Engwirda (atf Engwirda Superannuation Fund) v Mackay City Council [2008] QPEC 78

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Engwirda (atf Engwirda Superannuation Fund) v Mackay City Council [2008] QPEC 78 PARTIES: ROBERT ENGWIRDA and SHELLEY ENGWIRDA (atf THE ENGWIRDA SUPERANNUATION FUND) (Appellants) v MACKAY CITY COUNCIL (Respondent) FILE NO/S: 109 of 2007 DIVISION: Appellate PROCEEDING: Applicant appeal ORIGINATING COURT: Mackay DELIVERED ON: 27 October 2008 DELIVERED AT: Brisbane HEARING DATE: 31 July 2008 JUDGE: Rackemann DCJ ORDER: The appeal is dismissed CATCHWORDS: Applicant appeal – reconfiguration of a lot (1 into 2) and material change of use for dwelling houses on small lots – area and dimensions of proposed lots in conflict with the Reconfiguration of a Lot Code – zoning changed under new scheme – whether grounds to approve notwithstanding conflict COUNSEL: Mr Baulch S C for the appellant Mr Skoien for the respondent SOLICITORS: Macrossan and Amiet for the appellants S B Wright Wright and Condie for the respondent -- 1 of 6 -- 2 [1] This is an applicant appeal against the deemed refusal of a development application seeking development permits to reconfigure a lot (by subdivision of one lot into two) and for a material change of use to permit the construction of dwelling houses on small lots. The subject site is a conventional residential allotment of 874m2 , located at 5 Gorman Street, Bakers Creek. It is proposed to subdivide it to create an additional “battleaxe” lot at the rear. [2] The application was code assessable. The council, in resisting the appeal, notified the following issues, which allege conflict with applicable codes:- “1. The proposed development is inconsistent with the following provisions of the Mackay City Plan Scheme: (a) Specific Outcomes P1 & P2 of the Mackay Hinterland locality – Village Zone Code in that the proposal is inconsistent with the density and character of existing development in the vicinity of the subject site; (b) Pioneer River and Southern Streams Precincts Specific Outcome – P1 and Acceptable/Probable Solution S1 of the Mackay Hinterland Locality – Village Zone Code in that the proposed lots are within 250 metres of an existing rural zone; (c) Overall Design Specific Outcome – P1 and Lot Area and Dimensions Specific Outcome – P1 of the Reconfiguration of a Lot Code in that the proposed lots are less than the prescribed minimum area, frontage and depth. (d) Lot Area and Dimension Specific Outcome – P5 in that the proposal involves a proposed battleaxe lot which increases the density applicable to the Village Zone; (e) High Impact Activity Area Specific Outcome – P1 in that the proposed lots are located within 1000 metres of an existing meatworks facility. 2. The appellant has not, in the respondent’s opinion, provided sufficient planning grounds to warrant approval notwithstanding the conflict with the planning scheme.” [3] The respondent did not press grounds (1)(b) or (e). The council’s case focussed upon the size of the proposed allotments and, in particular, upon the alleged unacceptability of the density of the proposal, having regard to existing development in the area and the provisions of the planning scheme. [4] The site is located in a residential area south of Bakers Creek (i.e. the creek itself). That area is bordered by the Bruce Highway to the east, cane fields to the south and -- 2 of 6 -- 3 a railway line to the west. Another residential area is located further north, across the creek, to the east of the Bruce Highway. A rural residential area is located west of the railway line, while land farther to the east and south is mostly used for sugar cane farming. The residential area within which the subject land lies, is an established area characterised by single detached dwellings. [5] The site, together with other land within this residential area, is included in the Village zone in the Pioneer River and Southern Streams Precinct within the Hinterland Locality under the Mackay City Planning Scheme. The Planning Scheme includes a Mackay Hinterland Locality Code and, in Division 14 of Part 6, states overall and specific outcomes and probable / acceptable solutions for the Village zoned land within that locality. Specific outcomes include the following: “P1 Development on land included in the Village zone is consistent with the overall outcomes of the Code and outcomes for the zone by remaining as small, low intensity settlements offering limited community facilities and services. P2 Land uses are complimentary to existing uses in each village in terms of intensity of use, building scale and potential traffic generation.” No acceptable/probable solutions are specified in relation to those outcomes. [6] The proposal would facilitate the development of a dwelling house on each of the proposed lots. Because one of those lots is a “battleaxe” lot, it is unlikely that the proposal would have a great impact upon the streetscape. Indeed, the town planners agreed that, in that regard, the development would not be inconsistent with the character of the locality. However, as Mr Mentz, the town planner called by the respondent, pointed out, the intensity of the resulting development would be in contrast to that which predominates within this particular “village”. [7] The proposed lots are 382m2 and 492m2 in area. The larger, battleaxe allotment would have a useable area of 357m2 (excluding the part used for access). This contrasts with the prevailing lot sizes which are, on average, in the vicinity of 900m2 , although there is variation from some 579m2 to 1922 m2 . 1 Further, the pattern of development in the locality, including along Gorman Street, is that of dwelling houses located towards the street front, with a backyard for private use. Some lots contain outdoor sheds in the back of the lot, but such development is not the same as that which is now proposed. While the subject proposal may have little effect on the streetscape, it is unlikely that it would go unnoticed, particularly by neighbours. [8] Some reference was made to development at 12 and 23 Gorman Street, where buildings or structures appear in the backyards, but it seems that neither has an approved second dwelling. The building at the rear of 12 Gorman Street is a relocated former dwelling house which has been approved as a shed. There was a 1 Ex 13 pg 10 paras 5.2.4, 5.2.5. -- 3 of 6 -- 4 carport approval for 23 Gorman Street in 1989 followed by a garage approval in 2002. 2 [9] Of particular importance in this case is the conflict between the proposal and the provisions of the planning scheme in relation to the size of allotments intended within the Village zone in this locality. [10] The planning scheme includes a Reconfiguration of Lot Code (the ROL code). That code includes a specific outcome in relation to overall design (P1), which seeks a lot layout which facilitates the desired future use in accordance with the relevant Locality Code by, amongst other things, establishing an orderly and acceptable land use pattern. The town planners, in their joint report, did not see any conflict in relation to the desired future use or land use pattern, since the intended use is residential, which is a type of use which is appropriate in the Village zone (leaving to one side the issues of lot size and dimension). [11] The ROL Code also contains specific outcomes in relation to lot areas and dimensions. P1 of those specific outcomes requires each lot to have an area and dimensions such that it, amongst other things, provides “ample opportunity for the separation of uses within adjoining lots”. More particularly, there is a specific outcome in relation to lot areas and dimensions for new battleaxe allotments. It provides, in part, as follows: “P5 …Battleaxe lots are provided only where: (i) There is no increase in the density that is applicable to the zone that the subject land is included in… … (v) the area of the lot handle is not included in the calculation of the area of the lot for minimum area purposes; …” [12] Another of the specific outcomes in relation to lot areas and dimensions is P2, which states: “Each lot is consistent with the minimum area and dimensions set out in table 9 – 19.1 Minimum Areas and Dimensions” [13] Table 9 – 19.1 sets out a minimum area, frontage and depth for land in different zones. In the case of the Village zone, the minimum prescribed area is 1000m2 with a minimum frontage of 20 metres and a minimum depth of 40 metres. The only zone in which the minimum lot sizes and dimensions are sufficiently low to accommodate the type of development proposed in this case is the Urban Residential Zone, which has the lowest minimum lot sizes (down to 300 m2 ). The proposed lots sizes are less than half that contemplated in the Village zone and are towards the lower end of what is envisaged within the Urban Residential Zone. 2 Ex 13 pg 11 para 5.2.9. -- 4 of 6 -- 5 [14] The subject site is already somewhat smaller than the minimum size which is contemplated for the Village zone. The proposal to further subdivide the allotment, to create an additional battleaxe lot, conflicts with the ROL Code, because it would increase the density applicable to the zone and would do so by creating allotments which are inconsistent with the minimum area and dimensions set out in Table 9 – 19.1. [15] The reference to specified minimum areas and dimensions in the “specific outcomes” rather than “acceptable/probable solutions” is unusual in the context of a code which generally adopts a performance based approach. As counsel for the respondent pointed out however, that only serves to underscore the importance which the planning scheme attaches to achieving a pattern of development which accords with the specific outcomes sought in relation to lot areas and dimensions in various zones. [16] The appellants’ case acknowledged a level of conflict, but sought to persuade the court to approve the development notwithstanding. Mr Meekel, a town planner called by the appellant, pointed out that Bakers Creek is not typical of a village and that most lot sizes are somewhat less than the 1000m2 minimum stipulated in Table 9 – 19.1. In his view, previous development and development approvals were consistent with the area being regarded as an “urban residential” area. He pointed out that other applications, pending before the council, show a degree of development interest and pressure in the area. He also pointed out that the planning scheme has designated an area to the south as “Urban Expansion”, which is a designation used to identify a “land bank” future development, subject to impact assessment.3 In his view, the designation of Bakers Creek as a village is an “anomaly” in the current planning scheme. He was supportive of the application, which he described as “minor in fill development within an established residential area”, which would contribute to the provision of housing and the efficient use of infrastructure, without undue detrimental impact. [17] Mr Meekel pointed out that the application could have been approved under the previous planning scheme, which included this area within the Urban Residential Zone. In his view 4 : “Bakers Creek should not be classified as a village – it is submitted that the designation in the superseded planning scheme as an Urban Residential area was correct.” [18] While Mr Meekel’s position is understandable, it does not provide a satisfactory basis for allowing the current appeal. The role and function of the court, in an appeal of this kind, is limited. This appeal is not an appropriate vehicle for reconsidering the correctness of the zoning of the area generally under the previous planning scheme or whether it should have been maintained in the current planning scheme. The decision to change the zoning when the new planning scheme took effect was taken by the responsible planning authority in the scheme making process. The court’s task is to consider the subject development application in the context of that planning scheme and, in particular, the applicable codes. It might be noted that, to the extent the appellants were aggrieved by the change brought about 3 Ex 5 pg 1-8. 4 Ex 11 para 9. -- 5 of 6 -- 6 by the new scheme, they had the right to make a development application superseded planning scheme. It was common ground that the subject application is not of that kind.5 [19] The subject application required code assessment. Pursuant to s 3.5.13 of the IPA, the assessment manager’s decision may conflict with an applicable code only if there are enough grounds to justify the decision having regard to (relevantly) the purpose of the code. 6 Mr Meekel’s report contained references to some of the Desired Environment Outcomes and some parts of the statement of purpose for the Mackay Hinterland Locality Code (including for the relevant precinct and zone) in relation to the provision and use of infrastructure and the development of land which is not affected by physical constraints. He did not refer to the purpose of the ROL code. In his oral evidence, Mr Meekel acknowledged that his support for the development notwithstanding its conflict (in relation to the area and dimensions for new allotments in the Village Zone) did not relate to the purpose of the applicable code.7 I do not in any event regard the provisions to which he referred as warranting new subdivision, to create lots with areas which are less than half that which is contemplated by the specific outcomes of the Reconfiguration of a Lot Code for areas within the Village Zone. 8 [20] Even if the approval notwithstanding conflict test for impact assessment (s 3.5.14(2)(b) of IPA) were applicable, I would still dismiss the appeal. It is not surprising, given the previous zoning of the area, that existing development and earlier approvals which pre-dated the current planning scheme do not entirely conform to the provisions for the different zoning which now applies under the current planning scheme. That is not however, a warrant to ignore the current zoning. There have been no relevant changes of circumstances since the commencement of the new planning scheme. Mr Meekle conceded that the area was “probably 99% the same” as it was when the new scheme took effect.9 This is not a case in which the planning scheme has been overtaken by events or by subsequent inconsistent decisions by the council. The development would make a modest contribution to the choice of allotments within this area and the efficient use of infrastructure, but would do so by introducing allotments of a size which are not encouraged or intended in this part of Mackay. [21] The decision to include the locality within the Village zone, notwithstanding the nature of existing development, is indicative of a planning intent which is inconsistent with future development of the area as if it were in the urban residential zone. There is no sufficient warrant for permitting what is, in effect, an urban residential subdivision to occur on the subject site, given the zoning which now applies. [22] The appeal is dismissed. 5 T88. 6 See Westfield Management Limited v BCC & Anor [2003] QPEC 10, for an example of where a decision to approve notwithstanding conflict with a code miscarried because irrelevant considerations were taken into account. 7 T60. 8 It was not suggested that there was any relevant State planning policy which would justify approval despite the conflict, or any other document referred to in s 3.5.13(3)(b). 9 T36. -- 6 of 6 --