Alex Enborisoff & Associates Pty Ltd v Caboolture Shire Council & Ors [1994] QPEC 19

,, - i ) State Reporting Bureau TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Co1>it•s thereof must not be made or sold without the written authority of the Director, Stale Reporting Bureau.) PLANNING AND ENVIRONMENT COURT JUDGE SKOIEN, Senior Judge Appeal No 320 of 1993 ALEX ENBORISOFF & ASSOCIATES PTY LTD and CABOOLTURE SHIRE COUNCIL and CLEONIE BUCKLEY AND ORS BRISBANE .. DATE 27 /01 /94 JUDGMENT 1 REVISED COPIES ISSUED State Reporting Bureau Date I ol, I -: Y- Appellant Respondent Respondents by Election -Ith floor, n,c l.:111 ( ·ourt.,, <;l'orgt• Strl't'I, Brislmnc. (). .J()()IJ 'frlcμhon<": (07) 127 .J.160. l-:1csimill': (()7) 227 S:'i.12 -- 1 of 13 -- 270194 lu/cml (Skoien DCJ) HIS HONOUR: For the reasons which I now publish, I allow the appeal. I am going to adjourn the appeal to a date to be fixed to be brought on on three years' written notice to other parties. If no earlier date is fixed, the matter will be mentioned before me on 30 March. In other words, there is a time limit imposed on you. I reserve the costs of the appeal. JUDGMENT 2 10 20 30 40 50 60 -- 2 of 13 -- IN THE PLANNING AND ENVIRONMENT COURT HELD AT BRISBANE QUEENSLAND Appeal No. 320 of 1993 Before His Honour Senior Judge Skoien [Alex Enborisoff & Associates Pty. Ltd. v. Caboolture Shire Council] BETWEEN: ALEX ENBORISOFF & ASSOCIATES PTY. LTD. Judgment delivered: Catchwords: Counsel: Solicitors: Hearing Date(s): - and - CABOOLTURE SHIRE COUNCIL - and - CLEONIE BUCKLEY & ORS. Appellant Respondent Respondent by Election REASONS FOR JUDGMENT 27/1/1994 Mr. Fleming Q.C. and Mr. R. Litster for the Appellant Mr. W. Cochrane for the Respondent Flower & Hart for the Appellant King and Company for the Respondent Hill & Taylor for the First Respondent 17-20 January 1994 -- 3 of 13 -- IN THE PLANNING AND ENVIRONMENT COURT HELD AT BRISBANE QUEENSLAND BETWEEN: AND: Appeal No. 320 of 1993 ALEX ENBORISOFF & ASSOCIATES PTY. LTD. Appellant CABOOLTURE SHIRE COUNCIL Respondent CLEONIE BUCKLEY & ORS. Respondent by Election REASONS FOR JUDGMENT - SKOIEN S.J.D.C. Delivered the twenty-seventh day of January 1994 This is an appeal by an applicant for town planning consent against the refusal of the application by the local authority. Nine objectors elected to respond to the appeal. The proposal The application is to build sixty-six units on a site of just under half a hectare at the corner of Fairway Avenue and Links Court at Woorim on Bribie Island. It is proposed to build in two stages. The first stage is to comprise a curved three storey building near the road frontage and this is to contain thirteen units. The second stage is to comprise a roughly hexagonal six storey building, containing fifty-three units, placed behind stage one. At this point the design of the buildings is conceptual rather than final, but it is envisaged that something very like the model, exhibit 9, will be built. From the purely aesthetic -- 4 of 13 -- 2 point of view no real criticism was levelled at it. Indeed it seems to me that each of the buildings is pleasant in appearance. Landscaping is proposed and would of course be required if the proposal proceeds. It envisages tree planting which is intended to soften the outline of the buildings. So far as stage two is concerned, it is unlikely that trees could be taller than about level three so that levels four to six would protrude above the tree line. Mr. Enborisoff intends to develop a mix of three, two and one bedroom units and expects that some residents will be permanent while others will treat their units as weekend or holiday units. I expect it is likely that some of the units would be let out for rental. With a minor exception which can easily be remedied (an extra car park) the proposal complies with all of the physical requirements of the town planning scheme for the Shire which deal with such things as site cover and plot ratio. It also falls below the maximum permissible population density for a site of this size. The Council's town planner actually recommended acceptance of the proposal, subject to certain conditions. The application attracted eighty-four objections. In the upshot, the Council rejected the application. The area Bribie Island is a flat sand island lying just off the coast, about 100 km. north of Brisbane. The site is towards the southern end of the island and within a few hundred metres of the sea to its east, from which it is separated by the Beach Protection Area which extends also to its south. Adjoining the -- 5 of 13 -- 3 site, and to its north and west is the Bribie Island Golf Course. Developed areas are to its north and north east. Thus the site lies at the extreme south of that part of Woorim, Bribie, on which development is allowed. The closest building to the site (one storey) is to its north east, and is a building which caters for old people. It is a day centre used for entertainment and for "meals on wheels". There is some suggestion that a residential old people's home is to be built there but the evidence on that was sketchy. Further to the north east is a motel and unit complex. Otherwise the immediate area is residential. The area generally to the north of the site, on Golf Drive, Fairway Avenue and Arcadia Avenue (where live most of the objectors) is a pleasant quiet suburban area in which the houses are generally of good quality. The natural bush, which is likely to remain so, to the east and south of the site is covered with a moderately thick growth of acacias and eucalypts. Some of the latter are quite tall and I accept the evidence that they would reach to about a three storey level. An unlined drainage ditch runs along ( and outside) the eastern boundary of the site towards the sea at Skirmish Point. The Town Plan The site is zoned Residential D, being one of only two such zones in the Shire on the island, the other being remote from the site. Residential Dis the Shire's highest density residential zone which is stated in Division II, the Intent of the Zones:- "to provide for accommodation buildings and multiple dwellings of a high density type. -- 6 of 13 -- 4 Accommodation buildings and multiple dwellings locating in this zone will be subject to the provisions of the scheme requiring set backs, landscaping and on-site parking to ensure aesthetically pleasing and functional development. Consent uses permitted in this zone will be compatible with the high density residential intent of the zone." The next highest density zone, Residential C, lies to the north-east of the site in a large block which follows the sea front. A relatively small area of Tourism Business and Residential zone (in which the motel and units are situated) separates the Residential C zone from the site. The area to the north of the site containing Fairway Avenue and Arcadia Avenue is zoned Residential A. The table of zones for the Residential D zone permits as of right accommodation buildings with a maximum site population density of 200 people per hectare and a maximum height of six storeys. By consent of the Council, the site population density can be up to 600 p/ha. In the Residential C zone, accommodation buildings with a maximum site population density of 150 p/ha. and a maximum height of four storeys are permitted as of right. By consent, the site population density can be up to 400 p/ha. I should say that in the wording of the table of zones, the use of the expression "and/or", produces an anomalous, even an absurd literal result. However all concerned accept that what is meant is what I have written. In the two residential zones (D and C) there is no mention of any prohibition in Column V relating to the number of storeys (compare Table A of Division VI of Part V, which talks of four or more storeys for Residential C). However Part V, Di vision II, lays down that the maximum permissible number of storeys for the Residential D zone is six and for the Residential C zone is four. -- 7 of 13 -- 5 It follows that the large Residential C zone has a potential to be built on to a height of four storeys and the nearby Residential D zone (the site) to a height of six storeys. So if these zones were to be developed as they can be the six storey building on the site, rather than standing alone, would be seen to be at the end of a moderate high rise area of four storey buildings. It was argued that, despite the "as of right" height of six storeys in the Residential D zone, once the application moved out of that category to the "consent II uses, the permissible six storey height no longer pertained. I do not accept that. The town plan has clearly accepted that six storeys is an acceptable height in the Residential D zone. Where the site population density does not exceed 200 p/ha. there is no argument about it. When it does ( but does not exceed 600 p/ha. ) , there is an argument. In my view that argument concerns the question of over-development of the site: does the development impose unreasonable stress on the amenity of the area, traffic capability, water supply, sewerage etc? If it does, the application should be refused; if it does not it should be allowed because it then falls within the limits laid down by the town plan. So I start with the proposition that the six storey height of the stage two building is not the subject of debate. It is therefore unnecessary to examine closely the visibility of the top three storeys of the stage two building. I should however record that, given the position of the stage one building, the existing vegetation, the likely persisting vegetation, the -- 8 of 13 -- 6 proposed landscaping, the design of the buildings and the height development permitted by the town plan, I am satisfied that the height of the building would not be an unreasonable imposition on those who can see it. It appropriate then to turn to the specific grounds of the appeal. Those relied on by the Council were bulk, density, visual intrusion and over-development. As argued, they reduced to over-development. There was no satisfactory evidence that the bulk of the building (by which I mean its gross floor area and site coverage) was beyond the permissible. I have dealt with visual intrusion. Density and over-development probably mean the same thing and in this case no separation of the two concepts was attempted. Mrs. Buckley, who articulated very clearly the concern of the objectors, told me at the outset that the density of the proposed development was the main point, but contested also the grounds of water supply and sewerage, parking on-site and traffic. I think that, although not specified, the amenity of the area could be said also to have been raised. Density or over-development It seems to me that "density" or "over-development" as an independent concept, is largely meaningless. In this case at least it can only have relevance insofar as it relates to demand on available services by the expected occupants of the development. By available services, I mean of course water, sewerage, street parking and the capacity of the street system to handle the traffic. Those were the specific grounds of the appeal. -- 9 of 13 -- 7 I do not accept the Council's argument that the stage two building design, by application of the definition of "site population density" in the town plan is likely to place the application beyond the prohibited maximum of 600 p/ha. That definition, broadly speaking, counts two people per bedroom but:- "When an area of a unit in the opinion of the Shire Engineer, can reasonably be capable of being partitioned off and used as a bedroom without impairing the dining room or lounge room functions in the unit, then that area shall be deemed to be a bedroom for the purposes of the definition." It is easy to see the purpose of the definition. It is to prevent bedrooms being made out of convenient nooks. Whether or not the definition achieves that is debatable but its purpose is a desirable one. A lot of time was spent in evidence and argument on the point whether generously designed units can be designed without necessarily running the risk of having extra bedrooms deemed by the shire engineer. Interesting as that was, it seems to me to be beside the point. If this appeal is allowed, it will be on the basis of permitting the construction of accommodation units to a maximum site population density of 600 p/ha. The evidence dealt with a density of that order (598 p/ha.) in the proposed development. It would then be for the shire engineer to decide whether the design of the buildings caused the site population density to fall within the permissible limits. Should he act unreasonably no doubt there are available legal remedies. So it is a question of looking at the specific complaints which deal with the likely undesirable effects of the proposal. They can be dealt with briefly. -- 10 of 13 -- 8 Water Supply and Sewerage In this topic I include the effect of the proposed buildings on underground and overland drainage. The only evidence came from Messrs. Funnell, Wing and Dixon. Each was qualified in his sphere, Mr. Funnell in water supply, Mr. Wing in sewerage and Mr. Dixon on the effect of the building on underground and overland water. On their evidence I find that the proposed development will not create any measurable adverse effect on local.residents or the shire. Traffic There is really no evidence to contradict that of Mr. Brameld that the likely maximum effect of the proposed development will be well within the traffic carrying capacity of the road system. It seems to me that the volume of traffic leaving the golf club after a popular golf day would probably be greater than anything produced by this proposed development. There is no evidence to establish that the noise produced by traffic going to and from this site will be unreasonable. As to parking, the debate was about the provision of spaces on the site for parking golf carts and boat trailers with or without boats. The applicant proposes seven to accommodate trailers, boats and possibly also golf carts. As nothing requires the applicant to provide these facilities it struck me as odd that the applicant should be criticised for volunteering some. Amenity I was reminded of what I said in Bell & Anor. v. Noosa Shire Council and Ors. (1983) Q.P.L.R.311 at 313:- -- 11 of 13 -- 9 "Because the proposed use is a consent use, it is obviously one which, in the overall scheme of the town plan, should be permitted in an appropriate case. Otherwise it would have been made a prohibited use. Under a town planning scheme a landowner must be taken to contemplate that a nearby parcel of land will be put to one of the uses to which the land may be put as of right. He must also be taken to contemplate that such a parcel of land may come to be put to one of those uses permitted with the consent of the Local Authority. Those are the expectations which he must be taken to have in relation to that parcel of land. So while it may be that ... the development of a consent use ... would have an adverse psychological effect on those residents who have built permanent homes in the area, in that they have a particular image of the area, I cannot see that fact alone as being properly very persuasive to the mind of a town planning authority. The consent use was always possible; the real question is whether if the proposed use is established on the subject land it will substantially degrade the area, whether it would unreasonably disrupt the lives of the occupants of the neighbourhood." I have found that the proposal will not substantially degrade the area nor unreasonably disrupt the lives of its occupants. I was also referred to these remarks of Quirk D. C. J. in Mackay v. Brisbane City Council (1992) Q.P.L.R.65 at 67:- "Ordinarily, one would need strong reasons for refusing an application which on its face was consistent with the intent and requirements of the relevant provisions of the Town Plan. As was pointed out in Hua Sheng Co. Pty. Ltd. v. Brisbane City Council & Ors. (1991) Q.P.L.R.99, the Town Plan speaks in clearest terms of what type of development is intended ... In all important respects this proposal complies with what there appears." This proposal complies with the town plan (as the council experts reported to the Council). The Council's refusal of the application must therefore have been based on the objections. I have found them (as argued before me) not to be sufficient. I find therefore that the proposal is not likely unreasonably to degrade the amenity of the area. -- 12 of 13 -- 10 The Objectors I think it is appropriate to add something about the case which Mrs. Buckley presented for those objectors who elected to become respondents to the appeal. She did it eloquently and ably but she was unable to overcome two difficulties. The first was that, as I found it to be, the town plan accepted the presence on the site of a six storey building and much of the objection of the respondents by election really related to that. Their arguments should have been raised at the time when the town plan was proposed and advertised. The second difficulty was the lack of evidence. It is not possible to accept mere assertions or hearsay over soundly based expert evidence. The Court will carefully listen to objectors whether or not they are represented by lawyers but the Court cannot extend to them a latitude which is not available to the other parties. Conclusion I allow the appeal and permit the development on the site of accommodation units in the proposed buildings to permit a site population density of up to 600 people per hectare. To permit the appellant and the respondent to attempt to agree reasonable and relevant conditions of the development, I adjourn the appeal to a date to be fixed, to be brought on on three days written notice to other parties. If no earlier date is fixed it is to be mentioned before me on 30 March 1994. The costs of the appeal are reserved. -- 13 of 13 --