Barrington v Council of the Shire of Albert [1991] QPEC 16

.,, '· _J TRANSCRIPT OF PROCEEDINGS Pc G n / b '1\ 01 State Reporting Bureau, 4th Floor, The Law Courts, George Street, BRISBANE, O. 4000 Tel. (07) 227.4360 (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 ROW DCJ LGA No 6 of 1991 (Southport Registry) JOHN RANDALL BARRINGTON and COUNCIL OF THE SHIRE OF ALBERT BRISBANE .. DATE 17/10/91 2.15 P.M. JUDGMENT l ---- .1REVISED COPIES ISSUED Court Reporting Burea11 Date: 1·{11('/1001 .. .....__.aa ► -oiln+ ..... Appellant Respondent -- 1 of 17 -- 171091 JUDGMENT HIS HONOUR: I publish my reasons. 10 20 20 30 30 \0 40 0 50 60 Govt. Printer, Old. 2 -- 2 of 17 -- ) ) IN THE PLANNING AND ENVIRONMENT COURT HELD AT SOUTHPORT QUEENSLAND BETWEEN: L.G.A. No. 6 of 1991 (Southport) JOHN RANDALL BARRINGTON Appellant COUNCIL OF THE SHIRE OF ALBERT Respondent 30th September; 1st October 1991 REASONS FOR JUDGMENT - ROW D.C.J. - J8th October, 1991 - Brisbane The appellant appeals herein consequent upon a decision of the respondent whereby the respondent refused to approve an application made by the appellant for the rezoning of land situated 43-45 Guineas Creek Road, Elanora being Lots 76 and 77 on R.P. 168335, County of Ward, Parish of Tallebudgera having an area of 1,484 square metres by excluding the subject land from the Residential "A" Zone and including the land so \ excluded in the Special Facilities (Medical Centre) Zone. Each of the Lots is presently developed with a detached residential dwelling, and each is used as a surgery together with landscaped areas and paved areas for driveways and for the parking of motor vehicles. Lot 76, being number 45 in Guineas Creek Road, is used as a doctor' s surgery by Dr. Carlyle. Lot 77, being number 43 Guineas Creek Road, is used as a dentist's surgery by Dr. Manley. Lot 76 was approved by the respondent in March 1982 for use as a doctor's surgery. -- 3 of 17 -- 2 One of the conditions of the approval limited the approval to a period of 2 years. In April 1982, Dr. Carlyle sought and obtained the approval of the respondent to use the premises as a doctor's surgery for a period of 5 years. Lot 77 was approved by the respondent for use as a dentist's surgery in May 1987. No time limit was imposed in relation to that approval. At the present time and for some significant period of time, there has been no residential use of either Lot 76 or Lot 77. The existing detached residences are solely used for non-residential purposes. Each of the doctors propose, if rezoning is approved, to retain their existing practices. The ) proposed rezoning would create each with the potential for such practice to be operated by more than one doctor or dentist and would overcome the requirement under the definition of surgery that there be a residential component to each of such uses. The subject land is zoned Residential "A" under the relevant Town Planning Scheme. It has a preferred dominant land use classification of urban/residential within the ~ provisions of the Strategic Plan. The site is rectangular in shape having a frontage to Guineas Creek Road of 36.74 metres and a depth of 40.5 metres. The rear of the site has frontage to a man-made lake. The land in the vicinity, other than to the east, is predominantly developed for residential uses being either a detached dwelling or of a higher residential density consistent with those areas that are zoned Residential "B" and Special Residential. Immediately to the east of Lot 77 is a recently constructed Shell service station. The -- 4 of 17 -- ) ) ) 3 service station has a building form which conforms with the residential character of the locality, but nevertheless functions clearly as a non-residential use. operates as a petrol outlet and shop It significantly but without any facilities for the repair and maintenance of motor vehicles. The land on which the service station is erected is zoned Special Facilities (Service Station). That land abuts to the east a further area of land which is zoned Residential "A" fronting Coolgardie Street, which land is developed as part of the landscaped area for the development located on the other side of the man-made lake to the north of the subject land known as "Isle of Palms" and "Bay of Palms". provides tourist accommodation with a That development range of on-site facilities which includes a licensed restaurant. On the eastern side of Coolgardie Street is a relatively large parcel of land zoned Central Business on which is constructed "The Pines" shopping complex. On the same side of Guineas Creek Road to the west of the subject land are detached dwellings erected on land zoned Residential "A". The southern side of ) Guineas Creek Road is developed with a mixture of detached dwelling and other forms of dwelling units on land which is zoned Residential "A", Residential "B" and Special Residential. Guineas Creek Road is a major distributor road which carries approximately 9,500 vehicles per day. It is constructed as a four lane carriageway in the vicinity of the subject land. The residential development in the locality is predominantly of a high quality. Whilst it may be said that on the northern side of Guineas Creek Road the subject land is -- 5 of 17 -- ) 4 on the fringe of that residential development, in the overall context however, because of the residential development on the southern side of Guineas Creek Road, it is not so located within the residential area of Elanora. Consequent upon public notice having been given of the application, no objections were lodged with the respondent. However, one letter of support was lodged with the respondent. The application was reported on by the Town Planning Department of the respondent which concluded that approval of the application was recommended subject to conditions. The respondent at its meeting in December 1990 resolved to refuse the application on the following grounds:- "1. The proposal is contrary to Council's overall planning for the area. 2. The proposal could have a detrimental effect on the amenity of the area. 3. The proposal is contrary to Council's existing policy regarding commercial development along Guineas Creek Road." On the hearing of the appeal it was admitted that there was no policy of the respondent regarding commercial ' development along Guineas Creek Road. The decision of the respondent was notified to the appellant by letter dated 27th December 1990 addressed to Environmental Project Planning. Under the Town Planning Scheme for the Shire of Albert, the Residential "A" Zone is intended to accommodate low density residential development predominantly in the form of single family detached dwellings to the general exclusion of -- 6 of 17 -- 5 other types of land use. It is also intended that other support facilities such as general stores, child care centres, and recreation uses may be allowed in appropriate locations. In the Residential "A" Zone, surgeries are consent development within Column 4 of the Table of Zones. Medical centres are prohibited development under Column 5. follows:- Surgery is defined as "Any premises forming part of a dwelling house wherein the owner and occupier of the dwelling house carries on the practice of a medical general practitioner, dental surgeon, chiropractor, physiotherapist or other similar medical profession. The term does not include medical centre as herein defined." Medical centre is defined as follows:- "Any premises used or intended for use for the medical care or treatment of persons not resident on the site. The term includes ... premises used or intended for use by a ... dentist, medical practitioner ... in the practice of that profession. The term does not include a home occupation ... or a surgery as herein defined." The Strategic Plan is primarily concerned with matters affecting the use of land. It.deals with broad patterns of land use. The urban residential future areas of urban housing. dominates urban residential, areas include existing and While residential land use areas also include non- residential land uses which serve or complement housing areas; these include local and district level shopping centres, educational facilities, parks and open space, kindergartens -- 7 of 17 -- ", 6 and churches . In some cases, small commercial and service industry areas, and other minor non-residential development may be included. Tourist development may also be permitted in suitable locations. The objectives of the urban residential preferred dominant land use designation include the promotion of a high standard of amenity in residential areas, in particular, to promote the qualities of quiet, safety, visual attractiveness, privacy and clean air. The implementation provisions are indicative that the issue of amenity is of particular significance. (Clause 1(a)(i)(A)). Under Implementation Clause 1(a)(iii), essential non-residential intrusions into residential areas shall be located together and designed in such a way as to reduce their impact on the amenity of nearby residences. Other than in exceptional circumstances, facilities such as indoor sports centres, professional services, service stations, kindergartens and churches shall be located and associated with local shopping facilities or established non-residential development. Implementation Clause 1(a)(vii) indicates the desirability of protecting the amenity of those residences which already suffer from the disability of traffic noise because of their location on busy streets. It is recognised therein that such amenity should be protected against further deterioration through the intrusion of incompatible uses in the vicinity, including (A) commercial development. The Special Facilities Zone is intended to be used to accommodate a particular form of development of a particular -- 8 of 17 -- ) ) ) 7 site, where such development is considered in the circumstances to be desirable, but where the inclusion of the land within any of the other zones could enable an undesirable form of development or a wider range of uses than that being considered. In the Special Facilities Zone, permitted development include purposes specified on the plan of development identified on the scheme maps, and those purposes indicated by red lettering on the zoning maps subject to the provisions of Clause 54(1} of the Town Planning Scheme. Any purpose other than those referred to in Column 3 or 4 are prohibited development under Column 5. On the hearing of the appeal, evidence was given by both Dr. Manley and Dr. Carlyle. Dr. Manley is a dental surgeon. His practice is carried out from 43 Guineas Creek Road, Elanora. He has carried out his practice therefrom since 22nd June 1987. Between May 1987 and December 1988 he resided on the premises, but because of a sickness to his daughter, he moved from the premises. He subsequently returned to the premises in May 1990 and continued to live there until the rezoning application the subject of the appeal was lodged in September 1990. He is not now residing on the property and has no intention, at present, to reside therein. His wife, who gave evidence, has no intention of going back to live at 43 Guineas Creek Road as she has some concerns in relation to the safety of herself and her family consequent upon the development of the service station on the adjoining block to the east. -- 9 of 17 -- ) 8 Dr. Manley has a growing dental practice and serves a wide population base. The main areas from which he draws patients being the suburbs of Elanora and Currumbin Waters. His hours of operation are usually 8.30 a.m. to 5.30 p.m. with his late night being Wednesday, so as not to interfere with late night retail trading which is of a Thursday. His premises are fully air-conditioned and, whilst the service station has little impact on his dental practice, he is of the opinion that it would seriously impinge upon the use of his premises for residential purposes. His concerns in relation thereto relate to the smell of petrol and the lighting from ) the service station. The storage of an L.P. cylinder in close ) proximity to his boundary is of major concern in relation to the safety of himself and his family. Whilst he does not, at the present, anticipate any significant alteration to the method and manner in which he conducts his practice, the rezoning would allow him the opportunity to employ professional staff to assist in his practice. Further, it would allow him to lawfully operate his practice without the requirement of residing thereon. Dr. Carlyle is a medical general practitioner who carries on his practice from 45 Guineas Creek Road. He resided on the premises for a period of about 3 months after commencing practice in June 1982. Because of the constant demand of his practice, he moved from the premises to Mackerel Court, Palm Beach where he presently resides. The practice provides a service to Elanora and possibly a much wider area, having regard to his position as Government Medical Officer and also -- 10 of 17 -- ) 9 by reason of the fact that he conducts a specialised area of treatment by collagen implantation. His is the only practice in Elanor a which offers house calls. His work as Government Medical Officer covers the area from the New South Wales him in medical work from border to Beenleigh and involves outside the Elanor a area. His practice is growing the probability of requiring significantly and he envisages additional medical practitioners, at least one, to assist in the practice. He has concerns in relation to the use of his premises for residential purposes since the construction of the service station adjoining Dr. Manley's surgery. He now ) keeps closed the windows on the eastern side of the building because there is intermittent petrol and L.P. gas odours. ) ) Mr. Birch, who lives at 47 Guineas Creek Road immediately to the west of Dr. Carlyle, gave evidence on the hearing of the appeal. It is clear from his evidence that the existing dental and medical practitioners do not provide any adverse affect on the use of the premises of which he is a tenant. He has not experienced any disturbance at night. He has not had any difficulty with motor vehicles parked at the kerb of Guineas Creek Road which would adversely affect his enjoyment of his residence. Town planning evidence was given by Mr. Barrington, a consultant town planner, on behalf of the appellant. In his view, the proposal to rezone complies with the intent of the Residential 11 A11 Zone and the Urban Residential designation within the Strategic Plan of the respondent. He saw the proposed rezoning and subsequent use as proposed as providing -- 11 of 17 -- 10 a transitional use between the adjoining residential and commercial development, including "The Pines" retail shopping development, without adversely impacting upon the character or amenity of the locality. He saw the subject site as being suitable for the proposed use. In his view, the proposed rezoning and subsequent development would not cause or exacerbate any existing traffic problems nor would approval lead to ribbon commercial development along Guineas Creek Road. Mr. Holland, an experienced town planning consultant, gave evidence on behalf of the respondent. In his view, as the area surrounding the subject site has a predominantly residential zoning and character with a good standard of residential amenity, adversely affect the unacceptable degree . the proposal would, existing residential In his view, it was in his view, amenity to an significant that within the Town Planning Scheme, recognition was given in relation to the nature of support facilities that may be allowed in residential areas where a clear distinction as to the type and intensity of the facilities which are considered appropriate within those areas is drawn. In particular, reference was made to the definition of surgery and medical centre and the recognition by the respondent of the residential component for the permissible use of land within the Residential "A" Zone for a surgery and some other uses. In his view, the proposal was not in conformity with the Town Planning Scheme nor with the Strategic Plan in relation to -- 12 of 17 -- 1 1 Objective 1 (a) thereof and a number of the implementation provisions in relation thereto. The fact that the local Planning Authority within the relevant Town Planning Scheme has seen fit to draw a distinction between surgery and medical centre in relation to developments which may be permitted within the Residential "A" Zone is indicative that a residential component of such a use is of primary importance within the Residential "A" Zone. The importance and significance of a residential component of a non-residential use within the Residential "A" Zone is gleaned from Column B of Column 3 and Column 4 of the Table of Zones. J In addition to being prohibited development in the Residential "A" Zone, medical centres are prohibited development in Residential "B" and Special Residential Zones, whereas in the Central Business, Special Business and Local Business, medical centres are permitted development within Column 3 of the Table ) of Zones. In reading the Table of Zones with the Statement of Intent of the Residential "A" Zone, I am satisfied that a medical centre is not to be perceived as a support facility ) within the Residential "A" Zone but that such a support facility is development which comes within the definition of surgery. The fact that medical centre is a prohibited development in the Residential "A" Zone is indicative that such a development is to be regarded as incompatible to the primary intent of the Residential "A" Zone for low density residential development. The fact that the development of land for the purpose of a medical centre is seen as prohibited development in the Residential "A" Zone is further indicative -- 13 of 17 -- 12 of the planning strategies of the respondent that such a non- residential use is seen as an intrusion which would not be compatible with the primary and predominant form of development within that zone and would be an intrusion of an unwarranted nature within that zone. Whilst the application is to exclude the subject land from the Residential "A" Zone, the land surrounding and to the west of the subject land will be retained within the Residential "A" Zone. It is of significance in those circumstances to consider the impact that the proposed rezoning may have or be likely to have on the existing zone '1 and on the development within that zone. ) ) Under the Strategic Plan, the clustering or grouping of non-residential activities is a concept which is promoted. The proposed rezoning and subsequent use of the land for the purpose as proposed would not result in any clustering or grouping of non-residential uses in the sense that such uses should be located in association with local shopping facilities or established non-residential development. The proposed rezoning with the potential for the subject land to be developed more intensely than it presently is would be likely to prejudicially affect the existing and likely future amenity of the locality. The locality on the northern and southern sides of Guineas Creek Road is primarily developed with residential development of a reasonably high standard. The man-made lake to the north of Guineas Creek Road adds to the residential amenity enjoyed by those properties which front the lake. The existing and future -- 14 of 17 -- 1 3 residential development on the southern side of Guineas Creek Road has access to the visual amenity of Currumbin Creek. Whilst the properties in the immediate vicinity of Guineas Creek Road are somewhat adversely affected by traffic noise, nevertheless the area has a reasonably high standard of residential amenity which is likely to be retained within the provisions of the Strategic Plan. The proximity of "The Pines" shopping centre and uses located on the shopping centre land provide for facilities which service the residential area in the immediate vicinity of the subject land. Whilst the establishment of a service station has had some prejudicial affect on the residential amenity of the immediate area, it would . appear that the service station is not being conducted in accordance with the approved conditions of development. The service station was built in a form that conforms with the existing detached dwellings. However, it is clearly non-residential in character. The prospective amenity of the area, having regard to the provisions of the Strategic Plan, is likely to be maintained to accord with the existing residential arneni ty. As the doctors do not propose any significant internal changes to each of the existing structures, there will be little or no adverse visual impact created by the proposed rezoning. The proposed rezoning and subsequent development will retain a commercial non-residential character which will be evident by the parking area which is available, the activities of people and vehicles entering and leaving each of the premises and signage. The development, if rezoning is -- 15 of 17 -- 14 approved, will undoubtedly have a commercial non-residential character and will be an intrusion into the residential area of a development which would have no residential component. The proposed rezoning will result in there being no residential component required in relation to the proposed development. As that use is prohibited development within Column 5 of the Table of Zones I am satisfied that the intrusion is of an incompatible form of development with the adjoining Residential "A" zone. Community or public need was raised on the hearing of the appeal. The evidence of Dr. Carlyle and Dr. Manley is indicative that there is no community or public need for additional land to be zoned for the purpose of a medical centre. Each existing practice is presently meeting what is a growing need for medical and dental services in the area, and is able to cope therewith. What services are proposed to be provided by the rezoning is what currently exist. On the evidence, the appellant has not satisfied me that there is a community or public need for additional land to be rezoned for the proposed development. I prefer the town planning approach adopted by Mr. Holland in that he gave weight to the planning strategies as reflected by the respondent within the definition of surgery and medical centre in relation to the provision of such development within the Residential "A" Zone. Mr. Barrington appeared to give insufficient weight to the distinction drawn by the Local Planning Authority to the provision of support facilities within the intent of the Residential "A" Zone. He -- 16 of 17 -- 15 further accepted that the existing uses were lawful. On the evidence I have no hesitation in finding that, at the present time having regard to the manner in which each development is conducted, each development is conducted contrary to the approvals and the terms and conditions thereof as granted by the respondent. The time limitation of the approval granted to Dr. Carlyle has expired. Those facts in themselves are of no significance in determining the subject application, nor are they to be regarded as matters adverse to the appellant on the application. On all the evidence I am satisfied that the application should not be approved. The application, in my view, is in conflict significantly with the provisions of the Town Planning Scheme and of those parts of the Strategic Plan which relate to the urban residential preferred dominant land use classification as above set out. The proposed development would be wholly commercial or non-residential. I am further satisfied that the appellant has not established community or public need for additional land to be zoned for the proposed development. The fact that each doctor primarily seeks to remove the statutory requirement of the obligation to reside on his respective premises is not in itself a sufficient basis for the rezoning of land. The appeal is dismissed. -- 17 of 17 --