Cummings v Gold Coast City Council & Anor [2009] QPEC 60

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Cummings v Gold Coast City Council & another [2009] QPEC 60 PARTIES: Cummings (Appellant) AND Gold Coast City Council & another (Respondent) FILE NOS: 841/09 DIVISION: Planning and Environment Court of Queensland, Maroochydore PROCEEDING: Originating Application ORIGINATING COURT: Planning and Environment Court of Queensland, Maroochydore DELIVERED ON: 3 July 2009 DELIVERED AT: Maroochydore HEARING DATE: 18 June 2009 JUDGE: Judge J.M. Robertson ORDER: Application dismissed -- 1 of 9 -- 2 CATCHWORDS: DEVELOPMENT APPLICATION: where 4 storey development is impact assessable and 3 storey is code assessable; whether development constitutes more than 3 storeys within definition of “storey” and other parts of planning scheme. Legislation: Integrated Planning Act 1997 (Qld) Cases Considered: Woolworths Ltd v Caboolture SC & Ors [2004] Q.P.E.L.R. 550 Cox & ors v Maroochy Shire Council & ors [2006] Q.P.E.L.R. 628 COUNSEL: Mr. S. Keliher for Applicant Mr. M. Cooke for Respondent Mr. M. Williamson for Second Respondent SOLICITORS: Hynes Lawyers for Applicant McDonald Balanda & Associates for Respondent IPA Law for Second Respondent -- 2 of 9 -- 3 THE APPLICANT [1] Mr. Malcolm Cummings is an architect of many decades experience. He resides close to a proposed development at 810 Pacific Parade Currumbin. The developer Rawcorp Pty Ltd. (Rawcorp) has the benefit of an approval subject to conditions for material change of use of its land for a three storey low rise apartment building. [2] A three storey low rise development is code assessable under Council’s planning scheme. Two previous proposals had been amended because of Council’s view that the earlier proposals constituted a four storey development which, under the relevant M.C.U. overlay provisions in the Currumbin Hill Local Area Plan Table of Development were subject to impact assessment. [3] Mr. Cummings originating application (as amended by leave on 14.05.09) seeks orders that Rawcorp’s development application be deemed impact assessable and be returned to the application stage of IDAS. [4] Councils decision notice dated 10.11.08 to approve the development has the effect of excluding Mr. Cummings and other local residents from submitter rights under the IPA. [5] He argues that there are 5 areas in the approved plans which constitute a “storey” under Council’s planning scheme, and that the development application should have been regarded as impact assessable. [6] The planning scheme provides the following (relevant) definitions: STOREY: that space within a building which is situated between the floor of one level and the floor of the next level above … The term includes any useable space on the roof area covered by impermeable material … … However the following provisions also apply: … • “the two top most storeys of the building shall not be included in the calculation of building height where they are used exclusively for … lift and other equipment … -- 3 of 9 -- 4 • basements which extend less than one metre from the average finished ground level to the top of the slab above do not constitute a storey; and • …” AVERAGE FINISHED GROUND LEVEL: “the artificial level around the perimeter of a building determined by calculating the average perimeter level of the building platform upon which a building is constructed.” BASEMENT: “a storey below ground level or a storey that projects no more than 1.0 metre above ground level.” THE LAW [7] The procedural requirements relating to the making of originating applications are covered by the Planning and Environment Court Rules 2008, which are subordinate legislation by virtue of s.4.1.10 (4) of the IPA. The IPA does not deal with originating applications and therefore says nothing about the onus of proof. In an appeal, as a submitter Mr. Cummings would not have the onus which would lie upon Rawcorp: s.4.1.50(2)(i), however it is common ground that in this proceeding he has the onus of establishing that the development application was impact assessable. [8] As the application requires the consideration of various definitions in the planning scheme in conjunction with other parts of the scheme a number of principles applicable to the construction of planning schemes come into play: (a) they should be construed broadly rather than pedantically or narrowly and with a sensible practical approach; (b) the planning scheme should be construed as a whole; (c) although planning documents have the force of law they are not drawn with the precision of an Act of Parliament. (these and other principles of construction are referred to by Judge Wilson S.C. in Woolworths Ltd v Caboolture SC & Ors [2004] Q.P.E.L.R. 550 at 555 [18].) -- 4 of 9 -- 5 DISCUSSION Area 1 [9] The first area is an area in front of the basement garage doors and under the slab above. There are a number of sets of plans in evidence and each Counsel referred to different sets in argument. For convenience, I will refer to the plans exhibited to the affidavit of Mr. Enders (town planning consultant for Rawcorp) at pp. 405-413 which are the plans referred to in the decision notice in November 2008. This area is the space in front of the basement garage door (as depicted in the Basement Plan at p.406) which is closed in on three sides, and below the balcony/ part lounge dining room floor above. Mr. Keliher submits that this is a “space within a building which is situated between the floor of one level and the floor of the next level above ...” and is therefore a “storey” for the purposes of the planning scheme. By reference to some elevations e.g. the northern and southern elevations, he submits that “this area presents to the community as an extra storey”, and “any observer would clearly see what appears to be a 4 storey building”. No doubt anticipating an argument that such phrases do not inform the definition of “storey” in the planning scheme, he attempted to persuade me by reference to a number of the many definitions of “within” in the Greater Oxford Dictionary that this area is indeed “within” the building and is therefore caught by the definition. I disagree. In my opinion, it is unnecessary to resort to dictionary definitions of the word “within” because, clearly this area is “outside” the building, in the sense that a person standing in that area with the Coral Sea to his or her back would be “outside” and not “within” the building. I agree with Mr. Williamson’s submission -- 5 of 9 -- 6 that the “area ... does not come within (the inclusive part of the definition) as it is external to, rather than within, the building”. Area 2 [10] The second area indentified by Mr. Keliher is the front wall of the basement containing the garage doors. His submission is predicated on his submission that the “basement at this point rises 1.0m. from ground level” and the exception in the definition applies to “basements which extend less than one metre from ground level”. The definition upon which he relies firstly relates to “basements” which necessarily takes up the planning scheme definition of “basement” and refers to “basements which extend less than one metre from the average finished ground level to the top of the slab above”. This means that an assessment manager would necessarily have to take into account the scheme definition of “average finished ground level” in determining whether a particular basement was excluded from the definition of “storey”. Mr. Keliher did not attempt to do this, rather he focussed on one area of the basement which is one metre above natural ground level. [11] Apart from such an approach being overly pedantic and technical, it seems to me that it ignores the need to look at “the average finished ground level” in making the determination. The various basement heights above natural ground are referred to at p.15 of the Council meeting on 10.11.08 which approved the proposal. In my opinion, Mr. Cummings has failed to establish that the basement does indeed “extend less than one metre from the average finished ground level to the top of the slab above”, and has therefore failed to establish that the area nominated, which forms part of the basement only, constitutes a “storey”. -- 6 of 9 -- 7 Area 3 [12] The third area indentified by Mr. Keliher is the void in front of the basement wall. Again Mr. Keliher’s submission descends into quite pedantic and over technical depths in attempting to characterize a void as a “storey”. He makes the point that “if anyone during the life of the building chose to put in a door to use (the void) as a storage room, it would remove any doubt as to it qualifying as an additional storey”. As Mr. Williamson observes, a condition of the approval is that the development proceed “generally” in accordance with the approved plans, and any attempt by the developer or its successor to use this void in the manner described would have planning consequences, and probably be contrary to the condition in any event. Mr. Keliher’s argument also fails because the void does not fall within the inclusive definition of “storey” for reasons given (in relation to a similar argument) by his Honour Senior Judge Skoien in Cox & ors v Maroochy Shire Council & ors [2006] Q.P.E.L.R. 628 at 634 – 635. In particular I adopt his Honour’s analysis at paragraph [43] and reach a similar conclusion in this case. His Honour said (by reference to a space below a floor to be used to store equipment to be raised up and used on the floor above as a home theatre): “While it is situated below “the floor level next above” ... I do not see it as being (in the ordinary use of the English language) between that floor level and another floor level. In the context of a habitable building ... a floor level must surely mean a floor which is available to be used, to be walked on normally by adult human beings”. The slightly different wording in the Maroochy scheme of the definition of “storey” is immaterial. Area 4 -- 7 of 9 -- 8 [13] Mr. Keliher’s submission is that the pergola on the roof terrace constitutes a storey because it is “useable space on the roof area covered by impermeable material”. His submission focuses on a landscaping plan at p.202 of EX. SPE1 to Mr. Enders affidavit which, he says, appears to show the pergola roof as solid. The other plans are silent on the issue, however, Mr. Williamson refers to a response by Mr. Enders on behalf of his client to an information request from Council in which reference is made (at 310 of EX SPE1) to the development including “a flat roof and permeable roof structures”, from which it can be inferred that the pergola roof will be permeable in nature. Again, Mr. Williamson correctly points out that any attempt by his client or its successor to roof the pergola with impermeable material, would constitute a significant departure from the condition that the development proceed generally in accordance with the approved plans. As he says, this would have town planning implications and may even constitute a breach of conditions of the development permit. What he said on behalf of his client is a matter of record and should be of some comfort to Mr. Cummings. I am not satisfied that the pergola comes within the definition of “storey” in the scheme. Area 5 [14] The final string to Mr. Keliher’s bow is the lift lobby depicted in the roof plan. It does appear that this area does come within the inclusive definition as being “any useable space on the roof area covered by impermeable material”. It is clear from the material that Council officers were of the same opinion and so advised Rawcorp however the area is included in the approved plans the subject of the decision notice because Council accepted that, for good planning reasons i.e. to protect lift users and the lift itself from the weather, the lift lobby should be -- 8 of 9 -- 9 retained. In his oral submission Mr. Keliher referred me to some statements in Part 6, Division 2, Chapter 11 of the scheme which deal with the Local Area Plan for the Currumbin Hill area, which talk of discouraging “visually intrusive buildings which are not compatible with the significance of Currumbin Hill as a visual element of the city”. It is clear that the relevant Table of Development is part of the scheme’s approach to such statements. The definition of “storey” is also part of the way in which Council can assess development with such statements in the scheme in mind. Restrictive provisions in planning schemes relating to numbers of storeys are no doubt aimed at controlling building height and perhaps density in areas such as Currumbin Hill. With that in mind, I am satisfied that from a practical and commonsense point of view, and by reading the relevant extracts of the planning scheme as a whole, it is appropriate to not regard this very small area on the roof as a storey for the purposes of Table B. -- 9 of 9 --