Bilsenmac Pty Ltd v Beaudesert Shire Council [1994] QPEC 40

IN THE PLANNING AND ENVIRONMENT COURT HELD AT BRISBANE QUEENSLAND P & E Appeal No. 315 of 1993 BETWEEN: BILSENMAC PTY. LTD. Appellant BEAUDESERT SHIRE COUNCIL Respondent REASONS FOR JUDGMENT - O'SULLIVAN D.C.J. Delivered the 31st day of May 1994 This is an appeal against the refusal by the Respondent Council of an application for subdivision into three lots of land described as Lot 2 on Registered Plan 207467 in the Parish of Beaudesert, situated at 35 Arthur Street, Beaudesert ("the land"). The land has an area of 1922 m2 , a street frontage of 19.117 metres to the cul-de-sac of Arthur Street and a depth of 100.6 metres. It is presently vacant. The subdivision is proposed to be by way of Group Title Plan and would result in three lots with areas of 300 m2 (which could perhaps be increased to 400 m2 ), 400 m2 and 425 m2 respectively, and a common property area of about 800 m2 ("the proposal"). The proposal is that part of the common property would be used to provide pedestrian and vehicular access to the lots at the -....... -- 1 of 12 -- 2 rear of the existing allotment with the remaining portion being used as a recreation area. The letter of refusal of 1 October 1993 states: "The Council has refused the proposed subdivision on the grounds that the proposal does not conform with the minimum allotment areas as defined in the Subdivision of Land By-law 16.(1) Table 1, and that Council is not prepared to exercise the discretion under By-law 16.(1)(c)(ii) due to the inadequacy of access, the adverse impact of the proposal on the amenity of the locality and the unsuitability of the allotments with respect to slope and drainage." GROUP TITLE DEVELOPMENT: The Respondent's Town Planning Scheme does not address Group Title development, either as to location or developmental requirements such as lot size. I find that the proposal (a group title subdivision), like a conventional subdivision, ought to comply with the provisions of the Respondent's Town Planning Scheme. It is also relevant to consider the fact that application may be made to extinguish a Group Title Plan. I adopt the remarks of Row DCJ in Mantle v Brisbane City Council (1983) Q.P.L.R. 63,69. MINIMUM SIZE OF ALLOTMENTS : The land is zoned "Residential A" in the Town Planning Scheme of the Respondent. Pursuant to Subdivision of Land By-law 16.(1) Table 1 the minimum area of allotment in this Zone is 600 m2 • -- 2 of 12 -- 3 For the purpose of the Subdivision of Land By-law the term "allotment" is defined in section 1 of Chapter XI as : "A piece, parcel or subdivision of land, the boundaries of which are separately defined by metes and bounds on a plan of survey deposited in the Survey Office, or, in the case of land under the Real Property Act 1861-1981, which has been subdivided, any and every subdivision of such land the boundaries of which are separately defined by metes and bounds on the relevant plan of such land registered with the Register of Titles under and in accordance with the Real Property Act 1861-1981." Adopting that definition, the proposal does not comply with the minimum area requirement of the Subdivision of Land By-law. The current Town Planning Scheme does not provide for an average density but specifies a minimum allotment area. Mr MacGregor, a Director of the Appellant who appeared on its behalf, submitted that the Respondent should use averaging because sound town planning principles suggest this to be appropriate and other Shires have adopted such a procedure; if averaging were applied it would result in 1 dwelling per 650 m2 and the proposal would satisfy the area requirement of the Subdivision of Land By-law. Mr MacGregor also relied on Section 5.3.1 of the Draft Strategic Plan which provides for average density rather than minimum allotment size. However, Mr Donovan, the Shire Planner, stated that the Residential Density Control System in the Respondent's Draft Strategic Plan would only apply to the Rural Residential Zones and not to the Residential A Zone. I am bound to interpret the Respondent's Town Planning documents as they are, not as Mr MacGregor might like them to be. -- 3 of 12 -- 4 I find that the proposal does not comply with the minimum area requirement of the Subdivision of land By-law. MINIMUM AREA DISCRETION: Pursuant to By-law 16. (1)(c)(ii) of the Subdivision of Land By- law the exercise of a discretion is available: "Provided that the Council may, on the advice of the Shire Engineer:- (ii) permit a lesser dimension or lesser area than specified in such Tables in respect to an area or zone where it considers it to be necessary by reason of exceptional circumstances, including special design fea.tures such as cul-de-sac, group titles and the like, whereas access is otherwise adequate and the general amenity of the locality will not be adversely affected." Mr MacGregor referred me to Swain & Anor v Moreton Shire Council (1981) Q.P.L.R. 87, Ambrose and Ambrose v Moreton Shire Council (1980) Planner 73, Cleary v Toowoomba City Council (1970) 22 LGRA 107. I have perused these Authorities and obtained very limited assistance from them because they relate to different Schemes and turn on their own facts. I wholeheartedly adopt the principle outlined by Carter DCJ in Ambrose (supra): "The discretion given to the Council by its By-laws must have been intended as a real and not as an illusory discretion, requiring its exercise having regard to all of the circumstances of the individual application before it." I turn then to the factors relevant to the discretion. -- 4 of 12 -- 5 "EXCEPTIONAL CIRCUMSTANCES": Mr MacGregor submitted that the limited frontage and the depth of the land were "exceptional circumstances" within By-law 16(1)(c)(ii) which made conventional subdivision impossible and justified allowing a Group Title subdivision. He submitted that the proposal "would bring the land into utility". Mr Donovan did not reject a Group Title subdivision outright, but considered that other factors led him to refuse the exercise of the discretion, namely, amenity. I find that the dimensions of the land and its locality are not "exceptional circumstances" which would justify the approval of the proposal. ACCESS: Mr Bauer, the Deputy Shire Engineer, was concerned about the proposed access arrangements, especially whether there is appropriate space for cars to pass, and the practicability of the proposed tandem parking. I am satisfied that these potential problems can be satisfactorily addressed by appropriate design. AMENITY: Mr Thompson, an Engineer, and Mr Swan, a Surveyor, gave evidence on behalf of the Appellant. Both expressed opinions that the proposal would have no detrimental or adverse effects on the amenity of the locality. Neither has any formal town planning -- 5 of 12 -- 6 qualifications although both have considerable subdivision experience, Mr Thompson specifically in the Beaudesert Shire. Mr Donovan described the amenity of the area as "predominantly that of single dwelling houses on an allotment"; "It's an area which has large open spaces". Mr MacGregor submitted that the large open spaces presently existing do not provide high amenity because they are untended and the residents have no privacy. Mr Donovan considered that, even if fencing was constructed along the commqn boundary of the property in an attempt to screen the immediate neighbour from the noise and light impact of vehicles using the proposed driveway, there would still be noise intrusion. He also stated that the type of fence necessary to achieve gains in terms of noise and light impact would not be in keeping with the area which has low wire fences, if any. Mr Donovan is concerned that the proposal provides for a density which is approximately three times the density nominated in Urban Residential Objective 1 in the Draft Strategic Plan. I consider that the proposal would result in a considerably higher density· of housing and a smaller open space area, which would be out of keeping with the amenity of the area. I find that the proposal would adversely affect the general amenity of the locality. -- 6 of 12 -- 7 SUMMARY RE DISCRETION: In view of the matters I have already outlined, I decline to exercise the discretion available under By-law 16.(1)(c)(ii). NON-COMPLIANCE WITH TOWN PLANNING SCHEME: Although it was not specifically given as a reason for refusal, non-compliance with the Respondent's Town Planning Scheme emerged as a major disputed issue in the appeal. The Statement of Intent for the "Residential A" Zone in the Respondent's Town Planning Scheme is as follows: "This Zone provides for a predominantly residential environment on allotments generally about 600-700 square metres in area. Accommodation units and multiple dwellings are prohibited in this zone, as are other uses not compatible with residential activities. In addition to providing for dwelling houses, this zone also allows for duplex dwellings (with Council consent) where such approval would not, in Council's opinion, be likely to result in an undesirably high population density in the immediate locality, or be likely to give rise to waste water disposal problems." Paragraph 7.(1) of Division III (Residential Development) of the Respondent's Town Planning Scheme states, inter alia : "A person shall not erect, nor cause to be erected more that one (1) dwelling house on an allotment." Mr MacGregor submitted that if the application was approved three separate lots and common property would come into existence. Consequently, the construction of a residence upon each lot would -- 7 of 12 -- 8 not be in conflict with the requirements of the Town Planning Scheme, as there would only be one dwelling house on each allotment. The proposal would, moreover, provide a mixture of lot sizes and shapes. It is unfortunate and confusing that the definition of "allotment" in the Subdivision of Land By-law is different from the definition of "allotment" at the beginning of the Town Planning Scheme itself. The definition of "allotment" in the Interpretation clause {Clause )(1)} of the Subdivision of Land By-law applies only to the Subdivision of Land By-law. It therefore does not apply to other parts of the Town Planning Scheme, including Clause 7(1) Particular Development requirements for residential uses. This clause uses the word "allotment", which must be interpreted as defined in the Part 1 Definitions Section of the Scheme. The definition of "allotment" in the Definition section of the Respondent's Town Planning Scheme is as follows: "A piece, parcel or subdivision of land, the boundaries of which are separately defined by metes and bounds on a plan of survey deposited in the Survey Office or, in the case of land under the Real Property Act 1861-1981, or any Act amending the same or in substitution of the same, which has been subdivided, any and every subdivision of such land the boundaries of which are separately defined by metes and bounds on the relevant plan of such land registered with the Register of Titles under and in accordance with the Real Property Act 1861-1981, or any Act amending the same or in substitution of the same. The term does not include a lot created under the Building Units Titles Act 1965- 1972, the Group Titles Act 1973 or the Building Units and Group Titles Act 1980-1984, or any Act amending the Building Units and Group Titles Act 1980-1984 or in substitution of the same." -- 8 of 12 -- 9 This definition means that even if the land is subdivided into 3 Group Title lots, the land would still be one "allotment" for the purposes of the Town Planning Scheme. I find that the proposal is in conflict with the Statement of Intent for the "Residential A" Zone, and with paragraph 7.1 of Division III of the Respondent's Town Planning Scheme. EXPECTATIONS OF RESIDENTS: Mr Donovan considered the surrounding residents "expect and desire to maintain the area as a Residential A area which allows a single dwelling without the intrusion of units as they describe them." I find that the surrounding residents would reasonably expect that the area remain as single dwelling houses or duplexes. Mr Thompson was of the view that the Respondent has a "favoured policy" towards "ever closer settlement, resubdivision and urban consolidation of the town of Beaudesert into smaller dwelling sites". He gave examples which he said illustrated this policy (pages 4-5 of his Report). I have considered his examples and perused Folios 8,9,10 and 11 of his Report. I note that unlike this proposal, many of the examples involved conformity with all or some of the requirements concerning minimum area, frontage and depth. Some are as old as 1982 and 1984. Some were for single dwelling houses only. Some were on land already zoned Residential -- 9 of 12 -- 10 "B". I am not persuaded that the policy which he contends can be inferred from his material. I formed the view that what Mr Thompson was really saying was that it is impossible to subdivide the land and obtain 3 lots other than in the manner indicated in the proposal, and this was the driving force behind the proposal, rather than any attempt to comply with the Respondent's Town Planning Scheme. APPROPRIATE ZONE: In the Residential "A" Zone single dwelling houses are as of right. Duplexes (since 1989) are with consent. Perhaps unfortunately for applicants such as the Appellant, the Respondent's Town Planning Scheme is silent on group title housing. Mr Donovan considered that if the Appellant proposes 3 houses on the site the "correct course of action" is for it to apply for a re-zoning to Residential "B". Advertising would then be required. However, he also said that his recommendation to Council would be that such an application be refused. This places the Appellant in an invidious position. BUILDING UNITS AND GROUP TITLES ACT: Sub-section 24 ( 4) of the Building Units and Group Titles Act (1980-1988) requires, inter alia, that a local authority shall issue a certificate if it is satisfied that: -- 10 of 12 -- " 1 1 (b) separate occupation of the proposed lots will not contravene - (i) the provisions of - (A) the town planning scheme; or (B) a by-law made pursuant to section 33(2) of the Local Government Act 1936-1979 ; (d) the proposed subdivision of the parcel into lots for separate occupation will not interfere with the existing or future amenity of the neighbourhood, having regard to the circumstances of the case, the public interest and the adequacy of access drives and parking areas within the common property." Mr MacGregor submitted that this sub-section does not arise until the certificate is sought. Subsection 24(2)(a) provides that a local authority may issue a certificate notwithstanding that a subdivision does not comply with the provisions relating to subdivision contained in the Local Government Act. In view of my earlier findings, the local authority is unlikely to be satisfied as required by the sub-section, or prepared to issue the certificate notwithstanding non-compliance. SLOPE AND DRAINAGE: The Council did not seek further details from the Appellant in relation to these matters prior to refusing the proposal. Mr Swan who was called by the Appellant addressed these matters in an appropriate way in his report. The issue of the unsuitability of the land in respect of slope and drainage was disposed of by a concession on the part of Counsel for the Respondent that any inadequacies could be -- 11 of 12 -- 12 overcome by the imposition of appropriate Town Planning conditions. SUMMARY: I find that the Appellant has failed to discharge its onus of showing that the discretion to permit smaller minimum areas ought to be exercised, or that the proposed subdivision ought to be approved. -- 12 of 12 --