Draftcorp Drafting Service Pty Ltd v Townsville City Council & Ors [1994] QPEC 41

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 Bu::-eau.) PLANNING AND ENVIRONMENT COURT JUDGE NASE P & E No 17 of 1993 DRAFTCORP DRAFTING SERVICE PTY LTD and TOWNSVILLE CITY COUNCIL and DELIA KAYE MacDONALD and - JOHN SYDNEY FINTER and WILLIAM TERRENCE MCLELLAN and GORDON WILLIAM HITCHCOCK and HELEN IRENE MORCOM and ROBERT JOHN PASSMORE ROCKHAMPTON .. DATE 09 / 05 /94 JUDGMENT REVISED COPIES ISSUED State Repo:iir.g Bureau Date I / Appellant Respondent Respondent by Election Respondent by Election Respondent by Election Respondent by Election Respondent by Election Respondent by Election 4th F/09{ The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 227 4360. Facsimile: (07) 227 5532 -- 1 of 15 -- 090594 (Nase DCJ) HIS HONOUR: In this matter I dismiss the appeal and I publish my reasons. 10 20 1 J 30 J 40 50 50 JUDGMENT 2 -- 2 of 15 -- 1" '· IN THE PLANNING & ENVIRONMENT COURT OF QUEENSLAND TOWNSVILLE P & E Appeal No. 17 of 1993 BETWEEN: DRAFTCORP DRAFTING SERVICE PTY. LTD. Appellant AND: TOWNSVILLE CITY COUNCIL Respondent AND: DELIA KAYE MacDONALD Respondent by Election AND: JOHN SYDNEY FINTER Respondent by Election AND: WILLIAM TERRENCE MCLELLAN Respondent by Election AND: GORDON WILLIAM HITCHCOCK Respondent by Election AND: HELEN IRENE MORCOM Respondent by Election AND: ROBERT JOHN PASSMORE Respondent by Election REASONS FOR JUDGMENT Annandale is a completely planned suburban development. It extends along the side of the Ross R1ver at Townsville and is bounded on one side by the James Cook University and the Laverack barracks. The total land area of Annandale is 398 -- 3 of 15 -- 2 acres. The development commenced in the late 1970' s. At the time of writing the Overall Concept Plan ( 14th October 1992) it was noted by the developer that some 1200 dwellings had been constructed and a future development of 1 400 dwellings was planned with the possibility of areas of higher density housing in specified areas. The older section of Annandale is towards the western end of the planned development . The proposed development are single quality, supported by a network shopping facility. houses at this end of the detached dwellings of high of open space and a local The developer, in keeping with the planning objectives of the development required purchasers to accept a covenant (the "Annandale Standard Covenant": exhibit 31 ) designed to secure single detached dwellings of a high standard. In pursuance of this policy the average allotment is of the order of 750 plus square metres. The residents of the established houses in the western end of the "new suburb of Annandale" strike one as enjoying a special amenity deriving from the mixture of attractive, better quality homes and a low density of population, parklands and access to a local shopping centre. The residents who gave evidence spoke of the community feeling that they felt existed at Annandale. The suburb as a whole has grown strongly over the last decade. Mr. Dance, a town planner called by the respondents by election, noted in his report that in 1981 the population was 2435, and that by 1991 it had approximately doubled to 4769. With various adjustments the present population of the suburb -- 4 of 15 -- j --- ___ ......... , ....... - 3 that would look to the existing local shopping site for the provision of shopping and other related services is of the order of 4050. Mr. Dance pointed out that in that time the shopping facilities had not increased and he thought that the suburb was seriously under serviced by the existing group of shops. The existing shops are located centrally within the western end of the development, bounded on one side by Yolanda Drive, and on the other by Marabou Drive. The shops back onto parkland. They therefore abut the roads mentioned and parkland. They are however located within an area developed exclusively for single detached dwellings (which is currently zoned res A). The area set aside for local shopping was subdivided by the developer in 1983 into two lots. Lot 1 is the site of the existing shops. Lot 2 is immediately adjacent and is presently undeveloped. It had been the intention of the developer to utilize lots 1 and 2 for the provision of local shopping and related services. Intending residents of Annandale were led to believe the area the provision of local shopping and had been set aside for services. One of the residents who gave evidence had inquired from council of the future use of the area, and in response had been provided with a plan showing a development of lots 1 and 2 as a small local shopping centre (exhibit 35). On all of the planning documents the present lots 1 and 2 were shown as an area set aside for the provision of local shopping. It is the only area not zoned Res. A in the locality that could be utilised for the purpose of local shopping. On the council's acceptance of the - -- 5 of 15 -- 4 developer's proposals the site ( the present lots 1 , 2) was zoned local shopping. The only other site set aside for the provision of shopping and related services at Annandale is at the eastern edge of the suburb adjacent to University Drive. Although this second site has been set aside for a shopping centre it cannot be predicted with any certainty when the centre will be built and it's precise form and size. The intention apparently is to site a supermarket, take-away food outlets, and a service station all with access to University Drive. University Drive is a major roadway carrying traffic from suburbs further west and from the University and the barracks into the centre of Townsville, so the proposed siting adjacent to University Drive will tend to attract customers from outside the suburb. This proposed site for shopping services is approximately 2.5 kilometres from the area of the existing shopping. Under the City of Townsville town planning scheme "home units" is a consent use of land zoned local shopping. The as of right uses of land in the local shopping zone as one might expect are confined to general shopping and commercial uses. It is interesting to note that a fairly long list of uses are then prohibited. The prohibited uses include "accommodation units" and "multiple dwellings". All other possible uses of the land are then regarded as consent uses. Because "home units" are separately defined from "accommodation units" and "multiple dwellings" in the town planning scheme "home units" as I have said are a possible consent use of the land. An application was made to council on 30 June 1993 to -- 6 of 15 -- 5 construct a block of 12 home units on the undeveloped part of the area zoned local shopping. The land subject to the application is described as lot 2 on rp739989 parish of Stuart, county of Elphinstone. The site has an area of 2379 square metres. It faces Marabou Drive and abuts the existing shops (on lot 1) and parkland. The application was duly advertised and a large number of objections were lodged with the council. The council failed to determine the application within the time prescribed by s4.13(4) Local Government (Planning and Environment) Act (the Act) and an appeal was instituted to the Planning and Environment Court on the 5th October 1993 (s4.13(10) Act). On appeal it is the applicant who has the burden of establishing that the application should be approved or allowed and the appeal upheld. The question on appeal is whether the proposed development is an appropriate and suitable development for the land. In considering that question the town planning scheme by-laws (chapter 32) sets out matters the council is required to have regard to in considering applications for consent use ( see s 2 (a) ; see also part 5 s 2 (a) town planning scheme) . In this case the matters in issue between the council and the appellant/applicant were refined by a letter from the council setting out in short form the bases of the council's opposition to the application (exhibit 5). In support of the application an employee of the developer (Mrs. Rossini) , the proposed builder (Mr. Millar) , and a town planner (Mr. Feros) were called as witnesses. The respondent council called a town planner (Mr. Matthews), as -- 7 of 15 -- 6 did the Respondents-by-Election (Mr. Dance). In addition a number of the respondents by election gave evidence (Mr. Finter, Mrs. Marcom, and Mr. Hitchcock). One of the arguments of the respondents was based on what was thought to be an inadequate range of shops and services at the site of the existing shops. There are presently five tenancies and a further tenancy is under construction (a take- away bottle shop) . There is no doctor, chemist, newsagent, video hire shop, hot bread shop. There is one take-away food shop (a fish and chip shop). Although the space for shops at the existing site might be extended, the possibilities for extension are very limited (Mr. Matthews thought by only 100 square metres or thereabouts). On balance I accept the reasoning of the town planners Mr. Matthews and Mr. Dance that the population base (approximately 4050) surrounding the centre is sufficient to support an additional number of shops and services and that accordingly the use of the land for shops and services would advance the proper and orderly development of the locality. There is presently no other site for local shopping and services. The appellant's argument that any additional demand for shopping and services either existing presently or existing in the future could be met by the proposed shopping development at the eastern end of the suburb is one that is worthy of consideration. On balance, however, I do not consider the proposed development of the site at the eastern end of the suburb a satisfactory of the residents at answer to the present and future needs the western end of the suburb. The -- 8 of 15 -- 7 appellant's further point that in town planning the question is whether the proposed use is an appropriate and suitable use of the land rather than whether the proposed use is the best and highest use of the land seems to be undoubtedly true. Nonetheless, the respondents' points that the proposed use of the land for home units would prejudice the proper and orderly development of the locality has in my view some validity, although in giving weight to that consideration care would need to be taken to ensure the correct test was applied. A very large number of objections were received to the proposed home unit development ( 1 0 6 5 ) . The concerns of the residents who gave evidence seemed to be primarily related to the intrusion of a high density residential accommodation block in the locality, the loss of an area they understood was allocated for future local shopping and services, to the bulk and mass relating residents of the proposed buildings, and to general Although some to the loss of amenity. concerns are not relevant to a town concerns of the planning decision (ie: that the accommodation might be primarily rental, and undesirable rental people might be introduced into the locality) nevertheless the residents reasonable objections are to be considered. I also detected, although it remained unstated, that the residents felt the developer was acting inconsistently with the whole way in which the residential development in that locality had been marketed by consenting to the proposed development of an area of significantly· higher density residential accommodation. The residents views are to be given some weight in the consideration of the appeal. -- 9 of 15 -- 8 An interesting point in the case is that the council have developed (over a period of 3 years or so) a new draft planning scheme which would prohibit the use of the subject land for a town unit development. The draft town plan has progressed through all of the steps towards gazettal and it was hoped the draft planning scheme would be gazetted within some six to eight weeks. It seems clear the application must be determined on the law which was in force at the time of the application, however, the circumstance the proposed use of the land for home units is a prohibited use under the draft planning scheme is potentially relevant bearing in mind the stages through which the draft planning scheme has progressed and the anticipated closeness to its application. I think also in this case the draft planning scheme is potentially relevant to the questions concerning the intents of both the local shopping zone and the res A zone under the present town planning scheme. It is therefore convenient to discuss at this point the question of the intent of the local shopping zone. The starting point is that the current town planning scheme has no accompanying statement of intent for a local shopping zone. In these circumstances it may be possible to arrive at some conclusions about the intent by a process of inference from the tables of uses. The as of right uses confirm the principal purpose of the local shopping zone is to provide shopping and other services in a planned way to the particular locality. The exclusion of a wide range of other activities reinforces this purpose of the local shopping zone as an instrument of planning. The relevant table provides that -- 10 of 15 -- 9 any other use or development not permitted under column 3 (the as of right uses) or prohibited under column 5 may be carried on only with the consent of council. A dwelling house or home unit then, is a use of the land, among a range of other uses, which may be consented to by council. This allows I suppose the council flexibility to consent to a range of other uses in a local shopping zone. In the final analysis all that can be said about the intent of the local shopping zone is that it comprehends that in some circumstances a home unit development may be an appropriate use. In this case it may be possible to draw some further conclusions concerning the circumstances in which a home unit development may be an appropriate use. The Local Planning Policy number 2 (intensive residential uses) adopted by council on 22nd December 1992 in accordance with s1A.4 of the Act prescribes minimum site areas per dwelling unit for home units. In a res A or B zone the minimum site area per dwelling unit is 600 square metres. In a local shopping zone the site area per dwelling unit is within the discretion of council. The town planners accepted that where the local shopping zone was located within a large residential A development it would be relevant to consider the application of a minimum site area of 600 square metres. Applying a site area of 600 square metres to the subject land it would be capable of accommodating a total of four home units (with a .small dispensation). This is considerably less than the twelve proposed on the original application and the ten proposed in the redesigned proposal. -- 11 of 15 -- 10 On this aspect of the proposal Mr. Feros argued the fact that the subject land was immediately bounded by a road, shops and parkland allowed a more flexible approach and the redesigned proposal contained a reasonable site density. The population density in the proposal ( 137) is at the heart of the difficulty faced by the appellant. The statement of intent for a residential 1 zone in the draft planning scheme (exhibit 6A) contains the following statement; "The intent of this zone is that it shall remain an area to accommodate predominantly allotments. low density single detached residential dwelling development of houses on separate While council may approve the erection of a duplex, in an appropriate location, as well as other forms of low density residential accommodation, similarly being in appropriate locations, approval will only be granted subject to conditions which will ensure the proposed development is compatible with the existing and likely future development in the area and is of a similar low density." The statement of intent for the local shopping zone in the draft planning scheme excludes residential developments in the zone. The statements of intent for the local shopping zone and the residential 1 zone are a relevant consideration in considering the circumstances in which a home unit development may be an appropriate and suitable use of land zoned . local shopping and in determining the level of population density that may be acceptable in such a development. The population density proposed is I think a problem for the appellant. I do -- 12 of 15 -- t 1 1 not think the argument the site does not immediately abut the sea of residential A dwellings which enclose it, is a convincing argument for the very considerable difference in population density between the proposed development and everywhere else in the locality. I accept the respondents' general contention that the proposed development will adversely affect the amenity of the locality. The established development at Annandale has developed in a very planned and orderly manner. The residents feelings about the suburb are bound up with the low density single detached dwellings which help define the character of the locality. The convenience of a range of shops and services within easy reach combined with the visual appearance of the suburb all add to the amenity for those residing in the locality. The expansion of the existing shops and services will add to the amenity of the locality. The original proposal of twelve home units was thought by Mr. Feros to contain two fundamental problems: one was the high density, the other was the bulk and size presented by the design. Mr. Feros redesigned the proposed development. The redesigned proposal is reduced from twelve to ten home units, and considerable ingenuity has been exercised to endeavour to break up the line of double storey building presented by the original design. Mr. Feros thought the redesigned development was in character with the surrounding locality and the population density was acceptable. The redesigned proposal taken together with the proposed extensive landscaping represents a determined effort to mitigate the appearance of -- 13 of 15 -- • ' 12 bulk in the original proposal. Nonetheless the complex of buildings in the new proposal is different in overall bulk and size from the single dwellings in the surrounding locality. Al though the problem posed by the appearance of bulk of the original proposal has been significantly mitigated, the proposed buildings remain different from all of the other housing in the locality and the problem posed by the population density of the original proposal still remains. Although I have not discussed all of the considerations discussed by the town planners in evidence I have I think dealt with the more important. The conclusion I have reached is that I am not satisfied the proposed development (the redesigned proposal) is an appropriate use of the land. The land is zoned local shopping. Although a home unit development is a consent use of the land, the population density proposed in the development does present a difficulty for the appellant; and, in the light of all of the other circumstances I am not satisfied that aspect of the proposal is satisfactory. The treatment of population density issues is controlled by the local planning policy number 2 ( intensive residential uses) . In the policy the population density for home units in a local shopping zone is left within the discretion of council. Since the locality in which the local shopping is sited is residential A, by extension, 600 square metres may be a suitable site area per dwelling .. The statements of intent in the draft planning scheme for residential 1 and local shopping zones are also relevant in arriving at a discretionary judgment on an appropriate -- 14 of 15 -- 13 population density for such a proposal at the subject site. Moreover the surrounding locality is poorly serviced by the range of existing shops and services. The proposed development will effectively prevent any significant enlargement to the existing local shopping centre. These issues have been discussed. I accept that an appropriate planning decision may take into account whether the proposal will prejudice the orderly development of the locality. There is also a concern expressed by the respondent's town planning witness that ,there is a possibility some restraints might be placed on the existing shops to limit any noise and smell intrusions into the proposed residential development. I accept the evidence that the proposed development may prejudice the proper and orderly development of the locality. Other relevant questions concern the perceived loss of amenity. I do accept much of the appellants contention that a fairly heavy filter should be applied to the expressed concerns of the local community. Nonetheless. in my view a core of legitimate concerns do remain. Bringing all of these different considerations together I am not satisfied the proposed development (the redesigned proposal) is an appropriate use of the land. In the circumstances I am satisfied the application ( the redesigned proposal) should not be approved and that the appeal should be dismissed. -- 15 of 15 --