Anderson v Brisbane City Council [1994] QPEC 79

IN THE PLANNING AND ENVIRONMENT COURT HELD AT BRISBANE QUEENSLAND P & E Appeal No. 196 of 1994 BETWEEN: RICHARD WALCOTT ANDERSON Appellant BRISBANE CITY COUNCIL Respondent REASONS FOR JUDGMENT - QUIRK D.C.J. Delivered the 2nd day of November, 1994 The appellant is the owner of land located at the corner of Harris and Uhlmann streets at Hawthorne. The land has an area of 698 square metres and a frontage of a little over 15 metres to Harris Street and 46. 2 metres to Uhlmann Street. A high-set detached house is presently standing on the eastern half of the site facing the Harris Street frontage. included in the Residential A Zone. The subject land is On 13th April this year, a combined application for subdivisional approval and necessary relaxations was submitted to allow the subdivision of the land into two allotments with areas of 317 square metres and 372 square metres respectively. The proposal contemplated the erection of a detached house on the new allotment facing Uhlmann Street. Pursuant to Clause 20. 2 of the Town Plan, the general requirements in relation to the subdivision of land in the Residential A zone require a minimum allotment area of 450 square metres. clause 20.2.1.s contain special provisions which allow -- 1 of 9 -- 2 relaxation by the council of the minimum allotment size (provided it is not less than 300 square metres) where, at the same time, it also provides a relaxation in respect of development standards set out in s.7 of the Plan. The effect of s. 7. 2. 4 is that ordinarily, the erection of a detached house on an allotment with an area of less than 450 square metres requires town planning consent. However a relaxation of this requirement may be given in respect of tie erection of a detached house "which is consistent in architectural style with houses which predominate in the area". Section 7.2.4.3 provides that the necessary relaxations shou~ not be allowed unless the Council is satisfied that; ( i) the proposed detached house is designed and sited such that there is adequate visual and acoustic privacy for residents of that detached house and of nearby dwellings; and (ii) the appearance of the detached house will not be incompatible with that of nearby buildings nor with that intended for the general area in which the detached house is to be located; and ( iii) the proposed detached house is sited such that there is no adverse effect on stormwater drainage in the area. At th e time of the application (and since October of 1992) there had been in force 1· a po icy (Planning Policy No. 07. 29) which dealt with matters wh' h · ic arose for consideration in this application. The policy claimed to be "aimed towards the -- 2 of 9 -- 3 reduction of urban sprawl, the provision of more suitable forms of housing and the better use of urban resources". It pointed out in Clause 1.2 that: "Smaller allotment housing is desirable for the following reasons: (i) i! can provide for housing types better suited to community needs; •.. (ii) suitable land, urban services and facilities can be more efficiently utilised; (iii) it can be achieved in either established or newly developing areas; (iv} it can assist in achieving a population growth for Brisbane city by enable the addition of new dwellings on a large number of small "in fill" sites." The policy recited: "Amendment of the Town Plan has reduced the minimum area and minimum frontage requirements for allotments in new subdivisions down to 450 square metres and 15 metres respectively. Smaller allotments, down to 300 square metres and 10 metre frontage can also be approved in some circumstances. The subdivisional approval of these smaller allotments will require the relaxation of town plan controls regarding minimum allotment size and frontage width. Council will give consideration to this relaxation provided that the subdivision application is linked to a developmental proposal which conveys an adequate description of the intended standard of residential amenity and environmental quality. This policy can be utilised by applicants in the preparation of that description". Material put before the court indicated that when the application was assessed by the respondent's planning officers, it was apparent that it complied with all relevant aspects of the policy. The respondent's assessment committee considered the proposal on 27th April and raised no objection to it subject to certain routine developmental requirements. However on 13th July, for reasons not fully explained (although public agitation appears to have been the major factor), the assessment committee decided to reverse its position and recommended a refusal of the application on the grounds that; -- 3 of 9 -- (ii) ( iii) 4 be contrary to s.5.1 of the Local The proposal woul?- nd Environment) Act as it would, Government_ {Planningea and utility of the proposed due to size, shap n the quality and 1 t ts impact upo . . al o men . , . f the streetscape which contribute character_istihcs O y and sense of community of the the amenity armon locality; ld not accord with the existing and The proposa~twouf the locality considering the size future ameni Y O • • • f the allotments in the area in comparison ar:id shape O sal and the character of the use with the propo · bd · · ' intended being made of the land following i5u. ivis1on as specified in s.20.2.1.10 of the Town _Pan, the The proposal would be contrary to Aim 7 of strategic Plan ensuring that property owne!s and urchasers were able to cho<;>se a locality in ~xpectation of the future amenity of the area for residential purposes". The recommendation was accepted and this appeal is the result. Since the lodgment of the appeal, the respondent, on 13th September, resolved to amend Planning Policy No. 07.29. The amended policy recited that: "The subdivision of land in established areas in the Residential A zone to create new allotments which have a smaller area or frontage from others in the locality can have a significant detrimental impact on the visual character of a neighbourhood's streetscape and on the amenity of adjoining properties." The policy went on to indicate that: "Accordingly, Council will not approve new allotments of less than 400 square metres in established areas in the Residential A Zone except in exceptional circumstances. These circumstances include: (i) Where letters of support from neighbouring landowners likely to be visually impacted upon or privacy effected have been submitted and the ward councillor has been consulted; (iii) (iv) (v) Where the frontage of the proposed development is consi~tent wi~h or typical of the streetscape in the locality (as in the case of subdivision into two of an allotmen~ havin~ full frontages to two streets); Where neighbouring and other nearby houses are not of character or heritage value; Where the development following subdivision of the land would be an improvement to the streetscape and -- 4 of 9 -- 5 would not unduly compromise the privacy and amenity of neighbours." The town planning policies (and the thrust of those policies) that should be adopted is a matter entirely for the elected planning authority. That such policies should be adopted by the planning authority to indicate to those interested how discretions given to the authority in dealing with certain town planning applications are likely to be exercised is plainly a desirable. The Local Government (Planning and Environment) Act provides for local planning policies (s.lA.4) but it is not specific as to the manner in which those policies are to be applied. The Court has however on many occasions discussed planning policies and their application (e.g. Fowler v. Brisbane City Council (1969) 20 L.G.R.A. 323). The benefit of a properly adopted town .. planning policy is that it promotes community confidence that planning controls will be administered predictably and consistently. The Town Plan itself (in Aim 7) recognises the importance of promoting confidence and realistic expectations concerning development that might be permitted in a given area. It must always be remembered that those entitled to have confidence in the town planning process include not only landholders (who should be aware of the form of development that can reasonably be expected in their area) but also those who are involved in land acquisition and development. This fairly fundamental notion does not appear to have escaped the legislature and where a planning authority decides to make important changes in its planning strategies, relevant planning legislation has offered some measure of protection to those -- 5 of 9 -- 6 Part icularly when procedures to obtain the effected thereby, . 1 • g approval have been embarked upon. Section required town p ann1.n 33 ( lBD} of the Local Government Act (now superseded) carefully dealt with the manner in which an application (submitted prior · Town Planning Scheme) should be dealt to relevant changes in a with. Its successor, s. J. 4 ( 1) of the Local Government (Planning and Environment) Act also (although somewhat less carefully) deals with the matter. Against this background it would seem to me incongruous for the court to ignore the fact that at the time of lodgment of a town planning application, there was in force a town planning policy which dealt directly with relevant matters and favour~ the application even though there has been a subsequent redrafting of the policy the effect of which calls for a less favourable approach to the proposal. At the very least it bears upon the matter of the reasonable expectations of interested parties and this has generally been regarded as a consideration relevant to the exercising of a town planning discretion. In the circumstances of this case it is necessary to say no more than that the matter of the policy's being in its original form at the time of the acquisition of the subject land by the appellant, the submission of this application, the decision of the respondent, and the lodgment of the appeal is a factor to be taken into account in dealing with the appeal. Even if one was compelled to ignore the earlier form of the policy and to apply it in its amended form, the court would be entitled (on the authority of Fowler and other decisions) to 100k to the town planning considerations upon which it is based. In -- 6 of 9 -- 7 clause 2.3 the policy exemplifies exceptional circumstances in which allotments of less than 400 square metres might be approved in established areas in the Residential A zone. Here one finds the matters of visual impact, detriment to amenity and visual conformity with "existing streetscape" again referred to. In this appeal I have the benefit of evidence from two town planners, Mr. Kay (who was called by the appellant) and Mr. Mulcahy (who is the acting principal town planner for the respondent's south-east district). Mr. Kay was of the opinion that the proposal would not impact unduly upon adjoj_ning residential amenity nor would it result in a streetscape inconsistent with what is to be found in the general locality of the subject site. He pointed out that as the subject land had the benefit of frontage to both Harris and Uhlmann streets, the proposal will "provide for a lot frontage, building lines set back, frontage treatment, facade treatment, built form and vegetation provision consistent with the existing situation". There were some concerns initially with the building form of the proposed dwelling but with some changes in design, these difficulties have been resolved. Mr. Mulcahy was somewhat concerned at the importance that the policy attaches to impact upon the visual character of the streetscape and the fact that in this area dwellings are typically oriented to the streets which (as does Harris Street) run in a north-south direction. The result is that, in the main, side elevations of dwellings separated by their back yards are presented to Ohlmann street. Mr. Mulcahy, in identifying the relevant streetscape, was inclined to confine his attention to -- 7 of 9 -- 8 what was found in Ohlmann Street alone. Mr. Kay disagreed. When • · 1·ts amended form, one finds reference to one reads the policy in • h d t eetscape" (Clause 2 .1) and "the streetscape the "neighbour oo s r in the locality" (Clause 2. 3 (iii)) this would appear to support a wider interpretation ( in terms of area) of streetscape than that which Mr. Mulcahy appeared to favour. Evidence was given by two adjoining landholders who were opposed to the creation of smaller allotments on the subject land which they believe would detract substantially from the character of the area. one can understand that residents would prefer to have an undeveloped rather than a developed area adjoining their allotment and it is true that the area is characterised by narrow but deep allotments with the result that there are relatively large undeveloped areas to the rear of dwellings. However, as pointed out by Mr. Kay, the subject land with its dual frontage and allotment size presents a rather unique opportunity for the creation of two small allotments with appropriate road frontage which is unlikely to be repeated elsewhere in the area without substantial rearrangement of allotment boundaries. On the evidence given in this appeal I am satisfied that there is no serious suggestion that this proposal will lead to the privacy and residential amenity of adjoining residents being unduly diminished. Nor would an approval in this case encourage similar applications in the area which could threaten its existing character. In its express reasons for refusal, the respondent referred to matters raised in s. 5 .1 of the Local Government (Planning an_g Environment) Act. This section introduces a wide catalogue of -- 8 of 9 -- 9 considerations which are relevant to the consideration of a subdivisional application. However, perusal of these considerations does not disclose matters relevant to this particular application which have not already received appropriate attention in this appeal. On a consideration of the whole of the evidence and a site inspection which helped me greatly in appreciating and understanding what was said in the course of the appeal, I have I ! 1 concluded that the views expressed by Mr. Kay should be preferred. I find that the onus of showing that this is a case where the necessary relaxations should be given and the applications approved. The appeal is accordingly allowed. -- 9 of 9 --