Bundaberg Sugar Ltd v Sunshine Coast Regional Council [2011] QPEC 156

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Bundaberg Sugar Ltd v Sunshine Coast Regional Council [2011] QPEC 156 PARTIES: BUNDABERG SUGAR LTD (Appellant) V SUNSHINE COAST REGIONAL COUNCIL (Respondent) FILE NO/S: Appeal D4 of 2010 DIVISION: PROCEEDING: Appeal ORIGINATING COURT: Planning and Environment Court, Brisbane DELIVERED ON: 27/01/11 DELIVERED AT: Brisbane HEARING DATE: 19/10/2011 – 21/10/2011 JUDGE: Searles DCJ ORDER: Appeal Allowed CATCHWORDS: Appeal – IPA - Council Refusal – Material change of Use – Multi Unit Dwelling – Conflict with Planning Scheme – Purpose – Amenity - Need COUNSEL: Mr T. Trotter Mr M. Williamson SOLICITORS: IPA LAW SCRL Legal Services Appeal [1] This is an appeal from a decision of the Council refusing an application for a Development Permit for a Material Change of Use to establish a 14 unit multiple -- 1 of 91 -- 2 dwelling at 14-16 Mill Lane, Nambour on land described as Lots 4 and 5 on RP26523, Lot 6 on RP848483 and Lots 35 and 36 on RP 26525, an area of 3,090m². [2] The proposal consists of a mix of two and three bedroom units in a two to three storey building. For reasons which will become apparent in this judgment, the applicant amended the plans of the proposed development which amendments were found by this court on 8 April 2011 to be minor changes.1 The application of the minor change was made subsequent to the Council‟s refusal. The main difference between the plan refused by the Council and the amended plan is that the layout of all but one of the units fronting Mill Lane has been amended so that the units are on top of each other rather than side by side. The new configuration will enable a range of business and professional office type uses to be conducted in the ground floor units 2, 4 and 6 in the future if the need should arise. Those units have been designed so that no building work or only minor building work would be required to accommodate any such business and professional office type uses in the future. Units 1, 3, 5 and 7 being the second storey units would, in the new regime, continue to function as residential units above the ground storey business and professional office type uses.2 [3] The application was impact assessable and following public notification no submissions were received. Council’s Decision 1 Order Robertson DCJ, Court Document 27 2 Exhibit 2 Appeal Book, p 374, letter applicant‟s solicitors to Council 2 September 2010 -- 2 of 91 -- 3 [4] By Decision Notice of 4 January 20103, the Council advised the applicant of its decision to refuse its application for the following reasons:- (1) The proposal conflicts with the Strategic Plan intent for Industrial Development. The Strategic Plan identifies the area as being suitable for fabricating, repairing or serving [sic] a product adding value in the process. (2) The proposal conflicts with the Precinct Intent for Nambour‟s Town Centre Frame, for commercial, business and service activities. Multiple dwellings are sought as a secondary uses [sic] through “shop top” housing. (3) The development conflicts with the Code for Multiple Dwelling Units4 as the units are not located in a residential area; are not in context with the street and locality which is for business, commercial and service activities and will compromise the use of adjoining land. Furthermore the development will also offer poor amenity for residents, given the precinct intent for the area, poor orientation of the units. The proposed design measure to reduce acoustic impacts will also lead to further inefficiencies in terms of energy usage. (4) The proposed Multiple Dwelling Units are not compatible with the existing preferred development for the area. Grounds of Appeal [5] The appeal was instituted on 7 January 2010. The ground relied upon by the Appellant is that any decision to approve the development application subject to conditions would not compromise the achievement of the Desired Environmental Outcomes for the planning scheme or conflict with the planning scheme but, in the event that any such conflict was established, there are sufficient grounds to justify a decision to approve the application despite that conflict. 3 Exhibit 2, p 360 4 Curiously, no such code exists -- 3 of 91 -- 4 Existing Land Uses within the Environment of the Site [6] The Site previously formed part of the operational area of the now demolished Moreton Sugar Mill and Lots 35 and 36 which front Mill Lane to the west each contain a single dwelling previously used as administration offices for the Mill and will be removed as part of the proposed development. The Mill closed in 20035 [7] The existing land uses within the Site‟s environment are to be found in the Surrounding Land Use Map, attachment 10 to the joint report of the town planning experts, Mr Schomburgk (Appellant) and Mr Venn (Council)6. The Site is in the north-west corner of an area bounded in the south by Jose Street, to the east by Daniel St, to the north by Mitchell Street and to the west by Mill Lane. South of Jose Street is another block bordered by Mill Lane to the West, Daniel Street to the east and Arundell Avenue to the south. [8] In the joint report Mr Venn,7 with whom Mr Schomburgk did not disagree, detailed the on-ground land uses in the area bounded by Mitchell Street, Daniel Street, Arundell Avenue and the railway line which is another block away to the west from Mill Lane. Tamper Street runs south/north off Jose Street towards Mitchell Street and is a dead-end a little over halfway up the street. [9] The land uses described by Mr Venn are:- (a) A recent multi-unit development on the corner of Tamper and Jose Street; 5 Exhibit 8A, p 4. 6 Exhibit 8 -- 4 of 91 -- 5 (b) 16 vintage residential premises (circa 1949 similar to the Mill cottages) of which:- (i) Two are on the subject site and have been used as offices for the Mill; (ii) Two appear to have been abandoned (Lots 31 to (sic) 34 east side Mill Lane); (iii) Two are wedged between light industry premises and are “For Sale” (Lots 5 and 18 east side Tamper Street); (iv) One is a block of dated four single level flats (Lots 33 and 34 north side Jose Street); (v) One is in poor condition wedged amid the transport depot and appears to be utilised for that purpose (Lots 9 to 11 south side Jose Street); (vi) Five are in a row (Lots 2, 3 and 28 to 30 west side Tamper Street) of which one is home business; and (vii) Three are found high above the road on an access way and are on the perimeter of the Lots 2, 30 and 31 on the west side of Daniel Street; (c) Lots 28 and 29 on the south side of Mitchell Street being vacant land utilised as a car park by Northpine Motors; (d) Marrs Transport on Lots 3 and 4 on the south side of Jose Street; (e) Shops fronting Arundell Avenue on the south side of Jose Street being Lots 1 and 3; (f) An auto repair business on the south side of Jose Street on Lots 23 and 2; and 7 Ibid, para 4.4.5. -- 5 of 91 -- 6 (g) A band hall on Lots 21 and 22 on the south side corner of Jose and Daniel Streets. [10] In terms of age, Mr Venn says the commercial/industrial premises on the southern side of Mitchell Street, being the northern boundary of the subject area, are of recent construction to be contrasted with the remnant and/or abandoned residential premises above referred to. The older development generally exhibits 1940-1950 themes and the other non-residential development similarly postdates the 1949 remnant housing premises by a considerable period of time. Statutory Regime [11] The application of 24 April 2009 was made before the introduction of the Sustainable Planning Act (SPA) on 18 December 2009 so that, pursuant to s 819(5)(b) of SPA the appeal is to be heard as if SPA had not commenced and the Integrated Planning Act 1997 (IPA) was still in force. Given that the application required impact assessment, pursuant to IPA s 3.5.5(2) any assessment must be carried out having regard to:- (a) the common material; (b) the planning scheme and any other relevant local planning instruments; (c) if they are not identified in the planning scheme as being appropriately reflected in the planning scheme:- (i) State planning policies, or parts of State planning policies… (ii) … -- 6 of 91 -- 7 (iii) … [12] Under IPA s 3.5.14(2)(a) and (b), any assessment decision must not compromise the achievement of the Desired Environment Outcomes for the planning scheme area or conflict with the planning scheme, unless there are sufficient grounds to justify the decision despite the conflict. Construction of Planning Schemes [13] These were conveniently summarised in Westfield Management Ltd v Pine Rivers Shire Council8 as: “(a) They should be construed broadly rather than pedantically or narrowly and with a sensible, practical approach (ZW Pty Ltd v Peter R Hughes & Partners Pty Ltd [1992] 1 Qd. R. 352 of 360; Yu Feng Pty Ltd v Maroochy Shire Council [1996], 92 LGERA 41 at 73, 75, 78; Harburg Investments Pty Ltd v Brisbane City Council [2000] QPELR 313 at 318); (b) They should be construed as a whole (Luke v Maroochy Shire Council & Anor [2003] QPELR 447); (c) They should be construed in a way which best achieves their apparent purpose and objects (Luke v Maroochy Shire Council & Anor (SUPRA); Nordale Management Pty Ltd v Maroochy Shire Council [1995] QPLR 368 at 370; Acts Interpretation Act 1954 s. 14A); (d) In the light of the proscription against prohibiting development contained in IPA (s 6.1.2 in (3)); (e) Statements of Intents or Aims or Objectives are intended to provide guidance for the task of balancing the relevant facts, circumstances and competing interests in order to decide whether a particular use should be rejected as inappropriate (Degree v Brisbane City Council [1998] QPELR 287); 8(Unreported) Planning and Environment Court Brisbane 14 November 2003, 1627/2003 at pp 8-9; also Kotku Education and Welfare Society Inc v Brisbane City Council & Ors [2005] QPELR 267 at 271-272. -- 7 of 91 -- 8 (f) A Strategic Plan sets out board desired objectives and not every objective needs to be met before a proposal can be approved (Lewiac Pty Ltd v Gold Coast City Council [1994] 83 LGERA 224 at 230; (g) A Strategic Plan should be read broadly and not pedantically (Yu Feng Pty Ltd v Maroochy Shire Council) SUPRA); (h) Although planning documents have the force of law they are not drawn with the precision of an Act of parliament; (i) A conflict alone may not have the effect of ruling out a particular proposal (Fitzgibbon‟s Hotels Pty Ltd v Logon City Council [1997] QPELR 208 at 212; (j) Implementation Objectives must be read sensibly and in context. They are but a function of the principal objective. The purpose of the objective is better understood by reading all the implementation objectives and understanding the strategy that is inherent. (Jenkinson Pty Ltd v Caloundra City Council [2002] QPELR 527 at 528).” [14] To the above may be added the statement of McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky v A.B.A.9:- “A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court „to determine which is the leading provision and which is the subordinate provision, and which must give way to the other‟. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.” (Citations omitted) Planning Documents 9 (1998) 194 CLR 355 [70] -- 8 of 91 -- 9 [15] The relevant documents are to be found in the South East Queensland Regional Plan 2009-2031 (SEQRP) and the Maroochy Plan 2000 (Scheme). Copies of the relevant extracts from those documents are to found in Annexure A [16] Under the SEQRP Nambour is designated a Major Regional Activity Centre which is defined10 as:- “These centres compliment the principle regional activity centres by serving catchments of sub-regional significance and accommodating key employment concentrations. They also provide business, service, and major retail and convenience functions. With a secondary, sub-regional administration focus, they accommodate district or branch officers of government facilities and cultural and entertainment facilities of regional significance. These centres are typically located around key suburban or inter-urban public transports stops, and provide frequent public transport services to link the centre to surrounding communities. Residential development densities in major activity centres should be around 30- 80 dwellings per hectare (net) or greater.” Draft Amendment No. 19 (Fielder Gillespie Documents)11 [17] Also relevant is a confidential document not yet for public release which is Draft Amendment No. 19 (Amendment 19) to the Maroochy Plan 2000 dealing with the former Mill Site and located to the west of the subject site across Mill Lane. This Amendment 19 is intended to provide revised provisions for those parts of the former Mill Site which aren‟t designated within the Town Centre Core (Precinct 1) and Town Centre Frame (Precinct 2), and to create a new Precinct 17B Mill Lane/Former Mill Site (Precinct Class-Business and Industry).12. [18] Amendment 19 has the following features13:- 10 SEQRP, s 8.6 11 Exhibit 8A 12 Exhibit 8, para 3.5 13 Ibid, para 3.5.3 -- 9 of 91 -- 10 (a) Key Character Element 3.2.3(1)(h) is that “new residential development will (in the first instance) be encouraged to occur as infill in residential precinct and mixed use and top housing developments in the Town Centre”; (b) A street system that features the up-grading of Mill Lane across the subject site frontage, the creation of a roundabout at the Mill/Mitchell intersection adjacent to the subject site, a new road proceeding from that roundabout through the former Mill Site to a new roundabout intersection with Bury St, and then proceeding through the Former Mill Site to a new roundabout in Mill Street, the up-grading of Mill Street – all contributing to a new link between Mill Lane and the Nambour Railway Station; (c) It is intended to accommodate:- (i) Businesses associated with agricultural or rural industry; (ii) Business and industrial uses which have regional and sub- regional markets covering the Sunshine Coast Region; (iii) Small scale manufacturing establishments; and (iv) Specialist services trades including business and commercial equipment services and repair outlets; (d) It is intended that that part of the Former Mill Site within Precinct 2 (Town Centre Frame):- (i) Will be developed for a mix of uses to support the role and function of the Town Centre Core; (ii) That uses such as cultural uses, residential mixed use, civic spaces, educational/learning/training facilities, emerging -- 10 of 91 -- 11 creative low impact industries are also encouraged to establish; and (iii) That the scale and proportion of development must facilitate permeability, be of a human scale and a reflective of Nambour‟s traditional character. Designation of Subject Site [19] The site is within Planning Area 2 – Town Centre Frame - Nambour Precinct 2. [20] Under the Maroochy Plan there are various layers of provisions the relevant ones being:- (a) Broad general and shire-wide provisions of the Industry designation in its Strategic Plan14; (b) The General intent of the various Precinct Classes which operate in some 30 Planning Areas across the Shire15; and (c) The specific intent of Planning Area 2 and Precinct 2, relevant to this Site, which is the most detailed of all levels of the provision. [21] A useful statement of the operation of this cascading structure is to be found in Coolum Properties Pty Ltd v Maroochy Shire Council16 where Dodds DCJ said:- “Volume 1, Clause 1.2 in general terms sets out the role of MP2000. The scheme intends, amongst other things to “(2)(c) recognise the individual character and needs of different areas across the shire”; “(2)(b) to regulate the development on and use of premises in the way which 14 Exhibit 13, tab 2, p 26 15 Ibid, Volume 3, p 1 16 (2007) QPEC 13 at [27] -- 11 of 91 -- 12 encourages orderly and sustainable growth having proper regard to environmental values, community needs, availability of services and facilities and choice”; “(2)(f), to provide a basis for assessing development applications”; “(2)(g) to provide residents, public authorities and investors with confidence about future land use and development within the shire”. Clause 1.5(2) “Land Use” provides that “The division of the shire into planning areas and precincts provides a key element of the development assessment process--- The planning areas and precincts and precinct classes provide detailed guidance on suitable locations for land use and development based on the intended role and desired character of the locality, the relationship to uses in other localities--- Through appropriate Strategic Plan, Planning Area, Precinct and Code provisions, the Planning Scheme recognises and supports: • the key regional centre role of Maroochydore; • the subregional centre role of Nambour; • higher order centre and supporting activities at Mooloolaba and Sippy Downs; • the community and tourist roles of the centres of Buderim, Coolum Beach, Marcoola, the rail towns, the Blackall Range, BliBli and Kenilworth; • a network of existing and future lower order local centres at suitable accessible locations throughout the shire; and • a range of tourist facilities across the shire.” Clause 2.3 explains how the Strategic Plan, Planning Areas and Precincts are intended to work together. In the Shire there are a number of Planning Areas which “provide a link to the strategic plan through setting each area’s context and role within the shire”, Cl. 2.3(2). Each planning area is divided into precincts. The precincts “establish each localities context and role within the Planning Area and the desired future local character”, Cl. 2.3(3). “Proposals for impact assessment development as here will be assessed against the statements of desired local character (made up of the Location and Role, Vision Statement and Key Character Elements) for the Planning Area and the statement of Desired Precinct Character for the individual precinct in which the development is situated which are set out in Volume 3”, Cl. 2.3(4). Such Proposals will also be assessed against the Strategic Plan, “The detailed local planning provisions in Volume 3 are intended to be based upon and reflective of the general principles in the Strategic Plan although it is the Planning Area Provisions in Volume 3 which represent council’s specific planning intent for the relevant localities” Cl. 2.3(5). In cases of inconsistency between Volume 2 Strategic Plan and Volume 3 Planning Areas and Precincts, the statements in Volume 3 prevail in that they represent “specific and considered planning intents for identified localities” Cl. 2.3(6). However, “when there is no -- 12 of 91 -- 13 direct inconsistency between Volumes 2 and 3 but merely different or additional outcomes or requirements indicated, Volume 3 constitutes the primary basis for assessment but all elements of the policy or intent in both Volumes are expected to be satisfied in order that development does not conflict with the planning scheme” Cl. 2.3(b).” Interpretation of Planning Scheme [22] It is necessary to determine whether the proposal is one which is in conflict with the Planning Scheme which involves a consideration of the content of each of the layers of that Scheme. Strategic Plan [23] The Strategic Plan is to be found in Volume 2 of the Scheme and it establishes the strategic policy to be considered in the assessment of impact assessable development.17 The Strategic Plan comprises six elements – The Vision, Key Issues, Strategies, Preferred Dominant Land Uses, Objectives and Implementation Criteria Measures; and Strategic Plan Map.18 [24] There are 10 Preferred Dominant Land Uses. The Site is designated Industry. Relevantly, the Industry Strategy contains the following:- “5.3.2 The Strategic Plan Map identifies areas for future investigation for industrial purposes. These areas of investigation relate to predicted industrial growth and the future role that the Shire will pay to provide for industry in the region ….. 5.3.3 Some industrial activity close to the Regional Centre is encouraged to adopt a commercial character and function to support that Centre. 17 Exhibit 13, Volume 2, page 26 18 Ibid -- 13 of 91 -- 14 5.3.4 It is intended to minimise the incidence of development for non-industrial uses in identified industrial areas to ensure the efficient use of limited resources. 5.3.9 Appropriate Planning Area and Precinct Provision and Planning Scheme codes have been formulated to reflect the above elements of Councils Industry Strategy.”19 [25] The Objectives and Implementation Measures20 contain the following:- “5.5.2 To provide appropriately located Centres of Employment for a range of industry necessary to meet the future needs of a broad based economy and to consolidate industrial activity into these areas. 5.5.4 To protect industrial areas from unwarranted intrusion of non-industrial or less intensive industrial development.” General Statements of Intent for Precinct Classes [26] The next, and more specific provisions, are those of the General Statement of Intent for Precinct Classes which are found in Volume 321. There are 18 Precinct Classes and four within the Centre Precinct. The two relevant ones being the Town Centre Core and the Town Centre Frame. The Site is located in the latter. General Intent for Town Centre Core22 [27] The General Intent for the Town Centre Core contains the following:- “(1) Town Centre Core These precincts are intended to provide for the Shire‟s highest order and most intense retail, commercial, community, civic and entertainment uses – at Principal Activity Centre (Maroochydore), Major Activity Centres 19 Ibid 20 Ibid 21 Exhibit 13, Volume 3, page 5 22 Ibid, p 11 -- 14 of 91 -- 15 (Nambour and Sippy Downs) and Major Tourist Node (Mooloolaba) levels. These Centres are intended to serve as the dominant component of the Shire‟s hierarchy of Centres, serving as major employment areas and the preferred location for specialist retailing, regional and local government offices, and major commercial, cultural and entertainment establishments …” General Intent for Town Centre Frame23 [28] The equivalent General Intent for the Town Centre Frame provides:- “These precincts are intended to adjoin the Town Centres‟ core areas and provide for types of uses and buildings which compliment each core area‟s functions and environment. These precincts are expected to have environments which are more vehicle-orientated than the core precincts. The establishment of a wide range of office, service industrial and community uses is primarily intended for land in these Precincts. Non-residential premises should be of a lesser scale than in the Centres‟ core precinct. …. In these Precincts, residential premises may be approved where Council is satisfied that an acceptable level of amenity can be achieved and is proposed as part of a mixed use development of a site. Generally, dwellings are intended to be situated above ground floor level in a mixed use building.” Statement of Desired Character for Planning Area No 2 – Nambour [29] Next, still within Volume 3, is the Statement of Desired Character for Planning Area No 2 – Nambour in which the Site is located. It, relevantly, provides:- “3.2.1 Location and Role Nambour is located near the geographic centre of the Shire… Nambour is the traditional business and administration centre of the Sunshine Coast region. Although many of its functions have in recent times relocated to the Principal 23 Ibid -- 15 of 91 -- 16 Activity Centre of Maroochydore, Nambour serves an important role as a Major Activity Centre providing higher order goods and services to residential community in the hinterland and rural parts of the Shire. Nambour also remains the regional hub of medical and para- medical services and is the largest residential community in the hinterland and rural parts of the Shire. 3.2.2 Vision Statement (1) It is intended that:- Nambour will be a Major Activity Centre providing higher order goods and services to the hinterland and rural parts of the region. It will also focus for a number of important industry and administration activity as well as accommodating the headquarters of a number of rural focused State and Commonwealth government agencies. …. The Town or Centre will be the focus for business activity …. The Town is also expected to become more valued as a pleasant residential location due to the attractive vegetation, topography and „country town‟ character. The existing facilities and Nambour‟s accessibility to Brisbane, offered by an electric rail system and road linkages, contribute to the liveability of the Planning Area … (2) This means that:- (a) Higher order retail, business and administration uses will locate within the Town Centre so as to consolidate its form and function. Uses which threaten the consolidation of the Town Centre as a major activity centre (i.e. larger scale commercial development outside the defined Town Centre area) will not be supported. (f) New residential premises will be sited and designed to reflect the physical characteristics and constraints of the land on which it occurs … 3.2.3 Key Character Elements (1) Location of Uses and Activity (a) Development is to consolidate and strengthen the existing Town Centre in keeping with its desired character. This includes mixed use infill -- 16 of 91 -- 17 development and mixed use re-development of under-utilised sites; (b) Retail, business and commercial uses and government services will be located in the Town Centre. (d) The existing industrial areas and industrial uses throughout Nambour, including the Moreton Sugar Mill and the Sunshine Milk complex, will be retained and consolidated. Ancillary of compatible uses will be encouraged to co-locate in these specific areas. (g) Any new residential development will, in the first instance, be encouraged to occur as infill on existing unoccupied subdivided lots or on approved development sites within this Planning Area. (2) Design Intent (b) Opportunities to achieve increased densities and a range of dwelling types in areas close to the Town Centre will be pursued, while providing for the development to be sensitive to the topography, significant environmental and/or character values of the locality.” Statements of Desired Precinct Character [30] In the Statements of Desired Precinct Character, the following is found24:- “(1) Nambour Central (Precinct class = Town Centre Core) This precinct is located in the central core of Nambour and includes the traditional business and administration centre of Nambour. … The Town Centre Core accommodates the key business and retail activities for Nambour. A number of large shopping centres are located in this Precinct. As well as this, there are a range of smaller retail outlets, offices and eateries. 24 Ibid, p 66 -- 17 of 91 -- 18 The Town Centre includes the Nambour Railway Station and Interchange which is a very important activity node in the town… A wide range of activities and services would be encouraged in this core Precinct. It is intended that the Precinct remain a compact centre and high order retail, business and administration uses will be encouraged. Preferred and Acceptable Uses Preferred and acceptable uses are indicated in the Supplementary Table of Development Assessment (refer Volume 1). (2) Nambour Centre Frame (Precinct class = Town Centre Frame) This Precinct surrounds Nambour‟s Town Centre Core. The intent for this Precinct is to provide a range of commercial, business and service activities at a scale and intensity less than the scale and intensity of activities in the core. Uses such as business and professional offices, fast food establishments and service trades requiring proximity to the Town Centre should be located in this Precinct. Uses that threaten the consolidation of the Town Centre Core Precinct as a major activity centre (i.e. large scale commercial development) will not be supported. There is also a mix of housing in this Precinct. Some re-use of detached dwellings is encouraged provided it does not adversely impact on surrounding residential uses.” Preferred and acceptable uses Preferred and acceptable uses are indicted in the Supplementary Table of Development Assessment (refer Volume 1). … Preferred maximum density for multi-unit residential or mixed use premises Site Area (m2) Maximum Plot Ratio Site area per dwelling for calculating the DUF -- 18 of 91 -- 19 All sites 0.8 200” Supplementary Table of Development Assessment for Centre Precincts25 [31] The Supplementary Table of Development Assessment for Centre Precincts referred to above is to be found in Volume 1 and relevant to the Planning Area 2 – Nambour Precinct (2) Nambour Centre Frame (Precinct Class = Town Centre Frame). The following are the Preferred and Acceptable Uses for that Precinct:- Car Park Fast Food Store Veterinary Clinic Art and Craft Centre, Garden Centre, Light Industry (occupying no more than 200 m2 gross floor area). Medical Centre Office Show Room Accommodation Building Multiple Dwelling Unit -- 19 of 91 -- 20 Motel The Meaning of Accommodation Building and Multiple Dwelling Unit [32] Accommodation building is defined in these terms: “Accommodation Building means premises comprising only rooming units (such as boarding-houses, guest houses, backpacker hostels, serviced rooms, student accommodation, or any similar use), but does not include bed breakfasts, caravan parks, motels, retirement villages, residential care facility or any other separately defined residential premises. The term includes a building or buildings or any parts thereof used for the provision of meals to residents (whether or not such facilities are open to public use), common room facilities and the like, or for the purposes of a manager‟s residence/office.” [33] Multiple Dwelling Units are defined in these words: “Multiple Dwelling Units means premises comprising an integrated development of more than two dwelling units on the site (such as town houses, row houses or apartment buildings). The term does not include Accommodation buildings, bed and breakfast, caravan parks, institutional residences or retirement villages as separately defined but may include a manager‟s residence.” Code for Low-Rise Multi-unit Residential Premises [34] The final relevant part of the Scheme is the Code for Low Rise Multi-Unit Residential Premises,26 which, relevantly, provides:- “4.3 Code for Low-rise Multi-unit Residential Premises Purpose The purpose of this Code is to provide for:- (a) Multi-unit Residential Premises at suitable locations where community and commercial facilities and utility and 25 Exhibit 13, Volume 1, page 113 26 Exhibit 13, Volume 4, page 201 -- 20 of 91 -- 21 transport infrastructure, is available to adequately support (and be supported by) a mix of housing types and higher concentration of local and (in some cases) visitor population densities; and (b) … (1) Site Location Purpose To provide for low-rise, multi-unit residential premises which are designed to take advantage of significant features of the site and the surrounding area and to be in keeping with the emerging character and amenity of the Shire‟s residential areas which are gradually changing to provide a diverse mix of housing types. PERFORMANCE CRITERIA ACCEPTABLE MEASURES P1 Low-rise, Multi- storey Premises must be limited to a residential area with close or convenient access ability to:- Village/or Town Centre; and Community facilities; and Public open space; and Public transport and other infrastructure A1 Low-rise, Multi- dwelling units are located in Mixed Housing, Multi- storey Residential, and master planned community precincts as outlined in Volume 3 of this Planning Scheme.” Preface to Volumes 2 and 3 of Maroochydore Plan 2000 [35] Each of Volumes 2 (Strategic Plan) and 3 (Planning Areas, Precincts and Precinct Classes) of the Plan have the following Preface in aid of interpretation:- “PREFACE -- 21 of 91 -- 22 Potential Inconsistencies between Statements of Policy or Intent The Statements of Strategic and Local Policy in Volumes 2 and 3 of this Planning Scheme respectively, may include somewhat different statements of policy or intent for the same areas of land. This will generally be an unintended outcome, as the detailed local planning provisions in Volume 3 are intended to be based upon and reflective of the general principles in Volume 2. However, it may occur due to the diversity of the character of the Shire. In any such case, Volume 3 provisions represent Council‟s specific planning intent for the relevant locality, and are not intended to be weakened or overridden by anything in the Strategic Plan. Where there is no direct inconsistency in those statements, but merely different or additional outcomes or requirements indicated, Volume 3 constitutes the primary basis for assessment, but all elements of the policy or intent in both Volumes are expected to be satisfied in order that development does not conflict with the Planning Scheme. If the different statements are inconsistent, statements in Volume 3 prevail over inconsistent statements in Volume 2. This reflects the fact that Volume 2 provisions are either broad strategic statements or statements of general principle, whereas Volume 3 provisions state specific and considered planning intents for identified localities. It is an incorrect use of the Strategic Plan, and an incorrect interpretation of this Planning Scheme, to rely on anything in the Strategic Plan to support or justify as being inconsistent with the Planning Scheme, an outcome which is contrary to the Planning Area Provisions.” Town Planning Evidence Joint Town Planning Report Mr Schomburgk (Appellant) [36] Mr Schomburgk expressed the following views27 27 Exhibit 8, Joint Report, para 4. -- 22 of 91 -- 23 (a) As the land was included in the Town Centre Frame Precinct Class rather than the Core Industry or Business and Industry Precinct, its designation as industrial in the Strategic Plan should be given less weight particularly given the proposed amendment28 to the Plan relating to the former Mill site land. (b) Given the close proximity of the land to higher order services and facilities in the Nambour Major Regional Activity Centre, it is ideal for the use proposed rather than industrial uses and will assist in achieving the intentions of the SEQRP which speaks of residential development densities in major activity centres being around 30-80 dwellings per hectare (net) or greater; (c) Despite some industrial activities in the vicinity of the site, the proposal would not result in reverse amenity impacts on those activities which are likely to be phased out in the short to medium term. Likewise those activities would not affect the amenity of the proposed development; (d) The reference in the Precinct Intent to “a range of commercial, business and service activities” and the fact that a multiple dwelling unit is a preferred and acceptable use, as evidenced by the Supplementary Table of Development Assessment, evidences that multiple dwellings are not in conflict with the intention of the precinct except when they are on the ground level. The proposal has been redesigned to accommodate a mixed use element; (e) The site satisfies Performance Criterion P1 of the relevant Code because the site is within a predominantly residential area as evidenced by the land use map of the 28 Exhibit 8A. -- 23 of 91 -- 24 surrounding area29 to the extent that the proposal does not satisfy the Code it can be conditioned; (f) As to the character of the area the SEQRP and the abovementioned draft planning scheme amendments have both overtaken the planning scheme provisions. In cross-examination30 clarification was given that the events which were said to have overtaken the planning scheme provisions were the departure of the former Mill and the approval for a shopping centre on part of that old Mill site. (g) The character of the locality is not industrial, with only a handful of light industrial uses in the vicinity. The majority of the locality is characterised by houses, many in a poor state of repair and offices some based in dwelling houses and other purpose built. There is a block of units on the corner of Jose and Tamper Streets. For this reason the proposal will not be out of character; and (h) In the event a conflict with the Planning Scheme is found the following grounds would justify approval of the proposal:- (i) The Planning Scheme provisions have been overtaken by SEQRP and the draft Planning Scheme amendments as outlined above; (ii) The industrial designation of the site on the Strategic Plan has been overtaken by precinct designation in the planning area and by the presence of little real industrial development in the locality. The closure of the Mill means that it is unlikely there will be any new major industrial activity in the area; 29 Exhibit 8, p 159. -- 24 of 91 -- 25 (iii) Proposal offers a practical option for some commercial development from a ground floor if and when demand exists for it; (iv) It is unreasonable to withhold appropriate development in the hope that a demand for the types of uses contemplated by the Planning Scheme namely units only above the ground floor, might one day exist; (v) The existing buildings on the site are in dire need of redevelopment and there is no demand for commercial ground floor uses; (vi) The proposal will help to achieve revitalisation of this part of Nambour allowing people to live close to higher order services and facilities in the town centre as contemplated by SEQRP; and (vii) The Council‟s own adopted Planning Scheme amendments31 show that industrial activity is no longer planned for this locality. In cross- examination32 it was conceded that in this locality industry had a very strong presence and a slightly less strong presence given the absence of the former Mill so that the reason for having Core industry has effectively gone. Taking a broader view of the locality, the subject land is intended for light industrial activity. Mr Schomburgk’s individual report 30 Transcript 1.72.12-42. 31 Exhibit 8A. 32 Transcript 1.82-83. -- 25 of 91 -- 26 [37] Mr Schomburgk also provided an individual report33 in which he summarized his view as34:- a. Broad strategic level The industrial designation of the land in the Strategic Plan is outdated and has been overtaken by events being the closure of the Moreton Mill and the approval of the shopping centre development; b. Therefore, the detailed planning intent for the precinct contained within the Planning Area division provides the guidance for the preferred future development of the site/area c. The proposal is consistent with that planning intent and allows flexibility for mixed use development on the ground floor at some future time when demand warrants it; d. To the extent a conflict with the planning divisions may be found there are sufficient grounds to justify approval which are set out in the Joint Report at page 30 Mr Venn (Council) [38] Mr Venn did not provide an individual report. His views, as expressed in the joint report, are: 33 Exhibit 5 34 Ibid paragraph 5 -- 26 of 91 -- 27 a. Any suggestion that events have overtaken the Strategic Plan can only relate to Precinct 18 – Moreton Mill35. The proposed amendment (amendment 19)36 is confined to the former mill site and not all of the Precinct, signalling a clear intention on the part of the Council to have the Precinct, in the main remain current; b. The key strategic objectives for the area as reflected in the Precinct Class and the Strategic Plan PBLU Industrial Designation evidences the Council‟s encouragement of services – industrial type uses for the area, which has occurred; c. The Strategic Plan and Precinct Intent statements are all components of the same planning scheme to be read as a whole. It cannot be said that the Strategic Plan components have been overtaken by events so as to justify reliance only on precincts statements. d. The area is not a predominantly residential area and has a distinctly industrial character resulting from the progressive development of small and medium industrial establishments. The recent approval for the multi unit development on the corner of Hose and Pamper Streets is puzzling but should 35 Exhibit 1 page 102 36 Exhibit 8A -- 27 of 91 -- 28 not be seen as reversing the abovementioned trend of small and medium industrial establishments; e. The environs of the subject site do not exhibit any residential activity and, given that the Performance Criterion P1 in the Code seeks to limit low rise multi unit development to a residential area, the Purpose of the Code seeking to position such a development at suitable locations cannot be achieved; f. The preferred character of the area is as expressed in the Strategic Statements of the Planning Scheme and the impact of the proposed development on that area must be objectively tested by reference to the effect of the imposition of the development into an environment of differing nature, intensity or compatibility; g. The existing land uses in the area earlier detailed37 do not indicate that commercial/industrial uses are being replaced as Mr Schomburgk says; h. Industrial uses/premises are intrinsically incompatible with the amenity of the proposed development. The following are some of the differences between those two uses which Mr Schomburgk agreed should be taken into account when -- 28 of 91 -- 29 considering the question of compatibility between industrial and residential uses38; A. nature of traffic generated; B. noise from traffic generated; C. nature of transport systems; D. effective restrictions on lifestyle (need to keep windows and doors closed); E. restrictions on enjoyment of outdoor areas; F appearance of acoustic barriers; G. residential audible noise effects H. nature and frequency of visitation; I. service vehicles; J. social behaviour defences; K. privacy; L. personal security; M. maintenance of premises; N. waste generation; O. waste disposal technique; P. corporate versus personal responsibility; Q. residual dust, odour and other omissions; R. under-provisions of social and recreational facilities owing to competition for land and access; and S. safety for children activity areas. 37 Paragraph 9 38 Transcript 1.103.15 -- 29 of 91 -- 30 i. Future manifestation of reverse amenity effects by the nearby residential premises and commercial/industrial premises is also recognizable. The proposed amendment to Precinct 1839 which provides for a Business and Industry Precinct Class in the new Precinct 17B does little to suggest appropriate amenity for any residential uses in the future. It rather suggests intense industrial commercial and business activity accompanied by increased road traffic as a result of the new road link proposed; and j. Despite the amendment of the Appellant‟s plans to allow for future commercial activity on the ground floor if demand allows, the application under consideration is one in which residential uses are proposed on the ground floor. Economic Need Experts Joint Report [39] A joint economic need report40 was prepared by Mr Owen (Appellant) and Mr Norling (Council) together with a short supplementary joint report.41 A summary of their view is set out below:- No. Issue Mr Owen Mr Norling (Council) 39 Exhibit 8A 40 Exhibit 6. 41 Exhibit 7. -- 30 of 91 -- 31 (Appellant) 1 Is there a demand for the proposed residential development at the subject site? There is a need and demand There would be demand for the proposal given its location within walking distance of employment, public transport retail activities, community services and recreational activities. However any location of the site within a light industrial area opposite the core industry area together with the proximity to railway line with noise potential undermines the attractiveness of the site for residential purposes and lowers the level of prospective demand 2 Does the Planning Scheme provide other suitably zoned and located land to accommodate any identified need for this type of residential development Redevelopment of older houses to multiple dwellings is an appropriate outcome as the increased residential density supports the Town Centre and makes use of existing service and infrastructure; The next stage of evolution of Nambour as a Major Regional Multiple dwelling units are code assessable with the Mixed Housing Precincts. Within that Precinct Class the Nambour Planning Area provides Nambour Village Residential and Nambour Central Residential which areas are both predominantly located immediately adjacent to the Town Centre Frame. Numerous Multiple Dwelling Units have -- 31 of 91 -- 32 Centre (in the absence of major industrial or commercial drivers) will be reliant on residential redevelopment at numbers beyond that posted in the mixed housing precincts referred to by Mr Norling; The designated Town Centre Frame is an area of 43 hectares is out of scale with current and future needs of the Nambour community and residential uses are appropriate in this area. been progressively developed over time within these two areas and, over time, older detached dwellings have been replaced by medium density developments. The majority of existing medium density developments are located South East of the Nambour Town Centre (Precinct 3) and West of the Town Centre adjoining the Town Centre Frame (Precinct 4). Hence the plan has clearly identified where multiple dwelling units should be located within Nambour and there is a continued opportunity to develop additional Multiple Dwelling Units in accordance with the Plan. 3 Is there a demand for employment generating uses on site. There is no demand for the subject site to host new: modern commercial office space, light/service industry or similar uses because: There is currently a significant supply of vacant commercial space available; Even though there may be no current demand for commercial or industrial uses upon the site, this does not mean that other uses should be developed on it. The site should be preserved for its intended purpose in circumstances where the proposed residential use can be -- 32 of 91 -- 33 Maroochydore will be the focus of public sector investment; The subject site is not suitable for commercial office space or related uses due to the location and resulting lack of exposure. The market would seek office space within the Town Centre Core or along the main streets in the Town Centre Frame. The Town Centre Core and Town Frame have the capacity to host the future jobs that will be located in Nambour. There is no demand for light/service industry in this location for a town of 15,000 people. The broader catchment is serviced by other areas including Yandina. accommodated elsewhere. The Mixed Housing Precincts adjoining the Town Centre Frame and the South Eastern part of the Town Centre have the capacity for redevelopment to accommodate multiple dwelling units. -- 33 of 91 -- 34 The development of other compatible Town Centre Frame uses such as fast food restaurants are also considered appropriate for the subject site given its location away from a major transportation route. Residential uses on site is the only practical development outcome for the site in the foreseeable future. The development of residential uses on the subject site, being in close proximity walking distance to the Town Centre Core is going to support and help activate the Town Centre. The development of residential uses within the Town Centre Frame, such as those proposed, -- 34 of 91 -- 35 will ensure reliance on transportation to and from the Town Centre is reduced and the Town Centre can involve towards transit orientated development. 4 Would approval of the proposal cause a community dis-benefit in terms of loss of employment activity on the site and potential loss of employment on neighbouring sites due to reverse amenity. No material community disbenefit would occur. The revitalisation and activation of the Nambour Town Centre Core is required given the reduced role of Nambour resulting from the emergence of Maroochydore as a principal activity centre. The proposed development will assist in that revitalisation and activation. The proposed development may cause reverse amenity impacts upon the surrounding industrial and community uses resulting in constrained operating hours, changes to actual operation, limitation on the potential for expansion and or trigger the relocation of some of these uses which erode the vitality of the Nambour Town Centre. 5 Affect of Minor Change of plans of development to allow for the conversion of the three ground floor units to non- residential use at a future point in time. This is an appropriate response to the current status of the market namely the lack of demand for commercial space and the This does not affect the above conclusion. -- 35 of 91 -- 36 recent approval of a shopping centre on the former mill centre. The adaptive re-use of the ground floor is the most appropriate means to allow the area to evolve into a true mixed-use precinct. 6 Effective proposed amendment to plan re former mill site42 The proposed amendments and the approval of the Coles supermarket are directly relevant to the appropriate and acceptable uses that may be viably developed on the subject site. In the longer term residential mixed- use is considered a highly desirable for the subject site with the proposed adaptive re-use of the ground floor providing the most appropriate staging mechanism given the lack of demand for new commercial space in the foreseeable future. -- 36 of 91 -- 37 Expert architect [40] Mr Smith of Greenway Architects provided an urban design report43. Without setting out all, he made the following points: (a) streetscape has a mixture of vacant land, residential buildings and dispersed with commercial and semi industrial buildings and residential buildings converted for commercial purposes. In cross-examination Mr Smith agreed that the streetscape of the area did not strike him as residential44; (b) access to the site has been restricted to the south-west corner of the property from Mill Lane; (c) prevailing breezes to the site predominantly come from the east to south- east of medium to strong intensity; (d) the site offers views to Towen Mountain and the hills to the west of Nambour across Tea Tree Creek; (e) the units have been designed to take full advantage of the site, topography and amenity by utilizing the slope of the land to afford views to the neighbouring hills for the majority of the units and to the right an interactive street frontage along the longer main street boundaries. The units along Mill Lane are able to overlook activities in the street and along the footpath. The units along the minor Mitchell Street frontage would be 42 Exhibit 8A. 43 Exhibit 4 44 Transcript 1.39.32 -- 37 of 91 -- 38 at a disadvantage as the site is fractionally below the level of the road and footpath. The unit living areas would be similarly located; (f) the building would give a crisp, modern appearance to vitalize and enhance the precinct. The buildings are stepped and divided to follow the slope of the land creating visual interest and softening the impact of the street, providing areas for landscaping potential. The maximum building height is approximately 9 metres above existing ground level, below the 12 metres allowed for the precinct; (g) the units have been designed to allow cross-ventilation through the units and are set away from the eastern boundary to allow unimpeded air flow of the prevailing breezes. The north south orientation of the driveway and residential blocks allows for greater penetration of prevailing east to south- east breezes; (h) the units are provided with covered balconies/decks at the eastern sides to aid in morning and afternoon sun control; large open decks to the west provide outdoor living areas accessible from internal living areas. Eastern balconies act as service balconies allowing the airing and drying of clothes. Windows have awnings and sunshades for sun control. The general orientation of living areas is to face away from the commercial buildings on the eastern boundary; (i) heating and cooling of internal living spaces will be achieved for the use of reverse cycle air conditioning. This is the most energy efficient artificial heating for winter temperatures which drop to 2-3 degrees centigrade. -- 38 of 91 -- 39 From the marketing perspective air-conditioning is being a norm and an expected inclusion in the majority of new residential accommodation and housing developments. Arguments as to whether the proposal conflicts with the Planning Scheme Appellant’s Arguments [41] The Appellant says there is no conflict between the proposal and the scheme. It points to the generality of the language of the broad shire wide Strategic Plan designations for the relevant Dominant Land Use of industry, the Code for Low- Rise Multi-unit Residential Premises, a shire wide code, and the General Statement of Intent for each of the eighteen precinct classes in the thirty planning areas in the shire. That, it says, is to be contrasted with the specific statements of desired local character in the Location and Role Vision Statement and Key Character Elements relating to the Planning Area and the Statement of Desired Precinct Character for the Nambour Centre Frame Precinct. Further, the above identified general statements make no reference to “preferred and acceptable” uses or the Supplementary Table of Development Assessment for Centre Precincts.45 [42] Further, the above, necessarily general, Shire wide provisions are to be contrasted with the specific provisions relating to Planning Area No. 2 - Nambour46 and the Nambour Centre Frame47 the most detailed and preeminent planning of the Site. In interpreting the Plan, the general provisions must give way to those specific provisions which latter provisions are determinative of the outcome of the appeal. 45 Exhibit 1, page 46 46 Exhibit 1, page 80 -- 39 of 91 -- 40 [43] The Appellant also points to paragraph 5.3.9 of the Strategic Plan dealing with the industry strategy which records that appropriate Planning Area and Precinct provisions and Planning Scheme codes have been formulated to reflect the elements of that strategy. In that formulation the Appellant points to the only industrial activity identified as a preferred and acceptable use in the relevant Precinct as light industry occupying no more than 200 m2 of gross floor area.48 [44] The next focus of the Appellant is on the planning area No. 2 Nambour Scheme Map49 which it says identifies only three Industry precincts 17, 18 and 23 namely:- Precinct No. Description 17 Windsor Road (business and industry) 18 Moreton Mill (core industry) 23 Rigby Street (business and industry) That, it is said, shows that the specific planning intent for the localities as envisaged in the Plan50 has resulted in the subject land not falling within an industry precinct and consequently cannot be described as industry land. That result the Appellant says is consistent with what is to be found on the ground showing that the broad shire wide and general industry designation has been displaced by houses, a medical centre and a wide variety of uses including a museum, theatre, the new 47 Exhibit 1, page 83 48 Supplementary Table Exhibit 1, p 47 49 Exhibit 1, p 102. -- 40 of 91 -- 41 Multi-unit dwelling on the corner of Tampa and Jose Streets and the recently approved Coles Shopping Centre to the west of the subject site. Strategic Plan [45] The Appellant acknowledges that the strategic plan shows the subject site and a large area surrounding it as being within the Industry Preferred Dominant Land Uses (PDLU). That designation, it argues, does not rule out non-industrial development51. Rather it speaks of minimising the incidence of non-industrial development in identified industrial areas. Further, it acknowledges the importance of specific planning area precinct provisions52 in providing that appropriate Planning Area and Precinct provisions and Planning Scheme Codes have been formulated to reflect the elements of the Council‟s broad Industry Strategy. [46] According to the Appellant the subject land, whilst within the broad shire industry designation is not within the Industry precinct in Planning Area 2. That precinct is 1853 to the west of this site across Mill Lane. Properly construed, it is said, the provisions of Planning Area 2, particularly for the Town Centre Frame and Precinct 18, the former Moreton Mill site, have made specific provision respectively for Multi-Unit development on the site and have limited core industry uses to precinct 18. There is no conflict with the strategic plan. Planning Areas, precincts and precinct classes (general – shirewide) 50 Volume 1, para 2.2(5). 51 Strategic Plan Exhibit 13, tab 4, p 26 para 5.3.4 52 Ibid, para 5.3.9 53 Exhibit 1, page 102 -- 41 of 91 -- 42 [47] The Appellant says that volume 3 initially provides General Statements of Intent for Precinct Classes throughout the whole Shire comprising some 30 planning areas which statements are quite different from the Specific Provisions of Planning Area 2 – Nambour. Those general statements for the relevant precinct Town Centre Frame provide that the establishment of a wide range of office, service, industrial and community uses are primarily intended for land in these precincts. It further provides that residential premises may be approved where Council is satisfied that an acceptable level of amenity can be achieved and is proposed as part of a mixed use development of the site. Generally, dwellings are intended to be situated above ground floor in a mixed use building. The Appellant makes the point that there is no reference to necessity for a mixed use development in the more detailed planning for Precinct 2 of Planning Area 2 with which we are concerned, which detailed planning reflects the specific planning for Nambour which may not be appropriate elsewhere in the shire. Nor, it is said, does that general statement, applicable to all Town Centre Frame precincts within the shire, make any reference to a multi-unit dwelling as a preferred and acceptable use by reason of the level of assessment54 as does the more specific Desired Precinct Character statement relating to precinct 2.55 [48] With the primary assessment focus being on the detailed provisions of Planning Area 2, (Location and Role, Vision Statement, Key Character Elements, Statement of Desired Precinct Character, and the Preferred and Acceptable Uses in the Supplementary Table of Development), the Appellant says there is no conflict with the precinct intent for Nambour‟s town centre frame and should be approved. Code 4 Low Rise Multi-Unit Residential Premises 54 Exhibit 1, page 18-20 -- 42 of 91 -- 43 [49] The Appellant addresses Performance Criterion P1 which provides that low rise multi storey premises must be limited to a residential area with close or convenient accessibility to:- village and/or town centres; community facilities; public open spaces; and public transport and other infrastructure. [50] It says the proposal is within 250 to 300 metres of the bus interchange and railway station, in close proximity to the new approved, yet to be built 7,500m2 shopping centre comprising a Coles full line supermarket, speciality shops, offices, banks and the like which is situated some 100 metres away. Further, it is close to the town centre, Council chambers, theatre, library, police station, physiotherapy, medical centre, museum and Jubilee Park56 and enjoys views over Petrie Creek to the forested slopes of Blackall Ranges. It identifies the only criticism against the proposal was the necessity for air conditioning and its westerly aspect which it says has no basis in the planning scheme and ought to be disregarded. [51] As to the reference to the requirement that such development be in a residential area, the Appellant says the Code applies on a shire-wide basis and does not reflect the attributes of the individual precincts. It referred to a statement in Rosswalmore Property Pty Ltd v Maroochy Shire Council57:- [16] The MPK258is a typical IPA performance based 55 Ibid, page 83; supplementary table of development page 48 56 Exhibit 8, page 159 57 (2008) QPEC 50 58 Maroochy Plan 2000 -- 43 of 91 -- 44 scheme which presents as a “cascading” model of assessment of a proposal commencing with the Shire wide vision set out in the Strategic Plan and proceeding through the various levels of the scheme to the more specific provisions focusing on the Precinct in the Planning Area in which the site is situated, and the applicable codes. [17] MrUre is quite correct when he submits by reference to cases such as Luke &Ors v Maroochy Shire Council and Watpac Developments Pty Ltd [2003] QPELR 447 that an assessment manager should construe the Scheme broadly rather than pedantically or narrowly and with a sensible practical approach. However, there is nothing in what Judge Wilson said at paragraphs 55 – 56 of Luke, to detract from the proposition that in relation to a particular proposal such as the one being considered, the assessment manager may find more definitive guidance in the more focussed Planning Area and Precinct provisions of the Scheme. Such an approach is entirely consistent with the whole of the scheme which has, as an essential theme the recognition of individual character and needs of different areas across the Shire. A scheme which focused only on Shire wide issues would not be of much use to people living in different parts of a diverse shire where character and identity will differ greatly. As Mr Trotter observes, by reference to the explanatory provisions in Vol 1, the creation of Planning Areas and Precincts is not based on some ad hoc “desk top” process, it is a result of precisely undertaken local area planning, the distribution of existing and future preferred land uses, landscape/townscape character considerations, transport networks and community views and values [52] All of the preferred and acceptable uses namely accommodation building, multiple dwelling unit and motel are residential uses and when one studies all the preferred and acceptable uses in Precinct 2 it becomes clear that the area is one intended for a mixed use and will never have a single character use. This can be seen, according to the Appellant, by interpreting the Code in the specific context of Planning Area 2 where there is no specific Multi-Storey Residential Precincts but where provision is made for such development as a Preferable and Acceptable Use with graduated density decreasing as the distance of the subject site from the town centre increases. Hence in precinct 1 the Town Centre Core the maximum number of storeys is six, in precinct 2 Town Centre Frame, three storeys and precinct 3 Mixed Housing two -- 44 of 91 -- 45 storeys. This, it is said, reflects the design intent for planning area 2 which speaks of increased densities and a range of dwelling types in areas close to the town centre. In conclusion the Appellant says there is no conflict between the proposal and the Code. South East Queensland Regional Plan 2009-2031 [53] The Appellant also points to the South East Queensland Regional Plan (SEQRP) and the status of Nambour as a Major Regional Activity Centre and the requirement for high density residential development to be focussed within and around regional activity centres, public transport routes and corridors to improve access to existing and planned facilities and services59. It relies also on the statement that planning schemes should allow for a mix of land use including high density residential that generates a high demand for public transport within 400 to 800 metres of stops and stations and transit corridors. It makes the point that the proposal is within 250 metres of the bus interchange and railway station.60 It says that the development is not only consistent with but furthers the achievement of important goals in the SEQRP which assists in explaining the planning scheme amendment in revised amendment 19 earlier referred to. Amendment 19 [54] The Appellant says this amendment is the most recent expression by the Council of its planning intent and is a refinement of the Council‟s vision for the development 59 Exhibit 12, page 91, para 8.1.2 third dot point 60 Exhibit 12, page 86. See also Exhibit 12, page 108 para 8.1.4 -- 45 of 91 -- 46 of the old Moreton Mill site. That document records the following matters of public interest in the development:61 It assists in delivering in a Local Development Area the dwelling and employment targets in the SEQRP 2009 – 2031 It provides much needed revitalization and activity in this part of the town centre It provides a range of uses to meet the current and future needs, including a supermarket and specialty retailing which will increase the retail mix and grocery retail opportunity in Nambour It ensures the preservation and restoration of the State Heritage Listed Mill Houses, including the provision of a publicly accessible landscaped courtyard around the houses, and It provides road transport infrastructure and pedestrian infrastructure providing greater access and permeability in the town centre.62 Effects of Amendment 19 [55] The Appellant points to what it sees as the following effects of this amendment:- 61 Exhibit 8A, pages 1 and 2 62 Ex 8A, page 2 -- 46 of 91 -- 47 54.1 It facilitated the Coles approval which is important because:- (a) The Coles approval of 27 April 201163 consists of 5,215 m2 of retail gross floor area and total office space of 1,536 m2 64; (b) Almost the entirety of the 3 ha site area of the Coles approval land had an industry designation under the Strategic Plan; (c) A substantial part of that land was over Precinct 18 designated Core Industry under Planning Area 2; (d) Despite the loss of industry land, including Core Industry Land no mention was made of the importance of such a loss in the Council‟s report on the Coles‟ application.65 That is to be compared with the Council‟s expressed concern in this appeal; (e) The Council‟s report on the Coles‟ application specifically recognises that the Core Industry designation only existed in the Planning Scheme because of the operation of the Moreton Mill. That is encapsulated in the statement:-66 “Now that the Moreton Mill has ceased operation continued industrial use on the land is neither required or desired.” (f) The Council‟s main thrust in this appeal in resisting approval is its concern as to the loss of industry land and amenity issues; 63 Exhibit 2, page 433. 64 Exhibit 2, page 535. 65 Ibid, page 382. 66 Ibid, page 394 first paragraph. -- 47 of 91 -- 48 (g) The Council‟s Coles‟ report67 contain the following passage:- “One way in which the development proposal does not fully contribute to the objective for Major Regional Activity Centres is that it excludes any form of residential development. Policies 8.6.3 and 8.6.6 speak about the importance of increasing residential densities (in addition to commercial development) around transit corridors so as to generate a high demand for public transport and contribute to the efficiency and optimal use of the public transport network. This is not considered fatal to the application for the following reasons:- … The proposed development is not of a size and scale that would preclude opportunities for High Density Residential and Mixed Use Development in the Nambour Town Centre. 54.2 The amendment sought to bring the provisions of Planning Area 2 into line with the SEQRP;68 54.3 The Council said closure of the Bundaberg Sugar Mill in 2003 presented Council, with an opportunity to realign the use of the land comprising this Nambour former mill site with Nambour‟s contemporary role in the Sunshine Coast Region to best serve the public interest.69 54.4 It made the former mill site a strategic infill opportunity to consolidate Nambour in its role as a Major Regional Activity Centre;70 54.5 Core industry in Precinct P18 to the west of the subject site is replaced with lower impact business and industry in Precinct 17B;71 67 Ibid, page 392. 68 Exhibit 8A, page 2. 69 Ibid, page 4 first main paragraph. -- 48 of 91 -- 49 54.6 Purpose Provision 8 of the new Code for Development on the Nambour former mill site encourages residential, commercial and other uses on that site providing a valuable insight into how the former core industry land is intended to be developed72; 54.7 The former mill site is now much reduced in size and is intended for the establishment of a range of services and light industry uses required to support the activities of the Town Centre;73 and 54.8 Mill Lane is to be widened, roundabouts installed and easy pedestrian passage created from the subject site to the railway station.74” [56] The effect of the above, according to the Appellant, is that the subject site will become even more suitable for residential uses with the corresponding reduction of industry uses in the immediate vicinity of the site. Residential uses are now specifically envisaged for the former mill site together with a range of commercial and other uses.75 [57] Given that the part of the Town Centre Frame previously part of the former mill site proposes to encourage uses such as cultural and community uses, residential mixed use, civic spaces, education/learning/training facilities and emerging creative low 70 Ibid, page 36. 71 Ibid, page 25 and 57, para 7.4(2)(c). 72 Ibid, para 7.4(8). 73 Ibid, page 58, (purpose 17). 74 Ibid, pages 65, 74. 75 Ibid, page 57 (purpose 8). -- 49 of 91 -- 50 impact industries just across the road from the subject site, indicates that the site is suitable for residential purposes76. Amenity [58] The Appellant argues that there is no amenity issue. It relies on the evidence of Mr Smith,77 Mr King78 and Schomburgk79 that in support of its argument that the amenity of the proposal would be of a reasonable standard to the residents and that there would be no adverse amenity impacts given what it saw as Mr Venn‟s failure to particularise with any specificity the reverse impacts he alluded in the joint report80 Reverse Amenity [59] The Appellant says there is no basis to believe that the residents of the proposal would have cause to complain about any existing or future activities in the vicinity given that the only industry activities specified as preferred and acceptable uses are small light industry having a gross floor area of less than 200 m281. Need [60] On the issue of need the Appellant says that, given the Planning Scheme encourages the proposed development for reasons outlined above there is no need to prove planning need. It said the concept of need would be given greater or lesser weight 76 Ibid, page 40, first paragraph. 77 Exhibit 4, para 2.2. 78 Exhibit 3, paras 2.4 and 3. 79 Exhibit 5, para 3.3. 80 Exhibit 8, para 4.5.3. 81 Exhibit 1, page 47. -- 50 of 91 -- 51 depending on all the circumstances to be taken into account82. Further, given that the proposal is consistent with the Planning Provisions of the Precinct and the proposal in question is a Preferred and Acceptable Use within the Precinct there is no need to establish need83. Council response to Appellant’s arguments [61] The Council identified the following disputed issues be determined:- (a) is the proposal in conflict with the strategic plan? (b) is the proposal in conflict with the planning area provisions relevant to Nambour? (c) are the planning area provisions inconsistent with the strategic plan? (d) is the proposal in conflict with the Code for low rise multi-unit development? (e) will future residents of the proposal enjoy a high standard of amenity? (f) will the proposal unacceptably compromise the future development of land for light industry uses? (g) is there a town planning and community need for the proposal? and (h) are there sufficient grounds to warrant approval of the application despite conflict? Strategic Plan [62] The Council says that the effect of the Preface to the Strategic Plan in Volume 2, where no direct inconsistency is established between strategic and local policy all elements of the planning scheme are expected to be satisfied to avoid a conflict with the scheme. 82 Parmac Investments Pty Ltd v Brisbane City Council [2008] QQPELR 480 at [29] 83 Ibid [28] -- 51 of 91 -- 52 [63] Council says that the Appellant‟s planner Mr Schomburgk‟s evidence proceeded on the basis of the existence of a direct inconsistency between Volumes 2 and 3 resulting in his failure to give any or very little weight to the Strategic Plan provisions in Volume 2. Council says that it is not the Appellant‟s case that there is a direct inconsistency and, having regard to the Appellant‟s arguments I agree with that. [64] The Council points to ss 5.3.4, 5.3.8 and the Strategic Plan Map as evidence that the Scheme specifically identifies the location of future and existing industrial areas, seeks to minimize non-industrial uses in those areas and encourages the development of industrial uses which will complement and consolidate future activity nodes. Further, it says, the proposal is offered no such encouragement but, rather, is in conflict with s 5.3.4 because it will not minimize development of non- industrial uses in those designated industrial areas. The fact that there may be no present demand for industrial uses does not, by reference to the provisions of the Strategic Plan justify land designated as Industry be given over to another purpose such as the present proposal. That proposition, Council says, is supported by s 5.5.4 which recognizes that purpose designed industrial areas experience lower than typical urban standards of amenity. Approval of this proposal would result in a residential development in an area with a lower level of amenity than that to be expected in an urban area. That is why the Strategic Plan provides for non- industrial activities to be minimized in industrial areas. Finally it is said that industrial land is a valuable asset which should not compromised by an incompatible land use which the proposal represents. Planning Area No. 2 – Nambour -- 52 of 91 -- 53 [65] Council points out that only half of Planning Precinct 2 is included in the Industrial designation for the purposes of the Strategic Plan84. As to the General Intent Statement for the Precinct the Council makes three points, firstly that it is to be read in conjunction with the Desired Character Statement for the Specific Precinct question85. Secondly, the Statement of Intent is consistent with the site area being development with a mix of uses including service industry. Finally, that a limited form of residential development may be approved in the precinct if certain pre- conditions are satisfied. One of those pre-conditions is that the residential development forms part of a mixed use development, which the proposal is not. [66] As to the specific planning area provision86 the Council says they show:- (a) That Nambour has an important role to play as a Major Activity Centre under SEQRP providing higher order goods and services to residential communities in the hinterland and rural parts of the Shire; (b) The existing industrial areas including Moreton Sugar Mill will be retained and consolidated with ancillary or compatible uses also encouraged to co- locate with these specific uses which is entirely consistent with the Industrial designation for the subject land and its immediate surrounds87; and (c) The opportunity to increase residential densities and arrange a dwelling type close to the Town Centre is recognized but should not be achieved at 84 Re-examination of Mr Venn, transcript 3.7-8; Exhibit 8, Attachment 5 marked behind Attachment 7 85 Exhibit 13, Volume 3 Tab 5, first paragraph following List of Precinct Classes 86 Exhibit 13 Volume 3, pages 63 and 64, paragraphs 3.2.1-3.2.3 87 Ibid 3.2.3(1)(b) -- 53 of 91 -- 54 the expense of employment generating uses such as service or light industry88. [67] The Council next points to the Statement of Desired Character for the relevant Precinct89 namely to provide commercial business and service activities that complement those of Nambour‟s Town Centre Core. Council says that, at best, there is a recognition in this part of the Plan that there are existing housing stock in the Precinct and that re-use of that stock for one of the loans of intended purposes is encouraged providing there is no adverse impact on surrounding residential uses. Evidence of such re-use in the area is to be found in the surrounding land use map90. [68] However, Council argues that this specific statement of intent must be read in conjunction with the General Statement of Precinct Intent which limits the type of residential development to that which forms part of a mixed use development. [69] As to the specific provision91 that multi dwelling unit development was a Preferred and Acceptable Use in the Precinct, Council92 says that this provision must be read in conjunction with the General and Specific Statement of Precinct Intent. Read that way, the Preferred and Acceptable Use of Multi Dwelling Unit Development is to be qualified as meaning Multi Dwelling Unit Development which forms part of a mixed use development. No mention is made of the manner in which the heading to the preferred maximum density box93 is to be read. That heading is – “Preferred 88 Ibid 3.2.4(2)(b) 89 Ibid 3.2.4(2) 90 Exhibit 8, page 159 91 Exhibit 13 at Volume 3 page 67; Exhibit 1, page 58 (Supplementary Table of Development Assessment for Centre Precincts) 92 Degee v Brisbane City Council (1998) QPERLR 287 at 289 93 Exhibit 13, Volume 3, page 67 -- 54 of 91 -- 55 Maximum Density for Multi-Unit Residential or Mixed Use Premises” (emphasis added). Council’s summary of the Scheme documents [70] Council makes the following points in summarizing the Scheme documents: (a) they strike a balance which, in relation to the subject land favours light/service industrial development; (b) `the balance may, however, be struck in favour of residential development only if the subject land the proposal was part of a mixed use development which it is not; and (c) given that it is not part of a mixed use development, it is not appropriate to alienate industrial land because it will not activate the street as a commercial development would, which has the potential to constrain the use of adjoining land for light industrial purposes in circumstances and where there is a suitable bank of land in the planning area to accommodate such a proposal; The Council’s view of the disputed issues Conflict with the Strategic Plan [71] Council says any approval would conflict with the Strategic Plan, the proposal being a non-industrial activity on land with an industrial area designation. Rather than minimize non-industrial uses it will increase the number of them. Rather than -- 55 of 91 -- 56 the occupants of the proposed development enjoying an expected high standard of amenity they will be denied that within the surrounding development. Further the development raises risks of reverse amenity concerns in that the light/service industrial uses encouraged in the area might be unreasonably curtailed or controlled to accommodate the proposal thus reducing the level of confidence in the planning for the area Conflict with planning area provisions [72] Similarly in the Council‟s view the proposal conflicts with the planning area provisions which similarly allow only for approval of residential development which forms part of a mixed use development. The fact that this proposal is not such a mixed use development puts it in conflict with these provisions. Inconsistency between the planning area provisions and the Strategic Plan [73] Again the Council sees no inconsistency and identifies no provision in the planning area provisions for cutting across the Strategic Plan or vice versa. Both encourage employment generation uses in the Town City Frame and contemplate the minimisation of residential use except as part of a Mixed-Use Development. Conflict with Code for Low Rise Multi-Unit Residential Purposes [74] The proposal is to be assessed against the Code for Low-Rise Mult-Unit Residential Premises. Performance Criterion P194 provides that Low Rise Multi-Storey Premises must be limited to a residential area, which latter term is not defined. 94 Exhibit 13, Vol 4, page 201. -- 56 of 91 -- 57 Given the absence of a definition, the Council says two matters need to be addressed to determine whether the subject land is located in a residential area namely:- (a) What is the existing character of the area; and (b) What character is intended for the area by reference to the planning documents. [75] It identifies what it says are four opinions expressed in evidence as to the existing character of the area namely:- (a) Mr Venn – distinctly industrial;95 (b) Two opinions expressed by Mr Schomburgk:- (i) In his joint report and statement of evidence96 - predominantly residential area; (ii) In cross-examination97 - Mixed Industrial and Residential; and (c) Mr Smith in his report98 - the streetscape has a mixture of vacant land, residential buildings interspersed with commercial and semi-industrial 95 Exhibit 8, para 4.3.2. 96 Ibid, para 4.3.1; Exhibit 5, para 3.4.3. 97 Transcript 1.82.1-10. 98 Exhibit 4, s 2.1.2. -- 57 of 91 -- 58 buildings and residential buildings converted for commercial purposes. There is no defined character of buildings in the area99 The Council says the existing character of the area is mixed rather than residential. [76] As to the character intended by the planning documents again the Council says the character is not residential but mixed comprising a range of uses including service industries. Amenity [77] The Council says the amenity which future residents will enjoy will be modest not high as intended by the Appellant that is for these reasons:- (a) The land is not in a residential area and existing Non-Residential Uses may impact adversely upon it;100 (b) The proposed units will have a westerly aspect; (c) Many of the proposed units will have an aspect over a large car park associated with the shopping centre; (d) Many units will have an aspect overlooking business in it and industry as planned for the land opposite Mill Lane; 99 Ibid, s 2.2.2. 100 Exhibit 8, para 4.5.4. -- 58 of 91 -- 59 (e) Occupants will be required to keep their doors and windows closed to achieve an appropriate level of internal acoustic amenity;101 (f) External acoustic amenity will be dominated by road noise and at times rail noise; (g) Occupants will have to accept cohabitation with light industry uses which may or may not impact on their lifestyle. Town planning and community need [78] The Council accepts there is a demand for multi-unit dwellings in Nambour but says the Appellant has failed to demonstrate the community would be better off with the proposal than without it given the evidence that:- (a) There is a bank of appropriately zoned land available to meet the demand;102 (b) No public benefit will flow from the proposal. It would not also flow from development on appropriately zoned land; and (c) A mixed use development could deliver all the benefits said by the Appellant to flow from this proposal. Consideration of competing positions 101 Exhibit 3, report P King, page 36-74, last paragraph. 102 Exhibit 6, report economic need, paragraphs 11, 50-55. -- 59 of 91 -- 60 [79] In interpreting the Scheme, I am conscious of the comments of Skoien SJDC in Degee v Brisbane City Council103 who said:- “It is seldom appropriate in matters such as these to rely on any specific statement of intent or of aims or objectives in the planning documents as determinative. It is rare an imprimatur or injunction can be found in them for a particular proposal almost invariably a diligent search of the planning documents can unearth in such statements passages which appear to argue for or against the proposal but generally speaking it would be unwise to place too much weight on such a passage. The planning documents, while they are given the force of law by s 2.15(9) of the Local Government (Planning & Environment Act) 1990 are not drawn with the precision of Acts of Parliament and the statements of intent or of aims or of objectives are intended to provide in guidance in the difficult task of balancing the relevant facts circumstances and competing interest in order to decide whether a particular proposal should be approved or rejected. So such statements must be read broadly.” [80] As to the Strategic Plan, true it is that the land is designated industrial, the point made by the Appellant in relation to paragraph 5.3.4 that the intent is to minimise the incidence of development of non-industrial uses does not amount to a prohibition and leaves open an opportunity for appropriate non-industrial uses to be developed in those areas. The Strategic Plan is a shire wide broad statement of strategic policy fleshed out by more detailed Planning Area and Precinct provisions and the Planning Scheme Codes designed to provide more detailed assistance in specific areas within the Shire. [81] As to the next more detailed level of planning, the Statement of General Intent for the Town Centre Frame in Volume 3 speaks of the establishment of office, service industries and community as the primarily intended use in those precincts. Again it is a shire wide provision applying to each of the four Centre Precincts of which the Town Centre Frame is one. It speaks of approval of residential premises with an acceptable level of amenity provided they are a part of a Mixed-Use Development. 103 QPELR 287 at 289. -- 60 of 91 -- 61 A Mixed-Use Building is defined104 as premises in which residential uses are integrated with commercial or other uses. [82] Descending to further particularity, one finds the Statements of Desired Character for Planning Areas and Precincts where there is reference to opportunities to achieve increased densities and a range of dwelling types in areas close to the town centre.105 Next is the Statements of Desired Precinct Character for the relevant Town Centre Frame Precinct.106 This speaks of the precinct surrounding the Nambour Town Centre Core with an intent that the precinct provide a range of commercial, business and service activities at a scale and intensity less than those in the Core. It speaks of business and professional offices, fast food establishments and service trades requiring proximity to the Town Centre. It also refers, in the presence tense, to a mix of houses in the precinct which clearly refers to those which, at the commencement of the Plan, were being used mainly, I infer, in relation to the operation of the former mill. Reuse of attached dwellings is envisaged providing it does not impact adversely on surrounding residential uses. [83] As one continues to read the Statements of Desired Precinct Character of the Precinct one next finds the Preferred and Acceptable Uses107 which are to be found in the Supplementary Table of Development Assessment.108 That shows that Multiple Dwelling Unit development is a Preferred and Acceptable Use in the Precinct. Where all dwelling and rooming units are above ground storey level and height and density requirements are met any such development is Code Assessable. 104 Exhibit 13, Vol 1, page 16. 105 Ibid, Vol 3, page 64, para 3.2.3(2)(b). 106 Ibid, Vol 3, page 66. 107 Exhibit 13, Vol 3, page 67. 108 Exhibit 1, page 48. -- 61 of 91 -- 62 Otherwise, as here it is Impact Assessable, as a result of the proposal having ground floor level units. [84] The Council argues that the term “Multi-Dwelling Unit” as a preferred and acceptable use should, be read as “Multiple Dwelling Unit which forms part of a Mixed-Use Development” which is the requirement of the general intent for the Town Centre Frame. In short that general intent is said by the Council to qualify to the more specific statement. [85] I have difficulty in accepting that interpretation given that in the very section where the Preferred and Acceptable Uses are identified there is a table dealing with the site area per dwelling with the heading – “Preferred Maximum Density for multi-unit residential or mixed-use premises.” That is consistent with the Scheme envisaging both Multi-Unit Development as part of a Mixed-Use Development as well as one which will stand alone. That is consistent with the clear words in the Supplementary Table. [86] One then finds the Code for Low-Rise Multi-Unit Residential Premises109 with a Performance Criterion P1 which states that low-rise multi-storey premises must be limited to a residential area. I accept that the subject area is not a residential area but is a mixed use area. Is there a conflict with this Scheme [87] The drafting of a planning scheme for an entire Shire is a formidable task. The exercise conjures up the imagery of the author of the Scheme commencing the task -- 62 of 91 -- 63 in a helicopter at a high altitude, looking at the Shire as whole and formulating broad general statements on land use and development within the Shire. That could be equated with the Strategic Plan. [88] As the helicopter descends it reaches a level where the Scheme author is able to identify, in this case, 30 Planning Areas. Descending further the particularity of the planning becomes more precise and the five precincts110 are able to be identified. Then almost at ground level the helicopter hovers above those precincts when the author is then able to identify the 18 precinct classes within the five precincts. Finally the helicopter lands, in this case, in the Town Centre Frame Precinct enabling the author to detail with particularity of the precinct character.. [89] I do not see a conflict between the proposal and the Strategic Plan and accept the Appellant‟s submissions on that issue. The only seeming inconsistencies are to be found within Volume 3. Those inconsistencies arise only because of the abovementioned structure of the Scheme which will inevitably throw up what appears to be inconsistencies between general and more specific provisions. When the whole Scheme is read, it can be seen that the inconsistencies, so called, do no more than reflect the difference between the general and the specific as the Scheme moves between those two levels. [90] It follows that I accept the Appellant‟s arguments on the dominance of the specific and more detailed provisions over the more general provisions in Volume 3 and the Scheme generally. I regard the Statements of Desired Precinct Character relating to the Town Centre Frame Precinct as being determinative of issues where they 109 Exhibit 13, Vol 4, page 201. 110 Exhibit 13, Vol 3, page 5, para 2. -- 63 of 91 -- 64 conflict with more general provisions in Volume 3. Reading the Scheme that way, no conflict arises between the proposal and the Volume 3 provisions. Code [91] It is said by the Council that there is conflict with the Code Performance Criterion P1 because the proposal is not in a residential area. The provisions dealing with the Performance Criteria of the Code111 provide: “(3) Performance Criteria (a) Performance criteria are statements of the outcomes to be achieved in satisfying the stated purpose. They provide an opportunity for a variety of responses to the design of assessable development. (b) (i) … (ii) There will also be situations where not all relevant performance criteria can be met (e.g. where one criterion may be in conflict with another). In such cases the development application may be approved where Council is satisfied that there are sufficient planning grounds to justify the decision having regard to the purpose of the code.” [92] When one turns to the purpose of the code112 the following is found:- “Purpose The purpose of this code is to provide for: (a) Multi-unit residential premises at suitable locations where community and commercial facilities, and utility and transport infrastructure, is available to adequately support (and be supported by) a mix of housing types and higher concentration of local (in some cases) visitor population densities; and (b) …” 111 Exhibit 13, Vol 4, page 3. 112 Ibid, page 201. -- 64 of 91 -- 65 [93] This proposal is a development where, although Performance Criterion P1 can not be satisfied, the purpose of the Code can still be met. There are sufficient planning grounds to justify approval. Such a proposal is contemplated for the area. The proposed location is suitable having regard to the community and commercial facilities and the utility and transport infrastructure. The Coles Supermarket is nearby as is the Town Centre Core. Also close by is the rail-link. I am satisfied the proposal will provide an acceptable level of amenity and that the prospect of any reverse amenity is not such as to warrant refusal. [94] The appeal is allowed. -- 65 of 91 -- -- 66 of 91 -- -- 67 of 91 -- -- 68 of 91 -- -- 69 of 91 -- -- 70 of 91 -- -- 71 of 91 -- -- 72 of 91 -- -- 73 of 91 -- -- 74 of 91 -- -- 75 of 91 -- -- 76 of 91 -- -- 77 of 91 -- -- 78 of 91 -- -- 79 of 91 -- -- 80 of 91 -- -- 81 of 91 -- -- 82 of 91 -- -- 83 of 91 -- -- 84 of 91 -- -- 85 of 91 -- -- 86 of 91 -- -- 87 of 91 -- -- 88 of 91 -- -- 89 of 91 -- -- 90 of 91 -- -- 91 of 91 --