Clifton Apartments Pty Ltd v Council of the Shire of Mulgrave & Anor [1993] QPEC 22

• P<tv t: ½.3/o a.;l.J~ State Reporting Bureau • • --------------------------------------- I I I I I = a:acsszzz. & W..,..._---LS SSC~~ TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the C:rO"wn. Copies thereof must not be mad.e or sold without the written authority of the Director, State Reporting Bureat1.) PLANNING AND ENVIRONMENT COUR'r JUDGE ROW Cairns P & E No 9 of 1993 CLIFTUN APARTMENT PTY LTD and COUNCIL OF THE SHIRE OF MULGRAVE and MEGAREACH PTY LTD BRISBANE .. DATE 16/04/93 JUDGMEN'I' Appellant Respondent Respondent by election G Street Brisbane Q. 4000 Telephone: (07) 227 4360. Facsimile: (07) 227 5532 4th Floor, The Law Courts, eorge , , ... -- 1 of 15 -- .. i, 160494 T 1/IK M/T 3526/93 (Row DCJ) HIS HONOUR: On all of the evidence and for the reasons above. ,. the appellant has failed to establish that the subject matter should be r,e_zo_ned. The appeal is dismissed. I publish my reasons. 10 20 30 40 50 60 2 JUDGMENT -- 2 of 15 -- IN THE PLANNING AND ENVIRONMENT COURT HELD AT CAIRNS QUEENSLAND P & E Appeal No. 9 of 1993 Before Row DCJ [Re: Clifton Apartments v. Council of the Shire of Mulgrave & Anor] BETWEEN: CLIFTON APARTMENTS PTY. LTD. -and- COUNCIL OF THE SHIRE OF MULGRAVE -and- MEGAREACH PTY. LTD. REASONS FOR JUDGMENT Judgment delivered: 16/04/1993 Catchwords: Counsel: Solicitors: Hearing Date(s): DR Gore QC and AR Philp for Appellant s M Ure for Respondent Respondent by Election in person William Graham & Carman for Appellant MacDonnells for Respondent 18th and 19th March, 1993 -- 3 of 15 -- IN THE PLANNING AND ENVIRONMENT COURT HELD AT CAIRNS QUEENSLAND p & E Appeal No. 9 of 1993 (Cairns) BETWEEN: CLIFTON APARTMENTS PTY. LTD. Appellant COUNCIL OF THE SHIRE OF MULGRAVE Respondent MEGAREACH PTY. LTD. Respondent by Election 18th, 19th March 1993 REASONS FOR JUDGMENT - ROW D.C.J. Delivered the I 6t6 day of April, 1993 - Brisbane The appellant appeals herein consequent upon a decision of the respondent refusing to approve an application made by the appellant to rezone land described as Lot 2 on R.P. 721200 and Lot 18 on R.P. 748462, having an area of 7,505 square metres situated at Upolu Esplanade, Clifton Beach by excluding_ the subject land from the Residential A Zone and including the land so excluded in the Special Facilities (Multiple Dwelling Class "B" and Catering Business - generally in accordance with Plan of Development No. 911 21 2; Sheets SK3-SK9) Zone. The appellant proposes, if rezoning is approved, to develop the land for Multiple Dwelling Class "B" purposes with a range of units in the buildings being of 2 and 3 storeys together with a detached -- 4 of 15 -- 2 restaurant. The amended plan of layout produced during the hearing (Exhibit 14) proposes 42 units. The amended plan is not of such significance as would warrant readvertisement of the amended layout plan. The amended plan was produced to meet some of the objections raised in the report of the Deputy Shire Planner of the respondent. The site layout has been designed to make allowance for a creek which enters the subject land in the south-western corner and runs diagonally to exit the north-eastern corner. A relatively large number of very mature melaleucas are located generally within the creek area. It i~ proposed by the appellant that the melaleucas be retained and that the creek be retained with some landscaping to enhance its visual attraction. The land surrounding the subject land is generally zoned Residential A, except for a portion of land to the north of the site which is zoned Tourist Facilities. The existing Planning Scheme which was gazetted on 5th July 1975, has no statement of intent of zones. The provisions of the Planning Scheme and, in particular, the Table of Zones is indicative that the Residential A Zone is considered to be the residential zone with the highest amenity and is typified with the development of dwelling houses on allotments with a minimum lot size of 700 square metres. In the Residential A Zone, multiple dwellings Class "A" and "B" and Catering Business are prohibited under Column V. Land to the west of the site has been subdivided into residential lots, except for Lot 60 which is a park. Land to the south is developed with detached residential housing, while land to the north houses a single storey tourist complex with 12 self- -- 5 of 15 -- 3 contained accommodation units. Land to the east of the subject land on the eastern side of Upolu Esplanade is a nature reserve going down to the sea. The subject land is currently vacant. Consequent upon public notice having been given to the application, 94 objections signed by 127 objectors were lodged with the respondent. Of the 94 objections, 75 were made on a form letter, 13 were individually made and a further 6 on another form letter. The grounds of objection generally relate to amenity, spot rezoning, contrary to the planning intent of the area, need and disruption to the balance of zones. The application was reported on by Mr. Carey, the Deputy Shire Planner. In his report, reference was made to various sections of the proposed draft Town Planning Scheme including draft Strategic Plan and Tourist Development Control Plan. Mr. Carey recommended that the application be refused for the reasons set out in Exhibit 2, page 61. On 14th December 1992, the respondent refused the application, for the reasons stated in its letter dated 17th December 1992 notifying the appellant of its decision. The disputed issues in the appeal are identified as the reasons for refusal of the application as set out in the said letter dated 17th December 1992. On 22nd February 1993, the respondent resolved to forward to the Minister for gazettal a Planning Scheme for the Shire of Mulgrave including a Strategic Plan and various Development Control Plans indicating, in particular, Development Control Plan - Tourism Development - Division 4. Under the proposed Planning Scheme, the subject land is proposed to be zoned Residential. The intent of the Residential Zone is to provide for areas of -- 6 of 15 -- 4 residential development in which residential property owners and purchasers can choose their place of residence with confidence that the area will be free from intrusion by incompatible land uses. Residents can locate in this zone with the expectation of a continued standard of amenity and almost no non-residential development. Within the proposed Planning Scheme, the residential component of the proposed development comes within the definition of multiple dwelling and the restaurant is within the definition of food and refreshment premises. In the proposed residential zone, multiple dwelling and food and refreshment premises are prohibited development under Column 4 of the Table of zones. The subject land is located within the Urban (Mixed} Preferred Dominant Land Use designation on the proposed Strategic Plan Map. Those areas shown with a preferred dominant land use of Urban (Mixed) indicate areas presently dominated by existing urban areas, as well as a number of large tourist developments. This designation recognises the inherent physical attraction and desirability for tourist orientated uses within these areas, and therefore provides for the continued expansion of the tourist sector in association with the expansion of permanent residential uses and other urban uses. In the Urban (Mixed} Pref erred Dominant Land Use designation, Development Control Plan 4.2 - Tourism Development - Division 4 shall be used for detailed guidance in consideration of any application for development within this area. The subject land is within the area covered by Proposed Development Control Plan 4.2. Certain objectives in addition to -- 7 of 15 -- 5 the objectives for the urban designation apply to the Urban (Mixed) designation. Objective 3.4.2.1 of the Urban designation is to promote a high standard of amenity in residential areas. Objective 3. 4. 3. 1 in relation to the Urban (Mixed) Preferred Dominant Land Use designation is to encourage the growth of tourism in the Shire. The implementation provisions thereof recognise the importance of tourism whilst also recognising that permanent residents have been and still are attracted to these areas for the same reasons that make these areas desirable for tourism purposes. Implementation Clause (b) provides guidelines for the respondent to protect existing and likely future permanent residents and to preserve the attractiveness of the location when considering rezoning or consent applications for tourism purposes. Under sub-clause (iv), the compatibility of the pro~osed development with the topography and character of the site is important as is also under sub-clause (v), the potential effect of the development on the amenity of the surrounding area. The desire to ensure that the built form of tourist development is compatible with its setting and the surrounding locality is identified in Objective 3.4.3.3. As well as relating to matters of built form, the implementation provisions also draw attention to the question of amenity of adjoining land and the adequacy of landscaping. The residential requirements of the permanent population is the subject of Objective 3.4.3.5 which incorporates in the implementation provisions the reference to Development Control Plan 4.2. The subject land is within the area covered by Proposed Development Control Plan - Tourist Development - Division 4. The -- 8 of 15 -- 6 subject land is included within the Preferred Dominant Land Use designation of Discrete Residential Areas. Land which is so designated has been identified as an existing or future residential area in which the development of tourist facilities would be inappropriate. Such land is used or will be used for permanent residential purposes and may include the areas of medium density accommodation used for permanent occupation where they are appropriately located in terms of good town planning principles and need. The intent to retain such areas for permanent population is further evidenced by the undesirability for non-residential or "foreign" traffic to be attracted through Discrete Residential Areas. One of the aims of the said Development Control Plan - Tourist Development, is to encourage and facilitate the development of the Development Control Plan area as a major tourism destination whilst ensuring the protection of the existing residential amenity and lifestyle against the more intrusive aspects of highly developed tourism on a large scale. It is recognised that the elements that make the area attractive to tourists are also features that are of significant importance to the permanent residents. The two aims of the Development Control Plan are supported by five objectives which recognise the expectation of the community and the long term interest of the tourism industry. _Implementation Provision (i) of Objective B identifies the need to minimise conflict between the permanent resident and tourist populations. Under the said Development Control Plan, the Council envisages the separation of the permanent residents and the -- 9 of 15 -- 7 tourist developments or alternatively encouraging a mix of tourist and residential development styles in separate locations suited for those purposes. When considering the location of the areas to be developed for tourism purposes, the implementation provisions of Objective B identify a number of locational criteria for the purpose of tourism development including ( iv) (c); the likely disturbance of residential amenity lifestyle, convenience. Objective C of the said D.C.P. is to ensure that dwellings or multiple dwellings do not adversely impact upon the surrounding residential area. Under Implementation Clause (i), Council will not consider restaurants, amongst other nominated uses, as ancillary uses to dwellings or multiple dwellings in Discrete Residential Areas. Under Implementation Provision (ii), Council, when considering applications for rezoning or consent for multiple dwellings in Discrete Residential Areas, shall assess such applications as if these multiple dwellings are to be used solely for permanent occupancy. Under sub-clause 3 of the Implementation Provisions, where a dispensation of performance standards is available elsewhere in the planning scheme, and such dispensation is requested on the basis of the multiple dwelling being used for tourist purposes, dispensation will only be given if the development is in a Tourist Development Area. The subject land is not within a Tourist Development Area. Whilst Objective D (Exhibit 10 p 104) specifically encourages community facilities that will benefit visitors and permanent residents alike, Implementation Clause (ii) sees the establishment of a low-key outdoor dining areas in established shopping centres to be encouraged. -- 10 of 15 -- 8 In assessing the application which was made under the Planning and Environment Act, the Local Authority, and on appeal, the Court is obliged to have regard to those matters set out in s.4.4(3) of the Act. Of particular significance in relation to the assessment of the subject application is the fact that the proposed Town Planning Scheme has progressed significantly along its legislative path to the extent where it has been submitted for final approval of the Governor-in-Council. In those circumstances, significant weight should be given to the provisions of the proposed Planning Scheme. Evidence was given from a number of local residents, which evidence I have no doubt set out the honestly and sincerely held opinions and concerns of each of the various witnesses. That area to the west of the subject land has been developed with a high class of single unit dwelling houses and has a high residential amenity. The concerns expressed by Mr. Gibbs in relation to the visual effect of the development are to be modified by the fact that, with subdivision, a limited number of single unit dwelling houses could be erected on the subject land. However, such development would allow for space between buildings and would not have building bulk of such as is proposed in the development. I am satisfied that the area at the present time is quiet and that noise from the proposed development, if rezoning is approved, would be likely to adversely impact on the existing residential amenity. The concerns of Mr Gibbs in relation to the parking of the motor vehicles of patrons who would go to the restaurant at night in Turtle Close are of some merit. The proposed parking for the -- 11 of 15 -- 9 proposed development is situated significantly at the rear of the development whereas access via the easement and footbridge from Turtle Close could be seen by prospective patrons as a very desirable parking location. The existing development in the area is generally of single unit dwelling houses, some of which are of a more than generous size, but nowhere of the same size both in bulk and height as the proposed development. Mr. Lasry, a director of Megareach Pty. Ltd. which is the owner of Lots 50, 51 and 52 to the immediate west of the subject land, expressed concerns in relation to the loss of amenity and the impact that the proposed development would have in relation to development on each of the three lots. The proposed building would present on its western facade a significant length of building rising to a height above the height of the existing development in the locality. He has similar concerns in relation to patrons to the restaurant parking in Turtle Close to those of Mr. Gibbs. The proposed development, based on the amended plan of layout, will present on its western boundary a built form of significant bulk, length and height. Whilst the rearrangement of the buildings have, to some extent, reduced the overall length, nevertheless the building would present as one out of character both in bulk, height and width to existing developments in the locality. The evidence of the landscape architects indicates that some alleviation and minimisation of the adverse effects can be created by screening but that because of the relatively narrow width of land available at the rear for -- 12 of 15 -- 1 0 planting, any such screening will be of some limited value. In addition, the existence of the power lines will require continual maintenance and also may effect the species that can be planted within the landscape strip at the rear of the proposed structure. Town planning evidence was given by Mr. Buckley, an experienced consultant town planner on behalf of the appellant, and Mr. Carey, the Deputy Shire Planner. Whilst each agree that significant weight should be given to the proposed provisions of the proposed Planning Scheme, the approach taken by Mr. Carey is much more preferable. In my view, Mr. Buckley failed to give appropriate weight to the proposed inclusion of the subject land within the Discrete Residential Area designation under the Development Control Plan - Tourism Development - Division 4. The fact that a significant area in the immediate vicinity of the subject site is proposed to be zoned Residential, within which zone multiple dwellings and food and refreshment premises are prohibited development under Column IV of the Table of Zones is significant. The issue of amenity within the provisions of the proposed Planning Scheme is clearly a matter of particular significance. The approach and view adopted by Mr. Carey on the effect that the proposed rezoning and subsequent development would have or be likely to have on the existing and future amenity of the area is to be preferred to that of Mr. Buckley. This area of Clifton Beach is significantly an area which is developed and occupied by permanent residents and is not an area which is predominantly developed and used for tourist accommodation purposes. -- 13 of 15 -- 11 The proposed rezoning is in conflict with the existing Planning Scheme as it would entail the development being located in the area which is predominantly zoned Residential A and is developed for single unit residential purposes. The fact that the forms of proposed development are prohibited uses in the Residential A Zone under the existing Planning Scheme is indicative that those forms of development are seen to be incompatible with single unit detached dwellings. I am further satisfied that the proposal is in conflict with and does not conform to the provisions of the proposed Planning Scheme. The subject land is located in a proposed Discrete Residential Area and the proposed development, if rezoning were approved, is in conflict with some of the objectives and implementation provisions in relation to the Discrete Residential Area designation. Whilst the proposed Planning Scheme has not been gazetted, substantial weight should nevertheless be given to the provisions of the proposed Planning Scheme. That substantial weight should be given to the proposed Strategic Plan and Development Control Plan is evident by the fact that, under s.4.4(5A) of the Act, a Local Authority must refuse to approve an application for rezoning if the application conflicts with any relevant Strategic Plan or Development Control Plan and there are not sufficient planning grounds to justify approving the application despite a conflict. Whilst the sub-section does not apply because the proposed planning documents has not been gazetted, the provision nevertheless is indicative of the weight that ought to be given to the provisions of planning documents where there is a conflict. -- 14 of 15 -- 12 The proposed development, if rezoning were approved, would significantly prejudice the amenity of the locality. It is out of character both in size, bulk and intensity of use. The proposed development is contrary to the reasonable expectations of local residents where land in the immediate vicinity is currently zoned Residential A and is proposed under the proposed Planning Scheme to be zoned Residential. The provisions of the existing and proposed Table of Zones is indicative that the proposed development is contrary to the intent as implied within the Residential A Zone and contrary to the express intent of the Residential zone under the proposed Planning Scheme. The proposed development is, I am satisfied, one of a tourist nature in that the occupiers are unlikely to be permanent residents. Some evidence of need was led from Mr. Carey who based his analysis on Map 6 of his report, Exhibit 4. The analysis there carried out has to be taken with many qualifications including the availability of the land as shown therein for future development. I prefer the approach, on that aspect, as given by Mr. Coonan, a registered valuer, which is indicative that there is very little in the locality available for development such as is proposed by the appellant. On balance, I am satisfied that need has been established. On all the evidence and for the reasons above the appellant has failed to establish that the subject land should be rezoned. The appeal is dismissed. -- 15 of 15 --