Over the last month, the Planning and Environment Court has handed down two decisions which have seen developers succeed against the Gold Coast City Council. Phillips Fox acted for the developers in both cases.
Tralee Properties v Gold Coast City Council
This application concerned the subdivision of land on a prominent hill at Nerang (‘Boonaroo’ owned by the Glennon family). The hill is located a few hundred metres east of the Pacific Highway and is easily visible from the surrounding area. The site contained an area of 11 ha, some of which contained slopes in the order of 30%. The proposal was to subdivide the land (65 lots in total) into areas for residential, commercial industry and parkland. The Council approved the application but subject to conditions which significantly reduced the residential lot yield which had been applied for. The two key issues in the case were impact on visual amenity and slope.
The application was lodged under the provisions of the 1995 Albert Shire planning scheme which included the land in the Future Urban zone with a strategic planning designation of Urban Residential. The land was included in Precinct 9 - Urban Residential under the Nerang LAP with a density designation of RD1 (25 dwellings per hectare).
The Court’s approach
At the outset, the Court reinforced some well established rules to deciding development applications:
- A strategic plan only sets out broad objectives and not every objective in the plan needs to be met before a proposal may be approved.
- In assessing whether a conflict exists with a planning scheme, that conflict must be plainly identified.
- In determining whether an application may be approved despite a conflict the decision-maker must:
3.1 Examine the nature and extent of the conflict;
3.2 Determine whether there are any planning grounds which are relevant to the part of the application which is in conflict with the planning scheme and if the conflict can be justified on those planning grounds; and
3.3 Determine whether the planning grounds in favour of the application as a whole are, on balance, sufficient to justify approving the application despite the conflict.
In respect of visual amenity, the Council sought to rely upon provisions of the strategic plan which emphasised the importance of keeping the treed, natural appearance of the site. The Council contended that the loss of trees from the site and the ultimate visibility of the constructed houses would detrimentally impact on the visual amenity of the locality.
The careful analysis of the likely visual impacts of the proposal by the visual amenity experts revealed that the proposal would be consistent with the scale of residential development in the locality, a large amount of vegetation would be able to be preserved by the use of building envelopes and the proposed tree planting would provide screening for the development. There were also carefully drawn conditions which would preserve trees and control the visual impact of the proposal (such as height restrictions on the houses). The Court was satisfied that after the construction of the development, the hill would present as a substantially treed knoll with houses of high quality, which are visible but not intrusive. Moreover, the development would probably be an admirable addition to the local area.
Some of the disputed allotments were on slopes approaching 30% and the Council argued that this ought not be approved on the basis of the statements in the strategic plan which sought to prevent development on slopes greater than 20%. The land was also identified as having a moderate risk of instability under the 2003 planning scheme. This called up the steep slopes and unstable soils code in the 2003 planning scheme which also has reference to preventing development on slopes greater than 20%. The Court however, had regard to the relevant purposes of the code and noted it was a performance-based code which sought to regulate development on steep slopes rather than prevent it.
Ultimately, the Court approved the developer’s proposal as it was satisfied that ‘the overall thrust of the planning scheme is that the site is suitable for residential development and the overall thrust is quite powerful enough to overcome those minor breaches’.
Coolong v Gold Coast City Council
This case concerned whether an application lodged under the provisions of the 1995 Albert Shire planning scheme had lapsed by operation of law.
The application was lodged just prior to the introduction of the new 2003 Gold Coast planning scheme. It sought approval for a district level shopping centre at Pimpama which was generally supported in the location under the 1995 Albert scheme. No such favourable designations applied under the 2003 scheme.
The Council issued a detailed information request to the application. The applicant sought extensions to the information response period which were granted but not to the extent requested. Just before the period in which an information response had to be provided expired, the applicant changed its application to seek a preliminary approval rather than a development permit for the shopping centre.
The Council argued that the change was ‘in response’ to the information request and was therefore caught by s3.2.9(5) of the Integrated Planning Act 1997 which meant that the IDAS process kept running and the application lapsed because no proper information response was made in the required time. The applicant contended that the change to the application was not ‘in response’ to the information request but was in response to the Council’s refusal to extend the time to provide an information response. The applicant argued that the IDAS process effectively restarted and the Council was required to issue a fresh acknowledgment notice to the changed application.
The Court found that the change to the application was not in response to the information request, but rather a unilateral change to the application made by the applicant. A change to an application in this way, which dealt with an issue in a information request (by avoiding the need to provide detailed information which would not be required for an application for preliminary approval), was open to be made by an applicant. It did not necessarily mean the change was ‘in response’ to the information request.
The result of the Court’s decision is that the Council must now issue a fresh acknowledgment notice to the changed application.
This publication is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances and no liability will be accepted for any losses incurred by those relying solely on this publication.