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:
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;
insufficiency of grounds of justify approval notwithstanding
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
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
Decision: The Court held, in allowing the appeal:
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.
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.
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
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