Iverach v Cardwell Shire Council & Anor

[2] The southern section of Koda Street contains older development, and has 36 residential lots between 800 m2 and 1,000 m2 in size. Of the 30 developed lots, all are developed with detached dwelling houses except for 1 duplex. There are no multiple dwellings.

[3] The proposed development is for seven x 3 bedroom, 2 storey, multiple dwelling units in 2 separate buildings (Stage 1); and 8 x 2 bedroom, 2 storey, multiple dwelling units in 2 separate buildings (Stage 2). The 15 dwelling units contain 37 bedrooms and 30 bathrooms.

[4] At the time the development application was lodged, the town planning scheme for the Shire of Cardwell was in effect as a transitional scheme but the draft Cardwell Shire Council Planning Scheme ("the IPA scheme") had been on public display.

[5] As the application was lodged under a transitional planning scheme, the Integrated Planning Act 1997 (IPA) requires the development application and the appeal to be decided pursuant to ss 4.13(5) and (5A) of the repealed Local Government (Planning and Environment) Act 1990 (P & E Act). Section 4.13(5A) provides that:-

"(5A) The local government must refuse the application if:

(a) the application conflicts with any strategic plan or development control plan; and

(b) there are not sufficient planning grounds to justify approving the application despite the conflict."

[6] Under the transitional scheme the subject land was:

a. designated Urban in the strategic plan map;

b. zoned urban;

c. included in Special Development Area 1 on the structure plan attaching to the Mission Beach Coastal Area Development Control Plan ("the DCP"); and

d. included in Precinct WB1-Wongaling Creek in the Mission Beach Coastal Area Development Control Plan.

The Urban Zone

[7] The urban zone specifically provided for residential development, as did the residential (rural) zone. Multiple dwellings were specified as a permissible development with consent, as were accommodation buildings, duplex dwellings and dwelling units. A wide variety of other uses fell within column 3 by virtue of the inclusion thereunder of "any other use not included in columns 1, 2 and 4."

[8] The definition of terms contained with the planning scheme includes the definition of many "uses". In s 2.3(b) it is provided that any development which is not defined by the Planning Scheme, shall for the purposes of the Planning Scheme be considered to comprise "of a consent development in accordance with the Table of Zones of all zones, and any assessment will be based on good planning principles and each application shall be treated on its merits." This clearly has the effect or potential effect of including in the category of consent uses in the urban zone many and varied different uses. However, it is fair to say that multiple dwellings are specifically contemplated in the relevant table, rather than becoming a consent use, as it were, by default.

[9] There is authority for the view that a consent use implies that the use in question is generally suitable in the zone concerned. That does not, however, necessarily mean that it will be suitable at all locations in the zone, as the above Intent indicates. In this case, I think that a multiple dwelling would be clearly appropriate in some parts of the zone, and clearly inappropriate in other parts. The fact that it is specified as a consent use should not, in the circumstances, engender confidence that an application would succeed no matter where in the zone the development was to be carried out. I do not agree with the submission that a consideration of the zoning provisions and table of uses in conjunction with the precinct provisions relating to WB 1 should give rise to a reasonable expectation that the subject land may be developed for the purpose of a multiple dwelling such as that proposed.

[10] The Intent of the urban zone provides (relevantly) as follows:-

"It is intended that the urban zone provide a flexible approach to residential development, encouraging a range of housing styles and types together with a range of necessary services and facilities for residents within the shire.

Development control plans within this zone are intended to provide specific and detailed provisions to those localities identified as future growth nodes within the shire, depicting the preferred direction of development and uses in the area. Where such development control plans are in force, these will take precedence over the provisions of the Planning Scheme, where conflict exists.

All other areas in the zone are intended to encompass a mix of development including detached housing, attached housing such as accommodation buildings, duplex dwellings, dwelling units, motels and multiple dwellings and the provision of local services and facilities such as child care centres, local shops and community centres which serve the residential environment in which such services and facilities are located.

It is intended that development in the zone be approved when located and designed to be compatible with existing character and amenity in the locality with particular consideration being given to traffic generation, building height and scale, site cover and gross floor area, boundary clearances and the adequate provision of recreation and landscape areas.

The erection of buildings in the urban zone will be limited to 2 storeys in height and will not exceed 7.5 metres to the top plate."

[11] There is further provision that within the urban zone, infill development in the form of attached housing, as defined by the Planning Scheme will be favourably considered where the performance criteria of the Attached Housing Local Planning Policy is satisfied. I do not consider, however, that this provision derogates from the pre-eminence given to development control plans in the Urban Zone Intent in relation to other provisions of the Planning Scheme.

[12] I take the view that "infill development" means, broadly, the development of undeveloped land in a locality where there has already been substantial development apart from isolated pockets, of which the land the subject of the development application is one. The present development application should be regarded as one for "infill development".

[13] The attached housing policy is merely marked "A" for identification but I think it was the intention of all parties that it should be an exhibit in the trial. The overriding goals of the policy include - "to protect and enhance the amenity and character of the locality through appropriately designed and constructed development." I consider that the design and construction of the proposed development is of a high standard, and does not of itself constitute a departure from that goal. "Amenity" is defined in the policy to refer to those qualities and conditions in a locality which contribute to pleasantness, harmony and coherence of that locality, and to its better enjoyment for its permitted uses. "Character" refers to development which is agreeable in situation and circumstance of the landform (topography, natural features, views), landscape (open space, scale and massing of vegetations, textures and colours of hard and soft surfaces), streetscape (street pattern, street width and lengths, building setbacks, degree of enclosure, fencing and design); site layout (pattern of vehicular and pedestrian access, arrangements of structures), built form (mix of building types, scale, building height, roof form, materials and colours) and heritage (buildings, trees, landscapes, level of significance - local, regional, State); of a locality."

[14] I consider that the proposed development is somewhat at odds with the existing development in northern and southern Koda Street which at present is all detached single housing, apart from the Ka Koda cabins which comprise 6 rather unobtrusive single storey timber cabins in northern Koda Street, and 1 duplex in southern Koda Street. I do not consider that the proposed development can be said to protect and enhance the amenity and character of Koda Street.

[15] Another objective of the policy is to ensure "building compatibility and scale with surrounding land uses", but it appears that the proposal meets the relevant design criteria. Again, the development appears to satisfy the "overall densities" requirement of the policy. The specification of maximum density appears to be met, and there is no conflict with the statement that Council does not favour the location of attached housing on sites directly opposite to another such site on a street, since the Ka Koda cabins are not directly opposite the site.

[16] The Urban designation in the Strategic Plan provides:-

"The designation encompasses a mix of land uses associated with an urban area, such as residential, commercial, business, industrial, community and public uses which serve the urban environment (within) which such facilities and services are located.

.............................................................................................................

It is intended that Development within the urban designation improve existing character and amenity of a locality and thos(e) lands being developed which contain natural environment values, be developed in a sustainable manner which protects, conserves and enhances such values."

[17] Section 1.3 sets out the strategic aims of the Plan which "depict the preferred future direction and goals of, and for, development in the Shire. The strategic aims will be considered in conjunction with the intent of the zones, all zoning maps, Council policy and all relevant supporting documentation."

[18] Aim 3 - residential is in the following terms:-

"Promotion of a residential development which incorporates a wide- range housing choice and accommodation, convenience and accessibility to commercial and community services, employment opportunities and open space and recreational facilities, to meet the needs of the permanent and transient populations."

[19] The objectives of this strategic aim are said to be to ensure a freedom of choice of residential type and ownership and the provision of a diverse range of community, recreational and employment opportunities and for increased accessibility and convenience for the wider community to such services. Various means of achieving these objectives are indicated, including:-

"(b) providing a diversity of accommodation and residential types, allotment sizes and type of ownership in a variety of locations which cater for a wide range of interests and lifestyles;

(c) ensuring there is a demand for residential development. As such, residential development will be avoided unless there is a demonstrated need which can be quantified.

(d) ensuring residential development is compatible in scale, amenity and character with its surroundings;"

[20] With respect to para (c) above, it is not submitted by the appellant that there is a conflict between the proposal and this provision, so as to compel the court to refuse the application unless there are sufficient planning grounds to justify approving it. Rather, it is said that in the context of this appeal, "town planning or community need" cannot be used as a planning ground to justify an approval despite the "conflicts with the planning scheme".

[21] With respect to para (d) above, it is certainly, in my view, arguable that the proposed development is not compatible with the amenity and character of its surroundings. "Amenity" is sometimes taken to be that element in the appearance and layout of a locality which makes for a comfortable and pleasant life rather than a mere existence. I think the definition contained in the Attached Housing Policy is equally good. A number of authorities have also suggested that a consideration of "amenity" must include reasonable expectations in that regard, with reference to statutory planning controls, a proposition with which I respectfully concur. I do not consider that the use of the adjective "existing" alters that position. "Amenity" means existing amenity, but that concept includes the reasonable expectations referred to.

[22] The " Mission Beach Coastal Area Development Control Plan", ("the DCP"), is set out in Part E3 of the Transitional Planning Scheme. Section 3 of Part E3 sets out provisions for assessing development irrespective of the proposed land use or the precinct within which the development is proposed, and addresses the following matters:

• scenic impact

• character and amenity

• subdivisions.

[23] Assessment involves "Performance Criteria", and "Deemed To Comply Criteria", as to which the DCP states:-

"The performance criteria establish measures that can be used by Council to assess whether or not a development proposal meets the intent of the Coastal Area Plan. The deemed to comply criteria propose development solutions that Council considers satisfy the performance criteria. However, in some cases there will be other development solutions that can satisfy the performance criteria. Where an applicant can show that a solution other than the Deemed to Comply criteria can meet the performance criteria, then that solution may be considered favourably."

[24] Section 3.3 relates to character and amenity, and performance criterion 1.1.2 is in the following terms:-

"1.1.2 integrates with, or enhances the character of the neighbourhood, with access, building, streetscape and landscape design relating to the street and to the surrounding neighbourhood character."

No deemed compliance is specified. In my view the proposed development does not integrate with, or enhance the character of the neighbourhood. Performance criterion 3.1 also requires that the development not adversely affect the amenity of the locality in certain specified ways, but it does not appear that any of the specific ways mentioned are relevant in the present case.

[25] As earlier indicated, the subject land is in Precinct WB 1 of the DCP. The statement of intent in relation to this precinct is distinguishable from those with respect to Precincts WB 2 and WB 3, which make specific reference to "tourist and residential accommodation", "tourist development", "tourist accommodation", "medium density development" and "multiple dwellings". There is no reference to such terms in the Intent for Precinct WB 1.

[26] The nature and the effect of the precinct statements is explained in s 5.2.1 as follows:-

"The precinct statements in this subsection contain detailed provisions that apply to the area located within the precinct, as shown on the relevant precinct map. Developments must satisfy the requirements contained within the precinct statement applying to that development. This requirement does not detract from the need for development to comply with any other provisions contained within the Coastal Area Plan or Planning Scheme."

[27] There is conflict between the proposed development and the statement of intent for Precinct WB 1 insofar as the intent states that land in the area should only be developed for the purposes of accommodation once development of all other land designated on map MBCA 2 - Structure Plan as "urban area", has been developed, consistent with the strategic intent for consolidating and sequencing urban growth. The obvious conflict is not contested, but it is also clear that the existing residential development in northern Koda Street has occurred contrary to that requirement, which must now be regarded as having been overtaken by events.

[28] The DCP provides a maximum site coverage of 20 % with respect to Precinct WB 1. This is exceeded by the proposed development, however it is provided that Council can use its discretion to vary that, and other provisions, provided that the development accords with the performance criteria in s 3.3.3, relating to character and amenity.

[29] To enliven the provisions of s 4.13(5A) of the P&E Act, a conflict with either the strategic plan or a development control plan must be plainly identified. I consider that the outcomes or goals of both documents in relation to amenity and character are not met by the proposed development, but that the failure to do so does not amount to a conflict plainly identified, it being rather a matter of opinion and degree. It is accordingly unnecessary to consider whether the application must be refused on this ground.

[30] Section 4.1.52(2)(a) IPA provides that if the appellant is the applicant or a submitter for a development application, the court must decide the appeal based on the laws and policies applying when the application was made, but may give weight to any new laws or policies the court considers appropriate.

[31] The draft IPA planning scheme was placed on public display in February 2003. The development application was lodged on 30 September 2004. On 15 November 2004, the first public notification period closed, and on 14 December 2004 the second public notification period closed. On 10 February 2005, the draft IPA planning scheme was amended by Council resolution to remove the northern section of Koda Street (including the subject site) from the "conventional housing" precinct and to include it in the "low density residential" precinct. On 24 February 2005, the respondent Council approved the development application for 15 multiple dwelling units. On 23 May 2005, the IPA planning scheme was gazetted, and in March 2006, the temporary local planning instrument took effect.

[32] I think it is true to say, as the appellant contends, that at the time the application was decided, the draft planning scheme was well advanced along its statutory path, and that there is no material difference between the draft scheme at the date Council made its decision, and the scheme that subsequently came into force. It was therefore entitled to some weight, to the extent that it contained matters relevant to the application. This is simply the application of the "Coty" principle, under which proposed new planning instruments can be given weight if the approval of the proposal might frustrate the intent of the proposed new planning instruments. Apart from this, s 4.1.52(2)(a) entitles the court to give weight for the purposes of the appeal to any "new laws and policies the court considers appropriate". It may be noted that the term "appropriate" qualifies the "new laws and policies", and not the weight to be given to them. It would often be appropriate to give weight to a policy which was in existence in draft form before the Council made its decision in the matter, and a decision to that effect will be assisted if the "Coty" principle can be seen to apply, as I think it can be in this case.

[33] At the date Council approved the proposed development, the subject land was in the Mission Beach Coastal Zone, and in the Mission Beach Low Density Residential Precinct, in the draft plan. The applicable Area Code for that precinct is the Mission Beach Low Density Residential Code which seeks a number of specific outcomes and provides some Probable Solutions.

[34] One of the outcomes sought by the Code is a "high level of residential amenity by ensuring that the predominant form of development is of a low density residential nature. Any non-residential development is to be of a nature and scale that is compatible with a residential environment, for instance home occupation and bed and breakfast accommodation."

[35] Outcome 5 of the relevant Table of Outcomes and Solutions indicates that "multiple dwelling" is an inconsistent use for Low Density Residential areas 1 and 2, and no Probable Solution is prescribed.

[36] A further outcome stated in the "Purpose Statement" for the Mission Beach Low Density Residential Code is:-

"(iv) future development within the 2 distinct Low Density Residential areas of Mission Beach (referred to as area 1 and area 2 on Map 10) is compatible with the existing character, particularly relating to density."

[37] The subject land is contained within area 1 referred to above.

[38] It was submitted that the expression "residential nature" referred to above was defined in Part 3 of the Planning Scheme to include the use of any premises for the purpose of an accommodation building, caravan park, dwelling house, duplex dwelling, multiple dwelling and relatives accommodation, and reconfiguring a lot to facilitate such developments. However, in s 3.1, which is the introduction to the Definitions section, it is said that "within the Planning Scheme, terms that appear in italics and within the Level of Assessment tables" are defined within the section, and have been divided into use definitions and general definitions. The expression "residential nature" is not in italics nor does it appear within the level of assessment tables. I am conscious that planning schemes are not to be read as if they were Acts of Parliament, but nevertheless the scope of the definition section has obviously been considered and stated with particularity in the terms that I have noted. It seems to be an irresistible inference that terms which do not appear in italics and do not appear within the level of assessment tables are not defined by the section. Confirmation of this can be seen by contrasting the expression "residential nature" in the Purpose Statements for the Mission Beach Low Density Residential Code and the Mission Beach Medium Density Residential Code, on the one hand, with that for the Conventional Housing Code, on the other hand, where the expression is italicised.

[39] In any event, Outcome 5 of the Table of Outcomes and Solutions, which provides that a number of defined uses, including multiple dwelling, are inconsistent with the outcomes sought for the Low Density Residential Precinct, and for which no probable solution is prescribed, is inconsistent with the submission that there may be low density multiple dwellings for the purposes of the Low Density Residential Code, or that there may be one or more multiple dwellings provided that low density residential development remains the predominant form of development in the area.

[40] The appellant also submits that there is a conflict with Specific Outcome 1, which is that developments do not have a detrimental impact on the amenity of the locality, namely the rural/low scale ambience, but it would appear that the development satisfies the probable solution prescribed.

[41] I do not consider that the proposed development is consistent with the "existing character, particularly relating to density", of Low Density Residential Area 1, which contains northern Koda Street, where the subject land is situated.

[42] It seems obvious that the respondent had a change of mind, or wished to make a clearer statement, with respect to the level of residential development appropriate for the area in which north Koda Street is situated, evidenced by the amendment to the draft planning scheme effected on 10 February 2005. I think this involves an important question of policy for the respondent, and it is a matter to which substantial weight should be given.

Transitional Planning Scheme/Superseded Planning Scheme

[43] It was submitted by both the respondent and the co-respondent that weight should not be given to the provisions of the IPA planning scheme, (presumably in draft, or in force) because if the appeal were successful as a consequence, the co-respondent could proceed to make a further application, in the form of a Development Application (Superseded Planning Scheme) - the planning scheme, which was a transitional planning scheme when the application was made, having since become a superseded planning scheme. For present purposes, a development application (superseded planning scheme) is a development application in which the applicant asks the assessment manager to assess the application under a superseded planning scheme, and the application is made within 2 years after the day the planning scheme or planning scheme policy creating the superseded planning scheme was adopted, or the amendment creating the superseded planning scheme was adopted: see definition in Schedule 10, IPA.

[44] Section 3.2.5(3) IPA provides that in a development application (superseded planning scheme), if the applicant asks the assessment manager to assess the application under the superseded planning scheme, the acknowledgment notice must state either that the application will be assessed under the superseded planning scheme, or that it will be assessed under the existing planning scheme. Section 3.5.5(4) provides (in the case of impact assessment) that if the acknowledgment notice states that the application will be assessed under the superseded planning scheme, then the application must be assessed and decided as if the application were one to which the superseded scheme applied, and the existing planning scheme was not in force. Section 3.5.6 provides, in effect, that where an application is a development application (superseded planning scheme) the assessment manager, in assessing the application, is deprived of the power which otherwise applies, to give the weight it is satisfied is appropriate to a code, planning instrument, law or policy that came into effect after the application was made but before the decision stage started.

[45] So far as the court's powers are concerned, s 4.1.52(2)(a), as already mentioned, gives the court power to give weight to any new laws and policies it considers appropriate, although it must decide the appeal based on the laws and policies applying when the application was made. However, this discretion is limited by the provisions of subsection (3)(b) which provides that in an appeal against a decision about an development application (superseded planning scheme) that was assessed as if it were an application made under a superseded planning scheme, the court also must consider the appeal as if the application were made under the superseded planning scheme, and disregard the planning scheme applying when the application was made.

[46] The respondent's submission on this point, is that if the development were refused by the court, relying on the IPA planning scheme, or, presumably, relying on the draft IPA planning scheme as it was before the respondent, pursuant to the "Coty" principle, the co-respondent could make a new application under the superseded scheme. The respondent would then, at its absolute discretion, determine whether or not to proceed under the superseded scheme, or under the IPA scheme. If it elected to proceed under the superseded scheme the respondent and the Court on appeal, could not consider the IPA scheme. If the respondent elected to assess the application under the IPA scheme it would run the risk of a claim for compensation being made against it under Ch 5 Pt 4 IPA, in particular s 5.4.2 IPA. The result, according to the respondent, is that if the appeal were refused on the basis of weight to be given to the IPA planning scheme, then a prudent applicant would consider "remaking" the application as a superseded scheme application, with the attendant cost to the applicant and the respondent, and with a serious prospect that the respondent would seek to avoid compensation and elect to proceed under the superseded planning scheme.

[47] Even put on this basis, the submission depends upon at least two assumptions, namely that the co-respondent would decide to make a further application under the superseded scheme, and that the respondent would elect to assess the application under that scheme. The posited situation is necessarily hypothetical, and that is a sufficient basis for rejecting the submission, which implicitly relies on the futility of a decision which gives weight to the planning scheme in those circumstances. Further, the submission does not meet the point that the co-respondent has already made an application. The fact that in general an application may be made under a superseded planning scheme within 2 years of the planning scheme's acquiring that status, does not suggest or imply that an applicant may make a development application under a transitional planning scheme, before that time, and, if unsuccessful, proceed to make a further application when the scheme has become superseded. In my opinion it would be a perverse reading of the IPA to conclude that an applicant, where there is a transitional scheme applicable to his application, can have 2 bites of the cherry in this way. The better construction of the legislation, in my opinion, is that such an applicant may elect to proceed under the transitional plan, or wait until the plan has become superseded and make his application then, but he cannot do both, thereby re-litigating issues which have already been determined by a process provided by the legislation. Finally, the proposition that in an appeal from a decision given in an application made under a transitional planning scheme no weight should be given to an IPA planning scheme, whether in draft or in force, because no weight could be given to that scheme in a subsequent superseded scheme application, entails the further proposition that an application under a transitional planning scheme must be treated as if it were a superseded scheme application, if it is still possible to make such an application, a proposition which I reject.

[48] I therefore consider that the court should proceed in the normal way under s 4.1.52(2) IPA.

[49] Temporary Local Planning Instrument 01/05 (Population Densities) was made by resolution dated 3 August 2005. It took effect from 10 March 2006, almost a year after the notice of appeal was filed and remains in effect for 12 months or until the IPA scheme is amended, whichever first occurs. The instrument could not have been taken into account even in draft form by the respondent Council in approving the application, in February 2005 and I think in all the circumstances, including the fact that the instrument post-dated the notice of appeal by such a long period, it would be inappropriate for the court to take it into account on appeal. It is, of course, open to the court to give it weight under s 4.1.52(2)(a) if it thought it appropriate to do so. In my opinion the term "appropriate" is sufficiently wide not to confine the discretion to matters going to the merits of the application (in relation to which the instrument has obvious relevance), but to extend also to issues of fairness between the parties, bearing in mind that the basic obligation of the court under the subsection is to decide the appeal based on the laws and policies applying when the application was made. It may also be noted that there is no reference to the temporary local planning instrument in the notice of appeal. I consider therefore that the temporary local planning instrument should be given no weight in determining the appeal.

[50] Evidence was called in relation to the traffic implications of the proposed development and with respect to the need for such a development. I do not consider that either of these issues has a significant bearing upon the determination of the appeal. For the purposes of the appeal, the application must be processed as if it were a development application requiring impact assessment: IPA, sec. 6.1.28, P&E Act, sec. 4.12(3). The fundamental factual issue to be considered concerns the amenity impacts of the proposed development in Koda Street at Wongaling Beach. Issues of amenity and character arise, both in the transitional planning scheme and in the IPA planning scheme, as it now exists, and as it existed in draft form before the respondent's decision on the co-respondent's development application. I consider that the proposal, attractively designed as it is, is nevertheless out of character with the general ambience and amenity of northern Koda Street, which apart from vacant blocks is currently occupied by single detached dwellings on relatively large blocks of land with the single exception of the Ka Koda cabins which comprise detached relatively small and unobtrusive cabins. In terms of visual impact and intensity of development I consider that the proposal is out of step with the existing development in both parts of the street, and with development which might reasonably be expected to occur there in the reasonably near future. It is sought to avoid such a conclusion by evidence from planners that the portion of the street where the development would occur is in a transition, or buffer zone. In my opinion little can be made of this point. It is true that the size of dwellings and allotments differs as between the northern section and the southern section of Koda Street, and that the subject land falls, as it were, between the two, but in my view the proposed development is not compatible with either section of the street. In my opinion the character and amenity of Koda Street would be significantly and detrimentally affected if the proposed development were to proceed. Further, the proposed development is clearly inconsistent with the respondent's current Planning Scheme, to which, in the circumstances, significant weight should be given. I therefore allow the appeal. The decision of the respondent is set aside and the development application is refused.