Cass v Gold Coast City Council & Anor [2008] QPEC 32 (2008) QPELR 556

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Cass v. Gold Coast City Council & Anor [2008] QPEC 32 PARTIES: Michael Leslie Cass (Appellant) v Gold Coast City Council (Respondent) and The Uniting Church Inc Australia Property Trust (Co-respondent) FILE NO/S: 394 of 2007 DIVISION: Planning and Environment Court PROCEEDING: Appeal ORIGINATING COURT: Planning and Environment Court DELIVERED ON: 13 June 2008 DELIVERED AT: Brisbane HEARING DATE: 12 and 13 May 2008 (Southport) JUDGE: Rackemann DCJ ORDER: The appeal is adjourned to allow consideration of conditions of approval CATCHWORDS: Submitter appeal – aged care accommodation – proposal with greater height and density than shown on overlay maps – whether conflict – whether compliance with performance criteria – whether sufficient grounds to warrant approval notwithstanding any conflict COUNSEL: Appellant (Self Represented) Mr E J Morzone (Respondent) Ms N J Kefford (Co-Respondent) SOLICITORS: MBA Lawyers (Respondent) Deacons (Co-Respondent) -- 1 of 23 -- 2 [1] Mr Cass is a submitter who appeals against the Council’s approval of an application for a development permit for the making of a material change of use for the purpose of aged care accommodation on land situated at 12-38 Ahern Street, Labrador. [2] The proposal involves: ● 147 independent living units/serviced apartments (ILU’s), in the form of five buildings with twelve unit types, ranging from one to three bedrooms. ● Five basement car parking areas. ● On-site drop off/bus set down area and short term visitor parking. ● Ancillary services. ● Landscaping, open space and covered pedestrian walkways. [3] The subject site has been mostly developed in the past with aged care accommodation, which dates back to the 1970’s. The exception is one area in the south eastern portion of the site, which remains predominantly vacant, save for an existing single storey building. The existing development, which is of a single storey construction, is “tired” and obviously ripe for redevelopment. [4] Blue Care (which is operated by the appellant) proposes to redevelop the site in three stages, so as to replace the existing aged persons accommodation with new facilities. To that end, a 32 bed single storey dementia wing (stage 1) has been approved and constructed in the north eastern portion of the site. Stage 2 of the redevelopment, involving 128 high care bedrooms and 16 independent living rooms in a two storey build form was approved and is under construction in the north western portion of the site. The subject application constitutes stage 3 of the redevelopment. If all three stages were to proceed then the redeveloped facility will provide for: -- 2 of 23 -- 3 ● 147 independent living units. ● 160 high care rooms. ● A range of ancillary services. [5] In the wider urban context, the site is part of an older, well established part of the Gold Coast urban area and is close to services and facilities. [6] The appellant resides in a two storey detached dwelling on land which gains access from Muir Street. It shares a side and a rear boundary with the south western part of the subject site. [7] The issues in the appeal were identified by reference to the grounds in the notice of appeal, as particularised by the appellant’s response to a request for further particulars. Those issues may be summarised as: 1. Impact on the appellant’s amenity, including privacy and access to sunlight. 2. Excessive building height. 3. Excessive residential density. 4. Non-compliance with the planning scheme. 5. Increased flooding. 6. Increased traffic. 7. Deception by the applicant. [8] The last of those issues can be put to one side. It apparently related to what was said to be a misleading document with respect to stage 2. The document was not placed into evidence and is irrelevant to the issues which the court has to consider in this appeal. There is no suggestion of non-compliance with the provisions of the Integrated Planning Act, concerning the giving of public notification of the subject application. Findings to that effect were made in this appeal on 17 January 2008. -- 3 of 23 -- 4 [9] As a result of a mediation agreement, the parties agreed that hydraulics are no longer an issue in the appeal. [10] The traffic issues were considered by two experienced traffic engineers, Mr Colin Beard and Mr Stuart Holland, whose joint report recorded their agreement as follows: “The issue of traffic flows generated by the proposed development on Ahern Street was satisfactory addressed in Holland Traffic Consulting (HTC) advices dated 22 December 2006. The total volume of additional traffic expected to the generated on the local street system will be low relative to existing traffic volumes and relative to the desirable upper limit of 3,000 vehicles per day usually adopted for streets of this type. Consequently it is agreed that the proposed development will not have significant adverse impacts on the local street system in respect of traffic safety, traffic capacity or amenity considerations.” [11] The mediation agreement records the following: “The traffic engineers advised, and the parties acknowledge: 1.1 That the impact of the proposed development is proportional to the scale of the development; 1.2 Even as proposed, traffic flows in the surrounding streets will be well below acceptable limits. The appellant accepts the traffic flows, and traffic engineering evidence will not be required at the hearing, but he reserves his right to argue that the increased traffic flow is an adverse amenity impact.” [12] I accept the traffic engineers’ evidence, including that the proposal would not have significant adverse impacts on the local street system in respect of traffic safety, traffic capacity or amenity considerations. [13] In considering the remaining issues, the court had the benefit of evidence from two town planning consultants, namely Ms McGuire (who was called by the Council) and Mr Ransom. They were in agreement that, from a town planning prospective, the proposal is appropriate notwithstanding that, in some respects, it departs from -- 4 of 23 -- 5 the “acceptable solutions” in the planning scheme. The court also had the benefit of evidence from Mr Frederick Huckerby, who is the director of business development for Blue Care. The appellant chose not to give or call any evidence in support of his case. [14] In the course of his submissions, the appellant sought to identify some inadequacies in the consideration of the application when it was before the Council. An appeal to this court however, proceeds by way of a hearing anew,1 with the court effectively standing in the shoes of the local authority to consider the application on the evidence placed before it. [15] The development application required impact assessment and so the decision on the application must not: (a) compromise the achievement of the desired environmental outcomes for the planning scheme area; or (b) conflict with the planning scheme, unless there are sufficient grounds to justify the decision despite the conflict.2 [16] The proposal does not adopt some of the “acceptable solutions” in applicable codes under the planning scheme. The appellant pointed to that as evidence of conflict. That is not necessarily so. The codes for the planning scheme are “performance based”. Development requirements take the form of performance criteria and corresponding acceptable solutions. Development that is consistent with the acceptable solutions is considered to have complied with the requirement, but development which does not accord with an acceptable solution may present an alternative solution, to demonstrate compliance3 . As the court said in SDW Projects Pty Ltd v Gold Coast City Council [2006] QPEC 74: 1 S 4.1.52. 2 See s 3.5.14 of IPA. 3 See e.g. Part 5 Division 1 Chapter 2 clause 6.0. -- 5 of 23 -- 6 “47 … the performance criteria are generally outcome focussed, while acceptable solutions include a “desirable” way to “ensure” compliance. The acceptable solutions however, are not the only solutions. Performance criteria generally ought not be interpreted as requiring adoption of the acceptable solution, or even as requiring an alternative solution to be akin to the acceptable solution. 48. It is not legitimate to regard departure from the acceptable solution as necessarily indicating non-compliance with the code. In this regard, acceptable solutions differ from development standards which were often feature of town planning schemes under the former regime. Compliance with such standards was commonly required unless a relaxation or dispensation was granted. Under the performance based approach, an acceptance of an alternative solution does not represent a “relaxation” or “dispensation”. It is another way of achieving compliance with the relevant performance criterion.” [17] Accordingly, a proposal which departs from an acceptable solution may still be in compliance with the requirements, by the adoption of an alternative solution. In this case, the co-respondent contends that the large site area has afforded the opportunity to so design and locate the proposed buildings as to meet the performance criteria in a different way. In this respect, the town planners joint report concluded that: “The planning scheme provides the ability for applications subject to impact or code assessment to present alternative design solutions, where not complying with the relevant acceptable solutions, as a way of demonstrating achievement of the relevant performance criteria. The proposal therefore presents an alternative design solution to building height and density. Taking a performance based approach, the planners consider that the proposal satisfies the relevant performance criteria and therefore, is considered to be consistent with the requirements of the applicable code.” [18] Even where the alternative solution fails to meet the performance criteria, such that conflict can be identified, the proposal may still be approved if there are sufficient grounds to do so notwithstanding the conflict. [19] The planning scheme includes the subject land within the Residential Choice Domain, the intent of which is as follows: “This domain seeks to support the provision of a range of housing of choice that is responsive to the changing demographic structure of the city, whilst maintaining an efficient land use pattern. The -- 6 of 23 -- 7 purpose of this domain is to support the development of a residential pattern comprising mixed dwelling types, including detached dwellings, attached dwellings and apartment buildings that relate well to each other. This domain seeks to: ● support residential densities that are moderately higher than traditional detached dwelling areas; ● facilitate a wide variety of home office, home occupation and residential support services to be located within the domain, commensurate with local residents’ needs; and ● achieve a high standard of residential amenity across the range of dwelling types in the domain.” [20] Aged persons accommodation is a type of development which may be appropriate in that domain. Assessment of such an application entails assessment against applicable codes. The codes of relevance for present purposes are the Residential Choice Place Code (the Place Code) and the Aged Persons Accommodation Code (the Accommodation Code). The latter of those is a “specific development code”. The planning scheme provides4 that the Place Code takes precedence over any other code, including any specific development code. [21] Both the place code and the accommodation code contain development requirements in relation to matters of relevance to amenity. In particular, the place code includes performance criterion 13, which provides as follows: “The proposed use must not detract from the amenity of the local area, having regard, but not limited, to the impact of: (a) noise. (b) hours of operation. (c) traffic. (d) lighting. (e) signage. 4 Part 7 Division 1 Chapter 1 clause 4. -- 7 of 23 -- 8 (f) visual amenity. (g) privacy. (h) odour and emissions.” No particular acceptable solution is provided in respect of that performance criterion. [22] The impacts of traffic have already been mentioned and I am satisfied that the proposal would not detract from the amenity of the local area in that respect. Visual amenity is discussed later, in the context of the alleged excessive height of the buildings in the proposal, but I am satisfied that the proposal would not detract from the visual amenity of the local area. Indeed, I am satisfied that it would be an improvement. [23] Privacy is a residual concern for the appellant. It is an issue which is also dealt with in the accommodation code which provides, in part, as follows: Performance Criteria Acceptable Solutions PC4 - The building is designed and sited to achieve an acceptable level of privacy for the occupants of the dwelling and neighbouring dwellings. AS4.1 - All habitable room windows are not directly facing and within 10 metres of a habitable room window of another dwelling. 4.2.1 - All habitable room windows have a sill height not less than 1.7 m are not directly facing and not within three metres of an accessway, footway or communal open space area. AS4.2.2 - Fixed obscured glazings for all habitable room windows to a height of 1.17 m above floor level. -- 8 of 23 -- 9 [24] Those of the proposed buildings which are closest to the boundaries of Mr Cass’ property are blocks 4 and 5. The proposal plans show that each of those buildings is to be substantially set back from Mr Cass’ boundary, and are orientated on an angle, and generally away from the boundaries of his property. The plans also show louvered sun screens to the west facing balconies on building 5. There is also the opportunity for landscape embellishment within the setback area between that building and the common property. I am satisfied that, subject to the imposition of appropriate conditions, the proposal will achieve an acceptable level of privacy with respect to Mr Cass and will not unduly detract from his amenity. [25] Another of Mr Cass’ amenity concerns relates to overshadowing. In this respect, the Accommodation Code provides as follows: Performance Criteria Acceptable Solutions PC3 - The building must be designed and sited to ensure adequate natural daylight in north facing habitable rooms and principal open space areas to allow occupants enjoyment during the majority of the daylight hours. AS 3.1 – Windows to north facing living areas and principal open space areas receive at least three hours of sun between 9.00 am and 5.00 pm on 21 June over a portion of their surface. AS 3.2 – North facing windows of living areas and principal open space areas of neighbouring dwellings do not have sunlight reduced to less than the above three hours. [26] It was submitted, on behalf of the co-respondent, that the reference to “neighbouring dwellings” in AS 3.2 ought not be seen as a reference to dwellings which are not part of the proposed aged persons accommodation, since the performance criterion is directed only to occupants of the proposal. There appears to be merit in that submission, but it does not mean the overshadowing of Mr Cass’ house is irrelevant. It remains an amenity issue, which can be considered under PC 14 of the Place -- 9 of 23 -- 10 Code, even though it is not expressly referred to in the non-exhaustive list of potential impacts. [27] The shadow diagrams demonstrate that part of Mr Cass’ property and house would be affected by shadowing from the proposed development on 21 June. The part so affected includes the northern part of his house, which is in close proximity to the side boundary which he shares with the subject site. That part of his house would be in shadow is hardly surprising, given its orientation. It is likely that it would already be affected, to some extent, by the existing development on the site. In any event, the proposed buildings have been set back from his property, separated and angled in such a way as to provide some access to natural daylight even on 21 June. In particular, as the diagram for 9.00 am on 21 June shows, the appellant’s sunroom, which is at the eastern end of his house and orientated towards the northern end of block 5, will be free of shadow to a substantial extent. [28] As the appellant pointed out, there will be a need for the detailed design of the landscaping to ensure that it does not interfere with that access to daylight. Subject to a condition to that effect, I am satisfied that the appellant will have adequate access to natural daylight and that his amenity will not be unduly adversely affected. To the extent that there remains any conflict with the accommodation code,5 it is a conflict which ought not result in a refusal of the application, given the nature and extent of the conflict in the context of the grounds which favour approval otherwise and which are discussed later. [29] Some reference was made, in the course of the appeal, to the open space which is proposed. The Accommodation Code deals with that in performance criterion 6. I 5 Subject to the proper interpretation of PC3. -- 10 of 23 -- 11 am satisfied that the proposed open space is appropriate and complies with the requirements of that performance criterion. [30] Height and density were matters of particular focus in the appeal. The planning scheme includes a number of overlay maps. Overlay map 4-9 relates to residential density. It shows the subject site as falling within an RD 3 designation which is described as “up to 40 dwellings per net hectare (one dwelling per 250 m2 of site area)”. The proposal significantly exceeds that density. Land to the immediate north and east is included the RD 4 designation (up to 50 dwellings per net hectare – one dwelling per 200 m2 of site area). [31] Overlap map OM 6-3 refers to what is called “maximum building height”. It shows the subject site within a “two-storeys” designation. Land to the immediate east falls within a “seven-storey” designation, with a “ten-storeys” designation closer to the broadwater. There is a gradation in the designations as one goes from east to west. To the immediate north of the site lies a “three-storey” designation. The proposal exceeds two-storeys. [32] These two maps were particularly relied upon by the appellant, in asserting conflict with the planning scheme. The maps must however, be read in the context of the planning scheme and having regard to the way the planning scheme utilises and gives effect to them. When that is done, it becomes evident that a departure from what is shown in those maps is not necessarily fatal and does not necessarily lead to a conclusion that a decision to approve the proposal would be in conflict with the planning scheme. It may affect the level of assessment and whether a proposal can claim to be compliant with certain acceptable solutions in the applicable code, but it does not preclude alternative solutions. For this reason the use of the word “maximum” may, unfortunately, have a tendency to mislead. -- 11 of 23 -- 12 [33] Because the proposal’s height and density exceeds that shown on the overlay maps, the application became subject to impact assessment, rather than code assessment. The development requirements in the place code include the following: Performance Criteria ACCOMMODATION DENSITY Acceptable Solutions PC2 - Accommodation density must be consistent with the residential character of the local area and contribute to the achievement of a variety of dwelling types in the local area. BUILDING HEIGHT PC 6 – All buildings must be of a height which is in keeping the with the predominant residential character of the surrounding area. Building height must not result in a significant loss of visual amenity. AS 2.1.1 – The dwelling density is one dwelling per lot; or AS 2.1.2 – The dwelling density does not exceed one dwelling per 400 m2 of site area; or AS 2.1.3 - The site is designated with a specific maximum residential density on Overlay Map OM4 – Residential Density and the development does not exceed the indicated maximum residential density. AS 6.1. – The building is not more than 8.5 m in height and has a maximum of two storeys; or AS 6.1.2 – The subject site is designated with a specific maximum building height exceeding two-storeys on overlay map OM 6 – Maximum Building Height and the building does not exceed the indicated maximum building height; OR AS 6.1.3 – The subject site is not designated with a specific maximum building height exceeding two- storeys on overlay map OM 6 – Maximum Building Height and the building is -- 12 of 23 -- 13 not more than 11.5 m in height, has a maximum of the three-storeys (including a partial third storey), and a setback at a minimum of 10 m for more boundaries at the site. -- 13 of 23 -- 14 [34] The accommodation code includes the following development requirement with respect to density: Performance Criteria Acceptable Solutions PC 9 – The aged persons accommodation must have a density consistent with the character of the local area. AS 9.1.1 – The dwelling units are self-contained and do not exceed the density of 200 m2 net site area for each unit, except where the relevant domain LAP allows a greater density; or AS 9.1.2 – The dwelling units are serviced, not self- contained and comprise one room other than a bathroom, and do not exceed a density of 70 m2 net site area for each unit, except where the relevant domain LAP allows a greater density; or AS 9.1.3 – The dormitory, ward or private room accommodation in a hostel, nursing home or similar facility where geriatric medical care is provided does not exceed a density of 50 m2 net site area for each bed, except where the relevant domain LAP allows a greater density. [35] The density provisions of the accommodation code are different from those in the Place code. As noted, the provisions of the Place Code take precedence. [36] It is evident from AS 6.1.3 that buildings can exceed the two-storeys shown on the Overlay Map, but still be an “acceptable solution”, so long as they include only a partial third-storey and otherwise conform to AS 6.1.3. In this case, the proposed buildings will present as three-storey developments with a partial fourth-storey, rather than two-storeys with a partial third. -- 14 of 23 -- 15 [37] The proposed buildings were described in the development application as being five-storeys, but that was out of an abundance of caution, due to uncertainty about the proper interpretation and application of definition of “storey” in the planning scheme. That definition is as follows: “That space within the building which is situated between the floor of one level and the floor of the next level above, or if there is no level above, the top of the ceiling above. The term includes any usable space on the roof area covered by impermeable material. When calculating the number of storeys to determine compliance with the planning scheme, or sections which control the height of any building or structure, the number of storeys shall be determined either as: ● The actual number of spaces between levels; ● The number of storeys calculated by dividing the distance in metres or part thereof between the top floor of the ground level and the top of the ceiling of the uppermost level by: (a) three metres in the case of a residential use; (b) four metres in the case of a commercial use. whichever is the greater, provided that a ground floor level that does not exceed 4.5 m in height shall be assessed as a one-storey only. Any fraction, which results from the above calculation, shall constitute a storey.” [38] A storey which is below ground level or a storey that projects no more than one metre above ground level is defined as a “basement”. [39] In this case, the distance between the top floor of the ground level and the top of the ceiling of the uppermost level is 11.9 m for blocks 3, 4 and 5. Dividing that by three metres (for a residential use) yields a calculation of no more than four storeys, which is the same as the actual number of spaces between levels. [40] The distance between the top floor of the ground level and the top of the ceiling of the uppermost level in blocks 1 and 2 is 12.2 m, so that a division by three yields a result which is slightly in excess of four, even though there are only four actual -- 15 of 23 -- 16 spaces between levels. That calculation however, does not take account of the proviso for a ground floor level that does not exceed 4.5 m in height. I accept the submission of counsel for the respondent, that the proviso operates with respect to the second mode of calculating storeys. In this case, none of the ground levels exceed 4.5 m in height, and so count only as one storey in each case. Dividing the combined height of the other levels in each of the buildings by three produces a calculation of no more than an additional three-storeys. On that approach, each of the buildings are four-storeys. The co-respondent is however, prepared to obviate any argument, by submitting to a condition which would require the distance between the top of the floor of the ground level and the top of the ceiling of the top most level in blocks 1 and 2 to no more than 12 m. [41] It was pointed out that the acceptable solutions to PC 6 of the Place Code contemplates two-storey development of up to 8.5 m in height and three-storey development of up to 11.5 m in height. The 11.5 metres referred to is not directly comparable to the 11.9 metres or 12.2 metres referred to in the calculation of storeys. The 11.5 metres appears to refer to building height, which is measured to the highest point of the building, rather than to the top of the ceiling of the top most level, which is the dimension of relevance to the definition of storey. [42] In so far as density is concerned, it was said that, having regard to stages 1 and 2 of the redevelopment, there was potential for a further 91 ILU’s while still complying with AS 9.1.1 and AS 9.1.2 of the accommodation code. It has already been noted however, that the Place Code takes precedence. There is only potential for some further 72 ILU’s while still complying with the acceptable solution of that code. [43] The proposal involves a building height and density which is significantly in excess of that referred to in the acceptable solutions, and so it is necessary to consider the -- 16 of 23 -- 17 performance criteria. PC 6 of the Place Code employs concepts which are somewhat imprecise. They do not require a “string-line” approach, by which no building is permitted to be any higher than its highest neighbour. The focus is what is “in keeping” with the “predominant residential character” and on visual amenity. The focus of PC2 is consistency with residential character, while contributing to a variety of dwelling types. [44] A number of matters were referred to in justifying the alternative solutions. In so far as building height is concerned, they include the following: • The buildings present as three-storey buildings with a partial fourth-storey. • The height of each storey has not been maximised. It would be possible to design a building which was four-storeys, but which had a height of 13.5 m from the top of the floor of the ground floor to the ceiling to the top most level. • The fourth-storey is only a partial storey and is the shortest of any of the storeys (2.5 m from floor to ceiling). • The roof elements incorporate sloping skillions, which tend to minimise the appearance of the partial fourth-storey. • The buildings are well set back from the boundaries of the site. • The buildings retain a low rise presentation and character6 . • It would be possible, even within the confines of the acceptable solutions, to have buildings of up to three-storeys (with a partial third storey) and 11.5 m in height. 6 The Town Planning Scheme defines a “high rise building” as any building with a height of five-storeys or more above mean ground level. -- 17 of 23 -- 18 • The character of the area in which the site falls is evolving, as redevelopment occurs in the context of a gradation of designations from east to west. The site lies at the interface of a transition in height. • While the majority of the land in the vicinity of the subject site is presently developed for one or two-storey low rise development, examples of higher rise development are to be found and that would be expected to increase in the future. • The buildings would not, by reason of their height, obstruct any major vistas or views and are designed, set back, sited and landscaped so as to provide as suitable outlook. [45] In so far as density is concerned, similar observations were made about the evolving nature of the locality and the range of densities provided for on the overlay map. Further, it was pointed out that notwithstanding the dwelling density, population density will not be undue nor have undue impacts. In this respect, aged care accommodation has a relatively low occupancy rate, in terms of persons per dwelling.7 [46] I am satisfied that the proposal, although somewhat taller than most existing buildings in the area, will be of a low rise residential character in height which, in the particular circumstances, can be said to be in keeping with the predominant residential character of the surrounding area and will not result in a significant loss of visual amenity. Indeed, in my opinion, it will lead, if anything, to an improvement in visual amenity. [47] I am satisfied that the proposal will contribute to the achievement of a variety of dwelling types in the local area, which is part of the performance criteria related to -- 18 of 23 -- 19 accommodation density. I am also satisfied that the accommodation density would have no significant detrimental impact in the circumstances. Whether it could truly be said to be “consistent” with the residential character of the local area in terms of density is more debatable. On balance, I am prepared to accept the evidence of the planners, but even if the proposal was considered to fail to meet that performance criteria (or, indeed, the other performance criteria referred to) I would still be prepared to approve the proposal notwithstanding the conflict. [48] In considering whether to approve notwithstanding conflict, it is relevant to have regard to the nature and extent of the conflict (discussed above), and to consider whether there are grounds relevant to the point of the conflict and which justify approval and, if not, whether there are sufficient grounds in favour of the application as a whole. The process need not be undertaken in a mechanical or formulaic way.8 [49] The proposal is one of substantial merit which will redevelop a “tired” facility and provide infill development which will help to address an existing and growing need for facilities. It will advance a number of provisions of the planning scheme, while containing amenity impacts to acceptable levels. [50] Mr Huckerby gave evidence, which I accept, of the need for further aged care facilities and of the particular opportunity which the subject site represents for achievement of a substantial and integrated facility which allows residents to “age in place”. The planning scheme contains provisions which acknowledge the aging nature of the population, the need to provide a diversity of housing choice (including for the aged) and the desirability of achieving infill development in 7 Exhibit 4 p 22, Exhibit 5 p 2. 8 Woolworths Limited v Maryborough City Council [2005] QCA 262. -- 19 of 23 -- 20 existing areas, to promote efficiency in the pattern of development. These objectives are supported by the proposal. In that regard: ● DEO SOC 3 acknowledges, in its “explanation” that the resident population on the Gold Coast is aging and that there is a need to diversify housing choice. The planning objectives to that DEO encourage the provision of residential accommodation to meet the specific needs of, amongst others, the aged, and seeks to do that through various provisions of a planning scheme, including provisions relating to the Residential Choice Domain. ● The “Key Strategies” of the planning scheme include provisions with respect to growth management 9 and infrastructure10 which acknowledge the desirability of consolidating existing urban residential areas through infill development. ● Planning strategy map PS 5 includes the subject land within the “redevelopment/infill development” areas which refers to areas of established urban form. Properties in this area not having cultural heritage significance or other social and amenity values provide opportunities for redevelopment to a higher population density. ● The planning scheme also contains housing policies which, amongst other things, seek to avoid creating residential areas with a single housing type and style seeks to allow opportunity for specialist housing needs in appropriate locations11 and seeks to encourage urban renewal programmes to incorporate housing for, amongst others, the aged.12 It also encourages diversity of choice in housing type, and promotes designs appropriate to the 9 GM Policy 2. 10 Chapter 4. 11 HP 1.2. 12 HP 1.3. -- 20 of 23 -- 21 varying needs of households as they move life cycle changes.13 More specifically, Housing policy 2 promotes “facilitating the provision of housing designed for the aged and disabled in a range of locations throughout the urban area”. The provisions relating to that policy encourage aged housing in areas which are close to services and facilities. ● The city image and town’s image policies seek to support infill development and redevelopment, while maintaining the low-rise character of suburban residential locations.14 [51] I adopt the summary of planning grounds in support of development overall which was set out in the submissions of counsel for the respondent as follows: “(a) The proposal contributes to diverse housing choice and provides a range of dwelling types, sizes and densities. (b) The proposal provides “special needs” housing for the elderly within an established urban area, and is designed to integrate with the surrounding community, while meeting the specific needs of the aged, including provision for varying levels of care and opportunities to “age in place”. (c) The proposal provides housing for the elderly proximate to local and higher order services including shopping, recreation, community facilities, emergency care and public transport. (d) The proposal utilises a good opportunity for infill development facilitating medium and mixed densities in a location proximate to local and higher order services. (e) The proposal will redevelop the existing aged persons’ accommodation that had become run-down and out-of-date with new and improved facilities. (f) The proposal provides a responsive design that contributes to the character and attractiveness of the local area and street scape and maintains reasonable neighbour amenity expectations. 13 HP 1.6. 14 CI 2.3 and 2.13. -- 21 of 23 -- 22 (g) The site is in an appropriate location due to it being centrally located and proximate to local and higher order services including shops, parks, hospitals and public transport and, the community in general. (h) The design includes positive features that will enhance reasonable neighbourhood amenity expectations (i.e., building setbacks, landscaping, orientation of balconies, sun/privacy screening, spaces between buildings, variation/stepping in building form etc.). (i) The proposal provides a community need for aged accommodation. [52] There are, of course, other provisions of the planning scheme, including those which seek to appropriately protect amenity and character, but I am satisfied that the proposal is appropriately respectful of both. [53] The subject site represents an important opportunity to provide a form of housing which is needed by way of infill development at an appropriate and convenient location. It is in the public interest that the opportunities afforded by the site are not wasted and that, within limits, the maximum advantage is taken of them. Here, the size of the subject site has enabled the co-respondent to formulate a skilful and sensitive proposal which achieves a greater extent of development on the site, in taller buildings and with greater density than would be achieved by adoption of the acceptable solutions while, at the same time, avoiding undue or unreasonable impacts. To the extent that this causes some conflict with the provisions relied upon by the appellant, it is not conflict which should lead to a refusal of the application, given the lack of a significant adverse impact set against the public interest in capitalising on the opportunities afforded by the site. I am also satisfied that the grounds in support of the proposal overall are sufficient to warrant approval notwithstanding the alleged conflict. -- 22 of 23 -- 23 [54] I am satisfied that the co-respondent has discharged its onus. The appeal will be dismissed in due course. I will adjourn the further hearing of the appeal to give the parties an opportunity to consider the conditions of approval. -- 23 of 23 --