(Rackemann DCJ - 1 April 2014)
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Planning and environment – appeal against Council's decision to refuse a development application for a material change of use to permit a development of multiple dwellings – whether conflict with planning scheme arising from overdevelopment – whether insufficient area for landscaping – whether garage and parking areas dominated street frontage in conflict with planning scheme – whether increased traffic volume would result in adverse amenity impacts – whether sufficient grounds to approve

Facts: This was an applicant appeal against Council's refusal of a development application for a development permit for a material change of use for multiple dwellings on land at Moranbah.

The subject site was approximately 3.7 hectares, was located about two kilometres east of the town centre and was within the Urban Zone under the relevant planning scheme. An electricity easement was located to the immediate east of the site. Development in the surrounding area was generally for residential purposes.

The proposal was for 28 buildings of attached houses yielding a total of 103 dwelling units, accessed from a new public road ending in a cul-de-sac. Habitable rooms were to be set back 20 metres from the easement. The development application was code assessable.

The issues in the appeal were:

  1. conflict with the planning scheme arising from alleged overdevelopment of the site, insufficient area to provide for planting and the generation of traffic volumes in Nonette Street (which intersected the site), which would adversely affect amenity; and
  2. insufficiency of grounds of justify approval notwithstanding conflict.

Residential development, including by way of multiple dwellings, was generally anticipated and encouraged within the urban area of Moranbah under the planning scheme and the Mackay, Isaac and Whitsunday Regional Plan.

However, Council alleged that the proposal conflicted with Performance Criteria 5, 16, 18 and 30 of the Urban Zone Code.

PC30 required the provision of vegetated buffers to electricity transmission line easements. The Appellant proposed various measures to replace trees which would be lost in implementing the development and to provide other new plantings.

PC18 related to the siting and design of garages and parking structures. It was common ground that the proposal did not adopt the relevant acceptable solution, in that the garages were located in front of the main building line instead of behind it. It was Council's argument that the garages dominated the street frontage.

PC 5 required that transport movements "...protect the residential amenity of the locality and do not exceed those normally associated with 'residential activities'...". There was no acceptable solution. Council was concerned that existing residents of Nonette Street would not necessarily expect a multiple dwelling development on the site, which would generate more traffic movements than detached housing.

PC16 required that street, building and landscape design achieve consistency with the character of the surrounding area, visual interest and differentiation between dwellings when viewed from the street.

Decision: The Court held, in allowing the appeal:

  1. The greater than usual setbacks, the fact that the proposed buildings were all two storeys, the fact that only a single garage was provided for each unit and the proposed landscaping between the proposed buildings meant that the garage and parking areas were sited and designed in a way that they did not dominate the street frontage. There was no conflict with PC18.
  2. The reasonable expectations of existing residents was that traffic volumes in their street would be substantially increased over time as a result of residential development of the urban zone. The contribution of the subject development was low and would not have any significant undue impact.
  3. Even had it been concluded that there was a relevant inconsistency by reason of the failure to provide for a mix within the development, it would have been concluded that there were sufficient grounds to warrant approval notwithstanding conflict.

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