Dwyer & Dwyer v Sunshine Coast Regional Council [2020] QPEC 45 [2021] QPELR 741

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Dwyer & Dwyer v Sunshine Coast Regional Council [2020] QPEC 45 PARTIES: WAYNE GEOFFERY DWYER AND VICKI DWYER (Appellants) v SUNSHINE COAST REGIONAL COUNCIL (Respondent) FILE NO/S: D166 of 2019 DIVISION: Planning and Environment PROCEEDING: Appeal ORIGINATING COURT: Planning and Environment Court of Queensland DELIVERED ON: 9 September 2020 DELIVERED AT: Gympie HEARING DATE: 5-8 May 2020; 18 June 2020 (Maroochydore) JUDGE: Long SC, DCJ ORDER: The appeal is dismissed and the decision of the respondent to refuse this development application is confirmed. CATCHWORDS: PLANNING AND ENVIRONMENT – APPEAL – Where the appellants sought a development permit for a material change of use to their residential property located at Minyama Island – Where the respondent Council refused the development application – Where the development application sought an extension to the appellants’ existing dwelling house by way of a roof top deck – Where the proposed roof top deck comprises a recreational area with fenced tennis court, indoor shelter area and lift access – Whether the development would achieve identified outcomes sought by the planning scheme – Whether the development should be approved despite substantial conflict with the planning scheme – Whether the development would be compatible with or unacceptably impact on amenity, character and streetscape, views and vistas and community expectations LEGISLATION: Planning Act 2016 (Qld), ss 3, 5, 31, 43, 44, 45, 60 Planning and Environment Court Act 2016 (Qld), ss 43, 45, 46, 47 -- 1 of 53 -- 2 Planning Regulation 2017 (Qld), ss 30, 31, Sch 24 Sunshine Coast Planning Scheme 2014, Version 18 Sustainable Planning Act 2009 (Qld), s 326 CASES: Abeleda & Anor v Brisbane City Council & Anor [2019] QPEC 58 Allastar Pty Ltd v Logan City Council [2001] QPELR 197 Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16 Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46 Bell v Brisbane City Council [2018] QCA 84 Bowlden v Redland Shire Council (1971) 24 LGRA 331 Brookside Estate Pty Ltd v Brisbane City Council [2019] QPEC 33 Gold Coast City Council v K & K (GC) Pty Ltd [2019] QCA 132 Indooroopilly Golf Club v Brisbane City Council (1982) QPLR 13 Jakel Pty Ltd v Brisbane City Council & Anor (2018) 231 LGERA 253 K Page Main Beach Pty Ltd v Gold Coast City Council (2011) 180 LGERA 278 Kangaroo Point Residents Association v Brisbane City Council & Anor [2014] QPEC 64 Kerr v Caloundra City Council [2008] QPEC 39 Kilpatrick v Logan City Council [1982] QPLR 74 Larsen v Caboolture Shire Council (1980) QPLR 64 Lewiac Pty Ltd v Gold Coast City Council [2003] QPELR 385 Lipoma Pty Ltd & Anor v Redland City Council & Anor [2020] QCA 180. M.J & M.E Creed v Caboolture Shire Council [1994] QPLR 97 Murphy v Moreton Bay Regional Council & Anor [2020] QPEC 10 Navara Back Right Wheel Pty Ltd v Logan City Council [2019] QPEC 67 Parmac Investments Pty Ltd v Brisbane City Council & Anor [2018] QPELR 1026 Redland City Council v King of Gifts (Qld) Pty Ltd [2020] QCA 41 Smout v Brisbane City Council [2019] QPEC 10 -- 2 of 53 -- 3 Television Court Limited v Commonwealth (1963) 109 CLR 59 Westfield Management Limited v Pine Rivers Shire Council [2005] QPELR 534 William McEwans Pty Ltd v Brisbane City Council [1981] QPLR 33 YQ Property v Brisbane City Council [2020] QPEC 2 COUNSEL: M.Batty for the respondent SOLICITORS: W.Dwyer self-represented and as agent for V.Dwyer Sunshine Coast Regional Council Legal Services for the respondent -- 3 of 53 -- 4 Background [1] The development application which is the subject of this appeal was lodged with the Sunshine Coast Regional Council (“the Council”) on or about 29 March 2019. The development application was submitted to the Council following receipt of an enforcement notice which alleged unlawful building work having been undertaken on the land.1 The proposed development was subject to impact assessment. By correspondence dated 3 September 2019, the Council issued a decision notice refusing the development application.2 The appellants filed an appeal against Council’s decision to refuse the proposed development, in the Planning and Environment Court at Maroochydore, on 27 September 2019. The Locality [2] The land the subject of this appeal is located at 5 Minyama Island, Minyama, more particularly described as Lot 18 on RP838132. The land is generally rectangular in shape and has an area of 2,001 square metres.3 The land is currently improved by a dwelling house with associated landscaping, outdoor recreation areas and vehicular manoeuvring areas. The subject land is bounded by: (a) Minyama Island (a local authority road) at part of its northern site boundary; (b) the Mooloolah River at its southern site boundary. A private pontoon and jetty associated with the dwelling house extends from the southern site boundary; and (c) land improved by dwelling houses at its eastern and western site boundaries and part of its northern side boundary.4 [3] The land is located on an island within the Mooloolah River, comprising of 22 allotments. The island is characterised by large dwelling houses on large lots all with river access and frontage to an internal street, which is accessible via the Minyama Island Bridge.5 It is a point of agreement in the Visual Amenity JER, that: “the subject site’s local context is a well-established residential area generally characterised by large one and two storey detached dwellings on 1 Exhibit 5, Bundle of JERs and SoEs, Tab 5, Statement of Perkins, p 192, para 25. 2 Exhibit 5, Bundle of JERs and SoEs, Tab 5, Statement of Perkins, p 193, para 33. 3 Exhibit 5, Bundle of JERs and SoEs, Tab 5, Statement of Perkins, p 188, para 9. 4 Exhibit 5, Bundle of JERs and SoEs, Tab 5, Statement of Perkins, p 188, para 11. 5 Exhibit 5, Bundle of JERs and SoEs, Tab 5, Statement of Perkins, p 189, para 13. -- 4 of 53 -- 5 waterfront lots. Although the dwellings generally screen views of the river from the local streets, the expansive water views available from the waterfront properties are a defining feature of the local character and contribute to its high level of amenity for the local community….”6 The Proposed Development [4] The proposed development seeks a development permit for a material change of use for an “Extension to existing dwelling house – roof top deck”. The proposed plans of development form part of Exhibit 1 (tab 4) before the Court. As noted by Mr Perkins (the town planner called by the respondent),7 the site and floor plan, dated January 2019, illustrates that the rooftop deck is proposed to comprise: (a) a recreation deck, which the development application identifies will be used for activities including, but not limited to, basketball, croquet, tennis, bocce, handball, walking, jogging, table-tennis, darts, sunbaking, socialising, golf putting practice, footsal, barbeques, sunset watching, kids play area, viewing platform, line tag, dodge ball, netball, volleyball and European handball. The deck will be lit at night. The deck will be improved by artificial grass; (b) a partly enclosed area labelled, “lift door weather shelter” situated adjacent to the eastern facade of the dwelling house. In the opinion of Mr Perkins, this area is capable of being used in addition to its labelled function; (c) access to the rooftop deck is proposed to be provided by a lift at the eastern facade of the dwelling house. The lift shaft will extend a maximum height of 11.7 metres above ground level.8 [5] Mr Perkins was of the opinion that the section plans also demonstrate that:9 (a) the maximum height of the existing roof is 8.47 metres above ground level; (b) a glass fence/handrail is proposed around the perimeter of the rooftop deck and will extend for a maximum height of 12.12 metres above ground level; (c) the lift door weather shelter which is labelled to comprise a solid wall at the eastern facade will extend a maximum height of 11.7 metres above ground level. 6 Exhibit 5, Bundle of JERs and SoEs, Tab 1, VA & Architecture JER, p 6, para 12. 7 Exhibit 5, Bundle of JERs and SoEs, Tab 5, Statement of Perkins, p 191, para 18. 8 Exhibit 5, Bundle of JERs and SoEs, Tab 5, Statement of Perkins, p 191, para 20. 9 Exhibit 5, Bundle of JERs and SoEs, Tab 5, Statement of Perkins, p 191, para 21. -- 5 of 53 -- 6 [6] Despite what is depicted in the drawings submitted as part of the development application, the images before the Court demonstrate that the structure referred to as “lift door weather shelter” will in fact comprise a room with solid walls to the eastern and southern facades, glass at the western facade and an opening at the northern facade.10 So much is demonstrated by the photographs included in the Visual Amenity JER.11 Those photographs demonstrate that this area can be used for recreational activities, particularly given that it is improved by both a barbeque and a fridge. [7] Mr Perkins was also of the opinion that building work has been carried out on the land that is inconsistent with the drawings submitted as part of the development application.12 This building work, in the opinion of Mr Perkins, includes construction of: (a) stairs adjacent to the “lift door weather shelter” that provide access to the roof of the “lift door weather shelter”. Indeed, that “roof” has been laid with artificial grass consistent with the rooftop deck. Footings for future balustrades have been installed. As is the opinion of Mr Perkins that this additional building work suggests that there is an intention for the roof of the “lift door weather shelter” to be useable space and for the maximum height of the house to therefore extend beyond 12.12 metres; (b) fencing around the rooftop deck comprised a combination of materials including mesh fencing (consistent with standard tennis court fencing) and glass panelling, rather than “glass fence/handrail” as labelled on the plans for which approval is sought; and (c) stairs adjacent to the north-western corner of the rooftop deck to the lower levels. In the opinion of Mr Perkins, it is unclear if these stairs are permanent or for construction purposes. Issues in Dispute [8] From the agreed list of issues between the parties, the following questions are identified for the consideration of the Court: 10 Exhibit 5, Bundle of JERs and SoEs, Tab 5, Statement of Perkins, p 191, para 22. 11 Exhibit 5, Bundle of JERs and SoEs, Tab 1, VA & Architecture JER, pp 14-15, Figure 12-14. 12 Exhibit 5, Bundle of JERs and SoEs, Tab 5, Statement of Perkins, pp 191-192, para 23. -- 6 of 53 -- 7 (a) Whether the proposed development would be of an excessive height and scale. (b) Whether the proposed development would result in unacceptable impacts on the character and streetscape of the locality. (c) Whether the proposed development would result in unacceptable visual amenity impacts. (d) Whether the proposed development would result in unacceptable impacts on residential amenity. (e) Whether the proposed development would fail to protect environmental values because of light, glare and noise. (f) Whether the proposed development would result in unacceptable impacts on views and vistas. (g) Whether the proposed development would be consistent with reasonable community expectations. (h) Whether the proposed development could be conditioned to comply with the applicable planning instruments. (i) Whether, in the exercise of the Court’s power under section 60(3) of the Planning Act 2016 (Qld), the proposed development should be approved having regard to the following matters identified by the appellant: (i) the proposed development allegedly providing open space for the benefit of the community; (ii) the design of the proposed development; and (iii) the degree of any non-compliance with the Sunshine Coast Planning Scheme 2014 considered in the context of the locality of the proposed development. [9] In determining the agreed issues, the following provisions of version 18 of the Sunshine Coast Planning Scheme 2014, are relevant: (a) Strategic Framework – s.3.8.2.1(g) and s.3.8.3.1(c); (b) Height of Buildings and Structures Overlay Code – OO 2(a), 2(b), 2(c), 2(e) and PO1; (c) Nuisance Code – OO 2(a), 2(b), PO1 and PO6; (d) Low Density Residential Zone Code – OO 2(g) and 2(h); and (e) Dwelling House Code – Purpose, OO 2(a), 2(b), PO1 and PO10. -- 7 of 53 -- 8 Statutory Regime – Assessment [10] The development application the subject of the appeal was lodged with the Council on or about 29 March 2019. As each of the Planning Act 2016 (Qld) (“PA”) and the Planning and Environment Court Act 2016 (Qld) (“PECA”) commenced on 3 July 2017, it is under those Acts that the appeal is to be determined. [11] The appeal is by way of hearing anew.13 By s 45(1) of PECA, the appellants bear the onus of establishing that the appeal should be allowed. The Court is to determine the appeal standing in the shoes of the assessment manager, on the law as it presently stands.14 By s 47 of PECA, in determining such an appeal, the Court is required to decide to do one of the following in respect of the decision appealed against: “(a) confirm it; (b) change it; (c) set it aside and— (i) make a decision replacing it; or (ii) return the matter to the entity that made the decision appealed against with directions the P&E Court considers appropriate.” [12] Pursuant to s 44(3) of the PA, development may be categorised into one of three categories by a “categorising instrument” and s 43 provides for such instruments in the following terms: “43 Categorising instruments (1) A categorising instrument is a regulation or local categorising instrument that does any or all of the following— (a) categorises development as prohibited, assessable or accepted development; (b) specifies the categories of assessment required for different types of assessable development; (c) sets out the matters (the assessment benchmarks) that an assessment manager must assess assessable development against. (2) An assessment benchmark does not include— (a) a matter of a person’s opinion; or (b) a person’s circumstances, financial or otherwise; or (c) for code assessment—a strategic outcome under section 16(1)(a); or (d) a matter prescribed by regulation. Examples of assessment benchmarks— a code, a standard, or an expression of the intent for a zone or precinct 13 Section 43 PECA. 14 Jakel Pty Ltd v Brisbane City Council & Anor (2018) 231 LGERA 253 at [93]; and s 46(1)-(2) PECA. -- 8 of 53 -- 9 (3) A local categorising instrument is— (a) a planning scheme; or (b) a TLPI; or (c) a variation approval, to the extent the variation approval does any of the things mentioned in subsection (1). (4) A regulation made under subsection (1) applies instead of a local categorising instrument, to the extent of any inconsistency. (5) A local categorising instrument— (a) may state that development is prohibited development only if a regulation allows the local categorising instrument to do so; and (b) may not state that development is assessable development if a regulation prohibits the local categorising instrument from doing so; and (c) may not, in its effect, be inconsistent with the effect of a specified assessment benchmark, or a specified part of an assessment benchmark, identified in a regulation made for this paragraph. Note— Assessment benchmarks are given effect through the rules for assessing and deciding development applications under section 45, 59 or 60. (6) To the extent a local categorising instrument does not comply with subsection (5), the instrument has no effect. (7) A variation approval may do something mentioned in subsection (1) only in relation to— (a) development that is the subject of the variation approval; or (b) development that is the natural and ordinary consequence of the development that is the subject of the variation approval. (8) Subsections (4) and (6) apply no matter when the regulation and local categorising instrument commenced in relation to each other.” [13] As was common ground in thie appeal, this development application required impact assessment,15 the decision of the Court is to be based on the assessment required by s 45(5)-(7) of the PA, as engaged pursuant to section 60(3) of the PA, in the following terms: “(3) To the extent the application involves development that requires impact assessment, and subject to section 62, the assessment manager, after carrying out the assessment, must decide— (a) to approve all or part of the application; or (b) to approve all or part of the application, but impose development conditions on the approval; or 15 As required by the relevant categorising instrument, being the Sunshine Coast Planning Scheme 2014 at 5.10.1 (because of the engagement of the Height of buildings and structures overlay): see s 43 and s 45(1)-(2) of the PA. -- 9 of 53 -- 10 (c) to refuse the application.”16 [14] The relevant assessment process is prescribed as follows, in s 45: “(5) An impact assessment is an assessment that— (a) must be carried out— (i) against the assessment benchmarks in a categorising instrument for the development; and (ii) having regard to any matters prescribed by regulation for this subparagraph; and (b) may be carried out against, or having regard to, any other relevant matter, other than a person’s personal circumstances, financial or otherwise. Examples of another relevant matter— • a planning need • the current relevance of the assessment benchmarks in the light of changed circumstances • whether assessment benchmarks or other prescribed matters were based on material errors Note— See section 277 for the matters the chief executive must have regard to when the chief executive, acting as an assessment manager, carries out a code assessment or impact assessment in relation to a State heritage place. (6) Subsections (7) and (8) apply if an assessment manager is, under subsection (3) or (5), assessing a development application against or having regard to— (a) a statutory instrument; or (b) another document applied, adopted or incorporated (with or without changes) in a statutory instrument. (7) The assessment manager must assess the development application against or having regard to the statutory instrument, or other document, as in effect when the development application was properly made.”17 [15] That may be contrasted with the only other form of assessment which is provided for, as follows: “(3) A code assessment is an assessment that must be carried out only— (a) against the assessment benchmarks in a categorising instrument for the development; and (b) having regard to any matters prescribed by regulation for this paragraph. (4) When carrying out code assessment, section 5(1) does not apply to the assessment manager.” Accordingly and by way of understanding the broader or less restricted scope of impact assessment, there is not only the expressed ability to have regard to other 16 No issue arises as to the application of s 62, which deals with the obligations of an assessment manager as to the requirements of a referral agency. 17 In the hearing of this matter no issue was raised and no reference made to s 45(8) or any subsequent statutory instrument or other document. -- 10 of 53 -- 11 relevant matters but also no exclusion of s 5(1), which requires that “[a]n entity that performs a function under this Act must perform the function in a way that advances the purpose of this Act. Such purpose being noted in s 3 of the PA. [16] In terms of the application of s 45(5)(a)(i) and (ii), regard is to be had respectively to ss 30 and 31 of the Planning Regulation 2017 (Qld). Relevantly to this matter, it is only necessary to note that for the purpose of the application of s 45(5)(a)(ii), s 31 requires regard to be had to: “(f) any development approval for, and any lawful use of, the premises or adjacent premises; and (g) the common material.”18 [17] As was noted in the submissions of the respondent, the effect of the statutory framework for impact assessment under the PA, was the subject of examination by this Court in Ashvan Investments Unit Trust v Brisbane City Council & Ors.19 As further acknowledged in those submissions, there are other decisions of the Court, such as Brookside Estate Pty Ltd v Brisbane City Council,20 which emphasise that the assessment is required to be exercised having regard to the fact that the planning scheme remains the embodiment of the public interest, as previously recognised in cases such as Bell v Brisbane City Council,21 Gold Coast City Council v K & K (GC) Pty Ltd22 and Redland City Council v King of Gifts (Qld) Pty Ltd23 (despite those cases being determined under the Sustainable Planning Act 2009 (Qld) (“SPA”)). Specific reference was also made to the following observations in Abeleda & Anor v Brisbane City Council & Anor:24 “It is well established that, subject to there being sound reasons to warrant otherwise, the planning scheme will be the embodiment of the public/community interest. A part of that is that the community ought be able to expect that what the planning scheme intends to achieve or sets as benchmarks will be complied with.” 18 It suffices to note that the definition of “common material”, in Schedule 24 of that Regulation, is that it is “all the material about the application that the assessment manager receives before the application is decided”. 19 [2019] QPEC 16. 20 [2019] QPEC 33 at [21]-[25]; see also Navara Back Right Wheel Pty Ltd v Logan City Council [2019] QPEC 67 at [44]; and YQ Property v Brisbane City Council [2020] QPEC 2 at [12] (both subject to application for leave to appeal). 21 [2018] QCA 84. 22 [2019] QCA 132. 23 [2020] QCA 41. 24 [2019] QPEC 58 at [131] (subject to application for leave to appeal). -- 11 of 53 -- 12 [18] It may be noted that in Ashvan and in the context of notation of the legislative departure from a more expressly structured test for determination of impact assessment, in s 326 of the SPA, a question was posed as to the significance of any assessed non-compliance with a planning scheme under the PA.25 After notation of the apparently more flexible approach which is allowed in respect of the decision ultimately to be made pursuant to s 60(3) of the PA, three points were then made: (a) the requirement of assessment against assessment landmarks “will inform whether an approval would be consistent, or otherwise, with adopted statutory planning controls”; (b) any established non-compliance would be a relevant consideration in the decision to be made pursuant to s 60(3) of the PA; and (c) 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 decision to be made, but “[i]t should not be assumed that non-compliance with an assessment benchmark automatically warrants refusal”.26 [19] Essentially the following views were then expressed: (a) Practically, the decision making framework requires exercise that advances the purpose of the PA and which “may call for an assessment manager (or this Court on appeal) to reach a balanced decision in the public interest where two competing considerations are 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”;27 (b) That by reference to observations in William McEwans Pty Ltd v Brisbane City Council,28 there is no discernible novelty involved in planning decisions “striking a balance between rigidity and flexibility”. As further explained: “[57] The rationale underlying the need for the rigid application of adopted planning controls is clear. Adopted statutory planning controls are given the force of law after an extensive preparation process, including public notification and State interest checks. As Judge Carter said, a planning scheme reflects the will of the community. This community will is 25 [2019] QPEC 16 at [53]. 26 Ibid at [53]. 27 Ibid at [54]. 28 [1981] QPLR 33, at pp 34-5. -- 12 of 53 -- 13 determined by elected officials who comprise the local planning authority. It is this entity who decides what is, or is not, in the community’s interest from a planning perspective. It is not for the assessment manager, nor this Court on appeal, to gainsay the expression of what constitutes the public interest in a planning sense. In real terms, a rigid application of planning documents has the wholesome purpose of building a community’s confidence in a planning scheme, being a statutory document that is relied upon for public and private investment. The desirability of confidence on the community’s part in the provisions of a planning scheme is a matter that has been stressed by this Court for many years. [58] The rationale for adopting a flexible approach to the application of adopted planning controls is equally clear. What underlies a flexible approach is a recognition that planning is not an exact science, and planning schemes are not immutable”;29 (c) The necessary balance is to be struck in the context of an understanding that: “Little exposure is needed to planning schemes promulgated after IPA took effect to appreciate they are lengthy and complex documents. They embody a significant number of forward planning policy decisions. Those policy decisions are implemented through detailed scheme provisions that are expressed in performance based terms. Provisions of this kind, by their very nature, do not envisage a single development option or design”;30 (d) As to the decision in respect of an impact assessable application “the manner in which the balance between rigidity and flexibility is struck in any given case does not lend itself to a general statement of principle, or precise formulation”, but is: “…. invariably complicated, and multi-faceted … is to be exercised based on the assessment carried out under s 45 of the PA …. will turn on the facts and circumstances of each case, including the nature and extent of the non-compliances, if any, identified with an assessment benchmark” and is “…. subject to three requirements: (1) it must be based on the assessment carried out under s 45 of the PA; (2) the decision making function must be performed in a way that is consistent with s 5(1) of the PA, 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 PA”.31; and 29 [2019] QPEC 16 at [55]-[58], with particular references to Bell v Brisbane City Council & Ors [2018] QCA 84 at [67] and M.J & M.E Creed v Caboolture Shire Council [1994] QPLR 97 at 98. 30 [2019] QPEC 16 at [59], with reference made to Parmac Investments Pty Ltd v Brisbane City Council & Anor [2018] QPELR 1026 at 1033 [26](c). 31 [2019] QPEC 16 at [60], with reference to Smout v Brisbane City Council [2019] QPEC 10 at [54]. -- 13 of 53 -- 14 (e) In the event of identified non-compliance with assessment benchmarks and the absence of consequential statutory mandate for refusal of an application, it is necessary to examine the content of the planning scheme (or other assessment benchmark) “to ascertain the planning purpose of, and degree of importance attached to compliance with, a particular planning principle” and the “extent to which a flexible approach to [the decision] will prevail in the face of any given noncompliance with a planning scheme (or other assessment benchmark) [turning] on the facts and circumstances of each case”.32 [20] In this appeal no particular issue arose as to any emphasis which may emerge from these decisions and nor was there any suggestion of divergence of approach. As has been generally accepted in this Court,33and except for what may be noted to be a cautious preference as to not engaging the extent of emphasis upon the suggested discretionary nature of the decision involved, it is appropriate to follow the approach which has been discerned in these cases and as has been described above. The Planning Instruments [21] As has been noted, this appeal was conducted in particular reference to the Sunshine Coast Planning Scheme 2014,34 with benchmarks identified in the following parts requiring particular consideration: (a) Strategic Framework; (b) Height of Buildings and Structures Overlay Code; (c) Nuisance Code; (d) Low Density Residential Zone Code; (e) Dwelling House Code. 32 [2019] QPEC 16 at [61]-[62], with reference to Smout v Brisbane City Council [2019] QPEC 10 at [51]. 33 Eg; see: Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46 at [12], Toro v Brisbane City Council & Anor [2019] QPEC 53 at [8], Goldicott House Pty Ltd v Brisbane City Council & Ors [2020] QPEC 11 at [8] and Silk Properties Australia Pty Ltd v Sunshine Coast Regional Council & Anor [2020] QPEC 38 at [14]. 34 Version 18, as the version current at the time of the development application. -- 14 of 53 -- 15 [22] The Strategic Framework sets the policy direction for the planning scheme area and forms the basis for ensuring appropriate development occurs within the planning scheme area for the life of the planning scheme.35 Although there is no identified inconsistency as between any of the relevant provisions and accordingly no need to have any particular regard to the stated hierarchy of these provisions within the planning scheme,36 having regard to the generally acknowledged precedence of the strategic framework, it is generally convenient to first identify those relevant provisions, in conjunction with consideration of the adoption of similar themes in other more specifically applicable assessment benchmarks. [23] Also, before descending to any detailed consideration of those benchmarks, it is convenient to note two uncontested considerations, being that the subject land is: (a) under that scheme, included in the protected housing area of the Low Density Residential Zone;37 and (b) included on the Height of Buildings and Structures Overlay Map as having a maximum height of building and structures of 8.5 metres.38 Impact Assessment Visual and Residential Amenity: Views and Vistas, Character and Streetscape [24] The provisions of the Strategic Framework in issue in this proceeding are: (a) section 3.8.2.1(g) which provides that: “other views and vistas, including those identified in local plans or which are important in a local context are also protected, particularly from development which exceeds specified building heights”;39 and (b) section 3.8.3.1(c) which provides the following, as a specific outcome: “A high standard of urban design and landscaping is provided that: (i) is sensitive to a local setting as described in local plans; (ii) enhances the character, identity, and natural and cultural associations of the local area; 35 Exhibit 4A, Planning Scheme Extracts, Vol 1, p 14, s 3.1(1). 36 Exhibit 4A, Planning Scheme Extracts, Vol 1, p 10, s 1.5. 37 Exhibit 4A, Planning Scheme Extracts, Vol 2, pp 216, 217 and see Exhibit 5, Bundle of JERs and SoEs, Tab 5, Statement of Perkins, p 194, para. 37. 38 Exhibit 4B, Planning Scheme Extracts, Vol 2, p 220. 39 Exhibit 4A, Planning Scheme Extracts, Vol 1, p 64, s 3.8.2.1(g). -- 15 of 53 -- 16 (iii) reinforces the positive elements of character, identity and landscape of the local area; (iv) responds to relevant topographic and landscape influences; (v) contributes to a sense of place and the creation of pleasant, living environments; and (vi) creates healthy and safe environments that support community activity and participation, healthy lifestyles and the prevention of crime.”40 [25] As submitted for the respondent, the evidence of Mr Curtis (the architecture and visual amenity expert engaged by the respondent) supports conclusions that: (a) the visual character of Minyama Island Street is comprised of large, well presented, detached dwellings that are set back from the frontages behind a variety of gates, walls and landscaping. The character is enhanced at the western end of the island by the dense landscaping within the road reserve median that separates the east and west bound traffic carriage way. The view of the streetscape demonstrates a high level of residential landscape amenity.41 After passing the landscape median, when approaching the subject site on Minyama Island Street, the proposed development is clearly visible from the street and also from the cul de sac end of the street, as demonstrated by Figures D04 and D06, included in the joint report.42 From 50 metres from the site’s frontage, along Minyama Island Street, the proposed development is visually prominent and appears as a visually intrusive element within the streetscape for receptors at the south-west end of the street and from the properties around the cul de sac;43 (b) the views of the proposed development from the Minyama Island Bridge are from a distance of approximately 130-140 metres. Residential developments in the vicinity generally comprise of 1 and partial 2 storey detached dwellings and are set back from the river, behind recreational areas that include partially sheltered decks, landscaping and swimming pools. The proposed development, due to its size and elevation is a visually prominent 40 Exhibit 4A, Planning Scheme Extracts, Vol 1, p 65, s 3.8.3.1(c). 41 Exhibit 5, Bundle of JERs and SoEs, Tab 1, VA & Architecture JER, p 17, para 31. 42 Exhibit 5, Bundle of JERs and SoEs, Tab 1, VA & Architecture JER, p 17, para 33, and pp 57-58. 43 Exhibit 5, Bundle of JERs and SoEs, Tab 1, VA & Architecture JER, p 17, para 34. -- 16 of 53 -- 17 element within the visual catchment to receptors walking across the bridge as well as to receptors in vehicles. In this respect, in the opinion of Mr Curtis, the proposed development appears as a visually intrusive element that diminishes the views that support an otherwise high level of visual amenity.44 So much is demonstrated by the photographs at pages 59 and 60 of the Visual Amenity Joint Report;45 (c) in respect of views from the properties opposite the proposed development on Mooloolah Drive, these views will extend obliquely along the river, across the river to the properties on the opposite side of the river. These views will be comprised of the same elements and be of a similar quality to those relating to the Minyama Island Bridge;46 (d) the proposed development, due to its size and elevation, is a visually prominent element within the visual catchment to these receptors and others adjoining to the east along the river. The proposed development would appear as a visually intrusive element that diminishes the high level of visual amenity otherwise provided by the views from these properties, such as is demonstrated by the photographs included at pages 61 to 63 of the Visual Amenity Joint Report;47 (e) in respect of views from the Wharf development at 123 Parkyn Parade, although the proposed development would not be highly prominent, it would be “clearly visible” on the skyline where its elevated position and appearance would be inconsistent with the dominant and cohesive visual character of the residential development beneath (in the foreground). Mr Curtis said that the visibility of the proposed development detracts from the otherwise consistent visual character of the view and diminishes the amenity of its otherwise cohesive, residential identity.48 44 Exhibit 5, Bundle of JERs and SoEs, Tab 1, VA & Architecture JER, p 17, paras 35 and 36. 45 Exhibit 5, Bundle of JERs and SoEs, Tab 1, VA & Architecture JER, pp 59-60. 46 Exhibit 5, Bundle of JERs and SoEs, Tab 1, VA & Architecture JER, p 17, para 37. 47 Exhibit 5, Bundle of JERs and SoEs, Tab 1, VA & Architecture JER, p 18, para 39. 48 Exhibit 5, Bundle of JERs and SoEs, Tab 1, VA & Architecture JER, p 18, paras 40 and 41; and see the photographs included by Mr Curtis at pages 64 and 65 and the proposed development’s broader visibility identified by “lines of sight” identified at para 42 and set out at pages 66-68 of the Joint Report. -- 17 of 53 -- 18 [26] Mr Perkins, whilst otherwise deferring to the “visual amenity experts”, also expressed an opinion that the proposed development would have an impact on views and vistas: “As previously discussed, the proposed development will create a built form in stark contrast to and above the predominant roof line of surrounding development and in my opinion will be clearly visible from adjacent and nearby development and a number of public vantage points. The proposed development will be clearly visible from the following viewpoints: (i) properties south of the subject land, located along Mooloolah Drive and with frontage to the Mooloolah River; (ii) The Wharf Mooloolaba; and (iii) Minyama Island bridge. As such, it is my opinion the proposed development will impact on the view of a consistent building line from surrounding development.”49 [27] Mr Curtis was also of the view that the proposed development would not be of a high standard of urban design and landscaping. In this respect, Mr Curtis said that: (a) “the roof deck fence is a prominent vertical element that generally sits over the alignment of the parapet line. This conflicts with the recessive appearance of the existing external walls below, that allow the projecting parapets to be visually prominent features of the dwelling’s appearance”;50 (b) “the tennis court function of the roof terrace is clearly apparent with the metal frame and mesh wire construction having an industrial like appearance that does not compliment the residential character of the rendered and painted walls of the existing dwelling”;51 (c) “the height of the roof deck fence and the lift foyer clearly project above the height of the neighbouring development on Minyama Island with respect to its visibility from the street, from properties opposite, from the Mooloolah River, from the Minyama Bridge and from properties to the north in Mooloolaba. The additional height is not characteristic of the existing residential development on Minyama Island nor of the existing residential development within the local residential area to the south”;52 and (d) the lighting for the proposed development “would not be consistent with the lighting that characterises the existing residential development on Minyama Island nor the existing residential development within the local residential area to the south.”53 49 Exhibit 5, Bundle of JERs and SoEs, Tab 5, Statement of Perkins, p 206, paras 68-69. 50 Exhibit 5, Bundle of JERs and SoEs, Tab 1, VA & Architecture JER, p 19, para 46(b). 51 Exhibit 5, Bundle of JERs and SoEs, Tab 1, VA & Architecture JER, p 19, para 46(c). 52 Exhibit 5, Bundle of JERs and SoEs, Tab 1, VA & Architecture JER, p 19, para 46(d). 53 Exhibit 5, Bundle of JERs and SoEs, Tab 1, VA & Architecture JER, p 19, para 46(e). -- 18 of 53 -- 19 He concluded that the proposed development is poorly integrated with the built form of the existing dwelling, with resultant contrasting appearance with the existing built form diminishing the dwelling’s appearance so that the proposal detracts from the otherwise cohesive character of the local residential area.54 [28] From a town planning perspective Mr Perkins expressed essentially similar views: “Character and Streetscape 55. It is my opinion the Minyama Island streetscape and Minyama Island’s southern frontage to the Mooloolah River is characterised by large dwelling houses that when viewed from the external vantage points predominantly comprise two storeys. These dwelling houses mainly comprise hip and gable roof forms (with some comprising a skillion or curved roof form) and are predominantly constructed from rendered brick with tile or metal sheet roofing. Further, I am not aware of any dwellings on Minyama Island that comprise a roof deck or large structures extending above the roof line or lighting directed to the roof and it is my opinion glass panelling does not feature as a predominant building material at any particular storey of the existing dwelling houses from the Minyama Island streetscape. 56. The existing dwelling house when viewed from the street and the opposite frontage to the Mooloolah River comprises both one and two storeys with a flat roof and large parapet. Whilst the existing houses on land adjoining the subject land comprise a hip and gable or curved roof form, the building massing and scale (including height) of these existing dwelling houses does not dominate over the dwelling house on the subject land. It is my opinion, the proposed development, that extends to approximately 3.65 metres above the existing roof of the dwelling house (to a height of 12.12 metres), will be clearly visible from the Minyama Island streetscape (refer to Figure 8) and the wide locality (as discussed above), will dominate over surrounding dwelling houses and will be in stark contrast (in built form, materials and lighting) to the existing character of development along Minyama Island (refer to Figure 12 to Figure 14)… 57. Noticeably, the proposed development will create a built form on the roof of the dwelling house with sharp ‘upright’ edges that result in the appearance of ‘unfinished’ and ‘temporary’ building work in an area characterised by conventional and predominantly angled or curved roof forms. The proposed development is incongruous in and with its setting. It is therefore my opinion the proposed development does not 54 Exhibit 5, Bundle of JERs and SoEs, Tab 1, VA & Architecture JER, p 19, para 47. -- 19 of 53 -- 20 comply with Part 3.8.3.1(c) of the Planning Scheme, the proposed development will not provide: A high standard of urban design…that: (ii) enhances character….of the area; (iii) reinforces the positive elements of character, identity and landscape of the local area….”55 [29] In addition, the respondent relies on some further observations of Mr Curtis in the context of notation that a comprehensive set of drawings depicting the proposed development has not been provided. In this respect, Mr Curtis identified some issues which may further impact on the appearance of the proposed development that have, so far, not been addressed,56 which included that: (a) The stairs from the lift foyer to the lift foyer roof, which will make the roof easily accessible and potentially able to be used for recreational uses. Even if that is not the case, the roof’s accessibility will require balustrading which will increase the height of the proposed development even further. (b) The roof deck fence has been designed to fold outwards and down. When in the horizontal position, the deck will not have a barrier extending around its full perimeter. As such, a balustrade may be required. The location and construction of that balustrade is unknown. (c) If the external stairs at the western end of the roof terrace are temporary, access and egress from the roof terrace will only be available via the lift. In the event of the lift’s mechanical failure or in an emergency event, appropriate egress may not be available. As to the third issue, the appellants’ position before the Court was that the stairs are intended to be permanent. However, the other observations remain apposite and not of assistance to the application, for the reasons provided by Mr Curtis. [30] The evidence of Mr Curtis and Mr Perkins is largely consistent and cogently supportive of the expressed opinion of each, that the proposed development does not comply with s.3.8.3.1(c).57 55 Exhibit 5, Bundle of JERs and SoEs, Tab 5, Statement of Perkins, p 201, paras 55-57. 56 Exhibit 5, Bundle of JERs and SoEs, Tab 1, VA & Architecture JER, pp 19-20, para 48. 57 Exhibit 5, Bundle of JERs and SoEs, Tab 1, VA & Architecture JER, p 20, para 49(a) and Tab 5, Statement of Perkins, p 202, para 57. -- 20 of 53 -- 21 [31] By way of contrast, the architect called by the appellants, Mr Down, took issue with the extent to which the development is “clearly visible” from particular vantage points and expressed opinions that: (a) The proposed development is not visually prominent and does not have a visually intrusive element nor an “industrial like element”, in the context of noting that the appellants’ residence “has always been a visually prominent element in the neighbourhood”; (b) There has always been dislike of the views from the residences at 110, 112 and 114 Mooloolah Drive; and (c) “There is no cohesive residential identity within any of the neighbourhood surrounding the property in question.” The last point in particular was characteristic of an approach which came from his experience as an architect who had designed six of the twenty two residences on Minyama Island and twenty to twenty five waterfront homes in the Minyama Mooloolaba area and with a preference for “diverse development”.58 He was prepared to agree with Mr Dwyer’s suggestion that he was more of an architect than an expert witness.59 It was in this context that he was prepared to concede that the proposed development was visually different to anything else on the island but sought to clarify that there was no consistency of design with “lots of residences on the island that are visually different to one another”.60 There was, in short, a demonstration of a somewhat individualistic approach, which was less concerned with the requirements of the planning scheme,61 and included his self-definition of “prominent” as “tak[ing] precedence over all other views”.62 [32] However, there is an important point made by Mr Down in explanation of his inclusion, as a matter of interest, of reference to his understanding of dissatisfaction as to views from the Mooloolah Drive properties.63 And that is in respect of what he described as the advantages or disadvantages of residence on a waterfront canal being exposure to the view of the buildings opposite, which serves to underscore the local importance of such views and vistas. 58 T3-51.5-39. 59 T3-47.33. 60 T3-78.16-18. 61 T3-76.37-44. 62 T3-80.7-8. 63 T3-81.26 – T3-82.3. -- 21 of 53 -- 22 [33] There is also merit in the further submission of the respondent, that by comparison to that of Mr Curtis, in respect of design and character issues, the analysis of Mr Down was more superficial, failed to properly consider the issues in dispute and in many instances did not adequately explain why stated opinions were held. For instance: (a) He sought to deflect the issues raised by Mr Curtis, as noted above in paragraph [27](a), by contending that the proposed development does sit within the perimeter of the existing roofline, being that which relates to the larger perimeter of the residence at a lower level than that upon which it is built, and then purported that “as such it DOES NOT conflict with the existing roof shape”.64 But when pressed as to his lack of comment, in the joint expert report, upon the further observations of Mr Curtis, as set out at paragraph [27](b) above, his only observed disagreement was with the contention as to recessive appearance of the lower existing walls.65 (b) He offered no analysis of the proposed development against the planning scheme.66 (c) He had not observed the development at night time,67 and said that he found the report of the respondent’s expert on lighting and acoustics irrelevant, but was prepared to state that the “illumination of the court DOES NOT detract from the local residential area”.68 (d) He said that glass balustrades along the perimeter of the deck have not formed part of his assessment.69 [34] As submitted for the respondent, Mr Down’s evidence should not be preferred to that of Mr Curtis, and particularly as it is supported by that of Mr Perkins. [35] Whether or not it is accurately described as having an “industrial like appearance” or having an unfished or temporary appearance, the proposed development has a starkly discordant appearance to the surrounding vista and is visually prominent and intrusive, particularly because of its location above the specified building height in the locality, on the roof of an otherwise prominent residence. Accordingly, there is 64 Exhibit 5, Bundle of JERs and SoEs, Tab 1, VA & Architecture JER, p 20, para 50, 1 st dot point and T3-83.1-43. 65 T3-84.15-32. 66 T3-77.5. 67 T3-86.1-5. 68 Exhibit 5, Bundle of JERs and SoEs, Tab 1, VA & Architecture JER, p 21, para 50, 4 th dot point. 69 T3-89.42-46. -- 22 of 53 -- 23 conflict with s 3.8.2.1(g), in that important local views and vistas are not protected by this proposal. [36] As well, the proposed development conflicts with the assessment benchmark in s 3.8.3.1(c)(iii), due to it being of an unacceptable design and character in not “reinforcing the positive elements of character, identity and landscape of the area”. [37] These themes are also reflected in similar issues as to conflict with assessment benchmarks in more specific parts of the planning scheme. Height, Massing and Scale [38] The submission of the respondent that the proposed development does not comply with the Height of Buildings and Structures Overlay Code70 and in particular, Overall Outcomes 2(a), 2(b), 2(c) and 2(e) and Performance Outcome PO1, is accepted. [39] Such conclusions are supported by the evidence of Mr Perkins, who noted that the proposed development will have a maximum building height of 12.12 metres above ground level.71 In such circumstances, the proposed development departs from both PO1 and OO2(a) because the height of the proposed development will be well above the mandated height of 8.5 metres, pursuant to those provisions. [40] PO1, is expressed to be subject to what is provided in PO2 but this does not assist the appellants in this appeal. There is some engagement with the implications of PO2 in the submission of the appellants,72 notwithstanding, as pointed out for the respondent,73 the express acceptance by Wayne Dwyer, in his evidence, of the agreement in the visual amenity joint report of a height which did not engage any such considerations.74 [41] In this respect, and as was the opinion of Mr Perkins, while the subject land is partly included in the flooding inundation area, on the Flood Hazard Overlay Map, the proposed development involves construction of a structure on the roof of an existing 70 Exhibit 4A, Planning Scheme Extracts, Vol 1, p 131, s 8.2.8. 71 Exhibit 5, Bundle of JERs and SoEs, Tab 5, Statement of Perkins, p 196, para 46. 72 Appellants’ Written Submissions at [33]-[36]. 73 Respondent’s Written Reply at [5]-[8]. 74 T3-31.35 – T3-32.10. -- 23 of 53 -- 24 two storey dwelling house, significantly above any potential flood hazard. As is noted to PO2, the purpose of the proviso is to allow a “flood hazard allowance” being a relevant “vertical difference, in metres between ground level and the minimum design floor level” as otherwise specified. As was the opinion of Mr Perkins, a flood hazard allowance for the proposed development is not permitted and PO2 is not applicable to the proposed development. In any event, Mr Perkins went on to consider the proposal on the assumption that PO2 was applicable. However, even on that basis, Mr Perkins expressed the view, which should be accepted, that the maximum allowable height would be 9.5 metres, which is still significantly less than the maximum height of the proposed development at 12.12 metres.75 [42] The purpose of this code is stated at 8.2.8.2 as follows: “(1) The purpose of the Height of buildings and structures overlay code is to protect the distinctive character and amenity of the Sunshine Coast as a place with a predominantly low to medium-rise built form.” Such purpose is then stated to be achieved through the overall outcomes stated in 8.2.8.2(2). In addition to OO2(a), which seeks compliance with the specified height limits, overall outcome 2(b) seeks that: “development contributes to the retention of a preferred built form character for the Sunshine Coast, and the local planning area in which it occurs.” [43] There is ample evidential support for the respondent’s contention that the proposal clearly projects above the height of neighbouring development on Minyama Island, with respect to its visibility from the street, from properties opposite, from the Mooloolah River, from the Minyama Bridge and from properties to the north in Mooloolaba. And that the additional height is not generally characteristic of the existing residential development on Minyama Island, nor of the existing residential development within the local residential area. [44] As has been noted, the proposed development would not be of an acceptable built form character in accordance with section 3.8.3.1 of the Strategic Framework and for similar reasons it departs from section 8.2.8.2(2)(b) of the Height of Buildings and Structures Overlay Code. 75 Exhibit 5, Bundle of JERs and SoEs, Tab 5, Statement of Perkins, p 196, para 48. Cf: the engagement of the flood overlay provisions in the Appellants’ Written Submissions at [33] – [36]. -- 24 of 53 -- 25 [45] Issues also arise in respect of the Height of Buildings and Structures Overlay Code, section 8.2.8.2(2)(e), which provides: “(e) Development does not result in a significant loss of amenity for surrounding development, having regard to:- (i) the extent and duration of any overshadowing; (ii) privacy and overlooking impacts; (iii) impacts upon views; (iv) building character and appearance; and (v) building, massing and scale relative to its surroundings.”76 [46] In the submission of the respondent, the proposed development departs from this provision. Considerations as to impacts upon views have been noted above.77 It is contended that the proposed development would not only be of an inappropriate character and appearance, but would have an overwhelming mass and scale relative to its surroundings. The contention of the appellants is that there is compliance with all “statutory setbacks” and that “the existing dwelling has a smaller mass and scale then (sic) a self-assessable building on the same block of land.”78 [47] As pointed out for the respondent, such contentions have the obvious deficiency of being presented as statements of conclusion rather than being otherwise supported by analysis. However the position of the appellants does not address what should be accepted as to an obvious sense of impact in terms of mass and scale, because of the substantial nature of the proposal and its situation upon the top of an otherwise substantial dwelling which has an appearance of being already relatively commensurate in size with the larger dwellings in the vicinity. [48] Further, in respect of the matters raised by section 8.2.8.2(2)(e), it is contended and should be accepted that approval of the proposed development would result in a significant loss of amenity for surrounding development having regard to overshadowing, overlooking and impact on views, particularly on the basis of the evidence of : (a) Mr Fourie, who resides at 4 Minyama Island and said in his statement that: “due to the increased height of the building I also experience severe overshadowing caused by the bar structure that has been built on the roof, which is now very close to my property. As a result, the sun disappears a lot sooner, and especially during winter. This overshadowing causes my patios on the side of my property to be 76 Exhibit 4A, Planning Scheme Extracts, Vol 1, p 131, s 8.2.8.2(2)(e). 77 At [24]-[35]. 78 Appellants’ Written Submission at [17]; and see Ex 12 Statement of W G Dwyer at [25], pp 32-35. -- 25 of 53 -- 26 without sun and as a result, colder earlier in the afternoon than before the development was constructed”; 79 (b) Mr Perkins, who agreed with Mr Fourie. Mr Perkins said that the proposed development will create a useable area on the roof of the existing dwelling providing a viewing platform that enables overlooking onto surrounding development, most notably overlooking onto the private residential properties at the eastern and western boundaries of the subject land;80 and (c) Mr Curtis, who said the: “views from the existing dwelling overlooking the adjoining property at 4 Minyama Drive (sic) were previously minimal, however the opportunity for the overlooking of this adjoining property will be significantly increased by the use of the roof deck. Sightlines from the roof-deck overlook the adjoining property’s outdoor recreational space that adjoins the river and may also be directed towards the property’s west facing fenestration...”81 [49] Despite some attempt by the appellants to contend that there was no substantial additional impact in respect of opportunity for such overlooking,82 this is simply not borne out by the evidence, including that of Mr Down, and the implications of the proposed development. Neither is there any assistance, in circumstances where the appellants bear the onus of proof in these proceedings on the evidence presented to the Court, in any criticism suggesting an error in the assessment report prepared for Council as to which residence was potentially affected by overshadowing.83 [50] It should be concluded that the proposed development would result in a significant loss of amenity for surrounding development having regard to privacy and overlooking impacts. 79 Exhibit 6, Lay Witness Statements, Tab 1, pp 1-2, para 8; and T4-15 – T4-22, noting the clear and emphatic rejections of the attempts by Mr Dwyer to suggest prior engagement and input into the design of the construction on the eastern side. 80 Exhibit 5, Bundle of JERs and SoEs, Tab 5, Statement of Perkins, p 197, para 52. 81 Exhibit 5, Bundle of JERs and SoEs, Tab 1, VA & Architecture JER, p 21, para 52. 82 Eg: see the Statement of Wayne Dwyer in the Bundle of Lay Witness Statements, Ex 6 at [22], pp 116-120; Ex 12 Statement of W G Dwyer at [22], pp 27-29; and the Appellants’ Written Submissions at [9], as to the impact of passing vessels as to privacy in waterfront properties. 83 Appellants’ Written Submissions at [5]-[8]. -- 26 of 53 -- 27 Low Density Residential Zone Code [51] There are two provisions of the Low-Density Residential Zone Code that are in issue between the parties. They are Overall Outcomes 2(g) and 2(h), which provide: “(g) development is designed and located in a manner which makes a positive contribution to the streetscape and is sympathetic to the existing and intended scale and character of surrounding development; (h) development incorporates a high level of residential amenity, personal health and safety, protection for property and appropriately meets the needs of people of all abilities;…” Apart from notation that these provisions repeat the themes as to residential amenity and scale, streetscape and character, as considered above under the subheadings “Strategic Framework” and “Height of Buildings and Structures Overlay Code” and therefore the already identified conflicts with assessment benchmarks, in that the proposed development would not make a positive contribution to the streetscape and is not sympathetic to the existing and intended scale and character of surrounding development and would result in unacceptable visual amenity impacts rather than “incorporate a high level of residential amenity”, there is no need to further discuss them. Dwelling House Code [52] For some similar and some additional reasons, the proposed development does not comply with the Dwelling House Code. There are five provisions of the Dwelling House Code in issue in this proceeding, being the Purpose, OO2(a), OO2(b), PO1 and PO10. Those provisions provide: “9.3.6.2 Purpose and overall outcomes (1) The Purpose of the Dwelling house code is to ensure dwelling houses achieve a high level of comfort and amenity for occupants, maintain the amenity and privacy of neighbouring residential premises and are compatible with the character and streetscape of the local area. (2) The purpose of the Dwelling house code will be achieved through the following overall outcomes: (a) a dwelling house incorporates a high standard of design and makes a positive contribution to the streetscape character of the area in which it is located; -- 27 of 53 -- 28 (b) a dwelling house is sited and designed to protect the amenity and privacy of neighbouring residential premises;…” Table 9.3.6.3.1 Requirements for accepted development and performance outcomes and acceptable outcomes for assessable development Performance Outcomes Acceptable Outcomes Height of Buildings and Structures PO1 The height of the dwelling house is consistent with the preferred character of a local area and does not adversely impact on the amenity of neighbouring premises having regard to: (a) overshadowing; (b) privacy and overlooking; (c) views and vistas; (d) building appearance; and (e) building massing and scale as seen from neighbouring premises. AO1 The height of the dwelling house does not exceed the height specified for the site on the applicable Height of Buildings and Structures Overlay Map. Tennis Courts and Sports Courts PO10 Where a dwelling house includes a tennis court or other type of sports court, the court is designed, located and operated to avoid any adverse impacts on the amenity of neighbouring premises. AO10.1 A 1.5 metre landscape strip incorporating screening tree and/or shrub species is provided between the tennis court or sports court and any side property boundary to create a visual screen between the tennis court and the side boundary. AO10.2 The tennis court or sports courts is fenced with 3.6 metre high mesh fencing for a full-size tennis court or 2.4 metre high mesh fencing if for a half size court. AO10.3 Where incorporating lighting: (a) the tennis court or sports court is located at least 50 metres from the external wall of an existing or approved dwelling on an adjacent lot; and (b) the vertical illumination resulting from direct, reflected or other incidental lighting emanating from the site does not -- 28 of 53 -- 29 exceed 8 lux when measured at any point 1.5 metres outside the boundary and at any level from ground level upwards. [53] Approval of the proposed development would result in unacceptable impacts in respect of amenity, privacy, character and streetscape, issues to which the purpose of this Code, Overall Outcomes 2(a) and 2(b) and Performance Outcome PO1 relate. The proposed development therefore does not comply with the Purpose, Overall Outcomes 2(a) and 2(b) and Performance Outcome PO1 of the Dwelling House Code. [54] In addition, the proposed development, as it is to be so prominently sited on the roof of an existing dwelling and with such exposure to neighbouring premises, does not comply with the performance benchmark (P010) for such a court, particularly in circumstances where the acceptable outcomes envisage location at ground level.84 As was the evidence of Mr Perkins, the proposed development is not designed, located and operated to avoid any adverse impacts on the amenity of neighbouring premises,85 including in respect of lighting, as dealt with below. The proposed development would have adverse impacts in respect of visual amenity, lighting, character, streetscape, privacy and design. Light, Glare and Noise [55] There are four provisions of the Nuisance Code in issue (being OO2(a) and 2(b), PO1 and PO6). Those provisions provide: “(2) The purpose of the Nuisance code will be achieved through the following overall outcomes: (a) development is located, designed, constructed and operated to maintain appropriate levels of amenity and environmental performance by: 84 T4-69.38-44. 85 T4-70.6-11. -- 29 of 53 -- 30 (i) not imposing unacceptable noise, light, glare, dust or odour emissions on surrounding sensitive land uses; and (ii) ensuring that proposed sensitive land uses are not subject to unacceptable nuisance emissions generated from surrounding development; and (b) environmental values are protected by preventing or minimising potential environmental harm or environmental nuisance resulting from the release of contaminants, particularly noise, odour, light, glare, dust and particulates.” Table 9.4.3.3.1 Performance outcomes and acceptable outcomes for assessable development Performance Outcomes Acceptable Outcomes Acoustic Amenity and Noise PO1 Development, other than development involving live entertainment or amplified sound in a hospitality area or as part of a temporary event, is located, designed, constructed and operated to ensure that noise emissions do not adversely impact on surrounding sensitive land uses. Note-this performance outcome applies even if noise emissions are generated by sensitive land uses, from sources such as communal areas, service areas, plant and equipment (e.g. air conditioning units) and the like. AO1 Development does not involve activities that would cause noise related environmental harm or nuisance. OR Development ensures noise does not emanate from the site through site layout, design, construction, and operation. ……… Lighting and Glare PO6 Development ensures that lighting and glare does not have any significant adverse amenity impacts or create nuisance to surrounding premises. AO6.1 Lighting devices are located, designed and installed to: (a) minimise light spillage on surrounding premises; (b) preserve an acceptable degree of lighting amenity at surrounding premises; (c) provide covers or shading around lights; (d) direct lights downwards; (e) position lights away from possible affected areas; and (f) enable the brightness of lights to be adjusted to low levels. -- 30 of 53 -- 31 …… AO6.3 Reflective glare that would cause nuisance to residents or the general public at surrounding premises and public spaces is avoided or minimised through the use of:- (a) external building materials and finishes with low- reflectivity; or (b) building design/architectural elements or landscape treatments to block or reduce excessive reflective glare. [56] As the evidence of the respective experts as to noise related issues, agreed upon proposed conditions designed to address the identified noise related impacts, these issues are considered below, under the subheading dealing with the question as to the appropriate imposition of development conditions. [57] The respondent’s submission is that assessment benchmarks which relate to matters of lighting (OO2(a), OO2(b) and PO6) are not met, in that the proposed use does not: (a) maintain appropriate levels of amenity by not imposing unacceptable light emissions on surrounding sensitive land uses; (b) maintain appropriate levels of amenity by ensuring that proposed sensitive land uses are not subject to unacceptable nuisance emissions generated from surrounding development; and (c) ensure that lighting and glare does not have any significant adverse amenity impacts or create nuisance to surrounding premises.86 [58] Those submissions are accepted, as they are supported by the evidence of Ms Adams, who described the lighting from the proposed development in the following way: “36 The subject lights, including tennis court lights and entertainment coloured lights, were switched on at 7:00pm. Ms Adams commenced observations and lighting measurements from the residence at 112 Mooloolaba Drive and observed the following: - (a) The subject lights were noted to be very high relative to ground level (where typical courts were located), located on 86 The need to consider PO6 is triggered by the fact that all components of AO6.1 are not met. Ms Adams confirmed that was her opinion: Exhibit 5, Bundle of JERs & SOEs, Tab 3, Statement of Adams, p 118, para 51. -- 31 of 53 -- 32 4.0m posts on a roof top deck 8.5m RL (overall 12.5m height of luminaries) and clearly visible from the internal and external living areas of the residence, and bedroom fronting the canal. See photos 18 to 23 in Attachment 3. (b) The tennis court light luminaries were clearly visible and caused a bright distraction and glare when seen from the internal and external living areas, and bedrooms. The tennis lights in particular were very distracting due to their glare and impacted on not only the direct vision but also on your peripheral vision when in the house living areas and bedrooms. The intensity of the luminaires was particularly distracting when looking at the television in the living room, when inside the living area. (c) The extensive coloured lights and their changing of colours was very distracting from the surrounding residential properties, pontoons, and public streets including Minyama Is streets and the Minyama Is bridge, and Mooloolaba Drive where houses did not break line of site (sic) to the subject residence. (d) The reflection of the subject roof top deck lighting and its extreme number and brightness off the canal water to the residence on Mooloolaba Drive was very noticeable and distracting in the external and internal living areas – see photos 18, 19, 20 and 21 included in Attachment 3.”87 [59] Ms Adams undertook light measurements from readily accessible locations on public footpaths along Mooloolaba Drive and also on the canal side of the residence at 112 Mooloolaba Drive. Lighting measurements were undertaken with and without the subject site roof top deck lights switched on. The measurement locations are shown on the figure in Attachment 1 and the measured levels are shown in Table 2. The illumination (light) measurements were undertaken using a field and laboratory calibrated Yokogawa 51001 Illuminance meter. The subject roof top deck lighting is clearly visible from the surrounding residential properties, and is also visible from the Mooloolaba Wharf (which she visited while the lights were activated). Due to the height of the lighting above the roof top deck and to an extent, the neighbouring houses in the general locality, there is a direct line of sight into the luminaires of the subject lights, particularly the tennis court sporting lights, from many of the surrounding public areas (such as roads, bridges, footpaths, the canal and various 87 Exhibit 5, Bundle of JERs & SOEs, Tab 3, Statement of Adams, p 114, para 36. -- 32 of 53 -- 33 places at Mooloolaba) and private outdoor and indoor areas. In respect of these observations, Ms Adam’s statement records that: “43 Ms Adams provides her following opinions and observations regarding the adverse impact of the subject lighting on the roof top deck formed during the evening of the site visit, in the dark, when the subject roof top deck lights were switched on: (a) The flashing lights and changing of light colours and direct line of sight to the luminaires is very bright and distracting from the homes across the river and in public areas. (b) The lighting impacts from the subject lights including direct view into the luminaires, and flashing multicoloured lights are further exacerbated with the addition of the reflection of the same excessively bright and flashing lights off the river. It was noted that the reflection from the canal was significantly less after the subject roof top deck lighting was switched off. (c) The front gate of 7 Minyama Drive was the most exposed location accessible on the site visit evening, and it could be seen that there was clearly direct view to the tennis court light luminaires from the 7 Minyama Property and the windows based on the well-lit facade from the tennis lights (see photo 28 in Attachment 3) due to the southern and south-eastern facades of the dwelling being lit-up by the subject roof top deck lights. It is likely that the light illumination levels at these facades, or 1.5m inside the relevant property boundary, particularly at a height representative of the upper level/s would be greater than those measured at the ground level gate due to the significant light spill from the subject lights and potentially exceed the SCRC 8 lux creation. A number of lights were not directed downwards, but onwards towards adjacent residences, see photos 5, 6 and 7 in Attachment 3. ……. 7.0 Discussion of Lighting Issues 45 It is Ms Adams’ opinion that the existing lighting installations on the roof top deck provides a level of lighting for the tennis court that is “extreme” and in excess of anything that Ms Adams has experienced in her professional career as a lighting expert. In her opinion it is well in excess of a typical residential tennis court set-up, and more in keeping with a commercial entertainment operation such as beer garden, or function facility. 46 There is clear direct view into the sports light luminaires which provides exposure to obtrusive lighting and glare and is distracting during all activities in the external and internal living areas in residence directly across the river, and which impedes basic activities such as watching television. -- 33 of 53 -- 34 47 There is illuminance on the vertical surfaces on the upper level of adjacent residences. This is a clear indicator of the spill light. 48 It is Ms Adams’ opinion that the proposed development lighting would, due to its proposed use as a tennis court and for the other recreational activities as outlines in the application documentation, and its proximity to other neighbouring dwellings (within 10m in some circumstances, which is considerably less than 50m as nominated in Performance Outcome AO10.3 of the SCRC Dwelling House Code), result in unacceptable impacts on amenity and fail to protect environmental values as a consequence of light and glare being emitted from the proposed roof top deck tennis lights and party lights. 49 The proposed development on the subject house is not sited and designed to protect the amenity of neighbouring residential premises as it has not been designed and located and operated to avoid any adverse impacts on the amenity of neighbouring premises. 50 The development does not ensure that lighting and glare does not have any significant adverse amenity impacts or create nuisance to surrounding premises as can be seen with the direct view into the tennis court luminaires from a number of surrounding locations including the adjacent waterway and residential neighbours internal and external living areas and bedrooms. This has not been shown via modelling of the lighting design to have been take into consideration by the Appellant.”88 [60] More specifically, as to the absence of meeting A06.1 or AO6.3, Ms Adams also said: “51 As is required by the Council’s Nuisance Code, Performance Outcome AO6.1 (see Paragraph 23(g) above), the lighting devices for the subject development are NOT located, designed and installed to:- (a) “Minimise light spillage on surrounding premises”: (see photos 25 to 28 in Attachment 3). Light spill from the subject roof top deck can be seen as on the facades of these residences. (b) “Provide covers or shading around lights”: (see photos 18 to 24 in Attachment 3). The tennis court lights require significant shielding to be added to remove this adverse impact, which is unlikely to be practical due to the angle of view from the ground and upper storey of residences which look directly up into the high set sports lighting. (c) “Direct light downwards”: The tennis lighting is directed downwards to a degree but are located at such a height that they shine directly towards sensitive receivers including across the canal to the residences in Mooloolaba drive. It can be seen in some photos (See photos 5 to 7 in Attachment 3) that some LED lights are not facing downwards and are facing directly outwards towards residences to the north. (d) “Position lights away from possible affected areas”: The majority of the stronger lights are located on the edge of the 88 Exhibit 5, Bundle of JERs & SOEs, Tab 3, Statement of Adams, p 114, paras 43, 45-50. -- 34 of 53 -- 35 roof top deck minimising distance and any potential shielding to the affected neighbours, and surrounding residences. As such this acceptable outcome had not been considered. (e) “Enable the brightness of lights to be adjusted to low levels”: There has been no demonstration that the subject lights are dimmable. In fact, the opposite is true – the sports lights are designed to provide maximum brightness for sporting activities. The appellant (and his advisors) have not provided design outcomes suggesting that the light brightness or design was considered to minimise impact by consideration of adjustable level lighting. 52 Contrary to the requirements of SCRC Nuisance Code Performance Outcome AO6.3 (see per Paragraph 23(h)(b)) Ms Adams found the reflective glare off the canal waters at the residence across the river from the subject site caused nuisance and kept catching her attention and was very distracting at the 112 Mooloolaba Drive residence. 53 When at the residence at 112 Mooloolaba Drive, the reflection of lights in the general area on the canal reduced significantly after the subject roof top deck lighting had been switched off. 54 The effects of the lighting on transport signalling systems e.g. for water craft operators do not appear to have been considered by the appellant, and it has not been demonstrated that this is acceptable. 55 A lighting impact assessment has not been provided for the lighting design showing that the design would not adversely impact the amenity of surrounding residences or the water craft using the canal. As such the extensive lighting on the roof top deck should not be used until it can be shown that the requirements of the SCRC Codes and the A4282 standard are fully complied with and as such safety risk and adverse impacts are eliminated by the design and installation. 56 It has not been shown that the development is located, designed and constructed and operated to maintain appropriate levels of amenity and environmental performance or that the proposed development would not impose unacceptable light or glare emissions on surrounding sensitive land uses. Therefore, it has not been shown that environmental values are protected by preventing or minimising potential environmental harm or environmental nuisance resulting from the release of light from the site. The photos included in Attachment 3 show direct a view (sic) into the luminaires. This is due to the height and angle of the tennis court lights and the flashing and changing of colour of the entertainment lights.”89 [61] On the basis of her observations and analysis, Ms Adams was ultimately of the opinion that the proposed development did not comply with the Nuisance Code,90 and 89 Exhibit 5, Bundle of JERs & SOEs, Tab 3, Statement of Adams, pp 118-119, para 51-56. 90 Exhibit 5, Bundle of JERs & SOEs, Tab 3, Statement of Adams, p 119, para 57. -- 35 of 53 -- 36 that the lighting aspects of the proposed development cannot be conditioned to achieve compliance with the planning scheme, during night time use.91 As she essentially explained, it is the extent of exposure of the surrounding locality to the proposed development and the lighting aspects of it that is the issue: “59 The height and directionality of the lighting, combined with the close proximity to neighbouring dwellings, and the direct line of site to residences on the other side of the canal, result in unacceptable lighting impacts on amenity and fail to protect the environmental values being emitted from the proposed development. 60 It can be seen from the photos in Attachment 3 that the subject lighting appears to impose noticeable light exposure, spill light and glare onto surrounding sensitive land uses which can be seen in the photos which show the direct view to luminaries and the significant extent of the 44 changing LED party lights. 61 The subject lights were noted to be very high relative to ground level (where typical courts are located), and were located on 4.0m posts located on the roof top deck with an 8.5m RL, providing an overall luminaire height of 12.5m above ground level. The significant height of the luminaires relative to other receivers meant the luminaires were clearly visible from the internal and external living areas and bedrooms of surrounding residences fronting the canal.”92 [62] And as it was understood, it was for similar reasons that Ms Adams confirmed that the installation of shields on the pole lights (only) at the proposed development, after the production of her report, did not affect her opinion.93 [63] As was the submission of the respondent, the opinions expressed by Ms Adams were comprehensive, considered matters relevant to the evaluation of lighting impacts (such as the planning scheme and AS4282-2019) and persuasively demonstrated why the relevant assessment benchmarks are not met by the appellants in the circumstances of this proposed development. And further that this stands in contrast to the unconvincing evidence of the witness for the appellants on lighting issues, Mr Cousins, whose approach was on the basis of his qualifications as an electrical fitter/mechanic/linesman and 35 years industry experience, including in dealing with street and sporting field lighting. 91 Exhibit 5, Bundle of JERs & SOEs, Tab 3, Statement of Adams, p 119, para 70. 92 Exhibit 5, Bundle of JERs & SOEs, Tab 3, Statement of Adams, p 114, paras 59-61. 93 T3-63.20-25. -- 36 of 53 -- 37 [64] Such conclusions are supported by a number of the issues raised by the respondent in respect of the evidence of Mr Cousins. First, he has demonstrated some closeness of association to the appellants and their proposed development: (a) he said that he had been to the Dwyer residence before (outside of the context of this appeal) about “possible future development work that we may have been doing”94 and he said that he had been “associated with him (Mr Dwyer) on – on a number of times”;95 (b) he made a submission in support of the proposed development, prior to him being engaged as an expert witness in the matter. That submission stated under the heading “Details of submission”: “Good on Wayne Dwyer for having a go. There is not too many people that would have actually thought of, let alone be able to consider building a tennis court on their roof to not only improve their property and the surrounding area, but also to have a game of tennis. Certainly I believe Wayne’s initiative and forethought to utilize his existing space effectively in this prestigious area, should be commended to carry some weight in the decision making. Change can be difficult for most people and it is expected that there will always be negatives to it. However, from the submissions against this development applications that I have read so far, there certainly hasn’t been anything relevant to any impact that isn’t already in existence. Most people in the area will at one time or another host parties, their children will play in their driveways bouncing basket balls or the like, and whilst there are roads there will always be car noise. As you can see from the Dwyer’s beautiful designer home on Minyama Island that Wayne himself has built, it is already a prominent feature of the Minyama Island community. With this in mind, any addition or alteration, including a roof top tennis court, will also be just as spectacular, adding values and further prestige to not only his own home but also the neighbouring real estate. The fact that this development is outside the norm, should be used by Council as a positive. It is an opportunity for the council to review the current Town Plan so that its specifications are relevant to the position, size lot, and environment, and not just a blanket rule for all across the area. I fully support this application and I hope this Sunshine Coast Council can look past the negatives, and show strong 94 T4-37.30-35. 95 T4-37.35. -- 37 of 53 -- 38 leadership by assisting locals like Wayne in creating the future of this most unique part of the world”;96 and (c) he acknowledged that he was aware that his wife also made a submission supporting the proposed development.97 [65] Also and significantly, he confirmed that: (a) no lighting modelling pursuant to AS4282 has been prepared for the proposed development98 and that AS4282 is not a document that he commonly applies;99 (b) he had performed no corresponding analysis of the matters made relevant by AS4282, in circumstances where such an analysis had been undertaken by Ms Adams;100 (c) other than AO10.3 of the Dwelling House Code, the planning scheme (and particularly the provisions of the planning scheme relevant to lighting) are not considered in his report;101 (d) he disagreed with the effect of the photographs produced in the report of Ms Adams and in support of her assessment,102 despite those photographs showing obvious lighting impacts from the proposed development beyond the boundaries of the subject site. Although, he did appear to agree that if the photos are correct, impacts from the proposed development do occur beyond the subject site;103 (e) that the proposed light shields are to only be installed on the pole lights of the proposal, as he recommended.104 However there is no suggestion that his further recommendation, as to the focus of the coloured lights, has or is to be implemented or would be of any substantial effect, which is of significance because, as Exhibit 5, page 138, item 27 demonstrates, lighting impacts occur beyond the 96 T4-38.25; and Exhibit 1, IDAS Documents, p 185. 97 T4-42.9. 98 T4-49.1-5; and T4-50.5-10. 99 T4-49.15. 100 T4-49.35; and cf: Exhibit 5, Bundle of JERs & SOEs, Tab 3, Statement of Adams, p 111, section 4.2 and p 119, para 55. 101 T4-50.40 - T4-51.5. 102 T4-51.5-15. 103 T4-51.18-38. 104 T4-52.25; and see: Exhibit 5, Bundle of JERs & SOEs, Tab 4, Statement of Cousins, p 166, para 14. -- 38 of 53 -- 39 boundary of the subject site from lights other than the pole lights, for which, therefore, no mitigation treatments are proposed. [66] Accordingly, the proposed development does not comply with the Nuisance Code. Preference for the evidence of Ms Adams to that of Mr Cousins, does not depend just upon her qualifications as an engineer with memberships to recognised lighting associations, qualifications and memberships,105 because, as the respondent submits, the appellants, through reliance on the evidence of Mr Cousins, have failed to sufficiently engage with the relevant tests included in the planning scheme (Nuisance Code), against which the Court must assess the proposed development. Reasonable Community Expectations [67] As to consideration of the proposal against community expectations, it is to be noted that section 8.2.8.2(2)(c), the planning scheme expressly seeks for development to have a height that is consistent with the reasonable expectations of the local community. Similarly to what has already been noted as to their difference in approach, Mr Curtis expressed the opinion that the proposed development would not be consistent with reasonable community expectations, in particular reference to that provision in the planning scheme, whereas Mr Down said:106 “In Mr Downs’ vast experience in this neighbourhood there is no ‘community expectations’ relating to relevant planning provisions. The residences constructed in this vicinity are all ‘one off’ designs (not necessarily executed by architects) and it should be noted that design likes and dislikes of the buildings in this area have varied greatly over the past 30 years approx. Mr Downs’ experience with buildings over that period and the profile of the owners can confirm this point.” [68] Mr Perkins expressed the following more expansive and helpful opinion:107 “It is my opinion the reasonable expectations for development on the site can be formed by: (i) the maximum building height specified on the Height of Buildings and Structures Overlay Map; (ii) the preferred built form character for the local plan area in which it occurs; and (iii) the existing built form character of surrounding development. 105 Cf: Exhibit 5, Bundle of JERs & SOEs, Tab 3, p 144 with Tab 4, p 177. See also T4-43.10-20. 106 Exhibit 5, Bundle of JERs & SOEs, Tab 1, p 24 at [57]-[58]. 107 Exhibit 5, Bundle of JERs & SOEs, Tab 5, p 207 at [76]-[83]. -- 39 of 53 -- 40 As previously discussed, the Height of Buildings and Structures Overlay Map identifies a maximum height on the subject land of 8.5 metres. This maximum height is also identified for surrounding development included in the Kawana Waters Local Plan Area and within Precinct LDR1 (Protected Housing Area) of the Low-Density Residential Zone. The Height of Buildings and Structures Overlay Map for Kawana Waters Local Plan Area does not illustrate a height in excess of 8.5 metres for any land included in the Low-Density Residential Zone. Heights in excess of 8.5 metres are illustrated in zones that support the residential communities or encourage higher density residential development, these zones are the High Density Residential Zone, Tourist Accommodation Zone, District Centre Zone, Local Centre Zone, Specialised Centre Zone, Medium Impact Industry Zone, and Sport and Recreation Zone. The intent for these zones is for an intensity and form that is clearly distinctive from that envisaged for the Low-Density Residential Zone (including the Precinct LDR1, Protected Housing Area) and therefore the subject land. With respect to the subject land’s inclusion within the Precinct LDR1 (Protected Housing Area), Part 3.3.4.1(d) of the Planning Scheme states: ‘Existing established residential neighbourhoods that are identified as protected housing areas are retained generally in their current form’ (my emphasis). As previously discussed, it is my opinion the proposed development will not create a built form that is consistent with the existing and intended scale and character of surrounding development and therefore in my opinion will not comply with Part 3.3.4.1(d) of the Planning Scheme. The proposed development will result in a built form that creates an additional storey to the existing dwelling house and a useable area (e.g. large roof top area) that in my opinion is more commonly developed in high density residential or tourist accommodation areas. As previously discussed, the preferred built form character for the Kawana Waters Local Plan area is for a higher intensity of development and built form in and around the centres in the local plan area that support the residential communities, with the intended height of buildings and structures extending beyond 8.5 metres. Whilst the preferred built form character (with specific reference to building height) for land included in the Low-Density Residential Zone in the Kawana Waters Local Plan area is 8.5 metres (sic). It is my opinion this is evident when considered in the context of the existing wider landscape of the subject land as illustrated at Figure 15 above. This figure illustrates a built form that is relatively consistent in height across land included in the Low-Density Residential Zone, albeit for the unlawful building work on the subject land, with increased building heights on land in the High Density Residential Zone at Point Cartwright, some 1.3 kilometres to the north east of the subject land. It is therefore my opinion the proposed development does not comply with overall outcome (c) of the Height of Buildings and Structures Overlay Code, -- 40 of 53 -- 41 and as previously discussed, also does not comply with overall outcomes (a), (b) and performance outcome PO1 of this code. The proposed development exceeds the height specified on the Height of Buildings and Structures Overlay Code and does not contribute to the retention of the preferred built form character for Kawana Waters Local Plan area.” [69] As is noted in that expression of opinion of Mr Perkins, it is not simply a matter of expectation as to height but the particular implications of the use of the roof area of an existing residence, which is not consistent with what may be regarded as reasonable community expectations, in the context of the applicable planning scheme. And as is contended by the respondent, such a view finds substantial support in the evidence of lay witnesses from the potentially impacted locality: (a) Mr Fourie said: “I find the increased height of the building as a result of the tennis court and the bar area, to be a very disturbing feature to look at from my house, particularly as it is right next to my house and is not consistent with the residential nature of the area. I think that the wire and glass used in the construction of the tennis court has an industrial, rather than residential appearance”;108 (b) Ms Smallholme said: “I understand that the rooftop tennis court is higher than the prevailing height for existing houses in the area and is not supported by the Sunshine Coast Planning Scheme. The structure is grossly unsuitable in a residential neighbourhood. It dominates our visual space and degrades the unique qualities of the area”;109 (c) Mr Carney said: “As can be seen from this photo [Annexure A] the project is not in character with the water view, streetscape or the neighbourhood”;110 (d) Mr Dawson said: “The tennis court structure itself is out of character with all the homes in the surrounding area. From our house it is an absolute monstrosity. In my opinion this construction is an eyesore and visual pollution”;111 (e) Mr Campbell said: “The recent addition of a rooftop deck/tennis court on the Dwyer’s residence is an eyesore. It is higher than all of the other residences 108 Exhibit 6, Lay Witness Statements, Tab 1, p 1, para 6. 109 Exhibit 6, Lay Witness Statements, Tab 2, p 39, para 8. 110 Ibid, Tab 3, p 41, para 9. 111 Ibid, Tab 4, p 46, para 12. -- 41 of 53 -- 42 on the island. My eyes are immediately drawn to it when I walk outside, and when I am standing inside looking out. Its appearance is very unusual because one does not ordinarily expect to see a tennis court on top of a house. Being a late add-on to the house, the tennis court doesn’t flow with the architecture of the original house”;112 and (f) Mr Lawrie said: “Before the tennis court was constructed, I enjoyed the outlook from my deck because the houses within my view are constructed in a similar style and do not distract from the water view. The tennis court creates a distraction from the otherwise peaceful and scenic environment because it is so high and one would not ordinarily expect to see a tennis court on top of a house.”113 [70] The appellants unsurprisingly point to a significant number of supporting submissions for the proposed development.114 However, it is not just a matter of tallying numbers when it comes to the consideration of submissions, whether they be in the nature of objections or otherwise.115 They are relevant to the assessment process, but only in so far as they may usefully inform the assessment which is required. Accordingly, of greater significance is the substance of the submissions and the basis upon which they are founded.116 [71] As is sought to be the use put to the submissions of some of the more local residents, by the respondent,117 their expressed views may be given weight as far as they may reflect impacts relevant to the assessment benchmarks or other relevant matters to be considered and provide support for relevant expert opinion. Here and in addition to the general relevance of the issue as to reasonable community expectation, this concept is expressly picked up in a relevant assessment benchmark. [72] This approach may be contrasted to that of the appellants. Much of what is relied upon as supporting submissions, either comes from persons not directly affected by the proposed development, or is particularly expressed in support of the innovation 112 113 114 115 116 117 Ibid, Tab 6, p 85, para 7. Ibid, Tab 7, p 89, para 8. Appellants’ Written Submissions at [37]-[75]; and T1-11.19 – T1-12.45. K Page Main Beach Pty Ltd v Gold Coast City Council (2011) 180 LGERA 278 at [2]. See: Kangaroo Point Residents Association v Brisbane City Council & Anor [2014] QPEC 64, [2015] QPELR 203, at [176]-[177]; Indooroopilly Golf Club v Brisbane City Council (1982) QPLR 13, at 39. See above at [69]. -- 42 of 53 -- 43 and uniqueness of the proposal, or in support of individual characteristics of it despite generally applicable planning limitations. Particular difficulty lies in reliance on support premised on an understanding of community benefit in the proposal, and in reliance on generally expressed opinions which are not borne out by the evidence and where there are exhortations of adoption of approaches not based on implementation of the planning assessment process. 118 [73] The appellants also rely on supportive submissions from other residents of Minyama Island. In particular, the statement of Mr Campbell, who lives at 8 Minyama Island and directly opposite the appellants’ residence, in support of the submission of he and his wife.119 Despite acknowledging close proximity to the site and the impacts of the development, clear support is expressed for the proposal but, it can be observed, in the context of noting the innovation involved and the following:120 “12. I firmly believe that what is being built on top of the house at 5 Minyama island is a benefit to the area and is also a benefit to the health and well-being of those lucky enough to be invited to play a game of tennis. 13. Some people have been saying that the tennis court is going to be some sort of open bar and open sporting and recreational facility. I have spoken with Mr Dwyer and he has assured me that any sporting or tennis activity will be by invitation only and despite Mr Dwyer is (sic) open communication with the neighbourhood sadly there are now a small number of neighbours which will not receive any sporting invitations. 14. I would like to see this development gain the necessary approval as soon as possible so we can all start enjoying the facility this generous man is providing, by invitation to his neighbours.” Otherwise there is particular reference to the submissions of residents from three other locations on Minyama Island,121 which appear to express a sense of ambivalence as to the proposal, including the obviously problematic assertion that: “Its your house and if you want that and council has allowed it .. I’m fine with it.” 118 For the reasons given below, at [83]-[92]. 119 Exhibit 10; and Exhibit 1, IDAS Documents, Tab 7, p 124. 120 Exhibit 10, paras 12-14. 121 See the references in the Appellants’ Written Submissions at [37]-[41]. -- 43 of 53 -- 44 [74] On balance and as is the submission of the respondent, the proposed development is not consistent with reasonable community expectations and therefore departs from s.8.2.8.2(2)(c) of the planning scheme. Whether the proposed development could be conditioned to comply with the applicable planning instruments? [75] There is an issue in the proceeding about whether the proposed development could be conditioned to comply with the applicable planning instruments. This issue arises in the context of the agreed conditions, as jointly proposed by the experts as to acoustics. The proposed conditions are: “(1) The rooftop deck shall only operate between the hours of 7am to 10pm. (2) A 2 metre barrier shall be constructed around the perimeter of the rooftop deck and achieve a minimum surface density of 12kg/m2. (3) The maximum number of people permitted on the rooftop deck shall be limited to 40. (4) Noise emanating from air-conditioning units is to comply with 45 dBA during the from (sic) 7am to 10pm and 41 dBA after 10pm based on the EPP(Noise) background creep limits. (5) Amplification of any sound whatsoever emanating on the rooftop deck is to comply with 45dBA from 7am to 10pm and 41 dBA after 10pm based on the EPP(noise) background creep limits. (6) Post installation commissioning testing must be undertaken to confirm mechanical plant and equipment and the fixed external speakers of the rooftop deck are fully compliant with the noise criteria detailed in attached Noise Report.”122 [76] In addition to those conditions, during the oral evidence, both acoustic experts confirmed that a condition requiring sporting activities occurring on the proposed development being limited to 8 persons or less, would need to be imposed.123 [77] The respondent’s position is that: (a) the acoustic impacts of the proposed development can only be made acceptable by the imposition of the conditions agreed to by the acoustic experts; and 122 Exhibit 5, Bundle of JERs and SoEs, Tab 2, Noise JER, p 78. 123 T3-57.40-45 (Adams); and T3-67.40-45 (Pearce). -- 44 of 53 -- 45 (b) the conditions agreed by the acoustic experts and sought to be relied upon by the Appellants are: (i) unlawful; and (ii) should not be imposed in the discretion of the Court. The starting point in respect of these contentions is with sections 65 to 67 of the PA. However, it is only necessary to note s 65(1): “65 Permitted development conditions (1) A development condition imposed on a development approval must— (a) be relevant to, but not be an unreasonable imposition on, the development or the use of premises as a consequence of the development; or (b) be reasonably required in relation to the development or the use of premises as a consequence of the development.” [78] The first contention as to the illegality of the proposed conditions, is premised on an understanding that conditions of approval have historically been required to be precise and be enforceable against an objective standard, to be lawful. If a condition is so vaguely expressed, that either its meaning or application is a matter of real uncertainty, then it may be invalid.124 And it is noted that this test has been referred to with approval in Queensland.125 The particular concern is that the additional proposal that a maximum of 8 people participate in sporting activities on the proposed development, is imprecise due to its failure to contain an objective or certain standard. More particularly, the Council rhetorically asks, how can a person attending on the deck ever be judged (or not be judged) to be participating in the activity? The condition in question is imprecise and lacks the ability to be assessed against an objective standard. In such circumstances, it is contended that the condition is unlawful. [79] It is not appropriate to accept this contention, as the problem which is identified is in the prospects of enforcement of such a condition, rather than in any uncertainty as to what is required. And this leads directly to the second and more particularly pressed of the respondent’s contentions. 124 Television Court Limited v Commonwealth (1963) 109 CLR 59 at [71]. 125 Kilpatrick v Logan City Council [1982] QPLR 74 at 76. -- 45 of 53 -- 46 [80] The second contention, is that the conditions proposed by the acoustic experts should not be imposed (thereby resulting in additional unresolved conflict with the assessment benchmarks for the proposal, having regard to unacceptable acoustic impacts) due to the fact that imposition of the conditions will require an unacceptable degree of policing by the planning body. This Court has previously rejected conditions that require undue policing by a local government.126 [81] The submission that this Court would not impose a condition requiring the Council to constantly monitor both the number of people attending on the proposed development (to ensure that this number is 40 or less), or the number of people participating in sporting activities on the proposed development (to ensure that the number of people participating did not exceed 8), is supported by the town planning evidence of Mr Perkins, who said that:127 “It is my opinion the draft conditions provided in the Joint Witness Statement of Noise Experts are inappropriate for development involving a dwelling house and are a further illustration of the unsuitability of the proposed development. I provide the following comments in relation to the amelioration measures at paragraph 92 above: (i) restricting the hours of use and the number of people that can use the roof top deck (draft Conditions 1 and 3) in my opinion is highly unusual and unlikely to be practical to apply to a dwelling house, and is more suited and typically applied to a commercial or similar use. The conditions would seemingly rely on complaints about non compliance being made or the Respondent engaging in ongoing monitoring. Both outcomes are impracticable and unacceptable; (ii) construction of a 2 metre high acoustic fence around the perimeter of the roof top deck (draft Condition 2) will further contribute towards other unacceptable visual impacts previously stated throughout this SOE. The acoustic barrier will extend to a height of approximately 10.47 metres above ground level and in my opinion will further contribute to a building mass and scale greater than, and entirely inconsistent with the character of surrounding development and will further compound apparent visual amenity impacts; (iii) air conditioning units and speakers (emanating amplified sound) associated with the roof top deck should not be in use after 10pm if draft Condition 1 is met; restricting the sound emanating from air conditioning and speakers to a specific decibel and different decibels 126 Eg: Lewiac Pty Ltd v Gold Coast City Council [2003] QPELR 385; Bowlden v Redland Shire Council (1971) 24 LGRA 331; Larsen v Caboolture Shire Council (1980) QPLR 64; Allastar Pty Ltd v Logan City Council [2001] QPELR 197; Westfield Management Limited v Pine Rivers Shire Council [2005] QPELR. 127 Exhibit 5, Bundle of JERs and SoEs, Tab 5, Statement of Perkins, p 210, para 93. -- 46 of 53 -- 47 at different timeframes, in my opinion, would be almost impossible to enforce and would rely on the Respondent monitoring this matter (which in my opinion is impractical) and/or complaints. Put simply, approval of the proposed development consistent with this condition would place a significant compliance burden on the Council and is unlikely to be workable.” In respect of the condition limiting those who participate in sporting activities to 8 persons or less, Mr Perkins added in his oral evidence, after confirmation that this additional suggestion did not alter any view he had expressed in his statement, that:128 “I note paragraph 94, which is on page 28, in my numbering – there was a reference to a crowd size of eight people. So I think it’s – it’s – it’s along the lines of what I talked about there. And is it of some interest, understanding that those numbers are numbers that include all the participants, that a number of the sports that I thought had been nominated originally would have – if they were actually played as those particular sporting activities, a number of those would actually have more players per side than the maximum number nominated of eight, for example. I think netball was – was – was identified at one stage, which has seven players per side. Futsal has five players a side. Handball has seven players a side. And dodgeball, which I definitely had to look up, has six players a side. So those numbers are in fact actually even greater than the – than the size nominated.” [82] Clearly, the imposition of the conditions recommended by the acoustic experts, which are necessary to mitigate, to an acceptable standard, the acoustic impacts of the proposed development, would place an unwarranted and unacceptable burden on the local government in respect of enforcement. Accordingly, in circumstances where the proposed development cannot have its acoustic impacts acceptably mitigated by lawful and appropriate conditions, this supports the respondent’s position that there are unacceptable acoustic impacts, also supportive of the contention that approval should be refused. Other Relevant Matters [83] There are three other matters upon which the appellants seek to place reliance in this proceeding. They are that: (a) the proposed development would provide open space for the benefit of the community; 128 T4-62.34-44. -- 47 of 53 -- 48 (b) the design of the proposed development; and (c) the degree of any non-compliance with the Sunshine Coast Planning Scheme 2014 is not determinative when considered in the context of the locality of the proposed development. [84] The submission of the respondent, that none of these matters warrant the proposed development being approved, is accepted. [85] In respect of the first matter, it is clear that the proposed development would be to the benefit of the appellants, including their ability to invite and admit friends and associates, to use them. It is inconceivable, where access to the proposed development is only from the interior of the appellants’ residence, that the proposed development is for public use. As such, while members of the public may be invited to use the facilities, this will be entirely at the discretion of the appellants. Support for such conclusion, if it is needed, may be found in the evidence of Mr Perkins: “The proposed development is for an extension to an existing dwelling house and will create a useable space on the roof of that existing dwelling. It is my opinion, this space will provide private open space, rather than open space that is readily available and accessible to the community.” [86] There is also merit in the further submissions of the respondent that; (a) on this basis of being in effect only related to the personal circumstances, of the appellants, this consideration would be excluded from consideration by 45(5) of the PA, which provides that for impact assessment, an assessment of the development application: “may be carried out against, or having regard to, any other relevant matter, other than a person’s personal circumstances, financial or otherwise.” ; and (b) even if the appellants’ suggestion that the proposed development would provide open space for the benefit of the community, were made out on the evidence, it is of little significance in the circumstances of this case. That is especially so given that, if the facility were to be made open to members of the public, it was the opinion of Mr Perkins that the appellants have applied for the incorrect use. Mr Perkins said: “…If this is the intention (i.e. to make the facilities available to the public) it is my opinion the proposed development should have been defined as ‘outdoor sport and recreation’…”. -- 48 of 53 -- 49 Mr Perkins went on to note that such a use would be impact assessable and is not a consistent or potentially consistent use in the low-density residential zone.129 [87] The second matter relied on by the appellants is that the proposed development is of an innovative design. As has been noted, this is redolent of the approach of Mr Down and is also reflected in some of the supporting submissions relied upon by the appellants. The difficulty which it confronts is that when the proposed development is considered against the planning scheme, it is of an unacceptable design. As was the opinion of Mr Perkins, the design of the proposed development will create a built form that: (a) is in excess of the specified height for the subject land; (b) will create adverse impacts on amenity (both visual amenity and residential amenity); (c) is inconsistent and incongruous with the character of the area; and (d) is not reasonably expected by the community.130 [88] The final matter relied upon by the Appellants is that the degree of any non- compliance with the Sunshine Coast Planning Scheme 2014 is not determinative when considered in the context of the locality of the proposed development. [89] As was accepted by the respondent, not every non-compliance with a planning scheme will warrant refusal of a development application. Although and unlike in respect of the provisions for code assessment in the Planning Act (s 60(2)(b)), it is not so expressed, such a conclusion is inherent in the outcomes permitted by s 60(3) being dependant upon the assessment to be conducted pursuant to s 45(5) and which is not limited to only having regard to the relevant assessment benchmarks. And the concession also reflects what has been noted as to the general acceptance in this Court of the flexible approach to impact assessment as discussed above.131 In the respondent’s submission, specific reference is also made to observations made in Murphy v Moreton Bay Regional Council & Anor,132 in reference to earlier 129 Exhibit 5, Bundle of JERs & SOEs, Tab 5, Statement of Perkins, p 208, para 88. 130 Exhibit 5, Bundle of JERs & SOEs, Tab 5, Statement of Perkins, p 209, para 89. 131 At [10]-[20]. 132 [2020] QPEC 10. -- 49 of 53 -- 50 observations in Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor,133 which included: “Not every non-compliance will warrant refusal. It will be necessary to examine the verbiage of the planning scheme to ascertain the planning policy or purpose of relevant provisions and the degree of importance the planning scheme attaches to them. The extent to which a flexible approach will prevail in the face of any given non- compliance with a planning scheme (or other assessment benchmark) will turn on the facts and circumstances of each case.”134 [90] However it is evident that this is not in itself a separate consideration or matter to take into account but rather the notation of a principle that non-compliance with assessment benchmarks is not necessarily determinative and that other relevant matters may be taken into account in the overall assessment. Notably, it is in respect of the provision allowing for the consideration of other relevant matters, in s 45(5)(b) of the PA, that the following examples are provided: “Examples of another relevant matter— • a planning need • the current relevance of the assessment benchmarks in the light of changed circumstances • whether assessment benchmarks or other prescribed matters were based on material errors.” [91] That is of significance in circumstances where the decision of the Court should recognise the fact that the planning scheme should generally be regarded as embodiment or an expression of the public interest involved in the appropriate development of land , as recognised in cases (albeit determined under the Sustainable Planning Act) such as Bell v Brisbane City Council,135 Gold Coast City Council v K & K (GC) Pty Ltd,136 Redland City Council v King of Gifts (Qld) Pty Ltd,137 and Lipoma Pty Ltd & Anor v Redland City Council & Anor.138 [92] For the reasons given, in this instance, there is no such other relevant matter to be so taken into account and the resolution of this appeal depends upon the assessment of the extent and importance of non-compliance or conflict with the relevant assessment benchmarks. 133 [2019] QPEC 46. 134 Ibid at [22]. 135 [2018] QCA 84. 136 [2019] QCA 132. 137 [2020] QCA 41. 138 [2020] QCA 180. -- 50 of 53 -- 51 Conclusion [93] As has been determined, the proposed development would result in non-compliance, substantially across the planning scheme and involving elements of each of the: (a) Strategic Framework; (b) Height of Buildings and Structures Overlay Code; (c) Nuisance Code; (d) Low Density Residential Zone Code; and (e) Dwelling House Code. For reasons identified in the evidence which has been accepted from a number of the respondent’s witnesses, the extent of non-compliance is substantial, particularly in terms of unacceptable impact on the surrounding locality. [94] In short, the opinion of Mr Perkins should be accepted: “It is my opinion the proposed development does not comply with numerous assessment benchmarks in the Planning Scheme and compliance with these assessment benchmarks cannot be achieved through the imposition of conditions. Further, I do not believe there are any relevant matters that warrant approval of the proposed development.”139 This is particularly because, as he proceeded to explain: “This non-compliance has strong town planning consequences. It is my opinion, the proposed development will: (i) comprise a height in excess of that specified for the subject land and in excess of the reasonable expectations of the community. (ii) not comprise a building massing and scale consistent or compatible with its surroundings; (iii) create a dominant feature on top of the roof of the existing dwelling house comprising a form, constructed from building materials and including lighting that will dominate the existing streetscape, is in stark contrast to the existing character of development along Minyama Island, will adversely impact on the amenity of neighbouring residential premises and will adversely impact on the visual amenity from surrounding development and public vantage points; and (iv) not create (as claimed) open space infrastructure of a type contemplated by the Planning Scheme.” And particular impact upon local amenities are identified in the evidence of Mr Curtis, who expressed views,140 that the proposed development would be inconsistent with 139 Exhibit 5, Bundle of JERs & SOEs, Tab 5, Statement of Perkins, p 212, para 95. 140 Exhibit 5, Bundle of JERs & SOEs, Tab 1, VA & Architecture JER, pp 17-24 (as expressed at paras 43, 49, 55 and 57. -- 51 of 53 -- 52 community expectations, cause unacceptable privacy impacts on surrounding residences, not be of an acceptable urban design and character and have an unacceptable impact on views and vistas. And also in the evidence of Ms Adams, whose conclusion in respect of lighting is recorded as follows: “Ms Adams believes the proposed roof top deck will (and does currently) adversely impact the surrounding residents and potentially waterway users and does cause glare and spill light nuisance due to: (a) The roof top deck height and the associated height of the luminaries allowing direct site to the light sources, particularly the sports lighting. (b) The high number (44) of the RGB lights located on the fence line above the deck, and the distraction they cause, especially when they change colour. (c) The reflection of the subject lighting system off the canal across the residences on Mooloolaba Drive.”141 [95] Further there should be acceptance of the respondent’s submission that the identified non-compliance with the planning scheme is substantial and important, because of conflict with a clear policy intent that a proposed development, in the location of the land, should not just be 8.5m or less in height, but: (a) not have an unacceptable impact on the character and streetscape of the locality; (b) not have unacceptable visual amenity impacts; (c) not have unacceptable general amenity impacts; (d) not unacceptably impact on views and vistas; and (e) be consistent with community expectations. 142 [96] It is in this context that it may be noted that the reliance placed, by the appellants, on the decision and particularly the outcome in Kerr v Caloundra City Council,143 is misplaced.144 The decision is not to be regarded as a precedent and particularly as far as it seems to be relied upon in respect of the upholding of an approval for a residence to be built at Buddina, so as to exceed the applicable height requirement. In the main that is because it necessarily involves different circumstances and the application of different planning instruments and there is no assistance to be gained from noting the conclusion, in that case, of the proposal exceeding the otherwise relevant performance criteria despite the conflict in the height requirement. As noted above, in the present 141 Exhibit 5, Bundle of JERs & SOEs, Tab 3, Statement of Adams (lighting), p 122, para 69. 142 Respondent’s Written Submissions at [130]. 143 [2008] QPEC 39. 144 Appellants’ Written Submissions at [76]-[78]. -- 52 of 53 -- 53 instance, it not just in the height of the proposed development that there is conflict identified with such criteria. And here it is the particular location of the development which not only brings it into conflict with the height criteria but also involves the other conflicts and adverse and unacceptable impacts which have been identified. [97] Accordingly, having regard to the conclusion that the proposed development would not achieve the identified outcomes sought by the planning scheme and having due regard to the consideration that the planning scheme remains the embodiment of the public interest as to planning decisions, and the nature and extent of the impacts presented by it, the appropriate conclusion is that the development application should be refused. [98] Therefore, the appropriate conclusion is that this appeal be dismissed, with an order that the decision of the respondent to refuse this development application is confirmed. -- 53 of 53 --