Financial Insurance Group Services Pty Ltd v Townsville City Council [2000] QPEC 53

TRANSCRIPT OF PROCEEDINGS Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. [2000] QPEC 053 PLANNING AND ENVIRONMENT COURT JUDGE C F WALL QC No 72 of 2000 FINANCIAL INSURANCE GROUP SERVICES PTY LTD Appellant and TOWNSVILLE CITY COUNCIL Respondent TOWNSVILLE ..DATE 07/09/2000 JUDGMENT 1 -- 1 of 13 -- 07092000 T1-2/SML M/T TSVDC3319 (Wall DCJ) JUDGMENT 2 HIS HONOUR: This is an appeal against the decision of the respondent to refuse the appellant's application for a material change of use from Residential 2 to Professional Office. The land is zoned Residential 2. The respondent's Planning Scheme is a transitional scheme and contains provisions which bear on the application. The appellant submitted that they do not require refusal of the application but in fact, in the circumstances of the present case, support it. The respondent submitted that they in fact prohibit the proposed use. The appellant's argument is superficially attractive, especially having regard to the location of the subject land at the intersection of Ross River Road and Gulliver Street, Townsville, but, on balance, I do not think it can be accommodated by the Planning Scheme. The subject site does not have a “frontage” to Ross River Road, as that term is defined in the administrative definitions of the scheme. In this sense, its frontage is to Gulliver Street, although in one sense it does face or front the intersection including Ross River Road. I agree that one should not adopt an inflexible rather a practical commonsense approach to the Strategic Plan -- 2 of 13 -- 07092000 T1-2/SML M/T TSVDC3319 (Wall DCJ) JUDGMENT 3 objectives. Approaching the matter that way, I think that the general provisions relied upon by the appellant are qualified by the specific provisions referred to by the respondent and that the present application should be determined by reference to the latter. In general terms, the Strategic Plan aims to “promote the establishment of developments which will add to the diversity of opportunities and add to the city's economic base” (Aim 4). In support of this aim is a strategy to the effect that “the needs of a wide variety of professional service activities and the convenient availability of these services and facilities to the general public will be facilitated by providing a wide range of locational opportunities for minor professional services and home occupations” (section 2.7.5(c)). In dealing with the preferred dominant residential land use area, the Strategic Plan provides that “in the case of some developed areas, limited small intrusions of compatible non- residential uses exist and will be allowable in some circumstances” (section 2.15.1). The appellant submits that the present application is such a circumstance. It is misleading though to treat the building on the land as an existing compatible non-residential use because the non- residential use, namely a professional office, is occurring unlawfully. -- 3 of 13 -- 07092000 T1-2/SML M/T TSVDC3319 (Wall DCJ) JUDGMENT 4 Objectives 1 and 5 of the Strategic Plan and paragraphs (h) and (a)(i) respectively of the implementation criteria for each objective are the particular provisions relied upon by the parties, the appellant placing emphasis on the former and the respondent on the latter. These are in the following terms: “OBJECTIVE 1 To promote a high standard of amenity. Implementation (h) The residential amenity of some areas already suffers from traffic noise from an adjacent major road. While the land use designation is residential some non-residential uses may be allowed. The resulting structures should be so placed as to screen the houses to the rear.” “OBJECTIVE 5 To most efficiently utilise the residential area by a selective allowance of non-residential uses which do not adversely affect amenity. Implementation -- 4 of 13 -- 07092000 T1-2/SML M/T TSVDC3319 (Wall DCJ) JUDGMENT 5 (a) The Council may allow a professional office or a medical centre on certain land in the City zoned Residential. The Council will favourably consider this use in an existing building or in a new building designed and constructed to maintain a 'domestic' scale and appearance and where the amenity of an area will not be adversely affected. This land zoned Residential is as follows: (i) land having a frontage to Ross River Road between Bowen Road, Mundingburra, and Lindeman Avenue, Cranbrook.” In my view, Objective 5(a) governs the extent to which a professional office or a medical centre as “limited small intrusions of compatible non-residential uses” can occur in a residential area and the extent to which “some non-residential uses (being those particular non-residential developments) may be allowed” in such an area. “Frontage”, for the purposes of Objective 5(a)(i), should bear the meaning assigned to it in the definition section already referred to. Certain developments are generally permissible in the Residential 2 zone where they are “located on land fronting a principal road or otherwise where they accord with the Residential Objectives of the Strategic Plan” (section 6.4). -- 5 of 13 -- 07092000 T1-2/SML M/T TSVDC3319 (Wall DCJ) JUDGMENT 6 When read with section 2.15.1 of the Strategic Plan this was said to encompass the present application, but in my view it is qualified by column 3 of the Table of Development for the Residential 2 zone (section 6.5.1), which lists as a permissible development a “professional office - in accordance with the Strategic Plan”. This in turn takes one back to Objective 5(a)(i). For present purposes, paragraph (a)(i) is incorporated in the Scheme provisions and, to that extent, assumes more importance than a mere objective related provision. To fall within column 3, the subject site would have to front Ross River Road (clearly a principal road) in the sense of having a frontage to it, that is having a boundary or part of a boundary coinciding with any continuous part of the limits of Ross River Road, and this site does not. Professional offices on this site are therefore not a permissible development in the Residential 2 zone, but are prohibited. In my view, the Strategic Plan does not in fact envisage a professional office in a residential area in all cases where the residential amenity of the area suffers from traffic noise from an adjacent major road, but only in those cases encompassed by Objective 5(a). -- 6 of 13 -- 07092000 T1-2/SML M/T TSVDC3319 (Wall DCJ) JUDGMENT 7 A professional office or a medical centre is a permissible development on land zoned Residential 2 and 3, provided the land has a frontage to the roads mentioned in Objective 5(a). In each case, the Tables of Development require that the development be “in accordance with the Strategic Plan” and Objective 5(a) is the relevant provision of the Strategic Plan. The same is the case in the Residential 1 zone, but only for a professional office. So far as the Residential 2 zone is concerned other development is permissible on such residentially zoned land - as envisaged by Objective 1(h) and section 6.4 of the Scheme - in a broader range of locations, for example, a child care centre and a nursing home, where the residential amenity already suffers from traffic noise from an adjacent major road and the structures are placed so as to screen the houses to the rear, and an arts and crafts centre, a motel, a surgery and a veterinary clinic on a principal road (not only those roads mentioned in Objective 5(a)), probably where the residential amenity already suffers from traffic noise from that adjacent road and provided the structures are placed so as to screen the houses to the rear. The locational scope for a professional office is not as wide as for these types of developments; it is limited by Objective 5(a). -- 7 of 13 -- 07092000 T1-2/SML M/T TSVDC3319 (Wall DCJ) JUDGMENT 8 For present purposes, land in a Residential zone having a frontage to Ross River Road between Bowen Road and Lindeman Avenue would be land fronting a principal road. The subject site does front a principal road - Gulliver Street - and it does suffer from traffic noise from a major road - Ross River Road - which I am prepared to accept is an adjacent major road, but it does not have a “frontage” to Ross River Road as that term is defined in the Planning Scheme. For the purposes of Objective 5(a), the “certain land...zoned Residential” is the land described in subparagraphs (i) to (viii). In the case of such land, the council “may” generally allow a professional office. The prospects of permission being granted are enhanced if the professional office is intended to be located “in an existing building or in a new building designed and constructed to maintain a 'domestic' scale and appearance and where the amenity of the area will not be adversely affected”. In such a case the council will “favourably consider” the application. The fact that the professional office proposed in the present case is intended to be located in the existing building on the site is not enough to assistant the appellant, because the site does not have a frontage to Ross River Road. Had it such a frontage, the application would have been “favourably considered” and, according to the respondent's Director of Planning Services, Mr Gopal, probably granted. -- 8 of 13 -- 07092000 T1-2/SML M/T TSVDC3319 (Wall DCJ) JUDGMENT 9 I appreciate that the subject land is effectively located on the boundary of and adjoins a property which has a frontage to Ross River Road and, in this sense, is very close to a “permissible” area, but in the end result and from a planning point of view that in itself cannot amount to a sufficient reason to elevate a prohibited proposal to a permissible proposal. “Frontage” is defined in such a way that it is allotment neutral in the sense that a corner allotment can front both roads and it is irrelevant that a building constructed on the allotment may in fact “front” only one of them. “Fronting a principal road” must logically bear the same meaning, but, in the circumstances of this case, unfortunately that cannot assist the appellant. Adopting what has been described as a “commonsense approach” and a “sensible practical approach” to the interpretation of the Strategic Plan provisions, the fact that the present proposal conflicts with the Strategic Plan provisions which I have referred to is a conflict which is “plainly identified” (see Fitzgibbons Hotel Pty Ltd & Ors v. Logan City Council (1997) QPELR 208 at 212 and Harburg Investments Pty Ltd v. Brisbane City Council & Anor, unreported, Planning & Environment Court, Brisbane, 5 May 2000, Skoien DCJ). -- 9 of 13 -- 07092000 T1-2/SML M/T TSVDC3319 (Wall DCJ) JUDGMENT 10 This result is of course an unfortunate one for the appellant, but I cannot agree with Mr Needham that it leads to a “ridiculous situation”. It is a situation likely to be faced by the owner of any property situated on a zonal boundary under the present transitional Planning Scheme. The intention of the Residential zone in the present case is that professional offices can, with permission, be located in such a zone on land having a frontage to Ross River Road. Elsewhere in the zone, they are prohibited. Though the subject site does not quite have a frontage to Ross River Road, it nearly does and it is for this reason and its related effect on residential amenity in the sense mentioned in Objective 1(h) that the appellant also says there are in fact sufficient planning grounds to justify approving the application despite its conflict with the Strategic Plan (see the Integrated Planning Act, section 6.1.30, and the Local Government (Planning & Environment) Act, section 4.4(5A)). It is also submitted that there is a need for a professional office in this location in the sense referred to in section 4.4(3)(b) of the Local Government (Planning & Environment) Act. -- 10 of 13 -- 07092000 T1-2/SML M/T TSVDC3319 (Wall DCJ) JUDGMENT 11 Generally speaking and subject to the issue of need, Mr Gopal agreed that had part of the boundary of the subject site fronted Ross River Road, the traffic considerations which occupied the balance of the hearing by themselves probably would not have been sufficient to justify refusal of the proposal. The proposal conflicts with the Strategic Plan in the sense that it is, according to column 3, a prohibited development in the zone where it is situated. Is there, nevertheless, a need for it? I do not think there is. In my view, there is ample other available land in the relevant part of Ross River Road generally and on the market (see Exhibits 12, 13 and 14). I am unable to conclude that the public need requires or that there is a public need for approval of this application in circumstances where other available land is conveniently located in the near or immediate vicinity and exists in sufficient quantity both generally and particularly available at the present time. This is the case even if one limits consideration to a “home based professional office”, to use Mr Needham's words, and I am not sure in any event that it is correct to confine a consideration of need in that way. The Planning Scheme does not distinguish between different types of professional offices, but, having said that, I recognise that each case has to be considered by reference to its particular facts and circumstances. In this sense, I am not -- 11 of 13 -- 07092000 T1-2/SML M/T TSVDC3319 (Wall DCJ) JUDGMENT 12 persuaded that there is a need for more land in this area which can be used for a home based professional office. I agree with Mr Haydon that the starting point is the fact that all the land on Ross River Road in the relevant area is potentially available for use as professional offices and that Exhibits 12, 13 and 14 and the evidence in relation to them indicate the land available at the present time. Looked at this way, no need exists for additional land to be designated for use as professional offices. Mr Dance, in paragraph 3 of his report, Exhibit 1, mentions that: “Housing along Ross River Road has progressively been turned over to professional offices or medical centres/surgeries during the life of the Planning Scheme.” I do not agree with Mr Dance (Exhibit 1, page 16) that, in the circumstances of this case, the “need issue is tempered by the effect of the Integrated Planning Act” in the sense that approval of the application would not require a rezoning. Need is an issue which requires consideration in a substantive way regardless of the technical effect which approval would produce on the Planning Scheme. -- 12 of 13 -- 07092000 T1-2/SML M/T TSVDC3319 (Wall DCJ) JUDGMENT 13 An assessment of “alternative and available sites” (to use Mr Dance's words) leads me to the conclusion that no need has been established sufficient to warrant approval of the present application. In those circumstances, there are not sufficient planning grounds to justify approval of the application despite its conflict with the Strategic Plan. The appeal will therefore be dismissed. The Planning Scheme, Exhibit 4, can be returned to the respondent at the expiration of the appeal period if there is no appeal. ----- -- 13 of 13 --