Australia: P&E Court finds no reasonable requirement for imposing conditions on a development approval

Last Updated: 2 October 2017
Article by Ian Wright, Nadia Czachor and Russell Buckley

IN BRIEF

The case of Wust v Moreton Bay Regional Council [2017] QPEC 27 concerned an appeal to the Planning and Environment Court against the Council's deemed refusal of a development application for a material change of use for a multiple dwelling on land located at 165 - 169 Caboolture River Road, Morayfield.

Whilst the Council agreed that the appeal should be allowed and a development permit be granted, the parties remained in dispute over two conditions requiring the reorientation of the dwellings and the provision of a pedestrian connection at the rear of the development.

Town planning experts for both parties disagreed as to whether the application was in conflict with the relevant planning schemes. Ultimately, the Court found that the disputed conditions were not required and that the application would not conflict with the planning scheme in the absence of the conditions.

THE APPLICANT SOUGHT APPROVAL FOR MULTIPLE DWELLINGS IN A TRANSITIONING AREA OF MORAYFIELD

The Applicant owned two lots with frontage to both Caboolture River Road and Cox Drive. A development approval was sought for a staged material change of use for 20 single-storey multiple dwellings in the form of detached housing.

The parties' experts agreed that the locality surrounding the proposed development was transitioning from 4,000m2 lots to an increasingly urbanised character and that the Council had previously approved an identical development within one block of the proposed development.

THE APPLICANT DISPUTED THE JUSTIFICATION FOR IMPOSING PARTICULAR CONDITIONS

The parties agreed that a development permit should be granted but disagreed in relation to the imposition of the following conditions:

  • Condition 2(a)(i) to (iv), which required that dwellings one and ten be reoriented to face Cox Drive.
  • Condition 2(v), which required the construction of a pedestrian connection between the southern end of the development and Caboolture River Road.

The Council submitted that the conditions were required to prevent conflict with both the Caboolture Shire Planning Scheme 2005 and the Moreton Bay Regional Council Planning Scheme 2016.

The Applicant argued that the development application was not in conflict with either planning scheme and that the conditions imposed by the Council failed to meet the requirements of reasonableness and relevance under section 345(1) of the Sustainable Planning Act 2009 (SPA).

THE COURT SET OUT THE FRAMEWORK FOR ASSESSING THE DEVELOPMENT APPLICATION BEFORE REVIEWING THE PARTIES SUBMISSIONS

The appeal was an Applicant appeal under section 461(1) of the SPA. Section 495(1) of the SPA requires that such an appeal is heard anew by the Court. Section 495(2) of the SPA required the Court to assess the application based on the laws and policies applying at the time of the application, but allowed consideration of new laws and policies.

The 2005 planning scheme was in effect at the time the development application was first lodged with the Council. The Council argued that the 2016 planning scheme should be given significant weight. The Court held that while it may be considered it would not affect the decision in a meaningful way.

The 2005 planning scheme included the land within the Residential A zone, under which the proposed development was impact assessable. As the application was subject to impact assessment, section 326(1)(b) of the SPA required that the Court's decision not conflict with the planning scheme, unless there are sufficient grounds to justify a decision to approve despite the conflict.

The Court defined the term "conflict" to be variance with or disagreement with and the term "grounds" to be a matter of public interest, excluding the personal circumstances of the Applicant.

THE COURT REJECTED SUBMISSIONS THAT DWELLINGS 1 AND 10 SHOULD BE REORIENTED TO REFLECT TRADITIONAL QUEENSLAND DESIGN ELEMENTS

Specific outcome 4 of the Residential A zone code under the 2005 planning scheme required the scale, form and bulk of a dwelling to incorporate "traditional Queensland design elements". The Council's expert considered the phrase to have the same meaning as "traditional building character elements" as used in the overlay codes designed to protect pre-1947 housing.

The Council's expert highlighted that a core principal of this design standard was that dwellings were oriented to face the street. The Applicant argued that the layout of the houses already ensured casual surveillance of Cox Drive from kitchen windows and rear patios.

The Court rejected the interpretation adopted by the Council's expert, finding that it would have been straightforward for the drafters of the 2005 planning scheme to make this link clear if that was their intention. The Court relied on an overall outcome of the zone code to broadly interpret traditional Queensland design elements to require dwellings to be responsive to Queensland's climate. The Court found the proposal achieved this standard.

THE COURT DETERMINED THAT THE REORIENTATION OF THE DWELLINGS WOULD NOT IMPROVE THE BALANCE OF PUBLIC AND PRIVATE OPEN SPACE

The Council's expert argued that the proposed development failed to comply with specific outcome 13 of the Residential A zone code under the 2005 planning scheme on the basis that it did not optimise reciprocal amenity or functionality and interaction between the private and public domains.

The Court preferred the opposing evidence of the Applicant's expert, finding that the arrangement of the dwellings around a singular driveway allowed for convenient access while providing for an appropriate balance of private and public open spaces that promoted opportunities for casual surveillance.

THE COURT FOUND THAT THE PROPOSAL PROVIDED FOR AN ACCEPTABLE STANDARD OF DESIGN AND ACCESS

The Council argued that the application failed to comply with specific outcomes 3 and 5 of the Medium density residential zone code of the 2005 planning scheme, which required development to provide for a "high standard of design" and entries that are clearly visible to visitors from the street and driveway.

The Court found that simply turning the dwellings around would not produce a higher standard of design. The Court also observed that the reorientation of the dwellings would require significant consequential changes to the proposed development such as the relocation of parking spaces. After observing photographs of the nearby identical development, the Council's arguments concerning the visibility of the entrances were described as pedantic.

The Court also disagreed with submissions stating the proposal failed to comply with specific outcomes requiring the incorporation of Crime Prevention Through Environmental Design principles. The Court found that the open central driveway and orientation of the dwellings provided significant opportunity for casual surveillance while respecting the need for residential privacy.

THE COURT FOUND THAT THE CONSTRUCTION OF A PEDESTRIAN PATHWAY WOULD PRODUCE NEGATIVE IMPACTS

The Council's conditions required the construction of a 1.5 metre wide pedestrian pathway between dwellings 5 and 6 to connect the development to Caboolture River Road. The Council's expert argued that the pathway was needed to ensure the proposed development was permeable and conducive to active transport.

The Applicant's planning expert argued that there was no reasonable basis or benefit to justify the construction of the pathway. The Applicant's expert advanced the argument that the pathway would reduce the available open space and significantly reduce the safety and amenity of residents by encouraging unrelated visitors to pass through the site.

The Court agreed with the Applicant's expert finding that the pathway had limited potential benefit and considerable detrimental effects on the amenity of future residents, including reducing the private open space adjacent to each dwelling to no more than 75 centimetres in width. It was also observed that the pathway ultimately failed to provide the most efficient route to Caboolture River Road.

THE COURT FOUND THAT THE APPLICATION WAS NOT IN CONFLICT WITH THE PLANNING SCHEMES AND ALLOWED THE APPEAL

The Court held that the development application would not be in conflict with either the 2005 planning scheme or 2016 planning scheme in the absence of the disputed conditions. Accordingly the Court found that there was no reasonable or relevant basis for the conditions and ordered that the appeal be allowed.

Ian Wright Nadia Czachor
Planning government infrastructure and environment
Colin Biggers & Paisley

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