Denison v Townsville City Council & Anor [2006] QPEC 118

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Denison v Townsville City Council & Anor [2006] QPEC 118 PARTIES: Debra Denison (Appellant) –v- Townsville City Council (Respondent) and; Jon Kuskopf & Associates (Co-respondent) FILE NO/S: D478/04 DIVISION: Planning and Environment PROCEEDING: Appeal from Townsville City Council decision ORIGINATING COURT: Planning and Environment Court (Townsville). DELIVERED ON: Friday 24th November 2006 DELIVERED AT: Townsville HEARING DATE: 5th & 6th September 2006 JUDGE: Pack DCJ ORDER: Appeal Dismissed CATCHWORDS: Appeal against Townsville City Council approval of a development of a 1.47 hectare parcel of land located at 78 Mandalay Avenue, Nelly Bay, Magnetic Island. Approved were 12 single story apartments built on stumps. The problems stemmed from this area flooding over the years and the impact to Gustav Creek. Three grounds of appeal were put forward. First ground of appeal was that: ‘the development conflicts with the town planning scheme and sufficient planning grounds do not exist to justify its approval” Second ground of appeal was that: ‘Proposed development conflicts with the draft City Plan’ Third ground of appeal was that: ‘Application does not adequately address flooding and/or drainage problems which may occur’ All grounds of appeal were argued. 1 -- 1 of 10 -- COUNSEL: Ms D. Dennison (self represented for Appellant) Mr R Quirk for Respondent Mr D. Morzone for Co-respondent SOLICITORS: Townsville City Council Legal Services for Respondent MacDonnells Law for Co-respondent [1] This is an appeal against the Respondent Council's approval of a material change of use development application. The application was for multiple dwellings and a caretaker's residence. [2] The co-respondent obtained the Council's assessment manager's approval on 23 September 2004 and the appeal on a number of grounds was lodged on 22 November 2004. [3] The subject land is described as lot 47 on RP741402, Parish of Magnetic Island and is located at 78 Mandalay Avenue, Nelly Bay. This site is irregular in shape. It contains an area of 1.47 hectares. Significantly Gustav Creek traverses the site generally to the south of the subject land, the creek's flow being generally from west to east. The location of the creek bed can also be identified by reference to a number of exhibits which include Exhibit 1(C) and Exhibit 13. The Court has had the advantage of an inspection. I was able to observe the location of a number of established residences which included that of Ms Denison at 5 Trana Court and the homes of her witnesses. In particular the location of Gustav Creek, which is the predominant typographical feature noted. The topography poses something of a challenge in terms of defining appropriate development options. The Court was informed of the point to which flood levels had risen to in the past, later supported by evidence given in the Court. A more detailed description of observations at the time of the view is provided in Exhibit 15. [4] The proposal is for 12 single storey apartments, somewhat euphemistically described by town planner Mr Dance as "exclusive studio apartments" and by Mr Kuskopf, architect as forming part of an "exclusive couples' resort” subject to conditions. Exclusivity apparently either refers to a person's capacity to pay for such accommodation rather than status, or it refers to the fact that the accommodation units will be separated from one another as illustrated in a number of the reports and documents in evidence. See Exhibit 3 and Exhibit 6. Apart from the guest accommodation apartments, further construction includes a treatment room, manager's accommodation and guest recreation room. The proposed location of that additional construction is also shown by reference to plans. It is said the proposal should be seen as one of low impact which will not adversely affect the flow of Gustav Creek. [5] Of particular interest is the location of two of the proposed accommodation units and the caretaker's residence on the southern side of Gustav Creek. [6] In essence, any occupants of units on the southern side of the creek need to traverse the creek to access those units. This feature has relevance to flooding which will be discussed in greater detail later in this judgment. 2 -- 2 of 10 -- [7] The creek bed is very close to the northern boundary of number 5 Trana Court and the creek turns somewhat to the north in front of witness Tim White's residence at number 6 Trana Court and traverses in approximately the middle of the subject land by the time it stops it is adjacent to the residences of Kim Cook and Claus Ritter, the witnesses who reside at 82 and 80 Mandalay Avenue respectively. [8] At the time the appeal was instituted the appellant was represented by solicitors. She appeared personally but was not legally represented on the hearing of the appeal. [9] When Council approved the development proposal it did so subject to a number of conditions. The conditions can be found in Exhibit B and I propose to refer to some of them later in the judgement. Exhibit 13 is a site plan of the subject land, suggesting the subject land should be divided into 13 allotments. On appeal it is not suggested by any witness that subdivision into 13 allotments was in any respect realistic, having regard to the topography of the subject land. Its purpose was evidently to provide some limited support for the proposition that the occupancy density is not greater than that to be expected on the subject land. [10] The first ground of appeal was that:- “The development, the subject of the application conflicts with the respondent's town planning scheme and sufficient planning grounds to not exist to justify its approval.” At the time of approval the strategic plan then in place designated the subject land as residential and open space. Not surprisingly the open space is along the length of Gustav Creek. This ground was particularised further by reference to a conflict with the intent or development in the residential 1 zone, where the subject land is located. It was alleged further that the development proposal conflicts with Development Control Plan No 6. Further particularisation had to do with alleged lack of harmony with the existing seascape, a lack of compatibility with the existing residential area, traffic considerations, amenities considerations, environmental considerations coupled with the assertion that the proposal did not adequately address erosion, drainage or flooding. [11] The relevant scheme is the 1994 scheme and Development Plan Number 6. General planning issues refer to amenity, population density, preservation of the environment and compatibility with the housing in the area. The 1994 scheme was a "transitional planning scheme" by reference to the Integrated Planning Act of 1997 and because of that the reasons of s. 6.1.3 of that Act have application. [12] The Act provides pursuant to s. 4.1.5(2) that this Court must determine the appeal based on these laws and policies applying when the application was made, but may give weight to any new laws and policies the Court considers appropriate. It is provided further that the Court must not consider a change to the application on which the decision is being made unless the change is only a minor change. [13] In the last mentioned context when the original application was advertised and assessed and approved by Council it was approved as an accommodation building and caretaker's residence. 3 -- 3 of 10 -- [14] Under s. 6.3, the Table of Development in a Residential 1 Zone, does list "multiple dwelling" as a "permissible development” within that zone. It is noted that an accommodation dwelling is a prohibited development within that zone. [15] Each of the planners called have provided a report, namely the Council's planning officer, Ms Frankel and Mr Dance, giving consideration to whether the application ought to have been for an accommodation building. Having considered s. 22.2 of the Transitional Planning Scheme with definitions with respect to accommodation building and multiple dwelling, I conclude that the proposal ought to have been assessed as a multiple dwelling. That is because each of the units here and the guest facility are self contained. The change is in the written description of the proposal, and as such should be regarded as minor. [16] There is an identifiable conflict with the Transitional Planning Scheme by reference to the same section and subsection because a caretaker's residence is defined as "…premises used as the residence of the person having the care of any industrial or other use or premises other than a residential use conducted on the same site." Because of the self-contained nature of the caretaker's residence in the proposal it could be regarded as part of the multiple dwelling in its own right. I've noted that the City Plan 2005 definition of caretaker's residence does not include any reference to the usage of the land. [17] The Strategic Plan indicates that the preferred dominant land uses for the site are residential and open space, the residential designation includes existing and future areas of predominantly urban residential land use as well as various types of residential accommodation. Wherever located a caretaker's residence is residential in character. [18] The open space designation on Magnetic Island includes areas outside of the national park. The Council has power under s. 2.1.6.9 to approve recreational or tourist development, which preserve important native flora and fauna and are compatible with existing proposed land uses. [19] Pursuant to s.6.10 the Council had an obligation to have regard to character and density of the development, residential amenity, safe, convenient and efficient movement of vehicles and pedestrians within the site, traffic capacity of the adjacent road, frontage with, privacy, overshadowing, open space, garbage storage areas, parking and garaging of vehicles, services and the development suitability to the tropical climate. [20] Apart from the reception area, guest facility and treatment room each of the other units will be constructed so they are sitting on stumps, supported by bracing. The floor level will be above a Q50 event for all structures. [21] One of the perceived advantages of having the accommodation units on stumps is that in times of flooding the water flow will be subject to very little restriction. Car parks and the access road will be elevated to withstand a Q2 event. [22] I accept the evidence of town planners Dance and Frankel. 4 -- 4 of 10 -- [23] After considering all aspects of the proposal and if the caretaker's residence is not appropriately included and seen to be part of the multiple dwelling application, I am satisfied that there are sufficient planning grounds to justify approval of the proposal despite that conflict. [24] Ground 2 of the appeal is that the proposed development conflicts with the Draft City Plan. It was asserted that insufficient weight was given to the Draft City Plan in that the "additional residential" designation under the Draft City Plan reduces allowable population densities, a lack of compatibility with the existing character of the land and environment and that the development would not achieve desirable environmental outcomes. It was said also to be inconsistent with the relevant outcomes for the Magnetic Island District Code, there being adverse affects upon the amenity of the area. It was further submitted that the development proposal did not adequately meet development outcomes identified in the relevant Overlay Codes. [25] The proposal has been assessed as impact assessable. A multiple dwelling is impact assessable and a caretaker's residence is code assessable under City Plan 2005. In the Council planner Ms Frankel's report, she sets out from page 15 to 19 inclusive (exhibit 12) a number of the overlay considerations which have general application to the site discussing them in sufficient detail to explain how she suggests the issues should be addressed. Under City Plan 2005 the subject site is identified as a traditional residential precinct. Section 6.3 refers to land in the traditional residential precinct as being to "primarily accommodate detached houses on individual lots" with a maximum residential density other than for detached houses and dualled occupancies to be 37 person per hectare. The uses and built forms are to protect the visual and environmental integrity of the mountainous green backdrop and ridge lines and the lowland pre-canopy in the vicinity" and road side vegetation is to be maintained and contribute "to the visual connectivity of the tree canopy." At Nelly Bay the hydraulic capacity and ethological worth of the upstream reaches of Gustav Creek past Mango Park Way are to be preserved. [26] The inconsistent uses in a traditional residential precinct include accommodation buildings, motels and multiple dwellings. [27] Absent from the list having a bearing on accommodation are bed and breakfast establishments, caretakers' residences, a community residence, detached houses, dual occupancy and a retirement village. Section 4.29 of the City Plan provides that if a defined use is not listed as inconsistent, then it is then to be regarded as consistent. [28] Whilst this proposal is not in conflict with the 1994 scheme except in so far as it includes a caretaker's residence, the principles in Coty (England Pty Ltd v Sydney City Council 1957 2 LGRA 117 need to be considered. That is consideration needs to be given to the question of whether an approval might undermine the effect of City Plan 2005. [29] Authorities support the proposition that planning schemes are not to be read too literally and the proposals must be considered on their merits. I think there is a conflict with City Plan 2005 because multiple dwellings are listed as inconsistent uses. [30] However, the site is unusual and the proposal does deliver outcomes consistent with those planned for District 8 on Magnetic Island. It can be seen by reference to the 5 -- 5 of 10 -- residential or accommodation uses which are not listed as inconsistent that dual occupancy is deemed to be consistent. Making allowance for the fact that significant areas of the subject land are unavailable for use for the intended purpose because of the presence of Gustav Creek, the density of occupancy of the proposal is still well below 37 persons per hectare. Other aspects of the proposal such as preservation of vegetation, landscaping and the like have been dealt with in the conditions. The setbacks also vary significantly in compliance with what is required under City Plan 2005. As will be seen when Ground 3 is dealt with in more detail specific attention has been given to the preservation of Gustav Creek and the impact of run-off, and the proposal should be seen as a low impact type of development in harmony with the general outcomes to be expected in a residential 1 zone. [31] Landscape architect, Mr Madden, whose report is Exhibit 5 has provided a detailed plan which forms part of the exhibit. Significantly it appears from this report and the evidence of Mr Kuskopf, architect, significant attention has been given to preserving existing trees. The landscaping will also include work on the boundaries of the property and the entrance to Mandalay Avenue. The plan will provide a significant buffer between residences which face Mandalay Avenue and the development site. Fencing will further buffer those residences from the subject site and fencing between the subject and property further up Mandalay Avenue is designed to blend with the environment. Landscaping is also planned to buffer the development from residents of Trana Court. It is of significant width. I conclude that landscaping and re-vegetation proposals are appropriate for the proposed development. [32] Having considered the relevant components of City Plan 2005, I do not think that approval of the proposal should be seen to undermine the effect of city Plan 2005, and I dismiss this ground of appeal. Whilst traffic considerations were a cause of some concern to the appellant I am satisfied that in that context Mr Holland's report which is Exhibit 11 more than adequately addresses such concerns. I accept his evidence. [33] Ground 3 of the appeal was that the proposed development does not adequately address flooding and/or drainage problems which may occur as a result of the proposed development. This was particularised by reference to the fact that the development site is part of the Gustav Creek catchment area. It made reference to the "precautionary principle" that the respondent Council should not have approved the development unless satisfied that there would not be any adverse impacts in terms of flooding or drainage as a result of the proposed development. Topographical maps relied upon by the respondent were said not to accurately reflect the topography of the development site. It was said that the co-respondent's development application was not accompanied by adequate modelling or engineering advice. It was further asserted that the development application did not demonstrate that the development proposal could achieve a Q50 level development standard and finally it was said that the hydrology study which was referred to in development condition 2 was information which should have been available to interested parties and submitters. In the alternative it was said that that study ought to have been obtained prior to the issuing of any development permit. [34] The appellant did not call any expert evidence on the hearing of the appeal. [35] In evidence she indicated that she had particular concerns which involved firstly the fact that the respondent Council had not sent an assessment team to the island for an 6 -- 6 of 10 -- inspection of the site before making a decision and secondly that the Department of Natural Resources had played no part before the approval. [36] At the time of the site inspection attention was drawn to what is described as a protective wall where her property adjoins Gustav Creek. She had particular concerns about the security of that wall and the debris piling up on cross basing for the units. She questioned the evidence of Mr Holland, a traffic engineer, on his calculation of vehicle movements particularly making reference to the distances from the site to commercial premises and beaches on the basis that they could only readily be accessed by the use of a vehicle. She gave evidence of her observations of flood water levels particularly in the 1997 and 1998 floods. She was concerned that the development was too substantial for the subject land stating that her general expectation was that a couple of houses might have been erected across Gustav Creek from her premises in the northern corner of the subject land generally behind properties which are identified as numbers 88 and 90 in Mandalay Avenue, that being the highest point of the subject land. [37] She had particular concerns as did her witnesses, Mr White, Mr Cook, Mr Wedge and Mr and Mrs Perry as to the safety of guests and the caretaker. The concern related to the safety of those persons in times of flooding having regard to the fact that the only access was across the creek. [38] The appellant was also unhappy about the prospect of having ten units across the creek from her together with car parks. Whilst she had confidence and respect for the opinions of Mr Murray, an engineer whose evidence will be dealt with in greater detail later, she had much less confidence in the capacity of persons carrying out excavation work in the creek to do so in accordance with Mr Murray's recommendations. She is concerned in particular about the security of her retaining wall which protects her property from erosion of the creek. [39] Mr White made reference to the fact that the plan required all car-parking to be on the Mandalay Avenue side of the creek. This was part of his concern about flooding. He had some of his concerns aggravated by the presence of a stormwater drain which discharges into the creek from an allotment contiguous to his property. He resides at 6 Trana Court. The next residence through which the stormwater drain passes is 25 Elena Street, which can be seen on Exhibit 1(C). There were some problems with erosion on that allotment. Although the stormwater drain discharges water about one metre to the north of the boundary there had evidently been some breakdown in the storm water drain which caused erosion on allotment 25. He was concerned also about erosion to his bank as a consequence of additional run off from the development. He thought that the reduction in vegetation in the form of trees in particular would add to problems with erosion and also made reference to the fact that sewer lines pass through his property and contiguous properties close to Gustav Creek. He referred to potential damage if sewerage pipes broke as a consequence of erosion of the bank. He was also concerned about additional noise and light and the possible effect on wildlife by the loss of trees. [40] Mr Claus Ritter, who has resided at 80 Mandalay Avenue for 20 years, gave evidence that he could recall water entering his property on 4 occasions. He said that on two occasions the level was higher than in the 1997 flood. He had concerns about he described as a collecting barrier for logs and debris. He also had concerns for 7 -- 7 of 10 -- sewerage and wildlife. He had taken a video of the 1997 and 1998 floods which were shown in the Court and in his exhibit 16. He described the effect of a landslide that had occurred on the opposite side of Mandalay Avenue in 1998. The effect of that landslide had had a significant impact on the drain which is in the north eastern corner of the subject land near Mandalay Avenue and extended well into the allotment in the area of the drain and marked by a light blue line, Exhibit 1(C). [41] Mr Cook's main concern was for the safety of residents, particularly on the Elena Street side of the creek. He resides at 84 Mandalay Avenue and has been at that address for 11 years. While he had some concerns over amenity issues it was the safety of residents during floods, which was his greatest concern. [42] There is also evidence from a Mr Michael Schmidt who resides at 18 The Grove, Nelly Bay. That address is downstream from Gustav Creek on the subject land. He has over a period of time, as chairman of the Gustav Creek Catchment Care Group been involved in advising on repairs to the creek and he was concerned that parts of the development were in the flood plain. He was concerned about the safety of persons, especially aged persons, because flooding often occurs in hours of darkness. He was concerned about erosion around the structures and pathways in the flood plain. He was concerned about crossings in the creek bed it built restricting sub-surface flow of water down the creek in the dry season if higher structures were built to assist in crossing the creek about there the capacity to withstand high levels of flooding. He said there were plans to clean up lower sections of the creek to assist with flows. He said it was of some importance not to disturb the sandstone base of the creek. He also had some environmental concerns for fish life if Reno rock mattresses were used to assist with the banks' security where needed. [43] Mr Mark Wedge who resides at 88 Mandalay Avenue is also a long term resident having lived at that address for some 8 years. The proposal was not one which he ever thought be approved because of its nature. [44] Mr & Mrs Perry reside at 7 Elena Street. They are separated by some four house allotments from the subject land. Their concerns included flooding as previously mentioned by also what was described as an encroachment on the wildlife corridor, referring to the presence of multiple species of frogs, birds and many native animals in the area. They were in favour of development to a smaller scale, subject to protection from flood levels. [45] Mr Murray, who was mentioned earlier gave evidence and provided a report which is Exhibit 8. Mr Murray has considerable experience which has included earlier involvement in the immediate vicinity. I detected no cause to be in any respect hesitant about accepting Mr Murray's evidence in its totality. [46] Mr Murray calculated the flood levels from available topographic information and rainfall information. He had contour information said to be accurate for approximately 100mm which he said was adequate for the size and nature of the catchment and water course. The calculated flows related to rainfall events and run-off coefficients for a two year, 50 year, and 100 year events. He said that with respect to the accommodation buildings that are proposed to be built above ground on with stumps and cross bracing the development would not adversely affect the hydraulic capacity of Gustav Creek. 8 -- 8 of 10 -- [47] In the calculations Mr Murray said in evidence that he took into account that the influence of a culvert at Elena Street, in the sense that he knew from experience that in the past there had been a debris build up during flooding at that culvert the flood levels for Q2 and Q50 events are illustrated on a plan attached to the exhibit. [48] He explained that building in flood prone areas is not unusual subject to the proviso that Council requirements inevitably include that floor levels be above the level for Q50 events. [49] Mr Murray was of the opinion that if the channel at Gustav Creek was cleaned of vegetation and widened at the bend in the immediate vicinity of the appellant's home such work would also have greater benefits downstream. The benefits would be much greater for Q2 events although some benefit would be obtained even in a Q50 event. [50] In appendix D to his report he expressed the opinion that flood levels would be reduced to the extent indicated after the work he recommended in the his report had been carried out. The widening and excavation of the creek as proposed would not involve any deepening of the channel. It was recognised that deepening of the channel would potentially aggravate undermining effects. It was recognised that there might be a need for periodic trimming because of the steepness of the bank on the Trana Court side he though that some additional protection in the form of a rock mattress would confer the vertical protection of the slope should be a contemplation. This was based on the velocity of the flow and he thought that mechanical type protection at some levels would be appropriate. He said the impact of the development was in terms of additional discharge into Gustav Creek "immeasurably small.” He referred to the catchment area being of some 400 hectares. He was clear that the proposal and any works proposed would not have an adverse effect on the hydrology of the creek. [51] Gustav Creek is a watercourse within the meaning of the Water Act 2000 and because of that the Department of Natural Resources, Mines and Water approve the work. The Act requires that approval satisfies sustainability. Based on my understanding of Mr Murray's evidence I would not expect the department to have objection to Mr Murray's recommendations to remove some sand as well as vegetation and widen the watercourse. [52] A further issue under ground 3 relates to the question of access for the caretaker, whose family, if any, and the guests in the two units which are proposed to be placed on the opposite side of Gustav Creek from Mandalay Avenue. [53] Some early drawings suggested that there might be a causeway built to provide that access but by the time the matter came to Court, it would seem the proposal was to provide access per walkways across the creek. Whatever is done will of course also require approval of the Department of Natural Resources. There is no established access by way of easement through any of the properties in Elena Street but at least when the photograph Exhibit 1C was taken in the middle of last year there was two vacant lots facing Elena Street which are contiguous to the subject land. [54] In a Council memo of 21 April 2004 from the Council's environment officer concerned with projects questions were raised at least touching upon the subject of flood having an impact upon the caretaker's residence and occupants of units on that side of the creek. 9 -- 9 of 10 -- [55] A practical observation was also made with respect to construction. [56] There will clearly be times when the caretaker and occupants of units on that side of Gustav Creek will be cut off from access to Mandalay Avenue by floodwaters. Unless an access above flood level across the creek is provided or access is available from a contiguous allotment facing Elena Street. [57] Whilst egress and ingress might be provided through the goodwill of a resident living at a relevant location on Elena Street in terms of planning I do not think it appropriate to approve the development relying on goodwill. Residents might of course include people who are very elderly or incapacitated in some way and whilst the flood levels can on the evidence rise and fall quickly, the risk to the health and safety of residents including the caretaker is one which is foreseeable and not far fetched or fanciful. [58] Whilst the downstream bridge is itself occasionally submerged restricting access to Elena Street if access can be provided to Elena Street, it will be seen that anyone occupying that side of Gustav Creek at a relevant time will not be in a position which is any worse than any occupant of Trana Court and Elena Street. That to my mind is acceptable in planning terms. [59] It can be seen that a detailed analysis of the conditions imposed by the Respondent Council in themselves have addressed many of the concerns raised by the Appellant and her witnesses. It cannot be said approval was granted without consideration of hydrology issues [60] The ground of appeal is dismissed, that an additional condition requiring the proponent to satisfy Council that the safe access is provided for all residents on the Elena Street side of Gustav Creek during Q2 events. [61] If the imposition of this condition leads any party to wish to make a submission about the wording of the condition, leave to do so is granted for fourteen days from the date of this judgment. 10 -- 10 of 10 --