A Angels & Associates Pty Ltd v Mulgrave Shire Council [1992] QPEC 73

:, • _ ~~~ _ _ • P - Wfl MIUP I NtN ~;~irlsl'~Q ~1rn-1r e. State Reporting Bui:_eau ) ) ) 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 Bureau.) PLANNING AND ENVIRONMENT COURT JUDGE ROW LGA No 55 of 1990 A ANGELS AND ASSOCIATES PTY LTD and MULGRAVE SHIRE COUNCIL CAIRNS .. DATE 23/10/92 .. JUDGMENT .\ Appellant Respondent 1 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 227 4360. Facsimile: (07) 227 5532 -- 1 of 21 -- 231092 HIS HONOUR: This _ appeal relates to an application by the_ appellant for the subdivision of land into seven group title allotments in accordance with plan A1361 which was lodged with the respondent on 1 March 1990.'' The subject site is described as lots 296 and 299 on registered plan 73278, portion 215, parish of Cairns, county of Nares, situated at No 152 and 144 Sydney Street, Bayview Heights. The subject site comprises two separate battle axe allotments with a combined area of 5,484 sq m with two separate road frontages to Sydney Street, of 6.013 m and 6.918 m. The subject site slopes downward from the rear boundary in a southerly direction to the road frontage with the majority of the subject site being above 85 m AHD. The application was considered by the respondent on 4 June 1990. At that meeting the respondent decided to refuse the application. Subsequently the appellant lodged with the respondent a geotechnical report by Hollingsworth Dames and Moore. The application was further reported on by the subdivisional design engineer. On 15 October 1990 the respondent approved, subject to conditions, the said application. Notification of the decision of the respondent was forwarded to the appellant under cover of a letter dated 17 October 1990. The notice to appeal by the appellant filed on ·the 14th November 1990 relates to conditions l(c), 12 and 25. The subject land is zoned Residential A under the relevant town planning scheme. The land adjoining to the east, west ., JUDGMENT 2 ·l J. 10 20 . 30 40 ( 50 60 -- 2 of 21 -- ) 231092 and south is included within the Residential A zone. The adjoining land to the north is within the local authori~y-area of the City of Cairns and is zoned Open Space - Rural in accordance with the relevant planning scheme _for the City of Cairns. The subject site is presently vacant. The land adjoining to the site to the west and south is used for detached housing. The land to the east is presently vacant. Development in the area is predominantly for residential detached housing. The suburb of Bayview Heights is almost exclusively made up of conventional residential subdivision occupied by single unit 10 20 J detached housing. The vast majority of the allotments in the locality are between 700 and 900 sq m with the exception of those lots in the upper parts of the suburb where, because of 30 the increasingly steep topography, the lots are generally larger. The two lots, the subject of the application, are somewhat typical of the larger lots in the hillside areas of ) Bayview Heights. The standard of development is in general ) quite high and the standard of development for single unit detached housing in the immediate locality is higher than the average for Bayview Heights. It is proposed to subdivide the subject land into seven group title allotments to enable seven detached dwellings to be erected on site with a significant common area being within the proposed group title subdivision. Access to the proposed group title lots is proposed via an access off Sydney Street which provides that part of the battle axe of lot 296 . . \ JUDGMENT 3 40 50 60 -- 3 of 21 -- 231092 In July 1988 the respondent adopted policy 2.14 - Subdivision - Group Titles. One of the effects of the policy was to provide for the group title subdivision of land in the y Residential A zone. The policy adopted certain performance standards in relation to group title development and subdivision. The performance standards include provisions for minimum and maximum areas, and for minimum areas of common property in the subdivision. Cl 4{f) provides that access shall have a minimum width of 6 m. Chapter 52 - Group Title Development - of the by-laws of the respondent under cl 4 (4) provides for a minimum width of 5 m of sealed pavement access roads to service from two to fifteen lots. Geotechnical reports were tendered on the hearing of the appeal by Golder Associates (Exhibit 15) and DJ Douglas and Partners Pty Ltd (Exhibit 9). As a consequence of discussions between the parties a proposed condition relative to geotechnical matters, namely Exhibit 16, was tendered to the Court being a proposed condition put forth by the respondent to which the appellant raised no objection. Evidence of a civil engineering and associated nature was led from Mr Valmadre on behalf of the appellant and Mr Underwood on behalf of the respondent. . l JUDGMENT 4 I I ' 10 30 40 50 60 -- 4 of 21 -- r, ~ ·231092 • Mr Valmadre had recently been retained by the appellant to advise .in relation to engineering conce~ns and undoubtedly because of time constraints had not inspected the site nor carried out any detailed investigations in relation to the ,; matters in issue between the parties. Whilst r·have no doubt as to his competence and as to the expressions of professional 10 opinions, I am not persuaded that the evidence ought to be given much weight in view of the lack of detail and lack of professional examination of the issues that were under· discussion. The evidence of Mr Underwood, the Deputy Shire Engineer, was well considered and obviously based on detailed 20 - examination of the relevant issues. His evidence on traffic matters was not the subject of any evidence led from ·Mr Valmadre. His traffic engineering evidence, I am satisfied, was soundly based and there is no reason why it ought not to be accepted. In considering the matters associated with the width of the access to be provided for vehicles to the proposed development, I prefer the evidence given by Mr Underwood, as it was to a significant extent on that issue supported by town planning considerations relevant to the proposed development. The evidence of Mr Robinson, a consultant town planner called on behalf of the respondent, was supportive of the view that a minimum width of six metres was reasonably required and relevant for access to the proposed group title sub-division. The proposal of the appellant whereby that width ought to be reduced for the purposes of allowing the provision of some limited planting and landscaping so as to enhance the aesthetic value of the sub-division in my opinion ought not to.\ JUDGMENT 5 30 40 50 60 -- 5 of 21 -- 1, ·231092 i overcome the desirability of the major feature, namely the provision of safe and satisfactory acc~ss having regard to the topography of the land and the curves on the proposed access way. It is to be noted that in relation to the width as mentioned botn in the by law and in the policy, the prescription relates to a minimum width. In such circumstances, the Court should have regard to all relevant considerations in determining what is appropriate for the width of the proposed access driveway in relation to the subject application on the subject land. I am satisfied on 10 J the evidence which I have preferred that a width of six metres 20 - should be provided. ) No town planning evidence was adduced on behalf of the appellant. The town planning considerations, to a significant extent, relate to the question of amenity. The area is one of 30 a reasonably high residential amenity and the proposed land, because of its elevated location, is somewhat prominent in the ) suburb of Bayview Heights. Its prominence can be gauged by the fact that a substantial part of the land is above ) RL 85 AHD and that the part of the land adjoining the existing residential development is at about the roof height of those existing detached house~. Part of the intent of the policy indicates that the issue of density was considered relevant by the local authority in relation to an application to it for a group title sub-division. The various provisions in relation to minimum areas, both for lots and for common property and the maximum lot size is further indicative that density of development is of significance. As the land is within the Residential A zone, density of development relative to the -1 JUDGMENT 6 40 50 60 -- 6 of 21 -- -231092 density that may be permitted in the Residential A zone is of significance. on that basis, I prefer _and accept the evidence of Mr Robinson that it is desirable that the lot yield be limited to six lots (the question of the intensity or density , of development is not, I am satisfied, related to soil stability, but it primarily related to the· question of amenity). On the basis on which the appeal was conducted before the court, I am satisfied that either proposed lot 5 or lot 6 should be deleted from the proposed group title sub-division. The appellant, in evidence in relation to Condition 25, sought the development of the group title sub-division in stages. Whilst the evidence opened did not accord with the evidence led from Mr Valmadre, I have no hesitation that the 10 20 . sub-division physically could be achieved in stages. The 30 issue before the Court is whether it is reasonable in the circumstances that it should be permitted to be so developed. The application as made to the respondent was on the basis as set out in the letter dated 11 May 1990 from the appellant to the respondent and is indicative of the then intention by the appellant to develop the land as one entity. Whilst the managing director of the appellant did not depart from such an intent, because of private economics, he sought a variation of Condition 25 which would permit the group title sub-division in stages. The reasons advanced did not in any way relate to town planning or engineering concerns, but to private economic factors. Such matters, in my view, are not of relevance in determining whether, in the circumstances, staged development ought to be permitted. The question of private economics is.\ JUDGMENT 7 40 50 60 ( ( -- 7 of 21 -- ) ) ) ,. -231092 '~ of little significance to the Court in determining an application relative to a group title sub-division. The_ evidence of Mr Robinson is indicative that there are a number of factors_whic~, in his view, which I accept, ·require that,.,. the development should be completed at one entire form of development. The staging of the development could lead to the sale of individual lots. Whilst o·ther lots were not developed, the form of building could be varied from one stage to another and may result in a most unsatisfactory form of development. Further, the mixing of construction traffic and residential traffic over what is a relatively narrow access way with two curves within relatively short distances could result in significant traffic problems. The development in stages, I am further satisfied, would be likely to lead to a prejudice to the amenity of the area, having regard to the high residential amenity that presently exists and is undoubtedly likely to exist in the future. The absence of any examination by the appellant as to whether an upgrading of the existing drainage system in the locality may be required is, having regard to the basis on which the I system was originally designed, a matter of some concern. I am satisfied that the proposed condition as set out in Exhibit 24 is a reasonable and relevant condition which would meet that situation should it arise. The respondent, during its case, sought imposition of a further condition as set out in Exhibit 17 relating to the granting of an easement for the purpose of access to inspect the carrying out of works relative to the proposed., JUDGMENT 8 10 20 . 30 40 50 60 -- 8 of 21 -- 231092 development. The condition it sought was a bond to guarantee the performance of the works. Both conditions were not objected to by the appellant and are, ~ in my view, reasonable and relevant conditions which ought properly to be imposed in granting the application to a group title sub-division. . I JUDGMENT 9 10 20 . 30 ( 40 ( 50 60 -- 9 of 21 -- ) ) ) r1 231092 klj (Row DCJ) l'!"'l For the reasons above the appeal is allowed. The applic~tion for the subdivision of the subject lanq into group title - - allotments is approved subject to the conditions as set out in Exhibit 3 subject to the following:- Condition ·1-(c) is amended to read, "lot 5 or 6 is to be deleted". Conditions as set out in Exhibits 16, 17 and 24 are to be added as conditions 27, 28 and 29 respectively. In this appeal, the respondent seeks orders as to costs against the appellant-~n-relation to those matters associated with conditions 1 (c); condition 12 and condition 25. Condition 1 (c) relates to matters of a geotechnical nature. such matters, in my opinion, could properly be argued by the appellant on the hearing of the appeal. The fact that there had been a report furnished, unfortunately at a relatively late date, is nevertheless indicative that there were arguable grounds in relation to that issue. J on condition number 12 the appellant has adduced no credible evidence relevant to the issue other than broad statements of professional opinion which were not based on any factual or detailed analysis by a competent and experienced professional engineer. The question of the adequacy of the width of six metre wide access roadway was a matter of some significance on which professional opinion evidence has been expressed by witnesses called on behalf of the respondent. I regard the absence of any satisfactory evidence from the appellant who .\ JUDGMENT 10 10 20 . 30 40 50 60 -- 10 of 21 -- 231092 klj (Row DCJ) raised this issue in the Notice of Appeal which was file~ on_ 14 November 1990, some two years ago, i? of such signifi~ance as to warrant an order that the appellant pay the respondent's costs of and incidental to that issue. condition 25 was supported by the initial letter written by the appellant to the Council on 17 October 1990 and was indicative of then intention to develop the proposal as one development. The evidence advanced on behalf of the appellant in relation thereto advances reasons of a private economic 10 nature. Such matters are not relevant to considerations in 20 • this Court which is a Court to determine planning merit in relation to an application. I consider in such circumstances the evidence adduced was in no way of assistance to a relevant consideration of the reasonableness or otherwise of proposed condition 25. The fact that evidence on behalf of the respondent was led by a town planner is indicative that such professional evidence might have been available to the appellant in the two years that have lapsed since the institution of the appeal. In my opinion, the respondent is 30 entitled to an order for costs in relation to the issue raised 40 by condition 25. ( I order that the appellant pay the respondent's costs of and incidental to the issues raised on the hearing of the appeal relative to condition 12 and condition 25 to be taxed, such cost to be ascertained and fixed by the proper costs taxing officer of the Supreme Court at Brisbane according to the .. scale of costs prescribed by law for the time being in respect of proceedings in the District Court. -l JUDGMENT 11 50 60 -- 11 of 21 -- ) ) IN THE PLANNING AND ENVIRONMENT COURT HELD AT CAIRNS QUEENSLAND L.G.A. No. 55 of 1990 BETWEEN: A. ANGELS AND ASSOCIATES PTY. LTD. Appellant MULGRAVE SHIRE COUNCIL Respondent 23rd October, 1992 REASONS FOR JUDGMENT - ROW, D.C.J. - 23RD OCTOBER, 1992 This appeal relates to an application by the appellant for the subdivision of land into seven group title allotments in accordance with plan A1361 which was lodged with the respondent on 1st March, 1990~ The subject site is described as lots 296 and 299 on registered plan 73278, portion 215, parish of Cairns, County of Nares, situated at No 152 and 144 Sydney Street, Bayview Heights. The subject site comprises two separate battle axe allotments with a combined area of 5,484 square metres with ) two separate road frontages to Sydney Street, of 6. 013 metres and 6.918 metres. The subject site slopes downward from the rear boundary in a southerly direction to the road frontage with the majority of the subject site being above 85 metres AHD. The application was considered by the respondent on 4th June, 1990. At that meeting the respondent decided to refuse the application. Subsequently the appellant lodged with the respondent a geotechnical report by Hollingsworth Dames and -- 12 of 21 -- 2 Moore. The application was further reported on by the subdivisional design engineer. On 15th October, 1990 the respondent approved, subject to conditions, the said application. Notification of the decision of the respondent was forwarded to the appellant under cover of a letter dated 17th October, 1990. The notice to appeal by the appellant filed on the 14th November, 1990 concerned conditions 1(c), 12 and 25. The disputed issues were identified as relating to the said conditions. The subject land is zoned Residential "A" under the relevant Town Planning Scheme. The land adjoining to the east, west and ) south is included within the Residential "A" Zone. The adjoining land to the north is within the local authority area of the city ) ) of Cairns and is zoned Open Space - Rural in accordance with the relevant planning scheme for the City of Cairns. The subject site is presently vacant. The land adjoining to the site to the west and south is used for detached housing. The land to the north is presently vacant. Development in the area is predominantly for residential detached housing. The suburb of Bayview Heights is almost exclusively made up of conventional residential subdivision occupied by single unit detached housing. The vast majority of the allotments in the locality are between 700 and 900 square metres with the exception of those lots in the upper parts of the suburb where, because of the increasingly steep topography, the lots are generally larger. The two lots, the subject of the application, are somewhat typical of the larger lots in the hillside areas of Bayview -- 13 of 21 -- ) ) ) 3 Heights. The standard of development is in general quite high and the standard of development for single unit detached housing in the immediate locality is higher than the average for Bayview Heights. It is proposed to subdivide the subject land into seven group title allotments to enable seven detached dwellings to be erected on the subject land with a significant common area being proposed within the group title subdivision. Access to the proposed group title lots is proposed via an access off Sydney Street which provides the handle part of the battle axe of lot 296. In July, 1988 the respondent adopted policy 2.14 Subdivision - Group Titles. One of the effects of the policy was to provide for the group title subdivision of land in the Residential "A" Zone. The policy adopted certain performance standards in relation to group title development and subdivision. The performance standards include provisions for minimum and ) maximum areas, and for minimum areas of common property in the subdivision. Clause 4 ( f) provides that access shall have a minimum width of 6 metres. Chapter 52 - Group Title Development - of the by-laws of the respondent under clause 4(4) provides for a minimum width of 5 metres of sealed pavement access roads to service from two to fifteen lots. Geotechnical reports were tendered on the hearing of the appeal by Golder Associates (Exhibit 15) and D.J. Douglas and -- 14 of 21 -- 4 Partners Pty. Ltd. (Exhibit 9). As a consequence of discussions between the parties a proposed condition relative to geotechnical matters, namely Exhibit 16, was tendered to the Court being a proposed condition put forth by the respondent to which the appellant raised no objection. Evidence of a civil engineering and associated nature was led from Mr. Valmadre on behalf of the appellant and Mr. ) Underwood on behalf of the respondent. ) Mr. Valmadre had recently been retained by the appellant to advise in relation to engineering concerns and undoubtedly because of time constraints had not inspected the site nor carried out any detailed investigations in relation to the matters in issue between the parties. Whilst I have no doubt as to his competence and as to the expressions of professional opinions, I am not persuaded that his evidence ought to be given much weight in view of the lack of detail and lack of professional examination of the issues that were under ) discussion. The evidence of Mr. Underwood, the Deputy Shire Engineer, was well considered and obviously based on a detailed examination of the relevant issues. His evidence on traffic matters was not the subject of any evidence led from Mr. Valmadre. His traffic engineering evidence, I am satisfied, was soundly based and there is no reason why it ought not to be accepted. -- 15 of 21 -- ) ) ) 5 In considering the matters associated with the width of the access to be provided for vehicles to the proposed development, I prefer the evidence given by Mr. Underwood, as it was to a significant extent on that issue supported by town planning considerations relevant to the proposed development. The evidence of Mr. Robinson, a Consultant Town Planner called on behalf of the respondent, was supportive of the view that a minimum width of 6 metres was reasonably required and relevant for access to the proposed group title subdivision. The proposal of the appellant whereby that width ought to be reduced for the purposes of allowing the provision of some limited planting and landscaping so as to enhance the aesthetic value of the subdivison in my opinion ought not to overcome the importance of the major feature, namely the provision of safe and satisfactory access having regard to the topography of the land and the curves on the proposed access way. It is to be noted that in relation to the width as mentioned both in the by-law in the policy, the prescription relates to a minimum width. In such circumstances, the Court should have regard to all relevant considerations in determining what is appropriate for the width of the proposed access driveway in relation to the subject application on the subject land. I am satisfied on the evidence which I have preferred that a width of six metres should be provided. No town planning evidence was adduced on behalf of the appellant. The town planning considerations, to a significant extent, relate to the question of amenity. The area is one having a reasonably high residential amenity. Th~ proposed land, -- 16 of 21 -- () ,) ) 6 because of its elevated location, is somewhat prominent in the suburb of Bayview Heights. Its prominence can be gauged by the fact that a substantial part of the land is above RL 85 AHD and that that part of the land adjoining the existing residential development is at about the roof height of those existing detached houses. Part of the intent of the policy indicates that the issue of density was considered relevant by the Local Authority in relation to an application to it for a group title subdivision. The various provisions in relation to minimum areas, both for lots and for common property and the maximum lot size is further indicative that density of development is of significance. As the land is within the Residential "A" Zone, density of development relative to the density that may be permitted in the Residential "A" Zone is important. The question of the intensity or density of development is not, I am satisfied, related to soil stability, but it primarily related to issues of amenity. On that basis, I prefer and accept the evidence of Mr. Robinson that it is desirable that the lot yield be limited to six lots. On the basis on which the appeal was conducted before the Court, I am satisfied that either proposed lot 5 or lot 6 should be deleted from the proposed group title subdivision. The appellant, in evidence in relation to Condition 25, sought the development of the group title subdivision in stages. Whilst the evidence opened did not accord with the evidence led from Mr. Valmadre, I have no hesitation that the subdivision physically could be achieved in stages. The issue before the -- 17 of 21 -- (J 7 Court is whether it is reasonable in the circumstances that it should be permitted to be so developed. The application as made to the respondent was on the basis as set out in the letter dated 11 th May, 1990 from the appellant to the respondent and is indicative of the then intention by the appellant to develop the land as one entity. Whilst the Managing Director of the appellant did not depart from such an intent he sought, because of private economics, a variation of Condition 25 which would permit the group title subdivision in stages. The reasons advanced did not in any way relate to town planning or engineering concerns, but to private economic factors. Such matters, in my view, are not of relevance in determining whether, in the circumstances, staged development ought to be permitted. The question of private economics is of little significance to the Court in determining an application relative to a group title subdivision. The evidence of Mr. Robinson is indicative that there are a number of factors which, in his view, which I accept, require that the development should be completed as one entire form of development. The staging of the development could lead to the sale and development of individual lots, whilst other lots were not developed. The form of building could be varied from one stage to another and may result in a most unsatisfactory form of development. Further, the mixing of construction traffic and residential traffic over what is a relatively narrow access way with two curves within relatively short distances could result in significant traffic problems. The development in stages, I am further satisfied, would be likely to lead to a prejudice to the amenity of the area~ having regard to the high residential -- 18 of 21 -- C) ,) 8 amenity that presently exists and is undoubtedly likely to exist in the future. The absence of any examination by the appellant as to whether an upgrading of the existing drainage system in the locality may be required is, having regard to the basis on which the system was originally designed, a matter of some concern. I am satisfied that the proposed condition as set out in Exhibit 24 is a reasonable and relevant condition which would meet that situation should it arise. The respondent, during its case, sought imposition of a further condition as set out in Exhibit 17 relating to the granting of an easement for the purpose of access to inspect the carrying out of works relative to the proposed development. A condition was sought for the provision of a bond to guarantee the performance of the works. Both conditions were not objected to by the appellant and ) are, in my view, reasonable and relevant conditions which ought properly to be imposed in granting the said application for a group title subdivision. For the reasons above the appeal is allowed. The application for the subdivision of the subject land into group title allotments is approved subject to the conditions as set out in Exhibit 3 subject to the following:- Condition 1(c) is amended to read, "lot 5 or 6 is to be deleted". -- 19 of 21 -- ) ) 9 Conditions as set out in Exhibits 16, 17 and 24 are to be added as Conditions 27, 28 and 29 respectively. In this appeal, the respondent seeks orders as to costs against the appellant in relation to those matters associated with Conditions 1(c); Condition 12 and Condition 25. Application is made under s. 31 of the City of Brisbane Town Planning Act as the application was made prior to the commencement of the Planning and Environment Act. Condition 1(c) relates to matters of a geotechnical nature. Such matters, in my opinion, could properly be argued by the appellant on the hearing of the appeal. The fact that there had been a report furnished, unfortunately at a relatively late date, is nevertheless indicative that there were arguable grounds in relation to that issue. On Condition 12 the appellant has adduced no credible evidence relevant to the issue other than broad statements of ) professional opinion which were not based on any factual or detailed analysis by a competent and experienced professional engineer. The question of the adequacy of the width of six metre wide access roadway was a matter of some significance on which professional opinion evidence has been expressed by witnesses called on behalf of the respondent. I regard the absence of any satisfactory evidence from the appellant which raised this issue in the Notice of Appeal which was filed on 14th November, 1990, some two years ago, is of such significance as to warrant an -- 20 of 21 -- ) ) 10 order that the appellant pay the respondent's costs of and incidental to that issue. Condition 25 was in accord with the initial letter written by the appellant to the Council on 17th October, 1990 and was indicative of then intention to develop the proposal as one development. The evidence advanced on behalf of the appellant in relation thereto advances reasons of a private economic nature. Such matters are not relevant to consideration in this Court which is a Court to determine planning merit in relation to an application. I consider in such circumstances the evidence adduced was in no way of assistance to a relevant consideration of the reasonableness or otherwise of Condition 25. The fact that evidence on behalf of the respondent was led by a town planner is indicative that such professional evidence might have been available to the appellant in the two years that have lapsed since the institution of the appeal. In my opinion, the respondent is entitled to an order for costs in relation to the issue raised by Condition 25. I order that the appellant pay the respondent's costs of and incidental to the issues raised on the hearing of the appeal relative to Condition 12 and Condition 25 to be taxed, such cost to be ascertained and fixed by the proper costs taxing officer of the Supreme Court at Brisbane according to the scale of costs prescribed by law for the time being in respect of proceedings in the District Court. -- 21 of 21 --