell how deep some lots in the estate are.83 [46] Mr Schomburgk: (a) said that in his opinion, this type of proposal starts to detract or erode the public confidence in what the planning scheme envisages.84 He said that with an application of this sort there needs to be a public interest at stake85 but that here there was only a private benefit.86 (b) gave evidence that lot sizes in the area were ‘pretty consistent’.87 He agreed that the proposed subdivision would not in any mathematical sense reduce the average lot size below 8000m² in the general locality.88 (c) gave evidence that intensity is a perceptual context.89 Along the northern side of Worongary Road blocks are narrow and long It is possible to get an appreciation of the depth of some of the blocks but not all of them because of fencing and landscaping.90 Perception of intensity can also be influenced by setbacks to some extent.91 As to the dual occupancy lots in the area, the difference when compared to the proposed lots is that the second house is tucked behind the first house when viewed from the street.92 He further added that none of the dual occupancy properties are on a corner and do not have two street frontages.93 (d) agreed that measures including vegetation conditions and setbacks could have a softening effect on perception.94 82 T2-20/26-29. 83 T2-21/3-5. 84 T2-23/13-14. 85 T2-23/14-15. 86 T2-23/23-24. 87 T2-24/17. 88 T2-26/21-22. 89 T2-30/15-16. 90 T2-30/28-29. 91 T2-30/37-38. 92 T2-33/14-21. 93 T2-33/32-34. 94 T2-31/9-12. -- 20 of 42 -- 21 Visual Amenity [47] Mr Butcher and Dr McGowan are the visual amenity experts retained by the appellant and the respondent respectively. The Visual Amenity Joint Report is dated 22 April 2022.95 [48] As to the setting, they refer to figure 3 which shows that most of the lots within the local area have a size of 8,000m² or larger.96 [49] As to the building envelope, Mr Butcher observes that the possible future development shown in the response to information request dated 30 July 2021 indicated that a dwelling could be accommodated so as to comply with setbacks of 10 metres from the road and 3 metres at the side and rear.97 The intent is that it could be located high at the rear point of the proposed lot maintaining the lawn in front of it.98 [50] Dr McGowan says as to this that while the designation of a building envelopes or other such controls on building form may assist with limiting impacts on the amenity of neighbours, they would not materially affect the apparent intensity of future built form on the proposed lots. [51] Mr Butcher says he agrees with Dr McGowan that perceived or apparent intensity of the development is an added consideration within the rural residential setting of the subject site. He says however that his observations highlighted a degree of variation in the built form along Worongary Road.99 [52] Dr McGowan states that he agrees with Mr Butcher’s opinion that character of the area is affected by a range of visual elements and cues.100 However, he expresses that there needs to be more than just a degree of consistency with these elements.101 He says that: 95 Exhibit 3. 96 Exhibit 3, page 9. 97 Exhibit 3, paragraph 47. 98 The building envelope is shown in exhibit 1. 99 Exhibit 3, paragraph 52. 100 Exhibit 3, paragraph 56. 101 Exhibit 3, paragraph 57. -- 21 of 42 -- 22 “[T]he perceived or apparent intensity of development is a more relevant consideration in this instance, and I believe that apparent intensity of development is primarily a consequence of the perceivable relationship of built form to the open space provided by each lot, and this depends on lot size.”102 “I believe the local area exhibits a particular low intensity character that would typically be associated with attractive rural residential areas on the Gold Coast. This low intensity of development, in combination with the elements identified by Mr Butcher, give a clear impression of a very low intensity rural residential development outcome that is relatively consistent within this particular local area.”103 [53] He says that visual accessibility is an important variable affecting development, meaning whether the relationship of built form to open space is able to be appreciated from the road.104 As to this, he identifies that the site has a high degree of visibility because it is a corner lot which has extensive frontage to a main road, it is not a particularly deep lot, has limited vegetation coverage and slopes upwards from the main road.105 These features mean that the entirety of the land is perceivable from Worongary Road. He observes that this is different in other smaller lots in the local area situated at 5 and 10 Alawara Drive, respectively because of existing vegetation and topography.106 [54] In my view these features would lead to development of this site having a substantial, and in some respects disproportionate, detrimental effect on local amenity and character given the positioning on the main road at the entrance to the estate, the topography and the lack of any obstacle to a full appreciation of the scale of built form to lot size and closeness to the buildings on the adjacent site. I also consider that because of these features the contribution the site makes in its present form to the sense of spaciousness in the area will be significantly reduced. [55] He says that: “For the reasons set out above, I believe the proposed development will have an intensity that will be noticeably greater than the prevailing character of the area and, as such, would disrupt that aspect of existing and intended character. The proposal would diminish the impression of very low intensity development in the area.”.107 102 Exhibit 3, paragraph 57. 103 Exhibit 3, paragraph 58. 104 Exhibit 3, paragraph 60. 105 Exhibit 3, paragraph 61. 106 Exhibit 3, paragraph 62. 107 Exhibit 3, paragraph 67. -- 22 of 42 -- 23 [56] Mr Butcher also provided an individual report dated 6 July 2022 which considered lot frontages in the area amongst other things.108 [57] Mr Butcher observes that due to the majority of the lots in the local area being long and narrow with relatively narrow frontages, the areas of the lots are difficult to perceive when viewed from adjacent roads and that equally the depth of lots is difficult to perceive.109 He expresses the view that both the mean and median lot frontages are consistent with the proposed frontage for the two new lots.110 The setbacks also seem to be consistent with others.111 [58] In my view, the limitation with the exercise undertaken by Mr Butcher is that he does not grapple with the difference in perception of this lot having regard to the features identified by Dr McGowan. He does not suggest that any of the other lots along Worongary Road which have the similar frontages have those features which give rise to the high degree of visual accessibility of the subject site and, in turn, make plain the difference in intensity. [59] Each of the visual amenity experts gave brief additional evidence in chief and was cross-examined. Some of their evidence is considered below when considering the parties’ submissions but for the moment it may be summarised as follows. [60] Mr Butcher gave evidence that when conducting a character and amenity assessment, a number of different criteria should be utilised including that he referred to in paragraph 45 of the Visual Amenity Joint Report. When he was specifically asked about visual accessibility and its function in informing an opinion as to impacts on visual amenity and character, he said that it was one of a number of criteria he uses to inform the character of the area.112 He did note that there were a number of other lots in the area with no visual accessibility, with some impacted by vegetative screens or walls that prevented looking in and others that are quite open.113 I note, again, that it is not suggested that there are other lots in the area with a high degree of visual accessibility which are of similar intensity to that likely on the subject site. 108 Exhibit 5. 109 Exhibit 5, paragraphs 7 and 8. 110 Exhibit 5, paragraph 13. 111 Exhibit 5, paragraph 19. 112 T1-46/45-47 and T1-47/1-4. 113 T1-27/9-11 and T1-27/11-13. -- 23 of 42 -- 24 [61] He agreed that lot size is an important contributor to the character and amenity and that it can help achieve a sense of a space feeling spacious.114 He added, however, that from a visual amenity perspective it does depend on what you can actually see and interpret.115 He agreed that when you drive down Alawara Drive or Tarawara Avenue one characteristic of the area was the sense of spaciousness, and a particularly open feeling towards the end of the cul-de-sac.116 [62] He agreed that corner lots have a higher degree of visual accessibility which increases their contribution to the local character from the perspective of movements along the roads.117 [63] Dr McGowan gave evidence describing the local amenity and character of Alawara Drive estate as it stands:118 “In my view, it’s – it has a really clear and coherent character and a high level of amenity. And that’s a consequence of a number of variables that contribute to the rural residential lifestyle. And they have been discussed. But I think key amongst those is the sense of spaciousness that’s afforded to people out there and that – the separation. And critical to that is, I think, lot size and reasonable lot sizes to allow people to achieve that spaciousness and also enjoy a rural residential lifestyle in whatever form they consider that. But what’s particularly clear in this local area and perhaps makes is unique for a rural residential pocket so close to the urban areas of the city is the overall consistency or intactness of the lot sizes. There’s not so much obvious intrusion of smaller lots or not so much variation in those lot sizes, I guess. And I think that’s an important part of that overall coherency of that character.” [64] Dr McGowan gave evidence that while setbacks, built form, vegetative cover, dividing fences and typography can affect the perception of spaciousness119 and openness of an area he says that lot size and the consistency of lot size and the spaciousness that flows from that are at the top of his list.120 I pause to observe that any substantial screening of the lot which might be adopted to try and ameliorate the increased and appreciable intensity of development is likely to have the undesirable 114 T1-48/37-42. 115 T1-49/18-20. 116 T1-49/4-8. 117 T1-50/1-3. 118 T1-54/42 – T1-55/6. 119 T1-55/26-27, 29, 34, 36 and T1-56/11-15. 120 T1-56/14-15. -- 24 of 42 -- 25 result of reducing the extent of the present contribution of this corner lot to the local character. [65] He also gave evidence about the perceptible difference in lot size between this proposal and what he describes as the coherent character of the area.121 He agreed that for most people impressions of character will be informed by their view from the road.122 [66] He agreed that conditions requiring deep planting along the property boundaries as well as the location of built form could mitigate impacts to visual amenity and reduce the perception of intensity.123 Submissions received [67] There were, as I have already indicated, 18 properly made submissions. Five of those objected to the development application and there were 13 submissions in favour of it. [68] Those opposing it were Annette McGrath, John Marshall, Eva Teng, Jennie Davis and Maria Morton. [69] All of those objecting to the development application live in the local area within what I have described above as the “bounded area”, while a number of the submissions in support of the application come from further afield. [70] The thrust of the more detailed submissions in favour of the development are that there are examples of approvals of other 4,000m² lots nearby and other lots that have two dwellings constructed on a single lot and that the proposed development is believed to comply with the strategic framework in circumstances where: • it results in similar lot size to the established character surrounding the subject site located in the rural residential zone; • the proposed development will not alter the streetscape character of the area; 121 T1-57/1-11. 122 T1-56/19-27. 123 T1-60/19-21, T1-60/32-43 and T1-61/20-25. -- 25 of 42 -- 26 • the development is able to maintain the very low intensity character by limiting future development to a single dwelling house and achieving a very low site cover; • the proposed frontage achieves a continuation of the established character within Worongary Road and is one of the few frontages that complies with AO8 of the Rural Residential Zone Code as to frontage; • given the width of the proposed lots and the surrounding lots, the proposed subdivision and subsequent construction of a dwelling house will not impact on the amenity of the surrounding areas; • the new lot is able to accommodate a dwelling house without the need to remove any existing significant vegetation; • otherwise, reference is made to the shortage of new land. [71] The submissions opposing the development application also, unsurprisingly, have common themes. [72] Several of those objecting to the proposal have lived in the area since the original subdivision of the land back in the late ‘70s. Interestingly, 5 Alawara Drive (which is a site of 1,545m² referred to in some of the expert evidence) is referred to as being an historic anomaly as it was the original Land Sales office for “Coolaroo Park estate”. They each speak of the large lots above 8,000m² in area providing for substantial space between dwellings helping to maintain the nature of the lifestyle that has been chosen by residents of the area. [73] Concerns are also expressed that further development approvals in the neighbourhood allowing subdivision of existing rural residential lots into smaller portions will adversely impact upon various eco-systems in the area and approval may well lead other owners to follow suit and seek to subdivide their lots. [74] A number of local owners refer to what their experience would be having to drive past the subject site to enter the bounded area which they regard as detracting from the existing character and amenity. Concern is expressed as to the impact on intangible amenity of the local area, particularly if other smaller lots are created in the future. -- 26 of 42 -- 27 The parties’ submissions Appellant [75] The appellant submits in summary that: (a) as to the existing state of the land, the separation of the eastern and western portion by Colorbond fence generally reflects the proposed subdivision.124 While I accept that submission, that says little about what the position will be if the subdivision proceeds and lot 2 is created and built upon rather than it being used to keep a horse as it presently seems to be. (b) the appellant accepts that, contrary to Overall Outcome (2)(d)(ii) and PO7 of the Rural Residential Zone Code, the proposal provides for an average lot size of less than 8,000m². However, the Overall Outcome contemplates lot sizes less than and greater than 8,000m², including lots not less than 4,000m².125 Consistently with the observations of Williamson KC DCJ in Smout,126 the empirical standard, or perhaps the purpose of the quantitative indication, in Overall Outcome (2)(d)(ii) is “to protect local amenity and character” and, accordingly, it is open to demonstrate that purpose is achieved notwithstanding that the average lot size is not 8,000m².127 I accept that submission. I also accept the respondent’s submission (with which I deal further below) as to the identification of a numerical value at Overall Outcome level indicating an increased degree of importance being attached to compliance. 128 Having said that, the focus of the expert evidence and the parties’ submissions ended up being upon whether the proposal was one which would “protect local amenity and character” rather than the significance or otherwise of the stated numerical value. (c) the nature of the reference to 8,000m² is that it is not a proscriptive or absolute requirement. 124 Appellant’s written submissions at paragraph 19. 125 Appellant’s written submissions at paragraph 24. 126 At [11]. 127 Appellant’s written submissions at paragraphs 26 and 27. 128 Respondent’s written submissions at sub-paragraph 20(c) and Jackson (supra) at [45] per Kefford DCJ. -- 27 of 42 -- 28 I consider that this submission ought to be accepted, given it is an average rather than an absolute and that there is, in certain circumstances, contemplation of smaller lots with an expression of a lower limit on their size. It seems to me, in any case, that it would be appropriate to examine the underlying planning rationale consistently with the view expressed by Williamson KC DCJ in Smout. (d) the central issue to be determined turns on the qualitative statement or the underlying planning rationale expressed in Overall Outcome 2(d)(ii) and the question as to whether the proposed development might unreasonably or unacceptably impact upon the protection sought to be given to character and amenity.129 While it is submitted that the proposal is consistent with the relevant assessment benchmark because there was no unreasonable or unacceptable impact on intangible amenity,130 if it were found that there was non-compliance, the impacts could be mitigated to an acceptable level by addressing a building envelope, deep planting to the front and/or rear of land viewed from Worongary Road and impermeable fencing.131 (e) any such conditions would be binding upon successors in title pursuant to s 73 of the Planning Act.132 (f) the development is submitted to be consistent with the existing and planned subdivision requirements and pattern of the rural residential zone. In this respect it is submitted that, excluding questions of character and amenity, all assessment benchmarks are satisfied, other than the average lot size.133 As to this it is submitted that lots of the size contemplated are anticipated because it is explicitly contemplated by Overall Outcome 2(d)(ii) and PO7 that there may be lots of this size is.134 I do not accept the submission that 4,000m² are contemplated other than by reference to constraints in the zone and the requirement for a minimum average 129 Appellant’s written submissions at paragraphs 29 and 30. 130 It being common ground that there was no adverse tangible amenity impact. 131 Appellant’s written submissions at paragraph 32. 132 This issue is now common ground between the parties having regard to the fact that the obiter dicta of Kefford DCJ in Jackson (supra) at [77] was based upon the decision of the Court of Appeal in Tighe & Anor v Pike & Ors [2016] QCA 353 which was overturned by the High Court in Pike v Tighe [2018] HCA 9. 133 Appellant’s written submissions at paragraph 50. 134 Appellant’s written submissions at paragraph 51. -- 28 of 42 -- 29 lot size to be maintained which itself seems to be a quantitative requirement attached to the qualitative planning rationale “to protect local amenity and character”. (g) variation is permitted to respond to constraints found in the zone permitting smaller lots on unconstrained land by way of balance with larger lots required where land is constrained. This is said to be the proper construction of Overall Outcome 2(d)(ii). 135 While I accept the submission that at a general level the terms of the Overall Outcome make plain that lots as low as 4,000m² in area could be anticipated, that is expressed specifically, and practically, in respect of the need to respond to constraints in the zone. Clearly, this deals with the whole of the rural residential zone. There is no reason, in my view, to think that the Overall Outcome is intended to allow lots as small as 4,000m² balanced with larger lots for an overall minimum average other than in response to constraints in the particular area being considered. Such a construction would be contrary to the requirement to protect local amenity and character in my view. In any case, as I have said, the appellant does not contend that the lots sizes here were in response to constraints. (h) in this respect it is submitted that as the average lot size in the area remains greater than the minimum of 8,000m² the character is not unacceptably disturbed. As I understand it, the import of this matter is said to be that the underlying intent of very low-density development is maintained more generally in the area as well as specifically to the site having regard to the lots each being greater than 4,000m² in area. I do not accept this submission. I do not regard the identified matter as leading to an affirmative answer as to whether the proposal meets the requirement “to protect local amenity and character”. Instead, one must consider the effect of the proposal on this issue without stopping such analysis because it can be said that 4,000m² lots are contemplated136 and that over a certain adopted area there is a minimum average lot size greater than 8,000m². To do otherwise would 135 Appellant’s written submissions at paragraphs 54 to 56, noting the typographical error in paragraph 55. 136 Which I have already identified I do not regard as being so without important qualification. -- 29 of 42 -- 30 wrongly treat the numerical references in the Overall Outcome as being of more significance than the town planning purpose underlying such expression of numerical value. (i) Mr Ovenden’s hypothetical development scenario in paragraph 6.7 of exhibit 4 is a demonstration of the practical and permissible operation of the Overall Outcome and is relevant to demonstrating reasonable community expectations.137 That is, in this general sense a 2.4 ha piece of land could be split in that way. There are two features of this example which, in my view, limit its relevance to the proposal at hand – it assumes constraints driving lots size choice and it achieves the average minimum lot size requirement. As I have said the present proposal is not put forward on the basis that lot size is responsive to zone constraints. Further, given it is accepted that the proposal does not meet the average minimum lot size requirement, unlike the example, it is appropriate to focus on the qualitative requirement “to protect local amenity and character”. (j) Overall Outcome 2(d)(ii) does not and cannot operate as a prohibition on lot sizes less than 8,000m² in the rural residential zone.138 I accept that submission. (k) “The existing character of a locality is the aggregate impression formed having regard to the individual features and traits of the development and the natural environment in the locality.”139 (l) perception is critically important as to how character and amenity are appreciated particularly with respect to lot size.140 The visual amenity experts agree that it is the perception from the road in the local area which is important. (m) in this respect the view from Alawara Drive is unlikely to change. Thus, the question of the impacts on character and amenity concern the proposed development’s contribution to character and amenity as viewed from Worongary Road.141 137 Appellant’s written submissions at paragraph 57. 138 Appellant’s written submissions at paragraph 58. 139 See Kanesamoorthy & Anor v Brisbane City Council [2016] QPELR 784 at [29] referred to in paragraph 63 of the appellant’s written submissions. 140 Appellant’s written submissions at paragraph 68. 141 Appellant’s written submissions at paragraph 70. -- 30 of 42 -- 31 In my view, it is important to have regard to Dr McGowan’s mostly uncontroversial evidence as to the concept of visual accessibility of lots. This is the visibility of the entirety of the lots from the road as being an important variable affecting the consideration of development intensity. Dr McGowan deals with this in paragraphs 60 and 61 of exhibit 3 and in essence it is a reference to whether or not the perceived relationship between built form and lot size might be appreciated from the road. He regards this as being a particularly visually accessible lot because it is on a corner with extensive frontage, is not particularly deep, has limited vegetation coverage and slopes up from the road. He regards those features in this respect as different from other smaller lots in the area. (n) while the appellant’s position is that the built form along Worongary Road is of higher intensity such that Mr Butcher’s evidence that the proposed reconfiguration would not diminish or detract from the perceived character of the area should be accepted, Mr Butcher also expressed the view that reasonable conditions could be applied with respect to density, fencing and vegetation (and for that matter building envelope) to lower the degree of visual accessibility. Dr McGowan agreed that there were means by which the impacts could be mitigated.142 (o) consistent with Dr McGowan’s evidence, subject to relevant conditions as to building envelope, deep planting along the front and/or rear boundaries and fencing, Dr McGowan’s residual concerns about impact on character and amenity could be mitigated to an acceptable level. (p) as to the concept of “very low intensity” and that being given effect to by having a minimum average lot size, the appellant says that Mr Schomburgk’s opinion that there is a fundamental inconsistency in a rural residential estate being developed with an average lot size of 8,000m² and a subsequent subdivision reducing that initial overall average lot size was clearly misconceived. This was said to be so because of the exercise undertaken by Mr Ovenden which demonstrated that the proposed development did not have the effect of reducing the average lot size of the local area below the 8,000m².143 In my view, this 142 Appellant’s written submissions at paragraph 74 and T1-60/32 and T1-61/19-21. 143 Appellant’s written submissions at paragraph 88. -- 31 of 42 -- 32 misunderstands the effect of paragraph 22 of Mr Schomburgk’s individual report.144 Although it could perhaps have been worded more clearly, it seems to me to be a reference to simply reducing the average lot size in respect of a lot which is at that lot size prior to the proposed development. I understood his evidence to be a reference to an increase in the intensity across that average sized lot (that is, the lot to be divided) and not a reference to the average lot size being affected more broadly. Respondent [76] In summary the Respondent submits as follows: (a) the subject site is situated at the entrance or gateway to an intact and attractive rural residential estate.145 (b) the proposed development does not comply with the relevant assessment benchmarks because it would have a negative impact on the “very low intensity” of the area and would detract from and would not protect local amenity and character.146 (c) the local area referred to by Mr Butcher was identified as being approximately the same by Dr McGowan. There is no significant dispute between Mr Butcher and Dr McGowan as to the local area in question.147 (d) while there is some detail in Dr McGowan’s evidence as to the existing character and amenity of the area,148 a key feature of the local area is its sense of spaciousness.149 (e) Mr Butcher agreed that the local area is quite attractive, a good example of rural residential character, remarkably intact in terms of lot sizes and that when one drives down Alawara Drive or Tarawara Avenue, the characteristic of that area is a sense of spaciousness.150 144 Exhibit 12. 145 Respondent’s written submissions at paragraph 4 and T2-18/9-14. 146 Respondent’s written submissions at paragraph 5. 147 Respondent’s written submissions at paragraphs 9 and 10 and figure 3 in exhibit 3 and exhibit 5 at page 10. 148 Which I have referred to in [63] above. 149 See paragraph [62] above in respect of the relevant evidence of Dr McGowan. See also the respondent’s written submissions at paragraph 11. 150 Respondent’s written submissions at paragraph 12 and T1-48/5-6, 8-10 and 12-28 and T1-49/4-8. -- 32 of 42 -- 33 (f) on the proper construction of Overall Outcome 2(d)(ii) of the Rural Residential Zone Code, the average applies to the lots proposed to be created and not to some broader area. In my view, that submission is correct and, in any case, that construction is uncontroversial between parties. It is to be noted however that this submission was made in response to one by the appellant to the effect that (based on the exercise undertaken by Mr Ovenden in exhibit 13), the average lot size over a broader area, would not fall below, 8,000m². The criticism the respondent makes as to this is that it is not a principled analysis but really a happy coincidence at this stage.151 It is submitted that the test would apply differently to different applications for reconfiguration. The appellant’s point as to that is that it should apply differently as to different applications depending on how many lots are subdivided. Whilst I found the average lot size analysis in exhibit 13 of some relevance to the question of character and amenity deriving from lot size, it has clear limitations. For example, all the smaller lots could be concentrated in the same area (subject to the consideration of constraints) with consequent effect on character and amenity and yet this test would be satisfied. While I do not consider the exercise to be irrelevant, I think it has limited value. (g) contrary to the submissions of the appellant, it is submitted that Overall Outcome 2(d)(ii) should not be seen as expressly permitting minimum lot sizes of 4,000m² in the zone but only to do so where it is necessary to respond to various constraints.152 As I have indicated, in my view, the permitted variation of lot sizes is expressed to respond to constraints found in the zone – it is not unqualified. In any case, as I have identified the appellant does not identify the lot sizes as being responsive to constraints. (h) it is of some significance that the Overall Outcome includes a reference to a quantitative requirement. More conventionally, such a requirement might appear in relation to a performance outcome or an acceptable outcome. That, in turn, has some significance because it demonstrates a particular degree of 151 Respondent’s written submissions at sub-paragraph 20(a). 152 Respondent’s written submissions at sub-paragraph 20(b). -- 33 of 42 -- 34 importance may have been placed upon that matter which is relevant to assessing the degree of importance which has been attached to compliance with that matter in undertaking the balancing exercise called for in respect of a decision under ss 60(3) of the Planning Act.153 It is more significant in my view to focus attention on the purpose “to protect local amenity and character”. (i) both strategic framework provision 3.3.7.1(3) and Overall Outcome 2(d)(ii) refer to “local amenity and character”. The strategic framework provision requires that development “does not disrupt” the local amenity and character and the latter is the explanation for the average lot size requirement, that is, “to protect local amenity and character”.154 (j) that an appropriate statement as to intangible amenity arises from Broad v Brisbane City Council155 as follows: “The wide-ranging concept of amenity contains many aspects that may be very difficult to articulate. Some aspects are practical and tangible such as traffic generation, noise, nuisance, appearance, and even the way of life of the neighbourhood. Other concepts are more elusive such as the standard or class of the neighbourhood and the reasonable expectations of the neighbourhood. … …aesthetics may of course be a relevant consideration in a town planning decision although the basis of the opinion may be difficult to explain. It follows that although some of the particular factors upon which his Honour relied were admittedly vague, they were not necessarily invalid or improper considerations.”156 (k) as to character, the theme in the rural residential zone of very low intensity development is relevant to the character of the zone. So much is clear from Overall Outcome 2(b)(ii).157 (l) the visual amenity experts were agreed that corner lots have a higher degree of visual accessibility which increases the contribution those lots make to local character and lot size is an important contributor to the character and amenity 153 Respondent’s written submissions at sub-paragraph 20(c). Smout (supra) at [54]; Ashvan (supra) at [60]; Murphy (supra) at [22] and Abeleda (supra) at [56]. 154 Respondent’s written submissions at sub-paragraph 20(d). 155 [1986] 2 Qd R 317 at 319 – 320 per Thomas J as his Honour then was. 156 Respondent’s written submissions a sub-paragraph 20(f). 157 Respondent’s written submissions at sub-paragraphs 20(g) and 20(h). -- 34 of 42 -- 35 of a rural residential area in general and in respect of this local area specifically.158 (m) referring to the views of Dr McGowan at paragraph 67 of the Visual Amenity Joint Report159 and Mr Schomburgk’s views expressed in paragraphs 6.13, 6.14 and 6.15 of the Town Planners Joint Report as to what he regarded as the fundamental nature of the non-compliance with the average lot size and that the proposal seeks to change the existing character of amenity in that it seeks to double the intensity, that it is plain that the respondent’s experts have grave concerns as to local amenity and character in the face of this proposal. (n) Mr Ovenden’s acceptance that the yellow highlighted area on exhibit 13 was not a “mixed bag” with respect to lot size.160 This evidence along with the table in exhibit 13 leads to the conclusion that the local area is remarkably intact in terms of lot size, consistently with submissions made by local residents, as is apparent from the submissions and the lay witness statements.161 (o) as to the distinction sought to be made by Mr Ovenden between the lots on Worongary Road and the quieter parts of the local area, that while Worongary Road is obviously a busy road, particularly when compared with the internal parts of the estate, that does not detract from the estate as a whole being a spacious rural residential area including the “gateway” lots of which the subject site is one. They are said to demonstrate a clear rural residential character.162 (p) the appellant’s submission as to the relevance of the 4,000m² lots situated on the northern side of Worongary Road and accessed via Vince Hinde Drive and shown on exhibit 15, refer to what is part of a completely different local amenity and character, quite removed from the subject site and what appeared otherwise to be accepted as the local area by the experts.163 (q) as to the properly made submissions, the five which object are from nearby residents while, unusually, the others are from people who live in other suburbs 158 Respondent’s written submissions at paragraphs 21 and 22 and T1-50/1-3 and 5-6 and T1-48/34-35 and 37-38. 159 Set out in [55] above. 160 T2-15/17-18. 161 Respondent’s written submissions at paragraph 26. 162 Respondent’s written submissions at paragraph 27. 163 Respondent’s written submissions at paragraph 28. -- 35 of 42 -- 36 of the city. The statements of the lay witnesses speak with one voice as to the amenity and lifestyle provided in the area by larger lot sizes, including the additional space that may be used as well as a feeling of space. It is submitted, and I accept, that s 45(5)(a)(ii) of the Planning Act requires that impact assessment have regard to matters prescribed regulation, such a matter being the common material which includes properly made submissions.164 Those statements make clear that each of these three submitters at least, bought and have enjoyed the area because of what might be seen as illustrations of the intangible amenity aspects that the proposal might be considered to disrupt or fail to protect.165 (r) as to the proposal to screen, there is a degree of ambiguity despite the appellant bearing the onus. No detail of such screening has been provided such that it is not possible to understand how effective it would be or to critique any such proposal but, in any case, it was difficult to imagine a regime of screening that would render a new driveway and a house imperceptible from the street.166 (s) in the context of possibly considering whether it would be appropriate to approve the application but impose development conditions on the approval, these questions are central to the assessment under s 45(5) of the Planning Act which must be undertaken prior to deciding the matters in ss 60(3). Unless the Court is able to reach some assessment as to the extent of mitigation afforded by a screening proposal, the balance of the effects of a failure to comply with the planning scheme or at least the extent to which the effect on character and intangible amenity may be lessened and whether that lessening is considered sufficient to justify an approval albeit subject to conditions cannot be sensibly assessed.167 (t) unlike the position in Smout, the local area could not be accurately described as a “mixed bag” and in this matter there are properly made submissions objecting to the proposal. 168 164 Respondent’s written submissions at paragraphs 29 to 32. 165 Respondent’s written submissions at paragraph 33. 166 Respondent’s written submissions at sub-paragraphs 35(a) to 35(c). 167 Respondent’s written submissions at sub-paragraph 35(d) and paragraph 36. 168 Respondent’s written submissions at paragraph 40. -- 36 of 42 -- 37 (u) that Toro169 provides a more appropriate comparison than Smout, given the finding in that matter that: “Houses in the [character residential zone] in the vicinity of the Land generally have large backyards which contribute to the character of the large pre-1946 houses and this in turn has a significant effect on how the amenity of the area is perceived. The houses are given a context by their backyards. …”170 (v) relies on the reasoning in Toro by analogy noting that the amenity and character of the local area in this matter are of a spacious rural residential estate.171 (w) by reference to the relevant matters listed in the Agreed List of Issues, reiterated its submission that the local area depicted on page 10 of Mr Butcher’s individual report was remarkably intact as reinforced by exhibit 13, such that the appellant has had to search for an area further to the west to find significant lots with lot sizes which are 4,000m². Mr Butcher’s original area should be preferred and within that the proposed development would compromise and disrupt the sub- division pattern which is of significance given Mr Butcher’s concession (referred to above) that corner lots, including the subject site, have a higher degree of visual accessibility which contribute to local character.172 (x) there are both adverse planning consequences in terms of the proposed development being contrary to the planning scheme and adverse amenity impacts in the sense of intangible amenity or the perception felt by local residents. (y) ultimately,173 the Council urged the following process of reasoning: “(a) within the Strategic Framework sections 3.3.1(15), 3.3.7.1(1) and (3), 3.8.3.1(1) and within the Zone Code, Overall outcomes 2(b)(i) and (ii), 2(d)(i) and (ii) and PO7 are important provisions of the Planning Scheme (assessment benchmarks); (b) the proposed development is clearly not compliant with those assessment benchmarks; 169 Supra. 170 Respondent’s written submissions at paragraph 41 and Toro (supra) at [32] and see also the observations on the local area in that matter based on the evidence of Mr Brown referred to in [28] as well as [30]. 171 Respondent’s written submissions at paragraph 42. 172 Respondent’s written submissions at paragraph 43 and T1-50/1-60. 173 Respondent’s written submissions at paragraph 44. -- 37 of 42 -- 38 (c) the community expectations – at least of people who live near the subject site – is of the intact estate of 8,000m 2 blocks being maintained – to maintain very low intensity development; (d) the proposed development does not “protect local amenity and character” because it would intensify development, at odds with the sense of spaciousness that is the current character; (e) to approve the development involves no public benefit – the only benefit is a private economic gain to the proponent; (f) when considering the non-compliance with important assessment benchmarks against the other matters raised by the appellant in this appeal, the discretion ought to be exercised to refuse the proposed development.” (footnotes excluded) Further submissions Appellant [77] The parties were given leave to deliver further written submissions touching upon the possibility of a screening and landscaping condition to minimise the visual impact. [78] For the appellant’s part those submissions contended that character and amenity issues could be resolved through standard conditions, or the proceeding could be adjourned to allow further evidence as to these matters or the Court could grant leave to re-open the appellant’s case. [79] It is submitted that the two questions which arise are whether landscaping and fencing could provide effective screening and secondly how that might practically be achieved. It is submitted that the Court ought to be satisfied as to the first matter on the basis that the visual accessibility of the lot can be disguised or reduced sufficiently to limit any impacts. As to this it was submitted that Dr McGowan acknowledged that the development could be concealed.174 The proposal put to Dr McGowan included a full vegetative screen along both roads and the side boundaries and rear boundary in conjunction with the building envelope. He gave evidence that in his view this sort of impenetrable screen might be a more common matter in terms of a material change of use, presumably where it is necessary to hide such use to minimise the impact. 174 T1-63/14-15. -- 38 of 42 -- 39 [80] The appellant proposes that if the Court were not satisfied that character and amenity issues could be resolved to an acceptable level on the present state of the evidence, but the Court was otherwise minded to allow the appeal, it should adopt an approach such as that in Metroplex Management Pty Ltd v Brisbane City Council & Anor175 (Metroplex) and Comiskey Group (A firm) v Moreton Bay Regional Council & Ors176 (Comiskey). [81] The appellant properly acknowledges that there are a number of features which distinguish the present case from either Metroplex or Comiskey. I am also conscious of the differences between Metroplex and Comiskey identified by Jones DCJ in paragraphs [96] to [98] of Comiskey. It should also be noted that Rackemann DCJ did not in fact grant an adjournment in Metroplex. He indicated that if he was otherwise minded to approve the application he would have been prepared to do so. The point taken by the Council on appeal was that this was not permissible because the Court was being asked to offer an advisory opinion. It was that point that was rejected by the Court of Appeal. What is clear from the authorities is that whether or not an adjournment is appropriate is a question which will turn on the facts of the particular case and the balance of matters such as those referred to in paragraphs [96] to [98] of Comiskey and of course whether or not the judge was minded to otherwise allow the appeal. Respondent [82] For the respondent it is contended that Dr McGowan’s evidence as to what was “possible” in terms of lessening effects was given in difficult circumstances where there was no proposed screening available to assess. It is submitted that given the centrality to the assessment of Overall Outcome (2)(d)(ii) and s 3.3.7.1(3), all proposed conditions including landscaping should have been precisely identified so that their effect could have been properly addressed by the experts. I accept that submission. I also accept the submission that there could be other unintended consequences. The respondent suggests that a fully vegetated screen around the subject site could result in it being more noticeably inconsistent with the local character and amenity. I accept that submission and I would add that, in my view, 175 [2009] QPEC 110 and see also Metroplex Management Pty Ltd v Brisbane City Council & Ors [2010] QCA 333. 176 [2011] QPEC 132. -- 39 of 42 -- 40 given the expert’s agreement that corner lots contribute more significantly than other lots to the character and amenity of the area, it appears likely that any such contribution will be reduced if there is a fully vegetated screen to be provided along both roads. If nothing else one of the corner gateway allotments to the estate will become invisible. [83] It is also submitted for the respondent that it is not desirable that the litigation be protracted any further and the matter ought not be adjourned. Discussion [84] I generally prefer the evidence of Mr Schomburgk and Dr McGowan where there are inconsistencies with the expert evidence led on behalf of the appellant. For the most part, I have recorded my reasons for this in the summary of the evidence which I have set out above. [85] While I accept that the City Plan contemplates flexibility in terms of lot sizes to deal with constraints including lot sizes as small as 4,000m², that is by no means absolute. That is both relevant to whether or not the assessment benchmarks have been complied with and also as to reasonable expectations. [86] I think it is unlikely that there would be any reasonable expectation that a lot which was only just at the minimum average size would be able to be divided in two in the absence of some planning need or other good reason for that to occur, in the absence of there being a response to some constraint. It seems to me that the views offered by local submitters as to the existing character and amenity of the area happen to coincide with what I consider to be the proper construction of the City Plan, being the embodiment of the community interest.177 Further, the concerns expressed by the respondent’s experts as to the protection of local amenity and character which I consider well-founded are clearly not lost on the local submitters whose concerns as to the proposal are similar. [87] As to the existing character and amenity, I accept the evidence of the respondent’s experts to the effect that it is a remarkably intact and attractive example of a rural residential estate. In particular, I accept that this lot is at the gateway or entrance to 177 See the passage from Abeleda extracted in paragraph [15] above. -- 40 of 42 -- 41 the estate and although it is in a busier part of the local area than the properties towards the end of the cul-de-sac, it contributes to the local character and amenity. [88] Consistent with the submissions of the parties, I consider that the proposal does not comply with the 8,000m² minimum average lot requirement. I do not consider that that is in the nature of an absolute requirement and certainly do not consider that this would lead to a refusal of the appeal. I have instead focused upon the qualitative requirement that lot design proceed in a way such as “to protect local amenity and character”. In my view, that requirement is fundamental within the City Plan. [89] I also add that although I have expressed my view to the effect that the allowance for variation in lot size down to lot sizes of 4,000m² is not something that arises in the abstract without the variation being responsive to relevant constraints, the additional potential failure to comply with the City Plan in this respect is not determinative in any sense. Its real significance in my view is by way of potential qualification of the appellant’s contention that reasonable community expectations informed by the scheme must include 4,000m² lots. [90] I accept the respondent’s expert evidence and submissions made on its behalf to the effect that unlike other authorities which consider circumstances where there might be deleterious effects on character and amenity, there is no balancing public need for this development. [91] I also consider that there is real scope for public erosion of confidence in the planning scheme if a proposal which in my view fails to protect local amenity and character (being a fundamental requirement in the rural residential zone) be allowed, despite the intact nature of the particular rural residential estate and the lack of any suggested public interest being furthered by approval of the proposal. [92] In my view, the proposal is inconsistent with important provisions of the assessment benchmarks of the City Plan being Specific Outcome s 3.3.7.1(3) and Overall Outcomes 2(b) and 2(d)(i) and (ii), is at odds with the reasonable expectations of submitters as to amenity and character, would be contrary to the sense of spaciousness that underlies the current character of the area and would visibly intensify development and thus not “protect local amenity and character”. There is no public -- 41 of 42 -- 42 benefit to counterbalance the detriments I have identified but instead only a private economic gain to the appellant. [93] Nor do I consider that the proposal to screen the subject site in the way put to the experts ameliorates the effects on local amenity and character. The subject site along with others in the local area, especially corner lots, contribute significantly to the existing character and amenity because of their higher than otherwise contribution to the sense of spaciousness. That would be severely curtailed in my view by the sort of screening that was suggested along both road frontages. [94] Accordingly, the appeal will be dismissed and the Council’s decision to refuse the development application will be confirmed. Orders [95] The orders will be that: 1. The appeal is dismissed. 2. The decision of the respondent to refuse the appellant’s application dated 24 November 2021 is confirmed. -- 42 of 42 --