Chellash Pty Ltd v Maroochy Shire Council [1999] QPEC 51

IN THE PLANNING AND ENVIRONMENT COURT AT MAROOCHYDORE QUEENSLAND [Before Dodds DCJ] [Chellash Pty Ltd v. Maroochy Shire Council] Appeal No. 3 of 1999 BETWEEN: CHELLASH PTY LTD Appellant AND: MAROOCHY SHIRE COUNCIL Respondent Reasons for Judgment This is an appeal against the respondent’s refusal of an application for a development permit for a material change of use of land. The application sought a permit to use land for professional offices. The 647m2 lot in question (the subject land) is zoned Residential C with a frontage of 16.093 m to Memorial Avenue, Maroochydore. On it is a timber dwelling in poor repair containing two flats. The respondent refused the application for a number of reasons. Three remain in contention. 1. “The proposal is not in accordance with the objectives of the Strategic Plan as it would represent an encroachment of commercial uses into an area intended for residential uses with only localised services. The proposal would not represent an example of a service to the local community. … 3. The proposal is not in accordance with the precinct development guidelines for Precinct 22 of the Maroochydore Centre Development Plan which lists commercial development (including offices) as undesirable development of the subject site. 4. The proposal is not in accordance with the preferred future character and objectives of the area as stated in Development Control Plan Number 3 – Cotton Tree (Maroochydore) Redevelopment Area. -- 1 of 10 -- 2 By letter dated 21 September 1999, Exhibit 11, the respondent added a further reason for refusal of the application namely, “a draft town planning scheme has been advertised and…is a matter relevant to any consideration by the Court. In particular Council will rely on the fact that offices are not a preferred use in Planning Area Number 1, Precinct 17 Maroochydore northeast as designated in the draft town planning scheme.” Memorial Avenue runs adjacent and roughly parallel to the Esplanade and the Maroochy River. Like the Esplanade its alignment is generally eastwest. East is towards the beach at Maroochydore. Its western end penetrates into the area zoned central business in the respondent’s current town plan. It forms a right angle junction with First Avenue and is intersected generally at right angles by Second, Third and Fourth Avenues which run between Aerodrome Road and the Esplanade. The subject land is on the southern side of Memorial Avenue and is the fourth block east of its intersection with Second Avenue. The other three blocks are presently vacant. It is part of a small enclave of Residential C zoned land (the enclave) surrounded by land zoned commercial, central business and comprehensive development. The enclave is located to the north of Aerodrome Road between it and the Maroochy River. Aerodrome Road is a major feeder road into Maroochydore consisting of two lanes in either direction. Land on either side of it in the vicinity of the enclave is zoned commercial. On its northern side the commercial zoning only includes the lots with frontage to Aerodrome Road. The enclave then commences. East of the enclave to the foreshore area of the Maroochydore beach the land is zoned comprehensive development. On the northern side of Memorial Avenue through to the Esplanade the land is also zoned comprehensive development. Land to the west of the enclave is for the most part zoned commercial and central business with the western boundary of the enclave at the rear boundaries of lots on the western side of Second Avenue. Thus the subject land is at the northern boundary of the enclave and a short distance from its western boundary. In the enclave some non-residential uses already exist. Land on the southwestern corner of the intersection of Memorial Avenue and Second Avenue has been recently developed with a large two storey medical centre. Another single storey specialist medical centre has been recently constructed on a lot on the western side of Second Avenue, one lot from its junction with Aerodrome Road. There is another medical centre and a dental centre on the eastern side of Second Avenue, both of which appear to be recently adapted dwelling houses. Further into the enclave is an older dwelling house being used as professional offices. East of the subject land on the southern side of Memorial Avenue is what appears to be a recently constructed, single storey on ground building used as a specialist medical centre. I am informed that two of the uses are limited to five years. Across the road from the subject land on the northern side of Memorial Avenue on the land zoned comprehensive development are high rise buildings used for professional offices, day surgery hospital and residential. To a large extent between Second and -- 2 of 10 -- 3 Third Avenues the view north across Memorial Avenue consists of the backs of large buildings and car parking areas associated with them. Planning instruments The respondent’s current planning scheme (the scheme) is in force as a transitional planning scheme: section 6.1.2 – 6.1.5 of the Integrated Planning Act 1997 (the Act). A new planning scheme is in process. A draft scheme (the draft scheme) under the Act was placed on public exhibition on 15 June 1999. The closing date for submissions was 7 September 1999. Subsequently to the hearing of the appeal it has apparently been adopted by the respondent. Presumably it will go forward to the Chief Executive. In the scheme the intent of the Residential C zone is: “that this zone shall provide for accommodation units up to a maximum of three storeys in height by right. This zone will provide for a reasonably intense from of urban development catering for both residents and tourists. This zone will generally be located in areas of close proximity to schools, shopping facilities, recreational areas, public transport routes and main thoroughfares. Attention to the provision of landscaping, private recreation space and onsite car parking will be required to ensure acceptable and attractive living conditions relatively free of congested residential streets. Other land uses considered appropriate to this higher density zone but requiring the council’s consent will be provided for.” Professional offices are not a prohibited use in the Residential C zone. Land in the zone may be used for that purpose with the consent of the respondent. Section 6.1.30 of the Act requires that an application such as the present application must be decided under s. 4.13(5) and (5A) of the now repealed Local Government (Planning and Environment) Act 1990. For present purposes that requires the respondent to refuse to approve an application such as the present if it conflicts with any relevant strategic plan or development control plan and there are not sufficient planning grounds to justify approving the application despite the conflict: s. 4.13 (5A). In the current Strategic Plan (the Strategic Plan) the subject land is urban. “Urban development” is “development in those areas where residential uses of an urban density dominate and includes those other uses (principally commercial and retail, social and education facilities and industry) which are required to service the residential areas and are normally integral components of such areas”. Strategy for urban designated land includes: -- 3 of 10 -- 4 “2. The urban designation indicates areas existing and preferred for predominantly residential development… The urban designation identifies areas suitable for residential development of varying densities but allows for retail, commercial, community service and general industrial activities required to serve the day to day needs of local communities”. Objective 3.6 of the urban designation is: “to provide for retail commercial and service industrial activities appropriate to service the residential communities without compromising residential amenity. Local retail commercial and service uses should be part of the urban fabric as they can desirably form a part of the community to which they provide a service. However they may cause detrimental impacts on residential amenity because of their potential to generate traffic and people movements, to produce noise and smell and to shed light. The concentration of such activities maximises community focus objectives and localises any potential amenity problems.” Implementation provisions for this objective include: “Council will take into account the following criteria when assessing applications for non-residential uses in urban areas: 1. Approval is only likely to be granted to retail, commercial and service uses which offer a service only to local communities. Consideration will be given to the characteristics of the proposed use including its location and scale which determines its accessibility to its locality and its ability to service areas beyond an immediate locality and consequently diminish the vital role played by such facilities in providing a community focus and identity. 2. It is envisaged that local retail, commercial and service uses will be concentrated into nodes in urban communities. In older ones these nodes may be characterised by the existence of shopping groups or centres which are adequately accessible to a locality. Applications for retail, commercial and service uses outside these nodes are unlikely to be approved unless a community is inadequately serviced by existing infrastructure and the opportunity does not exist to affectively provide such services within the node in the future.” In a broad sense professional offices are embraced within the concept of commercial activity. However they will not ordinarily primarily provide a service to a local community although members of a local community may be clients of the offices. In the scheme the commercial zone is intended to “provide for a wide range of commercial activities of a primarily local services nature. The zone will generally be appropriate within all urban centres and is likely to be located removed from any -- 4 of 10 -- 5 central business zone or in the instance of smaller urban centres take the place of the central business activity location.” The Strategic Plan envisages regional, sub-regional, district, neighbourhood and local and town centres. Objective 4.1 is to “consolidate and encourage the growth and development of the retail/commercial centre hierarchy” of the planning area. In implementing that objective, consolidation of commercial and retail development in land currently zoned for it is encouraged. It is plain that the Strategic Plan does not envisage commercial activity in urban areas except where its primary purpose is to provide a service to the local community. The scheme however, does not prohibit a use such as professional offices in Residential C zoned land. Moreover the enclave is included in a Development Control Plan which evidently contemplates appropriately located professional offices in the area to which it applies. Development Control Plan Number 3 Cotton Tree (Maroochydore) Redevelopment Area (the DCP) applies to this enclave. It was gazetted in 1990. It is a planning instrument with particular application to the subject land. The area covered by the DCP is the same as that in the enclave except at the western end where the DCP area extends to include the lots zoned commercial at the rear boundaries of the Residential C lots on the western side of Second Avenue. A primary aim of the DCP is to “facilitate the overall redevelopment of the planned area and to encourage its future development in a form which is consistent with the preferred future character identified for the area”. It describes the preferred future character of the DCP area as follows: “The planned area derives its present character from its historical development as an area of typical coastal township catering primarily for permanent residents but with a high component of holiday accommodation. It is intended the future character of the planned area reflect that of a high quality locationally advantageous medium density area comprising a variety of housing types with a high level of residential amenity and innovative architectural design catering primarily for permanent and semi-permanent residents. Developments up to four storeys in height in the form of townhouses, terrace houses, courtyard houses, villas and stepped multi-level units is envisaged with possibly compatible uses such as medical and dental centres, professional offices and general stores interspersed in appropriate locations…It is intended that the streetscape within the planned area would be progressively upgraded so as to promote an amenable and safe residential environment.” In summary the effect of the planning instruments in force at the present time with respect to the subject land demonstrate the planning intention for this Residential C enclave as medium density residential up to four storeys in height with other compatible uses interspersed at appropriate locations. Instances of compatible uses are medical and dental centres, professional offices and general stores. -- 5 of 10 -- 6 Other Planning Considerations In 1996 the respondent commissioned what is known as the Maroochydore Centre Development Plan (the MCDP) from Brannock Humphrey Pty Ltd, planning and environmental consultants. The draft MCDP was placed on public exhibition between December 1996 and May 1997 and community consultation took place. In the MCDP the subject land is in precinct 22. In that precinct “commercial development including retail and offices” is indicated as undesirable. This signalled a possible change in planning intention for the enclave. In December 1997, the respondent after considering a report discussing public submissions about the MCDP resolved inter alia: to endorse the report as a comprehensive assessment of the public consultation process and; that the recommended amendments to the draft included in the report be used to commence redrafting of the MCDP. The recommended amendments did not involve Precinct 22 or land in Precinct 22. The MCDP has never been finally adopted by the respondent. However its provisions have essentially been included in the draft scheme. In the draft scheme the enclave is in precinct 17 of Planning Area Number 1. The draft scheme states that “precincts have been defined on the basis of previously undertaken local area planning, the distribution of existing and preferred future land uses, landscape/townscape character considerations, transport networks, community views and values and environmental systems and values. These precincts establish each locality’s context and role within the planning area and the desired future local character”: Volume 1, Section 4.1(2) The desired precinct character for Precinct 17 is mixed housing. The intent of the mixed housing designation is for development of a: “mix of low rise housing forms at generally medium densities. While these precincts contain many detached houses they recognise areas with a character that is gradually changing to provide a wider range of housing types including town houses, units, apartments and flats. Such a change is partly in response to the convenient accessibility that most of these areas enjoy to village and town centres, commercial and community facilities, open space and transport. Given the proximity of these supporting services and facilities the range of non-residential uses appropriate on land in these precincts is considered to be limited…Neither industrial nor higher order commercial uses are considered consistent with the decreed character of these precincts as such uses are likely to have an adverse impact on residential amenity and are better located in other more appropriate precincts.” The intent of Precinct 17 is “to provide a range of residential accommodation close to the Maroochydore regional centre and the attractions of Cotton Tree…the precinct has the capacity to absorb a substantial amount of high quality medium density residential development…new development should contribute to the creation of attractive -- 6 of 10 -- 7 streetscapes characterised by low rise buildings set in well landscaped grounds”: Volume 3, Page 50. Preferred and acceptable uses in the precinct are principally residential but include “any of the following at ground storey level: medical centre, restaurant, shop, special use (not having the character of an office use)”: Volume 1, Page 46. “Undesirable uses are those which disrupt residential amenity including commercial and industrial uses and buildings which exceed existing residential building heights”: Volume 3, Page 50. Office uses are encouraged in areas described as the Town Centre Core precinct and the Town Centre Frame precinct: Volume 3, page 10 and 15. Precinct 17 is a Town Centre Periphery precinct. In Lewiac Pty Ltd v. Gold Coast City Council (1996) 2 QdR 266, the Court of Appeal held that a planning strategy (eg. a new planning scheme) “well on its way to adoption or even adoption with amendment” should be given some weight: Thomas J at 270. As His Honour said it would be extraordinary in those circumstances “if a planning strategy…could be frustrated by developments created in circumstances where neither the council or the court could give any weight to the plan as it has so far emerged”. The appellant contended that the provisions of the planning scheme, the Strategic Plan and the DCP contemplated use of land in this enclave for professional offices in appropriate locations. The planning scheme does not prohibit professional offices in the zone and the DCP contemplates appropriately located, compatible uses which include professional offices in the enclave. The appellant instanced the existing non- residential uses set out above which plainly do not primarily provide a service limited to the local community. The appellant also contended that the draft scheme should not be given weight or not such weight as to reject the proposal. As to this, the draft scheme for Precinct 17 reflects the provisions of the MCDP for its Precinct 22, which have been out in the public area since December 1996 and which are now part of the draft scheme. Mr Ryter, a town planning consultant who gave evidence in the appellant’s case opined that the subject land had a limited amenity as residential because of its proximity to non-residential uses, principally the uses in the comprehensive development zone. There is no doubt the amenity is not that which might exist in areas consisting solely of low rise residential development or if the view north to the Maroochy River was not interrupted by the buildings and car parks in the comprehensive development land opposite. But the scheme plainly never contemplated that sort of amenity. The amenity contemplated rather is that of medium density residential development close to the centre of Maroochydore, the beach and Cotton Tree and adjacent to commercial and comprehensive development. Mr Ryter also considered the proposal provided an appropriate transition between the more intense development in the comprehensive development zone to the north and the Residential C zone to the south particularly since its design and scale was not -- 7 of 10 -- 8 incompatible with already existing and likely future residential development in the locality eg. four storey unit development. He considered that the location of the subject land opposite the existing development in the comprehensive development area and at the periphery of the commercial area of Maroochydore was an appropriate location for a low-key professional office development. Section 4.1.52 (1) and (2) of the Act provide both that an appeal is “by way of hearing anew” and that the court “must decide the appeal based on the laws and policies applying when the application was made”. It also provides that the court “may give weight to any new laws and policies the court considers appropriate”. At first glance this may appear to restrict consideration of proposed amendments to or new planning instruments which have not passed into law. The explanatory notes to the Act state that the provision “is not intended to prevent the court from applying the “Coty” principle (or non-derogation doctrine) whereby the court may also give weight to the laws and policies not yet in effect when the appeal is heard”: Coty (England) Pty Ltd v. Sydney City Council (1957)2 LGERA 117. Section 14B of the Acts Interpretation Act 1954 permits consideration to be given to an explanatory note if inter alia a provision in an Act is ambiguous or obscure…to provide an interpretation of it or if the ordinary meaning of the provision leads to a result that is manifestly absurd or unreasonable …to provide an interpretation that avoids such a result. I propose to interpret Section 4.1.52 (1) and (2) of the Act to permit the application of the principle in Coty. In Lewiac, referred to earlier, the rationale underlying the principle was accepted as valid. To exclude the draft scheme from consideration could lead to the “extraordinary” result referred to. The essential question is whether the expression of planning intention represented in the MCDP and now incorporated into the draft scheme should prevent the proposal or more correctly put, whether the appellant has established that it should not. The location of the subject land at the northern boundary and near the western boundary of the enclave is I think an appropriate location for professional offices if they are to locate in the enclave. It is close to the commercial zoned land to the west and across Memorial Avenue from the comprehensive development zoned land to the north. It is near other non-residential uses which have already extended into the enclave at its western end. The proposed building which has been redesigned to address concerns raised by the respondent will be quite low key in its impact in the enclave. The subject land is not a large lot. Building height is 8.4 metres and site coverage is 47 per cent. The proposed building has a ground level and a first floor level. Most office space is on the first floor. Most of the car parking provided is beneath a cantilevered first floor. Proposed landscaping is apparently acceptable. -- 8 of 10 -- 9 I do not consider the proposed use will contribute any detrimental effect to the amenity of the enclave. That is because of the type of amenity that already exists particularly in the area of the subject land on Memorial Avenue and Second Avenue. The planning instruments for the respondents area of responsibility are in a transitional state. In the area in which the subject land is located it is proposed that permitting compatible uses such as professional offices in appropriate locations be altered to indicate that they are not preferred or acceptable and unlikely to be approved. That has not yet occurred although it has been mooted since December 1996. The DCP is still in force. It would be wrong to approve a proposal which would clearly frustrate a proposed new planning intention. However despite the evidence of Mr Dillon, a town planning consultant who gave evidence for the respondent, I do not consider this particular proposal would have that effect bearing in mind its location, its design, its size and proposed landscaping. I am satisfied the appellant has shown the proposal should be approved. The appeal will be allowed. -- 9 of 10 -- IN THE PLANNING AND ENVIRONMENT COURT AT MAROOCHYDORE QUEENSLAND [Before Dodds DCJ] [Chellash Pty Ltd v. Maroochy Shire Council] Appeal No. 3 of 1999 BETWEEN: CHELLASH PTY LTD Appellant AND: MAROOCHY SHIRE COUNCIL Respondent JUDGMENT Judgment Delivered: 19 November 1999 Catchwords: LOCAL GOVERNMENT – town planning – appeal against refusal of application for consent to use land in residential C zone for professional offices – proposed use permissible under current planning scheme – weight to be given to draft planning scheme Counsel: SM Ure for the Appellant AN Skioen for the Respondent Solicitors: Rogers Zappulla & Co for the Appellant J. Hall for the Respondent Hearing date: 12 October 1999 -- 10 of 10 --