Arnold and Arnold (Gold Coast) Pty Ltd & Anor v Gold Coast City Council [2002] QPEC 8

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Arnold and Arnold (Gold Coast) Pty Ltd & Anor v. Gold Coast City Council [2002] QPEC 008 PARTIES: ARNOLD AND ARNOLD (GOLD COAST) PTY LTD And TEBUK PTY LTD Appellants And GOLD COAST CITY COUNCIL Respondent FILE NO/S: Appeal No. 3484 of 2001 DIVISION: Planning and Environment PROCEEDING: Appeal ORIGINATING COURT: Brisbane DELIVERED ON: 14 March, 2002 DELIVERED AT: Brisbane HEARING DATE: 27-29 November, 2001 JUDGE: Judge Quirk ORDER: Appeal allowed. CATCHWORDS: Integrated Planning Act; s 6.1.30(3)(c) Local Government (Planning and Environment) Act; ss 5.1(6)&(6A) COUNSEL: Mr C.Hughes SC for the appellants Mr J. Haydon for the respondent SOLICITORS: Phillips Fox for the appellants Corrs Chambers Westgarth for the respondent [1] This appeal is against the respondent’s refusal of an application for reconfiguration of a parcel of land at Currumbin which is south of Currumbin Creek and adjoins the New South Wales border. The land occupies approximately 2.7 hectares and is part of a larger area known as the Currumbin Park Estate the development of which has been in progress for over twenty years. -- 1 of 9 -- 2 [2] The border runs along a ridge line and the subject land slopes away from it to the north and north-west. In parts the slopes are moderately steep and, while it was a matter that was not entirely free of dispute, the survey arranged by the appellants town planning consultant, Mr Grummitt, indicated that slopes were generally between 15º and 24º. The land has been cleared as part of activities involved in earlier stages of development. [3] The subject land is included in the Residential A zone and has been so zoned since the 1976 Town Planning Scheme was gazetted. Since that time there has been three town planning scheme reviews (1982, 1988 and 1995), but the land’s zoning has remained unaltered. [4] The proposal is for the extension of Sawtell Drive and the creation of 23 residential allotments. Lots sizes are in the order of 800 square metres and this is greater than the minimum size (600 square metres) envisaged in the Residential A zone. Approval was given in the past for development of the subject land in this way, but such approval has lapsed. [5] The land is within an area that was part of the former Albert Shire. The relevant town planning scheme is a “transitional planning scheme” within the meaning of Chapter 6 of the Integrated Planning Act. Section 6.1.30(3)(c) of that Act requires that the application (being one for which a subdivision approval would have been required under the repealed legislation) must be decided under s.5.1(6) and (6A) of that legislation. Section 5.1(6A) provides that:- “The local government must refuse to approve the application if:- (a) the application conflicts with any relevant Strategic Plan or Development Control Plan and -- 2 of 9 -- 3 (b) there are not sufficient planning grounds to justify approving the application despite the conflict.” [6] The Council’s stated reasons for refusing the application focused on the land’s topography and its elevated position sloping up towards the border ridge. It was said that the proposal was contrary to certain identified provisions in the Strategic Plan which dealt with residential development on sloping land and the conservation of visually significant areas of the shire in a natural or rural state. [7] Attention was also drawn to the steepness of the batter and retaining wall forming the lower side of the proposed road and the difficulty in enforcing any conditions directed to ensuring satisfactory development design on the sloping land. [8] Under the Strategic Plan, the land’s designation is to be found in the relevant maps. These were before the court as Exhibit 5. The Preferred Dominant Land Uses map (No. 5) is obviously not cadastrely based and, at the scale at which it is drawn, it is not easy to accurately apportion the two designations which appear to apply to the subject land. [9] The bulk of the land appears to be in the Urban Residential designation but a strip of Open Space designation is shown running along the State border. It would be unrealistic to attempt any quantitative assessment of the area designated for Open Space. It is interesting, and important, to note that in map No. 2 which is concerned with a “Nature Conservation and Landscape Protection Strategy” no Open Space designation is attributed to the subject land. -- 3 of 9 -- 4 [10] In the circumstances, to read the Strategic Plan as indicating anything more than the importance, in a scenic sense, of the ridge line which constitutes the border could be going too far. [11] While this matter is being considered, it might be as well to deal with one of the issues in the appeal, namely that:- “The subject site is situated on a visually prominent ridge where development should not occur, in accordance with s.1.4.10.3 of the Planning Scheme.” Section 1.4.10 of the Strategic Plan is concerned with the Open Space Preferred Dominant Land Use. The stated intent for this designation is put in these words:- “Open space areas are those parts or the Shire which are generally not intended for building development and should be left predominantly in either a natural, a rural, or recreational state. This is because of the value of these areas for reasons of ecology, soil conservation, water quality or landscape quality, or because the best use of the areas is for recreation… . Areas designated Open Space also includes steep forested slopes and ridges of high significance for Shire Image and landscape character, and as backdrops to the Gold Coast, major towns and the pacific Highway. Any development in these areas should be low density and with compatible form, subject to local urban design or rural structure plans or development control plans as appropriate to define the buffers and links required at a finer scale of resolution, and will be assessed for its impact on defined open space values at that sale. Development in these areas will be subject to tree preservation provisions, and any clearing of trees will require Council’s approval. Guidelines for development will include maximum building heights and bulk with respect to the tree line, reflectivity and colour.” [12] Included in the implementation criteria is the following statement which appears at s.1.4.10.3:- “(ii) Where desirable, Council will endeavour to retain steep tracts of land or the most prominent ridge tops without building development in a predominantly treed state. Some of the suitable land may be dedicated as Park Reserve through the development process. In other cases land may be retained in a Rural zone to preserve Open Space or rural -- 4 of 9 -- 5 character. Tree preservation where this is desirable, will be reinforced under the Council’s Tree Preservation Local Law or through the negotiation of scenic or conservation easements. (iii) Strategic Plan Map 5 shows in general terms areas of Open Space which are known to have a development constraint including flooding, drainage, steepness, landscape quality or ecology. Detailed planning will be required to determine the precise extent and nature of the Open Space areas particularly where the area is the subject of a development application.” [13] It is against this background that the evidence should be considered. The first important matter of fact is that the subject land does not constitute the ridge line. It would be more accurate to say that it is on the slope which runs away from the ridge line. Support for this proposition is found in Map 3 of the Strategic Plan Maps which indicates the “Scenic Rim” as being on the New South Wales side of the border. This is consistent with the facts and any visual prominence which the ridge enjoys is attributable to existing vegetation along the ridge line. The undeveloped condition of the Scenic Rim is protected by zoning in the Tweed Shire and the fact that it is Crown land. [14] The second matter of importance is that the subject land itself has little ecological value. It is not “predominantly in a treed state”, but has been almost totally cleared for some time. It was emphasised in the evidence that no house built on the land subject to this application will break the tree line along the top of the ridge. No attempt, for at least 25 years, as been made to secure the subject land in any zone which might preserve its “Open Space or Rural Character”. Furthermore, residential development on adjoining land has precluded any opportunity for the establishment of anything in the nature of an Open Space Corridor. In the circumstances, if there is any conflict with these parts of the Strategic Plan(which I -- 5 of 9 -- 6 doubt), I am well satisfied that there are more than sufficient planning reasons for overlooking that conflict. [15] Another issue to which importance was attached arose from the land’s topography. As I have stated, there was some debate about the degree of slope found on parts of the subject land, but this was more a matter of interpretation rather than a factual dispute. The contours of the subject land have been sufficiently well established and can be seen from a number of drawings placed before the court. There is no question that, on a good deal of the subject land, slopes in excess of 20% can be found. This gave rise to the issue that was framed in this way:- “The subject site has an inappropriate land form for residential development. The majority of the site has slopes in excess of 20% (most lots are proposed on land with 30% slopes) and development of this land is contradictory to the planning scheme, s.1.4.4.2(viii) which states:- “Some land included in the Urban Residential areas on the map is not well suited to residential use and has high value for open space. These lands include where the general land form is steeper than a 20% slope for stable soils and 15% slope for unstable soils.” [16] Passages in the Strategic Plan relevant in this respect include the implementation of objectives of the Urban Residential PDLU particularly the following:- “1.4.4.2(viii) Some land included in the Urban Residential area on the map is not well suited to residential use and has high value for open space. These lands include where the general land form is steeper than 20% slope for stable soils and 15% slops for unstable soils, steep hill slopes an ridge tops in the hinterland foothills, creek corridors and banks, forested foothills and remnant bushland… . (ix) In order to ensure satisfactory access in residential areas, Council will apply to rezone land for residential use or approve the subdivision of land for residential allotments, only where it is satisfied that – (A) the general land form does not exceed 20%or for stable soils and 15% for unstable soils … ..” -- 6 of 9 -- 7 [17] If it is the case that the “general land form of the subject land exceeds 20%” it has to be accepted that the proposal, in as much as it intends the subdivision of this land, gives rise to conflict with the Strategic Plan. I am prepared to dispose of the matter on the basis that such conflict has arisen. The effect of that is that s.5.1(6A) of the repealed Act calls for the refusal of the application unless there are shown to be sufficient planning grounds to justify approving it despite the conflict. [18] What are “sufficient planning grounds” in these circumstances should, in my view, be judged in the context within which the conflict has arisen. As the Strategic Plan indicates specifically, the provisions requiring a “general land form not exceeding 20%” are intended to “ensure satisfactory access”. [19] There is no serious suggestion that the public access way, constituted by the extension of Sawtell Drive, would not be safe and would provide satisfactory access to allotment frontages. There will be a need for some retaining walls to be constructed, but this would not appear to be an extraordinary phenomenon. So much was conceded by Mr Brameld, an experienced traffic engineering consultant who gave evidence for the respondent. [20] Mr Brameld however, pointed out that because of the existing slopes, steep driveways up to house building pads would not be desirable and the construction of garages nearer to the front alignments of allotments would probably be necessary in many cases. This could give rise to inconvenience to residents moving from their garages to the houses. [21] I recognise the force of what Mr Brameld has said, but one must also recognise that such a situation is by no means extraordinary, particularly in high areas. There are -- 7 of 9 -- 8 those who would happily “trade-off” convenient access from house to garage for the advantages of an elevated position and superior outlook. [22] Evidence for the appellant was given by Mr Robinson, an experienced architect and Mr Rutten, a geotechnical engineer. Their evidence demonstrated that residential development could be carried out on the subject land in a safe, attractive and accessible manner. Mr Robinson made the following points:- ß Practical yet exciting architectural solutions exist to all design issues to liveability of the new residences that can be build on the subject land. Many award winning solutions have been designed on such sites. Architects and engineers have extensive training and expertise in dealing with such sites. ß The sloping sites are more likely to have a landscape that blends into the hillside than flat sites. This landscape is likely to exceed 50% of the site area and will be concentrated along the ridge line thus reinforcing the objectives set out in the Strategic Plan. ß Building on slopes in excess of 30% is economically and structurally feasible. [23] I am satisfied that there are, in this case, sufficient planning grounds to justify approval of the application despite any conflict with the Strategic Plan. These grounds include the following:- o Rezoning of the subject land as Residential A has been maintained over a very long period and, importantly, at the time when the relevant provisions of the Strategic Plan were introduced o The land has little value in a practical sense as Open Space land o The proposed development would be in keeping with other development in the immediate locality which has taken place on land of comparable topography. I make this finding notwithstanding the rather unusual assertion that at least one of the earlier stages of the estate was “approved in error”. What is important is that no practical planning detriment as a consequence of this was pointed to. o The evidence given established that the proposed allotments will be accessible in a safe manner o I find that the public interest would be advanced by the provision of attractive residential opportunity afforded by the proposal -- 8 of 9 -- 9 [24] Two other matters must be mentioned. An assertion was made that:- “The steep batter and retaining wall forming the low side of the proposed road is not considered to be an acceptable element of public road”. [25] This assertion was not supported by the evidence. The engineering drawings prepared by the relevant consultants were included in the evidence of Mr Rutten and discussed by him. He pointed out that the proposed batter will be 1:2 which complies with standard engineering practice and should not be regarded as “steep”. The retaining wall which exists in the vicinity of exiting Lot 208 and Lot 207 is very small in extent and inconsequential. [26] Finally, I must deal with the assertion that difficulties would be experienced in controlling and implementing conditions that would ensure appropriate design. I see no real difficulty in this respect. The applicants are ready to accept a condition which will require the submission of an appropriate geotechnical report (for consideration by Council’s engineer) at the stage of any application for building approval. Such a condition could be worded to require the submission of the report precede the submission or at least the approval of any application for building works. It would be unrealistic to suppose that prospective purchasers of these allotments would not be aware that geotechnical input was called for or that they would be prepared to invest in a property of this kind without proper geo-technical advice. [27] On the whole of the evidence I am satisfied that the onus of showing that the application is one which should be approved has been discharged. Accordingly the appeal will be allowed, but I will further adjourn the matter to enable formulation of appropriate conditions of approval. -- 9 of 9 --