Christensen & Ors v Gooburrum Shire Council & Anor [1993] QPEC 74

I 'I I, I I j1 IN THE PLANNING AND ENVIRONMENT COURT HELD AT BUNDABERG QUEENSLAND P&E Appeal No. 18 of 1992 Before ROW D.C.J. [CHRISTENSEN V GOOBURRUM SHIRE COUNCIL & ANOR] BETWEEN: DONALD JAMES CHRISTENSEN & ORS APPELLANT - and - GOOBURRUM SHIRE COUNCIL & D.&J. BURCHELL RESPONDENTS REASONS FOR JUDGMENT - ROW DCJ Judgment delivered: 22.10.93 - BRISBANE Catchwords: Counsel: MR M. HINSON - APPELLANTS MR T. TROTTER - RESPONDENT RESPONDENT BY ELECTION IN PERSON \ Solicitors: . Hearing Date(s): PAYNE BULTER & LANG FOR APPELLANTS FINEMORE WALTERS & STORY FOR RESPONDENT 4/5.10.93 -- 1 of 14 -- IN THE PLANNING AND ENVIRONMENT COURT HELD AT BUNDABERG QUEENSLAND P & E Appeal No. 18 of 1992 BETWEEN: DONALD JAMES CHRISTENSEN AND VALEEN ISABEL JUNE CHRISTENSEN AND DAVID J. STEWART PTY. LTD. COUNCIL OF THE SHIRE OF GOOBURRUM D. AND J. BURCHELL Appellants Respondent Respondents by Election 4th, 5th October 1993 - Bundaberg REASONS FOR JUDGMENT - ROW D.C.J. - BRISBANE Delivered the 22nd day of October, 1993 The appeal herein arises consequent upon a decision of the respondent whereby it refused a combined application made by and on behalf of the appellants seeking an amendment of the Planning Scheme for the Shire of Gooburrum by the rezoning of the subject land from Non-urban Residential Zone to Non-urban Residential B Zone and the subdivision of the subject land into three lots. The combined application was lodged with the respondent on 24th March 1992. The subject land is described as Lot 69 on R.P. 200211, Parish of Gooburrum, and has an area of 2 hectares. The subject land is located at the corner of Melaleuca Road and Lorikeet Street on the Tantitha Lagoon Estate. It is -- 2 of 14 -- 2 approximately 6 kilometres to the north of Bundaberg. The plan of proposed subdivision shows proposed Lot 1 situated at the corner of Lorikeet and Melaleuca Road having an area of 1 • 191 hectares and proposed Lots 2 and 3 each of 4,047 square metres having frontage only to Melaleuca Road. Improvements on the subject land comprise a low set single unit dwelling house of good standard and a metal shed which is located on proposed Lot 1. The subject land is fairly level with a light covering of trees on those areas which are removed from the curtilage of the dwelling house and shed. Both Melaleuca Road and Lorikeet Street have 20 metre wide reservations with bitumen sealed carriageways approximately 5.5 metres in width, but no kerb or channelling. Consequent upon public notice having been given of the application an objection was received from the respondents by election who are the owner/occupiers of Lot 68 being the adjoining Lot to the west of the subject land. That lot has an area of 2 hectares and is developed with a single unit residence of good quality. Lot 68 has a frontage only to Lorikeet Street. The respondent refused the combined application on the following grounds:- "1. Approval of the application would create undesirable precedent for further rezonings Lorikeet Street; an in 2. Approval of the application would adversely impact upon the existing residential amenity of the adjacent property to the west. 3. Approval of the application would provide allotments with unsatisfactory levels of amenity given the existing land use of the site. ' 4. Approval of . the application would adversely impact upon the environmental habitat on the site. -- 3 of 14 -- 3 5. The applicant has failed to demonstrate any need exists in the area for additional land in the proposed zone in that locality." The disputed issues in the appeal were identified as the reasons for refusal together with the grounds of objection set out in the objection of the respondents by election. In both the Non-urban Residential and Non-urban Residential B zones dwelling houses are as of right uses; however, in the Non-urban Residential B zone the respondent may specify floor levels. The existing planning scheme does not include a Strategic Plan. The subject land adjoins allotments to the north which are currently zoned Non-urban Residential B. On the opposite side of Melaleuca Road, land is zoned Non-rural Residential B. The predominant development of such land with lot sizes of not less than 4000 m2 is for single unit dwelling houses. On the 24th July 1991 the respondent put on public exhibition a proposed Strategic Plan. The closing date for objections was 7th September 1991. On the 1 st November 1991, the respondent resolved to forward the draft Strategic Plan to the Department and it was so forwarded on the 14th November 1991. An amended proposed Strategic Plan was subsequently forwarded to the Department on 9th August 1993. The proposed Strategic Plan has not at the date hereof been gazetted. The proposed Strategic Plan seeks to facilitate developments which are consistent with the desired land use pattern of the Shire as shown on the Strategic Plan map. The Preferred Dominant Land Use categories indicate on a broad scale the desired level, intensity and nature of acceptable uses in particular areas of -- 4 of 14 -- 4 the Shire. The subject land is included in an area which is identified as Rural Residential. Objective 2. 2 of the Rural Residential Dominant Land use category is to provide for the development of rural residential lots, with a minimum lot size of 4,000 square metres to a maximum of 7,000, in designated localities throughout the Shire. Under Implementation Provision (I) the subject land is included within one of the general localities, namely, Area R1, being on the sand ridge extending north from Tantitha Road. Objective 2. 3 relates to the provision for the development of Rural Residential Lots having a minimum lot size of two hectares in certain other designated localities throughout the Shire. The subject and surrounding land is not within any such locality. The R1 area, being the sand ridge north of Tanti tha Road is included within areas under the Implementation Provision (1) of Objective 2.4 of the proposed Strategic Plan which provides a required level of services to rural residential developments. The proposal complies therewith. Under Item 16 of Implementation Provision 1 of Objective 2. 4 the establishment of the need for the proposed development is a requirement. Having regard to the extent to which the proposed Strategic Plan has proceeded upon its legislative path, considerable weight should be given to.the provisions thereof when assessing the combined application. The proposal complies with and/or does not conflict with the provisions of the proposed Strategic Plan. The respondent has prepared a proposed North Bundaberg Development Control Plan which has been forwarded to the Department of Housing, Local Government and Planning for -- 5 of 14 -- 5 preliminary consideration prior to its being placed on public exhibition. In the proposed Development Control Plan the subject land is included in Precinct 13 which provides that this precinct shall be developed predominantly for dwelling houses on 4,000 square metre lots. The aim of the proposed Development Control Plan is to guide the future location of the development of compatible dominant land uses within the plan area so that the desired urban form, scale and amenity throughout the area may be achieved. Section 5. 4. 2 provides that Precinct 13 shall be developed predominantly for dwelling houses on 4,000 square metre lots. Although the proposed Development Control Plan has not been put on public exhibition, the Development Control Plan so far as it relates to the subject land is consistent with and complementary to the proposed Strategic Plan relevant to the area within which the subject land is located. Some limited weight ought be given to it in the assessment of the application. The proposal does not conflict with the proposed D. C. P. In his report to the Respondent (Exhibit 3) Mr Peterson, Town Planning Consultant to the respondent, stated:- "3.1 Strategic Plan (Draft) The site is located in an area designated for rural residential lots between the 4000m2 to 7000rn2 size range. The proposal would comply with the Strategic Plan. 3.2 North Development Control Plan·(oraft) The site would be in Precinct 13 designated for rural residential lots of 4000m2" Evidence for the appellants was given by Mr. Challoner, an experienced town planning consultant, on town planning issues associated with the disputed issues. Mr Petersen, an experienced -- 6 of 14 -- 6 Town Planner in the employ of Kinhill Cameron McNamara reported to the respondent on the application and gave evidence for the respondent. As the subject land is located on the corner of Melaleuca Road and Lorikeet Street, I am satisfied that the rezoning of the subject land would not oblige the respondent to approve similar rezonings of land which have frontage only to Lorikeet Street. Each of the new proposed lots, namely Lots 2 and 3, have access only to Melaleuca Road. Whilst approval of the application would undoubtedly be a factor to which the respondent on any subsequent application for rezoning in the area is obliged to take into consideration, I am satisfied that there are valid reasons whereby the subject property ought properly be treated differently to those areas which have frontage only to Lorikeet Street. Each application ought to be considered on its merits. In those circumstances, approval of the rezoning would not oblige the respondent to approve any subsequent application of a similar nature. The Tanti tha Lagoon Estate has a fairly high degree of residential amenity having regard to the nature and quality of development that has occurred thereon on larger than ordinary size parcels of land. The significant effect of the proposed rezoning is that, whilst within the Non-urban Residential Zone, the minimum ~rea for allotments is 2 hectares, the minimum area for allotments in the Non-urban Residential B Zone is 4000 square metres. The residential amenity of the locality is impacted upon by traffic which is generated by a retail nursery which is located on Lot 67 immediately adjoining Lot 68 to the west. The evidence establishes that the nursery attracts a not -- 7 of 14 -- 7 inconsiderable number of customers particularly at the weekend which would impact upon the residential amenity to some extent. The proposed rezoning would permit proposed Lots 2 and 3, each having areas in excess of 4,000 square metres to be developed for single unit residences. The amenity of such form of development will be that of a residential character and nature but with two residences being erected on smaller lots than that which presently exists within the estate. Further, proposed Lots 2 and 3 would abut the rear part of Lot 68 on which there is no development and would have access only to Melaleuca Drive. The dimensions of proposed- Lots 2 and 3 would permit the siting of a dwelling house some distance removed from either Melaleuca Drive or the common boundary between Lots 68 and 69. At the present time, the rear of Lot 68 has relatively good tree covering which would, to a noticeable extent, mask any proposed residence on proposed Lots 2 and 3. It was stated by Mr. Challoner that a condition could be imposed requiring the planting of additional trees along the rear common boundary of the two proposed allotments to assist in providing an adequate landscaping or buffer zone. Having regard to the depth of proposed Lots 2 and 3, I am satisfied that a distance of 20 metres as referred to by Mr. Challoner for a landscaping strip along the common boundary between proposed Lots 2 and 3 and Lot 68 would not be unreasonable. The effect of landscaping can be observed from the actions taken by the respondents by election and by the owner/occupiers of the nursery whereby, along that common boundary, substantial landscaping has occurred to the extent that the nursery use on the adjoining lot is significantly -- 8 of 14 -- 8 masked from the residence of the respondents by election. The property of the respondents by election is moderately timbered towards the rear which would have the effect of providing some • d t • 1 d elopment that would occur on masking of any resi en ia ev proposed lots 2 and 3. on all the evidence I am satisfied that the proposed rezoning and subsequent subdivision and development will not adversely impact upon the existing residential amenity of the property of the respondents by election. Approval of the application would permit the development of proposed lots 2 and 3, each with a dwelling house. Under the Table of Zones permitted and permissible uses in the Non-urban Residential and Non-urban Residential B Zones are somewhat comparable. The Planning Scheme which was gazetted on 23rd May 1981 does not contain an Intent of Zones. The Planning Scheme was amended by Order in Council (7th February 1985) which included the provision of the Non-urban Residential B Zone. Without in any way limiting the generality of matters which the respondent may consider when determining rezoning applications Clause 3 of Part VI of the Schedule provides that land shall not be included in a Non-urban Residential B zone unless:- II 1 • 2. 6. 7 . There is provision for a bitumen road access ... There would be no likely detrimental effects on the amenity of adjacent existing urban area ... The land is not able to be supplied with reticulated town water and electricity. The land is suited to the use of ground absorption systems for disposing of sewerage and sullage ... -- 9 of 14 -- 9 The subject land has bitumen road access, is able to be supplied with reticulated town water and electricity and is suited to the use of ground absorption systems for disposing of sewerage and sullage. In the Non-urban Residential B Zone the minimum area is 0.4 hectares with a minimum frontage to a road of 40 metres. The proposed subdivision complies with those provisions. The subject land is presently used for residential purposes as would be each of the proposed allotments. The intensity of the residential use would increase if the subdivision proceeds and a dwelling house is erected on each of proposed Lots 2 and 3. However, the usage of the land would remain residential. As part of the amenity of the area, the adjoining land to the north and land on the opposite side of Melaleuca Road to the east is developed with dwelling houses or allotments of a similar size to those proposed. The nearest dwelling house to the residence of the respondents by election being that of the appellants is about 84 metres away. Exhibit 11, prepared by Mr Challoner, indicates that with the same separation distance a dwelling house which could be so erected on proposed Lot 2 would be set back 24 metres from Melaleuca Road. The land use of other land in the vicinity is primarily and predominantly that for residential purposes. Having regard to the permitted and permissible uses that can occur on land zoned Non-urban Residential and Non-urban Residential B, I am satisfied that approval of the application would provide lots with a similar level of amenity to that existing in the locality. -- 10 of 14 -- 10 Part of the existing tree cover on Proposed Lots 2 and 3 would undoubtedly be lost with the creation of a dwelling house on each lot. The respondents by election are concerned that whilst at the present time kangaroos and other animals roam freely through the area, the proposed rezoning and subsequent subdivision would result in a loss of such habitat. At the present time a number of the allotments in the Estate have no fencing which consequently permits the free flow of animals throughout the area. Kangaroos are seen also on the eastern side of Melaleuca Road where the lot size is not less than 4000 square metres and where a predominant number of allotments do not have fencing. The fact that the lot sizes on the eastern side of Melaleuca Road are not less than 4,000 square metres does not detract from the ability of the kangaroos and other animals to wander freely through that broader area. A condition requiring landscaping along the common boundary between Lots 2 and 3 and the land of the respondents by election would be likely to encourage the use of that area as part of the environmental habitat for kangaroos and other animals. The Court has no power to impose a condition which would prohibit any person from erecting fencing along the common boundary which would discourage or even restrict animals from wandering and utilizing proposed Lots 1, 2 and 3. The proposed rezoning and subsequent subdivision I am satisfied would not adversely impact upon the environmental habitat. Need in a town planning sense was considered by various witnesses. The Bundaberg area is experiencing significant residential growth and further ongoing development in the -- 11 of 14 -- 11 locality. The evidence establishes that within the Tantitha Lagoon Estate there are no "For Sale" signs on any of the existing subdivided lands. A number of lots in the immediate area are currently being developed but have not yet come on to the market. The land at Mirage Sands is, I am satisfied, not comparable to that of the subject land as it is directed towards a different market. I accept the evidence of Mr Browning, an experienced valuer, as to the incomparability of other land in the area with the subject land. I do not find the analysis by Mr Petersen whereby he has analysed building approvals in the locality over a number of years and arrived at the average number of building approvals per year as very helpful on the issue of need. All of the land in earlier stages of the estate has been sold and none is presently available for sale. Whilst a significant number of such lots have not been the subject of building applications, the absence of "For Sale" signs is indicative that such lands are not currently available within the appropriate zone. The McLucas land on which there has been no action for over two years ought not property to be taken into account having regard to the history associated with the application in relation to what was then termed Proposed Stage 1. The evidence of Mr Browning I am satisfied establishes need in the relevant sense, for the rezoning of the subject land. The proposed creation of two additional lots will assist in satisfying that need. The evidence of Mr Burchall was presented in the form of a written statement. The evidence was well presented and shows an appreciation and understanding of the matters relevant to an -- 12 of 14 -- 12 assessment of the combined application. I have no doubt that he L h7lv h ld th erns that he expressed in his honesty and sinceri~ o s e cone statement. In assessing his evidence in relation to his reasonable expectations the Court is obliged to take into account not only the planning scheme as was in existence at the time when he purchased his property but also any subsequent amendments that had occurred particularly the incorporation into the planning scheme of the Non-urban Residential B Zone with its necessary implications but also the provisions of the proposed Strategic Plan whereby the subject land is within the R1 area as defined. He lodged no objection to the amendment to the planning scheme whereby the Non-urban Residential B Zone was included nor to the proposed Strategic Plan. Of course one can appreciate his concerns having bought a two hectare parcel of land and having developed it in a tasteful manner for residential purposes and encouraged wildlife activity in the area. The subdivision of the subject land whereby lots of 4,000 square metres are created is seen by him as introducing a form of development which was foreign to him when he purchased. However, he must accept the planning scheme as it exists and the provisions of the forward planning documents of the respondent. A condition suggested which requires additional landscaping on the common boundary would assist in overcoming some of his concerns in relation to visibility of his premises from residences on proposed Lots 2 and 3. Such landscaping to a depth of 20 metres could to some extent be an advantage by increasing the existing bushland setting. As the proposed rezoning and subsequent subdivision accords with the provisions of the Planning Scheme and the proposed strategic -- 13 of 14 -- 13 Plan, I am satisfied that his concerns are not of such significance as would warrant refusal of the combined application. On all the evidence I am satisfied that the appellants have established that the combined application should be approved. As conditions, if any, to be imposed relative to the combined application were not particularly before the Court, the further hearing of the appeal is adjourned to 9.30 a.m. on the 8th day of December, 1993 to permit the respondent, within twenty-one days of the date hereof, to notify the appellants in writing of conditions, if any, which it proposes to impose on the combined application. The appellants within seven days after receipt of such conditions shall notify the respondent of any condition to which they object. -- 14 of 14 --