Australand Holdings Ltd v Gold Coast City Council & Ors [2007] QPEC 29

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Australand Holdings Ltd v Gold Coast City Council & Ors [2007] QPEC 029 PARTIES: AUSTRALAND HOLDINGS LIMITED Appellant V GOLD COAST CITY COUNCIL Respondent and CHIEF EXECUTIVE UNDER THE TRANSPORT INFRASTRUCTURE ACT 1994 First Co-Respondent and CHIEF EXECUTIVE OF THE ENVIRONMENTAL PROTECTION AGENCY Second Co-Respondent FILE NO/S: No BD 1201 of 2006 DIVISION: Planning and Environment PROCEEDING: Appeal ORIGINATING COURT: DELIVERED ON: 4 April 2007 DELIVERED AT: Brisbane HEARING DATE: 30, 31 October and 1, 2 and 8 November 2006, with written submissions being received to 28 November 2006 JUDGE: Rackemann DCJ ORDER: CATCHWORDS: COUNSEL: Mr D R Gore QC, with him Mr T Trotter for the Appellant Mr M Hinson SC, with him Mr S Ure for the Respondent No appearance by or on behalf of Co-Respondents SOLICITORS: Allens Arthur Robinson for the Appellant King & Co for the Respondent -- 1 of 20 -- 2 [1] Australand Holdings Limited (Australand) appeals against a decision of the Gold Coast City Council, made on 12 December 2005, to approve a development application, made on 4 May 2004, for, amongst other things, a preliminary approval, overriding the planning scheme, for a material change of use, to facilitate a master planned residential development. [2] Australand appeals against parts of the Council decision relating to the way in which the effect of the planning scheme for the land is to be varied and in relation to the conditions of approval. [3] The subject site, which comprises of the order of 30 hectares, is located at Oxenford Hope Island Road and Pendraat Parade, Hope Island. It has, in recent times, undergone extensive earthworks in association with the construction of the Hope Island canal, which it fronts. The site has an elongated shape running in a south- east to north-west direction, with a substantial water frontage of some 1578 metres1 . A significant focus for the proposed development is an oval shaped inlet from the canal, which is proposed to be used as a private marina. The canal was constructed to overcome drainage and flooding constraints to development. [4] The site lies within a broader locality which features existing and proposed residential estates, golf courses and resorts. The Lion’s Haven Retirement Village is located to the east. To the west of the site, across Santa Barbara Road, is the Marina Shopping Village. The Hope Island canal adjoins the site to the north. North of the canal lies “The Pines” private golf course and residential development. On the southern side of the Oxenford Hope Island Road lies the Hope Island Golf Course. [5] The site is included within the Hope Island Local Area Plan (LAP) under the 2003 planning scheme. Version 1.0 of that LAP was replaced by version 1.0 on 7 March 2005, but without any amendment which is material for present purposes. The purpose of the LAP is: “to maintain the diverse contrast of high quality resort/residential facilities, international hotels, new developing residential communities, small villages, marine industries, retail and tourist attraction in Hope Island. This LAP also addresses significant flooding and hydraulic constraints that require the construction of a controlled flow path through a canal system …” [6] Insofar as the canal system is concerned, clause 4.4 of the LAP provides, in part, that: “One of the main constraints to remaining development on the Island is flooding. This has been addressed through the proposed construction of a controlled canal system that will enable drainage to flow into the Coombabah and Saltwater Creek estuaries. This canal system will be navigable and provide an opportunity for residential water frontage, in the central part of the Island (refer to Hope Island LAP Map 16.5 – Flood Inundation and Hope Island LAP Map 16.6 – Canal Alignment). 1 Exhibit 17A -- 2 of 20 -- 3 Development of the Hope Island Canal is to be in accordance with: … • a Deed of Agreement between the Hope Island Canal Associate Incorporated and the former Council of The Shire of Albert, executed on 17 March 1995; • a subsequent Deed of Variation between the Council and Hope Island Canal Association Incorporated, executed on 31 October 1997; and • …” [7] The deeds2 relate to agreements reached between the Council and the landowners association in relation to the construction of the canal, including in relation to the dedication of land by landowners and in relation to financial contributions. The deed of 17 March 1995 recited that the drainage flow path (canal) was to have: “the character of a navigable canal so that, following the construction of the canal, land abutting will have direct frontage to a navigable waterway”. [8] A deed of 20 March 19953 in relation to an agreement for dedication of land without monetary compensation recited that: “… the dedication of the land required for the flow path and its subsequent construction will enhance the value of the land (despite the loss of land area) as a result of: F.1. enhanced development potential due to the improved drainage system; and F.1. enhanced attractiveness by virtue of the direct waterway frontage.” [9] Under the LAP, the site is largely included within Precinct 7, but is also partly within Precinct 4. Residential development is intended within each of those precincts. Medium density development is encouraged in Precinct 7. The LAP includes a Place Code, the purpose of which is to ensure that the scale and density of development and, in particular, the design and appearance of residential and resort premises, is consistent with the intent and Desired Environmental Outcomes of the LAP. [10] The Place Code contains development requirements which are expressed in the form of performance criteria and acceptable solutions. Some of the acceptable solutions refer to other parts of the LAP. The acceptable solution in relation to building height makes reference to the maximum building height map (16.3). This shows a uniform height of three storeys for the area which includes the subject site. Similarly, the acceptable solution to the performance criteria for accommodation density refers to the maximum residential density map (16.4) which shows that part of the site within Precinct 7 as “RD3” (up to 40 dwellings per net hectare) and that part of the site within Precinct 4 as “RD1” (up to 25 dwellings per net hectare). One of the acceptable solutions to one of the “walkable neighbourhoods” performance criteria (PC14) refers to the access and mobility map (16.8), which shows a 2 Appeal Book Vol 14, p 4600 3 Appeal Book Vol 14, p 4608 -- 3 of 20 -- 4 “pedestrian/cycle path” providing a generally east/west connection through the middle of the site. An acceptable solution to another of the “walkable neighbourhoods” provisions (PC20) refers to the open space map (Map 16.7) which shows a discrete pocket of open space east of Pendraat Parade but no continuous linear open space along the proposed canal alignment4 . The “proposed canal alignment” is shown on LAP Map 16.6. The canal and inlet have been constructed consistently with what is shown on that map. [11] The statement of intent for the LAP provides, in part, that new urban development will provide “walkable and user friendly communities”. The LAP Place Code contains development requirements in relation to “walkable neighbourhoods” at PC14 to 22 (and related acceptable solutions). Performance Criteria 14 of the Place Code requires development to incorporate the principle of a walkable neighbourhood. AS14.4 to that performance criteria refers to a transport network design which is consistent with Map 16.8. [12] Insofar as development providing public access to the canal, PC21 of the Place Code provides that (my underlining): “Where canals are included in the subdivision design, adequate public access to the canal must be provided. At appropriate locations, public access to the canal is to ensure that residents on dry lots can use the canal for recreation. This also improves the openness and visibility within the subdivision.” The acceptable solutions to that performance criterion include that “at key locations, parkland abuts the canal” and “a minimum of 30 per cent of public open space is located with canal frontage in canal based subdivisions”. [13] Australand’s proposal seeks to override the planning scheme by varying the effect of the controls for development in Precincts 4 and 7 of the LAP insofar as they relate to the subject site. Australand proposes a new precinct “Precinct 8-Cova”, with an accompanying table of development, master plan and Place Code, against which future development would be assessed. The Council’s approval was on the basis of variations to the effect of the LAP for the site which are different, in some respects, from those sought by Australand. [14] The parties have requested the Court to determine, at this stage, the disputes between them as to building height and public access to the canal. [15] Insofar as building height is concerned, the LAP Place Code presently provides as follows: Performance criteria Acceptable solutions PC1 All buildings must be limited in height to complement the local resort and residential character and to protect the residential amenity of adjoining areas AS1.1 The building has a maximum of two storeys or AS1.2 The height of buildings in each precinct does not exceed the maximums shown on Hope Island LAP Map 16.3 – maximum building height 4 It may be noted that Map 16.7 shows a continuous linear open space designation along Saltwater Creek -- 4 of 20 -- 5 The Council’s decision adopted the same wording as the LAP Place Code for the performance criteria but, in the acceptable solution, made reference to “Master Plan Map 3a”. Map 3a shows maximum building heights of two or three storeys over the majority of the site, but a uniform maximum building height of 5.5 storeys on the land around the perimeter of the private marina. The only condition relating to building height is Condition 2 which identifies the documents comprising the preliminary approval and includes Map 3A. [16] Australand’s proposal is that the performance criteria ought read as follows: “All buildings must be limited in height to protect the residential amenity and character of adjoining areas. Increased building height around the marina basin is to be used to create and define the area’s character, visual nodes and landmarks. Increased building height around the marina basin is utilised to create a distinctive and recognisable location within the city.” Australand’s proposal is that the acceptable solution and the condition of approval should refer to “Master Plan Map 3b” which, like Map 3a shows maximum building heights of two or three storeys over the majority of the site but, unlike Map 3a, shows varying maximum building heights, from one to seven storeys, on the land around the perimeter of the private marina. [17] Insofar as the “walkable neighbourhoods” provisions are concerned, each of the parties wish to vary AS14.4 to refer to a site specific map. Australand proposes its Map 5, but the Council contends for its Map 5a. The important difference, for present purposes, is the extent of public access along the canal front. [18] Insofar as PC21 of the Place Code is concerned, Australand’s proposed variation is as follows 5 : PC25 Where water bodies are included in the subdivision design, adequate access to the water body must be provided. At appropriate locations, access to the water body is to ensure that residents on dry lots have recreational space adjacent to the water body. This also improves the openness and visibility within the subdivision and provides a unifying element within the development. AS25.1 At key locations, open space abuts the marina/water body. AS25.2 A pedestrian boardwalk is to be provided to the marina generally as shown in Master Plan Open Space/Public Access Map 5. AS25.3 At key locations, residents external to the development are able to access recreational space adjacent to water bodies within the development. Public access shall also be provided through the development generally as shown on Master Plan Open Space/Public Access Map 5. AS25.4 Drainage pathways are co-located with pathway and road extensions, if appropriate. AS25.5 Fencing abutting accessways to the marina/water body are no more than 1.5 metres in height to increase natural surveillance. AS25.6 Appropriate lighting is provided on access ways to the 5 The numbering of the performance criteria and acceptable solutions has been taken from Exhibit 22 -- 5 of 20 -- 6 marina/water body. AS25.7 Access ways are adequately signposted. [19] The performance criteria proposed by Australand is similar to the contents of PC21 from the existing Place Code, but refers to “water bodies” other than canals, speaks of “access” rather than “public access” and adds the words “and provides a unifying element within the development”. Proposed acceptable solutions AS25.1, 25.4, 25.5, 25.6 and 25.7 are akin to those in AS21.1, 25.5, 25.6, 21.7 and 21.8 respectively of the existing LAP place code. The proposed AS25.2 and 25.3 refer to Map 5. [20] The Council’s position with respect to those provisions differs more markedly from the existing provisions and is as follows (my underlining): PC25 The developments waterfront character is celebrated and dedicated for the recreational use of residents and members of the public through the provision of continuous and unencumbered public access along the developments waterfront (canal and marina frontage). At appropriate locations, access to the waterfront is to ensure that residents on dry lots and members of the public have ease of access to the recreational park adjacent to the waterfront. This also improves the openness and visibility within the development and provides a unifying element within the development. AS25.1 A recreational park network will be created, focussed on the development’s waterfront, as shown in Master Plan Recreational Facilities/Public Access Map 5a and include: • Provision of a publicly assessable pedestrian promenade along the development’s entire water frontage (minimum 10 metres); • Multiple pedestrian entry/exit points to the promenade are provided (minimum width 10 metres) at locations that are separated by a distance not exceeding 100 metres; and • Full width roads are extended through to the canal, where appropriate. AS25.2 Fencing abutting access ways to the development’s waterfront are no more than 1.2 metres in height to increase natural surveillance. AS25.3 Appropriate lighting is provided on access ways to the development’s waterfront. AS25.4 Access ways are adequately signposted. AS25.5 Drainage pathways are co-located with pathway and road extensions, if appropriate. [21] The Council position is also reflected in Condition 5 of the approval, which would require Australand to dedicate to the Council, in fee simple, a continuous strip of land along the site’s entire canal frontage. The width of that strip was to be 10 metres, but the Council was ultimately prepared to accept an 8 metre strip. No such continuous system is required by the LAP. A decision on the competing maps will require consequential variations6 . [22] There was, in the course of the appeal, some minor change to Map 5 proposed by the appellant. The map, in its final form, shows a “principal public 6 See Exhibit 22, AS 18.4, AS 24.4 -- 6 of 20 -- 7 access/bikeway/boardwalk” providing a generally east/west link through the site but also around the perimeter of the private marina and for a limited distance along the canal front otherwise, proximate to the marina. There is also proposed to be some additional public open space and private open space fronting the canal, and an internal water body towards the eastern end of the site. It is also proposed to have private open space adjacent to a water body towards the western end of the site. The principal public access bikeway/boardwalk is to pass over each of those internal water bodies. The length of waterfront park proposed by Australand is some 750m or just under half the total waterfrontage7 . It was common ground that the access bikeway/boardwalk proposed by Australand would be consistent with the LAP Place Code. [23] The Council’s position is that, in addition to the extent of access/boardwalk shown by the appellant, the access/boardwalk should also be continued along the entire canal frontage of the subject site to provide a “continuous and unencumbered public access along the development’s waterfront”. [24] It was submitted, for the Council, that resolution of the areas of difference concerning the content of the Cova Development Place Code will resolve consequential disputes about the conditions attaching to the preliminary approval8 . Senior Counsel for Australand was prepared to also run the appellant’s case on that basis9 . [25] The Court finds itself in the position of being required to determine how the effect of the LAP should be varied for the subject site, rather than simply to assess a development application against the existing provisions. Pursuant to s 3.1.6(1) of the IPA, an applicant who applies for a preliminary approval is given the opportunity to seek that the approval vary the effect of any local planning instrument for the land. The relevant local planning instrument here is the planning scheme, which includes the LAP. The permitted variations are those set out in subsections (3) and (5) respectively and include the identification of codes for development 10 . To the extent the preliminary approval does any of the things referred to in subsections (3) and (5) differently to the local planning instrument, the approval prevails11 . [26] Consequently, there were, in effect, two aspects of the subject application namely: (a) a development application for preliminary approval, and (b) an additional aspect involving a request to vary the effect of a local planning instrument for the land. [27] Insofar as the aspect which consists of a request to vary the effect of the local planning instrument: (a) Section 3.5.5A deals with assessment of the request; (b) Section 3.5.11(5) excludes the operation of s 3.5.11(1) to (4); (c) Section 3.5.14A deals with the decision on the request; (d) Section 3.5.15(2)(g) deals with the decision notice; and 7 Exhibit 17A 8 See paras 24 and 25 of the written submissions of the respondent 9 T373 10 Sections 3.1.6(3)(b) 11 Section 3.1.6(6) -- 7 of 20 -- 8 (e) The conditions provisions in s 3.5.29 and following do not apply. [28] In deciding the part of an application which seeks approval to vary the effect of an applicable local planning instrument the assessment manager, pursuant to s 3.5.14A(1)12 , must – (a) approve all or some of the variations sought; or (b) subject to s 3.1.6(3) and (5) – approve different variations from those sought; or (c) refuse the variation sought. As was submitted on behalf of the Council, the discretion is relatively unfettered, within the framework provided by ss 3.1.6(1)(b), 3.5.5A and 3.5.14A. [29] In this case, the witnesses called by the Council were prepared to acknowledge that Australand’s proposal had some merit. It was submitted however, on behalf of the respondent, that the Court ought give significant weight to the Council’s position as planning authority and ought not depart from its preference, as reflected in its decision, unless there was an obvious lack of merit in the strategy or outcome preferred by the Council. [30] While the Court has, on many occasions, in assessing a development application in the context of an appeal, recognised that it is not the planning authority for the relevant local authority area, the subject appeal, which falls for determination by the court, requires the Court to determine how the effect of the LAP should be varied for the subject site, at least in respect of the matters in issue. That is not to say that the Council’s role as planning authority more generally or its view with respect to the matters in issue with respect to the subject site ought to be disregarded. The Court is however, obliged to conduct the appeal by way of a hearing anew13 and, in effect, stand in the shoes of the local government 14 for the purposes of deciding the variations in response to Australand’s application. The respondent’s written outline acknowledged as much15 . It would be wrong for the Court to approach its jurisdiction on the basis that the appeal should be dismissed unless the Council’s decision was unreasonable, in the Wednesbury Corporation sense16 , or otherwise defective at law. While the onus in the appeal is upon the appellant, there is nothing in the legislation which confines the Court’s discretion by reference to whether the position contended for by the Council is obviously bereft of any merit whatsoever. As the respondent’s written outline acknowledged17 , the Court exercises an independent mind in deciding the appeal. [31] The Council’s decision on the application and its attitude in the appeal, with respect to the matters in issue, were at least materially influenced (if not dictated) by the contents of a document entitled “Hope Island Design Forum Concept Master Plan” (HICMP) dated January 2005. The Council’s position, with respect to both building 12 Compare s 3.5.11(1) (which, by virtue of subsection (5) does not apply to the request for variation) which requires an approval, subject to any conditions, or refusal 13 Section 4.1.52(1) 14 See the explanatory note to s 4.1.52, the position reflects that under previous legislation – see Walker v Noosa Shire Council [1983] 2 QdR 86 per Thomas J at 88 15 Para 32 16 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 All ER 680 17 Para 20 -- 8 of 20 -- 9 height and the canal frontage, is consistent with that document and both sides acknowledged that a significant issue in the appeal was the weight to be given to the proposals in that document 18 . [32] The HICMP is not a statutory planning instrument. The report and recommendation to the Council with respect to the subject application said however, that (my underlining) “the Hope Island LAP is to be reviewed to provide an updated LAP for the Hope Island locality”19 and: “This report recommends that the preferred outcomes for these matters are those contained in the Hope Island Concept Master Plan and Design Code. This document is considered to represent Council’s preferred future planning intent for the Hope Island area, as opposed to that anticipated by the application.” 20 [33] The HICMP did not exist when the Australand application was made. It exhibits significant differences to the current LAP provisions, including with respect to the concept of a continuous 100 per cent waterfront network of canal edge drives and pedestrian paths throughout the canal system, which stretches for approximately 11 kilometres. It was prepared in January 2005 following a three day “design forum” in December 2004. It was the subject of an internal council “workshop” on 9 March 2005. On 9 September 2005 the Council resolved, amongst other things, to “place the concepts and codes before the community for consultation in preparation for the revised Hope Island Master Plan”. On 18 October 2005 the Council wrote to the Office of Urban Management seeking confirmation that the HICMP is a “structure plan” for the purposes of the SEQ Regional Plan and is appropriate to form the bases of community consultation21 . There is no evidence of any response to that request. [34] It was not until May 2006, that the Council published the HICMP and sought “feedback” (by 9 June 2006). Some 38 submissions were received, including a number from those opposed to its proposal for a continuous canal edge public access throughout the canal system. The evidence did not establish Council’s progress in reviewing those submissions or the outcome of a consideration of them. It appears that no further version of the HICMP has been published and no proposed amendment to the existing LAP, to incorporate the HICMP, has materialised or progressed through the statutory steps in the IPA. [35] It could not be said, with any real confidence at this stage, that the HICMP will proceed to an amendment of the LAP or that its proposals would remain unchanged if it did. Although the weight to be afforded to the document is a matter for the Court, I note the agreement, in the joint report of the town planners, that the document was “relevant but can’t be given significant weight”. [36] The building height issue may be disposed of relatively briefly. The position of each of the parties contemplates increased building height around the marina basin. The performance criteria proposed by the appellant gives recognition to that and, in that respect, is to be preferred. 18 See Hinson T 366 l 12 19 AB p 723 20 Page 724 21 The HICMP notes that “It is intended that upon approval the Structure Plan will be used for development assessment and have precedence over the current Hope Island Local Area Plan” -- 9 of 20 -- 10 [37] As for the plan to be referred to in the acceptable solution, the respondent’s proposed plan shows a uniform maximum building height of 5.5 storeys. That is in accordance with the report and recommendation to the Council, although there had been a level of support, on the part of the Council’s principal architect/urban designer, for heights up to 7 storeys22 and, on the part of Council’s Economic Development and Major Projects branch, for “key sites on the peninsulas” to have a maximum height of 8 storeys23 . The Council’s proposed plan reflects the HICMP, which included the land around the marina basin in a “H4” area and stated that there was little reason for development to exceed a base height of 5.5 storeys in that area. The appellant’s plan, on the other hand, shows maximum building heights varying between 1 and 7 storeys. [38] The appellant’s plan, in relation to building height, was supported by Mr Mainwaring, whose evidence I accept. Mr Middleton, the architect called by the respondent, frankly conceded that, on the assumption Australand’s proposal for open space was otherwise accepted, its proposal for building height is a better urban design outcome than that put forward by the Council.24 Although the Council’s formal position remained unaltered, it was properly and frankly conceded, in the outline of submissions for the respondent, that “the weight of the evidence supports a decision approving the variation contained in map 3b.” [39] I am satisfied that the map to be referred to in the acceptable solution should be that proposed by the appellant. I will however, invite further submissions as to whether the performance criteria proposed by the appellant ought to be amended to also include a reference to a variation in building height of up to 7 storeys. [40] The primary focus of the appeal was the competing versions of the “walkable neighbourhoods” provisions and, in particular, the dispute as to whether continuous public access along 100 per cent of the site’s canal frontage ought to be provided for. [41] Australand’s proposed public access/bikeway/boardwalk system is, I am satisfied, appropriate. It would provide a functional link through the site, with connections at each end, to facilitate cyclist and pedestrian circulation through and beyond the site. It would not only be functional but would also provide an attractive amenity to users, who would enjoy what Mr Mainwaring referred to as a diverse, secure and stimulating experience, while circulating throughout the precinct. That experience would include reasonable and appropriate access to the canal front, particularly around the marina inlet, which is a focus of the development, will contribute to the quality of the environment and, as Mr Hassell attested, will be of an order of magnitude, in scenic quality, above that of the canal itself25 . While the proposal involves canal edge housing, something which is commonplace in the Gold Coast region (and elsewhere), it also provides ample canal edge park, including access to the activity around the marina inlet. [42] I am satisfied that, as Mr Priddle (a town planner called by Australand) pointed out and Mr Perkins (a town planner called by the Council) conceded in cross- 22 Appeal Book Vol 3, pp 741, 767 23 Appeal Book Vol 3, pp 763-764 24 T142 Lines 10-15 25 T163 l 25 -- 10 of 20 -- 11 examination26 , the form of the Australand proposal is also consistent with the existing LAP, including the Place Code27 . [43] Mr Middleton, an urban designer and architect, made reference, at p 11 of his report, to a number of what he considered to be good urban design principles, contained in Council’s publication “Guiding principles for Urban Design” (September 1997). He conceded, in cross-examination, that there was a legitimate case for concluding that Australand’s proposal satisfied each of those principles28 . He considered however, that the Council’s preference would be a better outcome. His view was that the site presented “a significant urban design opportunity to create a totally different standard of public realm in this part of the Gold Coast”, something that “hasn’t really been delivered on the Gold Coast”29 . He considered that Australand’s proposal “underdoes” the opportunity to make more of its water interface30 . [44] In his examination-in-chief, Mr Middleton said that the “principal matter is the privatisation of the waterway frontage”31 . The HICMP also makes reference to conventional canal estates privatising a waterway. The expression is apt to be somewhat misleading in the current context. Privatisation is often used to describe the conversion of something from public to private ownership. To say that a development “privatises” the waterfront may conjure images akin to a public beach or natural foreshore area being given over to private ownership. That is not the case here. Rather, the Council wishes Australand to dedicate to public ownership, part of its privately owned land. It does so on the basis that it has a water frontage, but the frontage is to a water body which functions as a drainage system, constructed with the cooperation of landowners at the time, for the purpose of removing constraints to private development while providing the landowners with direct water frontage to a navigable canal32 . That does not mean that subsequent development ought not provide appropriate public access to the canal front, as the LAP provides and Australand’s proposal acknowledges, but it is misleading to refer to Australand “privatising” that part of its land which is intended to be developed with residential waterfront properties, to make the most of the direct frontage to the navigable canal. [45] I have already observed that the Australand proposal would provide an attractive amenity to users of its system and takes advantage of the canal by including a section along the waterfront near and around the marina, which will provide the highest amenity. I accept Mr Hassell’s evidence to the effect that the amenity afforded by the canal is not of the order of a natural foreshore and that providing further canal front pathway/boardwalk would not materially increase the diversity of the experience for the user33 . It remains the case however, as Mr Hassell agreed in the joint report, that the canal front provides a more attractive outlook than the streetscapes would. 26 T319 l 45 27 An issue about the quantum of park land is addressed later 28 T135 29 T116 30 T133 31 T116 l 2 32 See also Exhibit 31 33 T164 -- 11 of 20 -- 12 [46] It may be accepted that providing further canal front pathway, in addition to that proposed by Australand, would provide a somewhat enhanced amenity for users. That does not however, dictate a conclusion that Australand’s proposal should be rejected. [47] There are, of course, competing interests and priorities. From the perspective of future users of a public pathway/boardwalk it is the “more the merrier” in terms of the provision of functional and attractive public pathways, including along the canal front. A consequence however, is that more of the site would be prevented from making the most of its direct water frontage to a navigable canal for the benefit of future residents of “wet” blocks. From the perspective of future residents of canal front properties, direct canal frontage, without an intervening public pedestrian/cycle path, would no doubt be an advantage and would provide a higher level of amenity. It is something which Australand wishes to offer. Learned Senior Counsel for the respondent properly conceded that it is “plainly relevant that there is that different adverse or reverse impact on people who (would) live in places that look over the waterway” 34 , but contended that the Council’s proposal would not preclude potential private access to moorings and accommodated both interests, albeit in a different way. [48] Further, the increased provision, sought by the Council, would not only affect Australand’s ability to offer direct canal front residential housing, but would also require some redesign, to compensate for the land to be dedicated to the Council. [49] Mr Hassell supported the Australand proposal as a “reasonable, logical and practical compromise” of the competing interests. As Mr Mainwaring said in his report35 : “The combination of canal edge access and public pedestrian/cycle circulation through a legible permeable urban precinct offers a diverse environment that is balanced by lower scale canal frontage houses with direct boating facilities into the waterway”. [50] I generally accept the evidence of Mr Mainwaring and Mr Hassell in relation to the merits of the Australand proposal for the pathway and the balance which it strikes which, I am satisfied, is appropriate and, in the circumstances, more appropriate than that sought by the Council. [51] Mr Wood, a recreation open space planner called by the Council, saw merit in the Australand “linkage network”, but thought it should go further36 . While Mr Wood thought the system should be located in the most attractive setting37 , it emerged that his concern was to see the achievement of a recreational pathway system that is safe and convenient for all, particularly for families38 . His preference was for an “off road” system for safety reasons39 . While he accepted that Australand’s proposal provided a link to areas beyond the site, he pointed out that it was not continuously “off road” 40 . He drew attention to the fact that Councils preferred continuous canal 34 T360 35 Exhibit 3A p 24 36 T252 37 T254 38 T256 39 T256 40 T254 l 45 -- 12 of 20 -- 13 front system would provide for pedestrian/cyclist movement well removed from the internal roadway, but that Australand’s proposal would see users of the pathway system potentially confronting vehicles when crossing intersections. [52] Mr Wood conceded, in cross-examination, that the development would have a low speed environment and that Australand’s proposal would provide a very safe urban pedestrian/cyclist environment41 . While the Australand proposal involves crossing some (relatively safe) intersections, a long separate canal front pathway could, as Mr Hassell pointed out42 , possibly create a potential conflict between higher speed cyclists and pedestrians, a problem experienced, for example, along the Coronation Drive pedestrian/bikeway in Brisbane. I do not consider either the Australand proposal or the Council’s preference to be unsafe nor do I consider one to be significantly safer than the other. [53] In seeking to justify the requirement to provide for continuous canal front public access, the Council placed significant reliance on the role which the subject site could play in achieving a continuous canal front walkway throughout the broader Hope Island canal system, as contemplated by the HICMP and, conversely, the extent to which that opportunity may be prejudiced if such a pathway were not obtained on the subject site. In that respect, it was submitted that the subject site represented a “critical link”. The experts called by the Council referred to the significance of the site and to the opportunity to secure dedication of land for a continuous link now, rather than having to “retrofit” something later. [54] It was submitted, on behalf of the respondent, that a broader planning strategy for a continuous canal front pathway is evidenced by: (a) the HICMP and its progress; (b) Planning Policy 16 (in its amended form) and the draft Priority Infrastructure Plan; (c) the extent to which land has already been obtained or agreed or conditioned for dedication; (d) the Council’s reliance on the HICMP in the decision the subject of the appeal. The submission, on behalf of the Council, was that the “demerit” of the Australand proposal lay in its failure to fit in with this “broader contextual planning strategy that the Council is pursuing for the wider area”. [55] As has already been observed, the HICMP is not a statutory planning document. I accept that a continuous open space linkage along the edge of the Hope Island canal is more than an idle thought. It is envisaged in amendments to Policy 16 which were made subsequent to the making of the subject application and in the draft Priority Infrastructure Plan, which has been advertised. It is however, not yet reflected in the relevant Local Area Plan43 nor in any proposed amendment to the 41 T271-272 42 T275-276 43 A matter to which Australand drew attention in its submission on the draft PIP -- 13 of 20 -- 14 LAP which has significantly progressed through the statutory processes under the IPA. [56] It was also submitted, on behalf of the respondent, that: “reliance upon the HICMP as a basis for the decision on the request to vary the effect of a local planning instrument is itself a formal act of adoption of a HICMP so far as it relates to the subject land” and “so far as the subject land is concerned, and that part of the application seeking to vary the effect of the local planning instrument, the Council has clearly identified the HICMP is the planning strategy which it intends to pursue”. [57] It was submitted that: “under a Coty Principle, the HICMP is entitled to substantial weight so far as the subject site is concerned. The weight to be given to it on an application relating to other land in the HICMP area may be less, given that it has not progressed far along the path to adoption in relation to other land.” [58] The Council seeks, in that way, to support its decision on the application by reference to a document which it says should be given weight for this site (as opposed to other land) because of the very same decision which is the subject of the appeal to this court. In effect, it seeks to use its decision to support its decision. That is not persuasive. I am not prepared to put substantial weight on the HICMP and I accept the submission on behalf of the appellant to the effect that the Australand proposal, while representing an alternative way of dealing with pedestrian/cycleway and recreation space issues (compared with the HICMP) would not have a sabotaging effect in any event44 . [59] The Council’s case sought to support the HICMP as a statement of what was otherwise sound principle. The HICMP states that the master plan is based on “time tested principles of urban design” known as “traditional neighbourhood design”, some of which are set out in the left hand column on pages 5 and 6 of the document. None of those statements of principle however, specifically refer to a continuous canal front public pathway/boardwalk system. What is controversial, for present purposes, is not so much those statements of principle, but the way in which they have been applied in the Master Plan to spawn the proposal for a “continuous network of canal edge drives and pedestrian paths”. [60] The document states that the proposal is intended to “create a safe, publicly accessible edge to the canal” and that “the plan creates frontage to the canal, increasing useability of this asset by natural surveillance” but does not contain a detailed discussion of why such a proposal flows from the application of the stated design principles or why a proposal such as Australand’s would offend them. The document’s reference to privatisation of the water edge has been dealt with earlier. 44 Para 54(e) of the appellant’s outline -- 14 of 20 -- 15 [61] It might also be noted, as Mr Mainwaring pointed out45 , that, leaving the canal front pathway to one side, the Australand proposal is otherwise not entirely dissimilar to that envisaged by the HICMP. That is not surprising, since the document was prepared after Australand’s application had been made. [62] As to the progress towards securing the continuous link, the respondent pointed to evidence that there are areas of parkland along the edge of the canal system which it already manages and other areas which have been either agreed or conditioned for dedication (or conditioned with access easements) as a result of recent development approvals. In that regard however: (i) The majority of the area which would be required for a continuous public linkage along 100 per cent of the canal edge has not yet been secured. (ii) While some applicants for approval have voluntarily made provision for a public boardwalk, consistent with the HICMP, the Council has expressly placed no weight on the HICMP in dealing with applications46 . That is consistent with its choice, on 9 September 2005, not to authorise the use of the HICMP as design guidelines in the assessment of development applications 47 . (iii) Stage 2 of the Cova development was approved at the same time as the decision the subject of this appeal. Consistently with the provisions of the IPA concerning code assessment, provision for a continuous canal pathway was not made a requirement for the stage 2 approval of the Cova even though the HICMP then existed. (iv) There are canal front sites developed where no provision for a public boardwalk has been obtained. The subject site lies at the western extremity of the southern side of the canal. On the opposite side of the canal the 142 lot “platinum” development enjoys a substantial canal frontage and is substantially completed, with no requirement for a boardwalk. Mr Perkins conceded that the platinum development made the achievement of a continuous canal edge boardwalk on that side of the canal both expensive and disruptive48 . Any canal front pathway on the subject site’s side of the canal would potentially be interrupted at stage 2, if that approval is acted upon, and otherwise meet a “dead end” at the Pendraat Parade end of the site. While some development to the east incorporates boardwalks, they are for private use49 . 45 T87-88 46 Appeal book vol 16 p 5070 and vol 17 pp 5130 and 5219 47 AB vol 8 pp 2438-2439; taken from recommendation no. 6 which was not adopted by the Council; see also the letter to the OUM of 18 October 2005 at vol 8 pp 2400-2401 48 T303 49 T303 -- 15 of 20 -- 16 (v) It was pointed out, on behalf of the respondent, that these obstacles did not present an insurmountable difficulty, since the Council could, for example, compulsorily acquire land or construct a section or sections of the boardwalk in the canal stage itself. (The draft PIP assumes there will need to be substantial sums spent on land acquisition if the project proceeds). Similar observations could be made in respect of the possibility of achieving a continuous canal front system in the future, even if Australand were not now required to make provision for it. (vi) It was submitted on behalf of the appellant, that there is uncertainty about the time when any continuous pathway, beyond the subject site, would be achieved. Current indications, in the draft Priority Infrastructure Plan suggest that the timing for development is well into the future50 . It was also said that this created potential difficulty if a strip of land were dedicated to the Council but left in an unconstructed state for a lengthy period. That difficulty could potentially be addressed in another way51 . (vii) It was also submitted, on behalf of the appellant, that there are other vicissitudes. As an illustration, the appellant pointed to the decision in Australand and Housing No. 5 (Hope Island) Pty Ltd & Ors v Gold Coast City Council [2006] QSC 332 in which the Supreme Court declared invalid a Council resolution to levy a special charge under the Local Government Act 1995 in order to recover the cost of its part in constructing the canal. That decision is subject to appeal. I understand that presently unforeseen circumstances could potentially affect the future pursuit and realisation of a long term project. Whether the decision will stand and, if so, whether the financial consequences of that particular decision have any bearing upon the Council’s decision as to whether or not to ultimately pursue the construction of a continuous canal front system52 are not however, things about which I intend to speculate. (viii) Whether the continuous canal front boardwalk concept is carried forward by the Council and incorporated into the planning scheme by amendment to the LAP, following the statutory process, including due consideration of submissions, is uncertain. 50 2014 for the northern spine and 2018 for the southern spine 51 There was reference to the prospect of permitting Australand to obtain a contribution credit in return for constructing the boardwalk. The appellant referred to the prospect that, if it were not otherwise successful, the Court might require development to be set back from the strip of land for future resumption without requiring dedication, at this point. 52 See Gore QC at p 376 -- 16 of 20 -- 17 [63] I accept that the future pursuit and realisation of a system wide public pathway which continuously follows 100 per cent of the canal edge, without interruption or deviation, is uncertain at this stage. [64] The subject application was publicly notified and the contents of submissions are a relevant consideration53 . The application attracted only seven submissions. While the submissions contained objections to, amongst other things, proposed building height and density, they did not call for a continuous canal front boardwalk. I note that the submissions were received in the course of May and June 2005, after the preparation of the HICMP, but prior to its publication for comment in 2006. [65] A decision on the application must not compromise the achievement of the Desired Environmental Outcomes for the planning scheme area. A number of DEOs were referred to in Mr Perkins’ report including DEO SOC 6.7, which seeks to ensure the provision of “an effective network of public foreshore access ways”54 . Assuming the reference to “foreshore” could extend to the wall of a drainage channel constructed in the form of a canal55 , I am nevertheless satisfied that a decision to approve the variations sought by Australand in respect of the matters in issue would not compromise the achievement of that DEO for the planning scheme area. I have reached the same conclusion in relation to the other DEOs to which reference was made. That is unsurprising in the case of Australand’s proposed access path/boardwalk system, since it is, in substance, consistent with the provisions of the existing LAP Place Code. [66] There was some brief reference to the SEQ Regional Plan, but Australand’s proposal does not cut across that plan in any significant way. [67] Dismissal of the Australand appeal, insofar as the pathway issue is concerned, would involve the rejection of a proposal which, I am satisfied, would provide for a public linkage system, through the Australand site, with access at each end, which is appropriate, judged on its merits. It would have the effect of subjecting the Australand site to variations of the LAP Place Code which, in this respect, would be significantly more onerous than are the current provisions of the Place Code. There is nothing about the Australand proposal which would warrant varying the effect of the LAP in that way. That is a matter addressed further below. [68] The Council’s preference relies significantly, for its justification, on the Australand site’s importance in achieving a broader vision for a continuous public canal front pathway throughout the canal system to which the LAP applies. It is only the effect of the LAP for the subject site however, which can be varied in response to the subject application. The subject application is not an available vehicle to vary the effect of the LAP in relation to the broader area to which it relates and is not an appropriate vehicle for attempting to achieve that effect in this case. Further, the future pursuit and realisation of a continuous canal front pathway system over the entire 11 kilometre canal system, without deviation from a waterfront, is uncertain at present and the document which first proposed it (the HICMP) is now two years old, was subject to adverse submissions when informally notified and has not progressed to, or significantly towards, incorporation into the LAP. 53 Being partly the “common material” as referred to in s 355A(2)(a) 54 At p18, 19 55 Something the appellant did not accept -- 17 of 20 -- 18 [69] It was sought, on behalf of the respondent, to minimise the significance of the existing LAP provisions by emphasising that the application seeks to vary the effect of the LAP. The issue, it was in effect contended, was as to the future controls rather than the present ones. It was submitted that consistency with the LAP is meaningless if the LAP is not an applicable planning control. It was submitted on behalf of the appellant, on the other hand, that the variations sought by Australand should be viewed in the context of the LAP and that substantive consistency between the variations and the LAP in relation to public pathways, ought be weighed in its favour. [70] Reference was made to s 3.5.5A(2)(d) which expressly makes relevant “the consistency of the proposed variations with aspects of the planning scheme other than those sought to be varied” and the explanatory note which states “the proposed variations must be legible and consistent with the existing framework of the planning scheme”. It was contended that the provision is concerned with the extent to which proposed variations for a particular site can sit with the planning scheme provisions otherwise. It was pointed out that, while Australand’s proposal included proposed variations of substance in relation to matters such as height and density, the variations sought in relation to public access to the canal front were more matters of form than substance, since its proposal was substantially consistent with the existing provisions in this regard. Its variations would, in this respect, sit with provisions which would continue to apply to other land in the LAP area. It is the Council’s proposed variations, in this respect, which adopt a different approach. [71] While s 3.5.5A(2)(d) may not be invoked in relation to the “walkable neighbourhood” provisions, since they are aspects of the planning scheme sought to be varied, I accept that the substantial consistency of Australand’s proposal with the existing provisions or, to put it another way, the relatively insubstantial extent of the variation sought, is a matter which can be taken into account. The same would apply if, for example, the extent of the proposed variation was great and at odds with provisions of the LAP, also applicable to a broader area, in a way which would prejudice what the LAP sought to achieve at a broader level56 . [72] Approval of the variations sought by Australand would provide for an appropriate linkage through and at each end of the site but would also, I accept, make future realisation of any broader continuous system along 100 per cent of the canal edge somewhat more difficult, in part, as have other existing developments, such as the Platinum Development. As the respondent’s case acknowledged however, it would not necessarily frustrate it57 . [73] In the circumstances, Australand’s appeal should not be dismissed on the basis that its proposed variations in this respect, which are appropriate judged on their merits, strike an appropriate balance and are, in substance, consistent with the LAP provisions, do not require provision for a continuous public canal front pathway along the entire canal frontage as envisaged by the HICMP. [74] There are some aspects of the approach of Mr Perkins which require examination. In his report, Mr Perkins drew attention to the respects in which Australand 56 I note that s 3.5.5A(2) does not purport to be an exhaustive list of considerations. Compare s 3.5.4(2) 57 T365 l 58 – T366 l 8 -- 18 of 20 -- 19 otherwise sought to vary the provisions of the LAP. He characterised the provision of continuous waterfront public recreation land along the site’s canal frontage as a “trade off” to provide sufficient planning grounds to warrant approval of the Australand proposal despite its conflict otherwise with the existing provisions. He drew particular attention to what he saw as a deficiency in the quantum of recreational land provided within the Australand site. [75] Mr Perkins’ approach in this respect focused more on the application for approval of the development than the request to vary the effect of the local planning instrument. A request to vary a planning instrument is not itself “development”. As Senior Counsel for the respondent submitted, the question of approval notwithstanding conflict with the planning scheme is relevant, under s 3.5.14(2), to the part of the application seeking approval for development, but is not a feature of s 3.5.14A, dealing with the request to vary the local planning instrument. To the extent development applied for under other parts of the application is refused however, s 3.5.14A(2)(a) requires any variation relating to the development to also be refused. [76] Mr Perkins did not carry out any detailed analysis of the nature and extent of the conflict between the planning scheme and Australand’s proposal in other respects, whether there were planning grounds related to the points of conflict which would justify approval or whether the planning grounds overall would justify approval notwithstanding conflict even absent a continuous canal front pathway58 . His analysis does not lead to a conclusion that a continuous canal front pathway is a necessary “trade off”. [77] Rather than invite me to follow Mr Perkins’ approach, Senior Counsel for the respondent ultimately submitted that the inquiry in the appeal should focus upon the request to vary the planning instruments, since, as he submitted, that will have consequential effects in justifying the approval of a development which, although departing from the existing planning instruments, conforms with the approved variations and will also have consequences in terms of setting the conditions of approval59 . [78] As for the alleged shortfall in recreation provision, the required areas, calculated by Mr Perkins, represented a substantial proportion of the net site area60 . As Mr Perkins acknowledged in his oral evidence however, the relevant policy does not mandate that a contribution towards parkland to be provided entirely by the dedication of space within the development site itself. Monetary contributions are contemplated. I do not consider that a continuous canal edge pathway on the Australand site is required to make an appropriate on-site park contribution. [79] I am satisfied that the appeal in relation to the variation concerning the pathway system should be allowed. [80] I am satisfied that the appellant has discharged its onus in relation to the matters which the Court was asked to determine at this stage. The appeal in relation to each 58 See Weightman v Gold Coast City Council (2002) 121 LGERA 161, Woolworths Ltd v Maryborough City Council [2005] QCA 262 59 T331-334 60 See Exhibit 14, paras 97-101 -- 19 of 20 -- 20 of those matters will, in due course, be allowed. The further hearing of the appeal will be adjourned to enable the parties to consider these Reasons. -- 20 of 20 --