Body Corporate For Vogue On Broadbeach v Gold Coast City Council [2006] QPEC 42

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Body Corporate For Vogue On Broadbeach v Gold Coast City Council [2006] QPEC 042 PARTIES: BODY CORPORATE FOR VOGUE ON BROADBEACH CTS 31608 Appellant v GOLD COAST CITY COUNCIL Respondent FILE NO/S: BD 4615 of 2004 DIVISION: Planning & Environment PROCEEDING: Appeal ORIGINATING COURT: Southport DELIVERED ON: 12 May 2006 DELIVERED AT: Brisbane HEARING DATE: 13,14 March 2006 JUDGE: Griffin SC ORDER: Appeal allowed – further submissions to be heard about the precise terms of changes to the original conditions CATCHWORDS: DEVELOPMENT APPROVAL – NON COMPLIANCE WITH CONDITIONS – VISITOR CAR PARKING - Where non compliance with development approval and planning scheme in relation to provision and nature of visitor car parking – whether non compliance should be subsequently enabled by amending original conditions. COUNSEL: Mr C Hughes SC for the appellant Mr J Houston for the respondent SOLICITORS: Phillips Fox for the appellant McDonald Balanda & Associates for the respondent [1] The appellant, Body Corporate for Vogue on Broadbeach (the Body Corporate) appeals to this court against a decision made by the Gold Coast City Council (the -- 1 of 14 -- 2 Council) wherein it refused a request by the Body Corporate to change conditions in a development permit in relation to land located on the corner of Old Burleigh Road, Broadbeach Boulevard, and Second Avenue at Broadbeach. Improvements on the land are a multi-storey development containing 14 single apartments and one two-level penthouse over 16 levels, together with three freestanding houses on the site. Car parking is provided in the basement of the building which is entered via a security gate. [2] The original approval provided for five dedicated car parking spaces which, at the time of the present application, the subject of this appeal, no longer existed in their original form, having apparently being sold by the developer to unit owners. In October 2004 a request was made to Council to change the conditions of approval pursuant to provisions of the Integrated Planning Act 1997, to amend the conditions which related to the provision of specifically dedicated visitors’ car parking. This application is for a change to the original conditions of approval. [3] It is unnecessary to trace through a variety of issues relating to the various approvals and, further, it is unnecessary to descend into great detail as to how it came about that the visitors’ car parking spaces are now utilised contrary to the original approval given. Ultimately, the Council rejected a request for the change which is sought before this court and a Show Cause Notice was issued. The Legislation [4] The right of appeal against the Council decision arises pursuant to the provisions of s.4.1.31(1)(a) of the Integrated Planning Act (the IPA). The onus is upon the appellant to establish that the appeal should succeed1 and, further, that the hearing is a hearing “anew”2. In this case the court must decide the appeal based on the laws and policies 1 See s 4.1.50(4) 2 See s 4.1.52(1) -- 2 of 14 -- 3 applying when the application was made but may give weight to any new laws and policies the court considers appropriate3. [5] The request to change a condition, as in the present appeal, is provided for pursuant to s 3.5.33 of the IPA which provides relevantly: “(1) This section applies if – (a) A person wants to change or cancel a condition; and (b) No assessable development will arise from the change or cancellation. (2) The person may, by written notice to the entity that decided the condition or required the condition to be imposed on or attached to the approval, ask the entity to change or cancel a condition. (3) If the person is not the owner of the land to which the approval attaches, the request must contain the owner’s consent. (3A) If the development approval is for building work or operational work for the supply of community infrastructure on land designated for the community infrastructure – (a) Section (1) applies only to a person who intends to supply, or is supplying, the infrastructure; and (b) Subsection (3) does not apply. (4) If the entity has a form for the request, the request must be in the form and be accompanied by the fee for the request – (a) If the entity is a local government – set by resolution of the local government or (b) if the assessment manager is another public sector entity – the fee prescribed under a regulation under this or another Act. … (7) To the extent relevant, the entity must assess and decide the request having regard to – (a) The matters the entity would have regard to if the request were a development application; and (b) If submissions were made about the application under which the condition was originally imposed – the submission. (7A) Also if a building referral agency gave advice about an aspect of the application the subject of the request the entity 3 S 4.1.52(2) -- 3 of 14 -- 4 must have regard to the opinion of the agency about the change before deciding the request. (8) The entity must give the person written notice of its decision. (9) If the entity is a concurrence agency or the court, the entity must give the assessment manager written notice of any change or cancellation. (10) The changed condition or cancellation takes effect from the day the notice is given to the person. …” The Original Planning Schemes [6] The original approval was given pursuant to the 1994 Planning Scheme which was superseded by the 2003 Planning Scheme. The original request to Council was made pursuant to s 3.5.33 of the IPA and was “a request” not “a development application”. [7] A question arises as to which Planning Scheme is the relevant scheme under which this court should consider the present request to change the visitor car parking conditions. [8] By reference to s 2.1.7 of the IPA, this section in its terms provides that when a new Planning Scheme is adopted, that new document and its provisions replace any existing Planning Scheme applying to the area4. The 2003 Planning Scheme therefore, in my view, is the scheme under which the present application before this court should be assessed. [9] However, it is not irrelevant to recognise the existence and requirements of the 1994 scheme. It was the scheme under which the original development approval was given, and that approval may then be understood in the context of the now superseded 1994 scheme. A warrant for this approach is provided for by reference to the provisions of s 2.1.7 and s 4.1.52, suggesting, at least in the spirit of the legislation, the approach which I propose to take in these proceedings. -- 4 of 14 -- 5 The Relevant Planning Schemes and Car Parking References [10] The 1994 scheme has relevant references to car parking and specifically visitor parking. “13.5.1.8 Where car parking is required for visitors to any development pursuant to the provisions of this Planning Scheme, such car parking shall be provided in accordance with the following, unless otherwise approved by the planning and development manager: I. Be freely accessible to visitors at all hours with no encumbrance, fee or charge; and II. Have no gateways, doors or similar devices which would restrict vehicular access by visitors; and III. Have no signs displayed restricting the use of visitor spaces or reserving the use of such spaces for a particular person 4.16.14.1 Car parking shall be provided at the following rates – (the following is only an extract) In addition, visitor car parking shall be provided at the rate of 0.25 spaces per unit for the first twenty units in any development and at the rate of 0.1 spaces per unit in excess of twenty units. Such spaces may be uncovered and shall be provided in accordance with provision 13.5.1.8 13.5.1.4 The Council may relax all or any of the requirements of provision 13.5.1.1 if it considers such relaxation justified having regard to any one (1) or more of the following: I. The location of the site with respect to other available car parking and the levels of pedestrian accessibility; or II. The particular circumstances of the proposed development including hours of operation, anticipated intensity of use and desirability of providing car parking in association with the development and thereby encouraging the generation of vehicular traffic to that development; or III. The existing development on the site; or 4 See s 2.1.7(1)(b) -- 5 of 14 -- 6 IV. The size, levels or dimensions of the site; or V. The safety and convenience of vehicular access; or VI. The proposed layout and size of car parking bays; or VII. Other relevant provisions of this Planning Scheme” [11] The 2003 planning instrument deals with visitor car parking and parking in general in the following terms. “Part 7 Division 3 Chapter 4 Performance Criteria 16 Provision of Car Parking Spaces 1) Purpose To ensure that transport needs, including car parking and service vehicle requirements, associated with the development are met by: • Supply of car and bicycle parking facilities Key objectives include: a) the availability of car park opportunities that are easy to locate and use, in close proximity to all major developments and uses within the City, with on-site provision available for occupants and on-street provision and/or public car parks available for visitors; PC16 Sufficient car parking spaces must be provided to meet the car parking needs of the development. The number of car parking spaces provided must be consistent with the practical opportunities available for shared car parking provision and the operation of alternative transport modes to private motor vehicles. Under the Table to Acceptable SolutionAS16.1 a) For developments with up to 20 apartments, one (1) space per one (1) bedroom apartment, and 2 spaces per 2 bedroom and larger apartments, plus one (1) space per four apartments for visitor parking. 5.0 Reduction of the Minimum Number of Car Parking Spaces to be Provided The minimum number of car spaces to be provide may be reduced where the applicant can satisfy Council, or its delegate, that less provision is justified, having regard to any one or more of the following: c) the car spaces that are available on nearby land and suitable roads; -- 6 of 14 -- 7 e) the existing development on the site; g) the intensity of the use of the land j) the effect of any additional traffic generated by the lack of parking spaces;” [12] One may extract the following principles from the 2003 scheme: • There is an expectation that visitor parking will be provided on site in a unit-type development; • Some car parking, however, is contemplated as being available on-street; • Car parking on site should be easily accessible. [13] The 1994 scheme contemplates similar disposition of car parking, although the emphasis is somewhat different and the language is also somewhat different in its expression of these requirements. In relation to both schemes, however, the requirement for the provision of visitor car parking spaces is able to be relaxed. The requirements are, therefore, not mandatory. The Merits of the Appeal for Change of Conditions [14] As I have already indicated, the unlawfulness by which the present parking system which lacks dedicated visitor spaces came about is irrelevant, in terms of taking that question of unlawfulness into account as an ingredient in assessing the merits of this application. What might be regarded as “unlawful” has its relevance only in the factual circumstances surrounding this appeal. On the other hand, such “unlawful use” of the car parking spaces, as now presently existed, cannot be used to advantage the appellant by claiming a “status quo” which should not be reversed. In other words, the appellant may not benefit from the “status quo” created by any unlawful use in relation to the visitor car parking scheme. [15] An issue has been raised in the respondent’s case that, in having regard to the existing development approval, as the court is required to do, no limitation is imposed and the court must have regard to the question of whether the existing condition is reasonable -- 7 of 14 -- 8 and relevant, and whether there is any need or justification for a change of that condition. In advancing the submission, the respondent relies, in part, on subsection (2) of s 3.5.5 of the IPA which provides: “(2) If the application is for development in a planning scheme area, the assessment manager must carry out the impact assessment having regard to the following: (a) the common material; (b) the Planning Scheme and any other relevant planning instrument; (c) any State planning policies not identified in the Planning Scheme as being appropriately reflected in the Planning Scheme; (d) any development approval for, and any unlawful use of, premises the subject of the application or adjacent premises; (e) … (f) the matters prescribed under a regulation (to the extent they apply to a particular proposal).” The common material referred to includes the Development Application. [16] The exercise of discretion in considering the appeal before me is wide indeed, and comprehends a recognition, consideration and examination of the original approval. The proper determination of this matter, however, is not simply fulfilled by mere comparison between the nature of the change requested and the reasonableness of the original approval. To do so would be to ignore the variety of issues agitated in this appeal, many of which would not have been before the Council in any event and, indeed, before the Council no cross-examination of witnesses would have been available to the relevant decision-maker. [17] Expert witnesses were called on behalf of both parties. Each party called a Town Planning expert and a Traffic Engineer. There was much common ground amongst those witnesses and the resulting opinions expressed were the result of the different emphases and importance placed on much of the common material, rather than -- 8 of 14 -- 9 substantially divergent views. In fact, a Conclave Agreement was reached between the Town Planners. [18] Whilst the court is not bound to accept the opinion of any particular expert, the conclave agreement, itself, between the experts Hall and Grummitt helpfully provides a framework for facts which are not in dispute, together with expressions of opinion that I regard as of assistance in this matter. The planning experts agreed on the following matters: • The issue of ensuring the adequacy of car parking is largely within the traffic engineer’s field of expertise; • The development provided a total of 48 car parking spaces, none of which, by the time of hearing, were exclusively allocated for the use of visitors, thus representing a surplus of 19 spaces over the resident parking requirement. There was agreement that there is nothing in the planning scheme that specifically requires the visitor spaces to be individually provided within common property. I am satisfied, having regard to the Planning Scheme, that this is a correct expression of the intention of the scheme; • There was agreement that the Gold Coast City Council regularly accepts the provision of visitor parking for multi- unit buildings behind a security gate to a basement area, where a suitable intercom connection is provided. [19] The uncontroverted facts are that the original scheme, as approved, provided a requirement for 34 car parking spaces, of which five were to be assigned specifically for visitor parking. The 2003 scheme enlarged the requirement, requiring 41 spaces under its calculation, of which five were to be for visitor parking. Originally there were 19 spaces surplus to Council requirements and in its present use, the number of car parking spaces surplus to Council’s requirement (41) is seven, there being 48 spaces in total. -- 9 of 14 -- 10 [20] A great deal of reliance is placed upon the number of car parking spaces surplus to the present 2003 scheme requirements. While those spaces are said to be “surplus” they are, as presently used, allocated (to use a neutral term) to the owners of the units, therefore, none of the so-called surplus spaces are actually at the automatic disposal of a visitor requiring to park a motor vehicle. [21] The evidence of Mr McNeil, the manager of the Body Corporate, is of some importance in this regard. His working hours are week days between 7 a.m. and 3 p.m., although he is contactable on other hours by mobile phone and resides in the near vicinity to the subject development. He said, and I accept his evidence, that visitor parking has not been problematic in the two years during which the units have been occupied. [22] A “system” which has been put in place has enabled the car parking needs of visitors to be accommodated in car parks, at the time for which parking need is sought to be accommodated in vacant spaces not taken up by residents’ vehicles. The effectiveness of this system however requires the cooperation of at least a number of the owners of the units. [23] Furthermore, access to the underground car park must be gained either by contacting the building manager or an owner of the unit via an intercom system, to allow the security gate to be opened in order to gain access to the area where parking might be available. [24] This, however, is the very system which the Council, itself, impliedly envisaged when approval was given for five visitor car parks to be located within the area beyond the security gate. -- 10 of 14 -- 11 [25] I do not regard this as being problematic for access for visitors wishing to park cars within the secured basement area. Furthermore, in attachment 1 to the statement tendered in these proceedings of Mr McNeil, 16 of the owners of the Body Corporate have granted a non-exclusive licence to “bona fide visitors” to the premises for the purpose of parking vehicles within car spaces nominated in attachment 1, in accordance with by-laws of the Community Title Scheme. The licence provides that: “Such licence shall be for the duration of any bona fide visit to the premises provided that the licensees agree to be bound by the by- laws of the Community Title Scheme as amended from time to time.” The attachment provides, pursuant to that licence, a total of 16 car parking spaces which may be used for “bona fide visitors”. [26] The respondent argues that this scheme is effectively artificial and not productive of real and permanent visitor car parking. [27] It is certainly correct that simply because the scheme, according to Mr McNeill, which has worked in the past, is not constructed in such a way that, for the future, there is absolute certainty of the continuation of the effectiveness of such scheme. It relies, in part, upon the goodwill of the owners’ mutual cooperation and ignores the possibility of change to arrangements if and when ownership of units changes. [28] However, having regard to the successful working of the scheme in the past, Mr McNeil’s presence at the units during the week days for a large proportion of time, the likelihood that visitors to units would likely have forewarned owners in advance of their requirement for parking and the fact that presently 16 units owners are prepared to provide the licence referred to above, the scheme alone, in my view, very -- 11 of 14 -- 12 comfortably satisfies the intention the Council originally required for five dedicated visitor spaces. [29] The evidence does not, however, end with those issues alone. Both the superseded and the present 2003 scheme contemplate visitor parking being available on-street. [30] The evidence, which I accept, demonstrates that there are as many as 18 spaces in the environs of Vogue on Broadbeach, which could be available as visitor parking. In all of this, it is essential to bear in mind that the original requirement by Council was five on-site dedicated visitor car parks. I do not accept the evidence that the road in front of the units fronting the beach is likely to be redeveloped in such a way as to encourage the presence of extra parking by reason of development of the beachside parkland. That has not occurred in the six years since Broadbeach Boulevard was made a cul-de- sac and it is remote in the extreme, in my view, that such redevelopment will take place in the future. There is no reason to suppose that the 18 on-street car parks will be affected by any increased density in parking use in the future. [31] Mr Healy, a traffic engineer called on behalf of the respondent, gave relevant evidence in relation to the car parking question, both on-street and within the basement itself. It is worthwhile noting some of his observations: • An assumption that 8 units which have either 3 or 4 spaces would have at least one spare within their own supply to accommodate their own visitors. • conceded that there were surplus spaces on the street. • At the time of trial the demands of the site may well be able to be accommodated within the existing supply. • the requirement for visitor parking does not deal with full demand – it deals with average demand. -- 12 of 14 -- 13 [32] The respondent draws attention to a number of features which diminish, it is argued, the efficacy of the appellant’s proposed system. Some car parks are individually secured and gated, and others possess this inhibition, together with the feature that some car parks are configured in tandem. On the view of the evidence I take, however, this is amply answered by Mr McNeil’s evidence that the system presently operating has worked effectively in the past and there is no reason to suppose, even allowing for changes of ownership and issues of non-cooperation, that this efficiency will not largely continue in the future. [33] Mr Healy’s evidence discloses a reasonable and rational analysis of car parking which could be available for visitors to the owners of the units, which have presently available four car parking spaces. That analysis demonstrates eight car parks available at any one time for those units, thus, at any particular time, reducing the need for on- street car parking and demonstrating an availability of visitor parking beyond Council’s original expectations of 5 in its original approval. [34] The original visitor parking contemplated by Council’s approval – that is five visitor car parks – is a modest number. The preponderance of the evidence in relation to the proposal requested by the appellant suggests greater visitor car parking availability. In fact, the evidence suggests not only a larger number of car parks for visitors, but a greater flexibility in the parking system than was envisaged by the Council’s original approval. [35] While there is the potential for the system not to function as efficiently as anticipated because of the possibility of failure of owners to cooperate and collaborate, the absence of the building manager and the arrival of unannounced visitors who wish to park in a secured area, I am nonetheless satisfied on the whole of the evidence that the bases put -- 13 of 14 -- 14 forward by the appellant, seeking a change to the original approval, are very strongly substantiated. [36] Furthermore, were it necessary for me to do so, although I have determined it to be an inappropriate and unnecessary exercise, the view I take upon the whole of the evidence is that the bases argued for on behalf of the appellant, provide for a more effective system of visitor parking for Vogue on Broadbeach and, therefore, the original Council approval, although not unreasonable, is a less effective means of accommodating visitor car parking than the system I apprehend will operate under a system based upon the car parks as they are presently allocated to owners. [37] I am very comfortably satisfied that the appellant has made a case for a change to the original conditions imposed. I will hear further submissions as to the precise terms of changes to the original conditions. -- 14 of 14 --