Fehser v Council of the Shire of Redland & Ors [1994] QPEC 15

IN THE PLANNING AND ENVIRONMENT COURT HELD AT BRISBANE QUEENSLAND P&E Appeal No. 309 of 1993 Before Quirk DCJ [Fehser v Council of the Shire of Redland] BETWEEN: JOHN HENRY FEHSER Appellant - and - COUNCIL OF THE SHIRE OF REDLAND Respondent DOUGLAS JOHN CAMERON AND LYNNE MARGARET CAMERON Respondent by Election REASONS FOR JUDGMENT - QUIRK DCJ Judgment delivered: 4.3.94 Catchwords: Counsel: R. Mack - Appellant. w. Cochrane - Respondent C. Hughes - Respondent by Election Solicitors: Carter Newell - Appellant King & Co - Respondent McCarthy Durie Ryan Neil - Respondent by Election Hearing Date(s): 14,15.02.1994 -- 1 of 7 -- lH THE PLANNING AND ENVIRONMENT coURT HELP AT BRISBANE QUEENSLAND Plaint No, JQ9 of 1993 BETWEEN: JOHN HENRY fEHSER Appellant COUNCIL OF THE SHIRE Qf REDLANQ Respondent DOUGLAS JOHN CAMERON AND LYNNE MARGARET CAMERON Respondent by Election REASONS FOR JUDGMENT - OUIRK D.c.J. Delivered the ~~ day of February 1994 This appeal by an objector is against the respondent's approval of a combined application by the respondents by election in respect of the development of approximately 1.2 hectares of land at Mooroondu Road, Thorneside. The land is presently included in the Residential A Zone and there is a detached house standing upon it. In short, the application was for: 1. A rezoning of the land to Residential B; 2. A subdivision of the land into two allotments upon one of which the existing dwelling could remain; 3. Town planning consent to the erection of JO multiple unit dwellings on the balance area. -- 2 of 7 -- 2 The subject land is located on the western side of Mooroondu Road towards its southern end. This road is a residential collector road of some importance to the Thorneside area. Immediately to the north and west of the subject land there is a very substantial open public area set aside for sport and recreation. To the south, the land has a common boundary with a number of allotments which are included in the Residential A Zone and which have frontage to Ethel Street (a cul de sac) and Beatty Road. Development in these areas and on the other side of Mooroondu Road is a mix of single and two storied dwellings. The proposed development of the subject land provoked considerable interest and there appears to have been a number of public meetings regarding the matter. When considering the application initially, the respondent's planning officers felt some concern regarding a number of its features and this led to its revision in respect of: 1. The provision of land for public open space purposes (a cash contribution in lieu was offered); 2. A change in arrangements to cater for overland flow of stormwater; 3. An amended building layout to meet concerns regarding building form along the southern boundary of the land. One storied villas were substituted for two storied townhouses to reduce building bulk and height. The proposal was approved conditionally by the respondent in August of 1993. -- 3 of 7 -- 3 The appellant was one of a nwnber of objectors to the application. His appeal initially involved numerous grounds but except in respect of one issue, these are not now pursued. The aatter which was exaained in the appeal was that of the proposal's impact on adjoining residential aaenity. The appellant (whose residence is immediately to the south of the subject land at the cul de sac head) complained that the proposed development does not harmonize with the established character of the area and when constructed would unduly prejudice the visual amenity of surrounding residential land owners. In support of the appellant's case, in addition to his own evidence I had the advantage of a town planner, Mr John Panaretos and an architect Mr Phillip Horewood who prepared a plan showing an alternative form of multi-unit residential development which, it was said, demonstrated that the land could be developed in a way that would not be offensive to adjoining residents. Mr Cameron {the respondent by election) gave evidence and called Mr craig Lambert {a town planner) and his architect Mr Brian Simpson. Mr Stephen Hill, a planning officer with the respondent also gave evidence. Essentially, the appellant's argument was that the residential character of the area called for a low set building style which would maintain a "low key leafy ambience in the area". Boundary setbacks should be increased to allow more potential for landscaping and the avoidance of an extensive and repetitive building line which is evident in the proposal put before the Court. -- 4 of 7 -- 4 The reply of the respondent by election (who carried the onus of proof in the appeal), which was supported by the respondent planning authority, was that the residential density of the proposal was of a relatively low order and its careful planning and generous provision of landscaping and open space reduced its impact to a degree which should be seen as acceptable having regard to the relevant provisions of the respondent's Town Planning Scheme. A careful discussion of the proposal and its important features appears in the reports of both Mr Lambert and Mr Hill and I do not propose to restate these matters in detail in this judgment. The case is but another example of reluctance on the part of the residents of an area to accept a form of development which, they assert, will result in an impact on their existing amenity beyond that which ought reasonably to have been expected. As has been stated repeatedly in this Court, the reasonableness of such asserted expectations can only be judged by reference to the statutory instruments of planning control which are the Town Planning Scheme part of which is comprised of the Strategic Plan and the Development Control Plan. In the Redland Shire, in determining land use guidelines for specific parcels of land, one is directed by the Strategic Plan to the relevant Development Control Plan Map Sheet. In this case we are taken to Sheet 3 (Thorneside) which includes this location. One finds the subject land designated, for the most part, as Residential B with a density of 75 persons per hectare. A relatively small part of the land along its northern boundary and adjacent to the existing parkland is designated Public Open -- 5 of 7 -- 5 Space. certain council minute suggest that the land's "relatively low lying nature" had something to do with this designation. In any event since the plan's gazettal, the land has remained in private ownership and the proposal does not now appear to give rise to any difficulties in regard to drainage. The Public open Space designation appears to have little relevance to matters that have to be decided in the appeal. The designation of this land is explained in Part B (Supporting Information) of the Strategic Plan in this way: "An area on the western side of Mooroondu Road has been designated (as Residential B) because of its parkside location and shape which does not readily facilitate normal residential subdivision". The designated residential density of 7 5 persons per hectare has been respected by this proposal. It was pointed out that in most other areas designated Residential Bon Sheet 3 provision is made for a density of 100 persons per hectare and that, in the Residential A zone, multi unit development of a density of 60 persons per hectare is permissible. In an appeal of this kind it is not really to the point to show that the subject land could be developed in an alternative manner which was more acceptable to adjoining residents. The ( proposal before the Court in all important respects appeared to comply with the relevant provisions of the Strategic Plan and the Development Control Plan. It is true that in the Development Control Plan (Appendix 2 to the Town Planning Scheme) the following passage appears in Division 3, Clause 3(6)(2)(e): "Where an area designated Residential B adjoins an area ~esignated Reside~tial A and which is developed with dwelling houses, Council shall require that the design of any multiple dwellings shall be such that the amenity of -- 6 of 7 -- 6 any dwelling house in the area designated Residential A is not adversely affected". However I accept the evidence of Mr Lambert and Mr Hill which is that the proposal under consideration has had proper regard to likely impact on the amenity of nearby land zoned Residential A and that there would be no adverse impact on that amenity such as would warrant the proposal's rejection. I find that.the onus of showing that the application should have been approved has been discharged. accordingly dismissed. The appeal is -- 7 of 7 --