Planning and Environment Quarterly Case Review - June 2023
As winter descends, it’s time for our second Quarterly Case Review for the year. Special Counsel Gemma Chadwick and Partner Sarah Macoun have prepared a read for a cold day, summarising some interesting Court decisions about:
This appeal involved a small application but a seemingly large issue. The application was to reconfigure one lot into two. The land was located at Canungra, in the rural zone, and partly affected by an agricultural land overlay. The application was refused by Council, with the primary issue being non-compliance with minimum lot size (100 ha) for the Rural zone (a planning outcome reinforced at every level of the scheme).
The site was 28.31 ha, irregular in shape and divided into two proportions by a public road. The lot size was 5.132 ha on one side of the road, and 23.18 ha on the other. The proposed subdivision reflected that configuration.
The Court accepted that elevating minimum lots sizes to the provisions of the strategic framework reinforced their importance, but noted that it was not a prohibition on lots below that size. Planning principles underlying the minimum lot sizes were put forward by the expert town planners. They included the protection of agricultural capacity of rural land, protection of prevailing rural character, prevention of fragmentation that would diminish the available land for rural use and preventing land use conflicts between primarily residential uses and rural uses.
The parties’ experts agreed that subdivision would not have any material impacts on the agricultural productivity of the site, which was already fairly constrained due to its steep slope. The land was already severed by the public road. Those factors, along with findings that the character of the area would be preserved, and the lots would facilitate the establishment of uses identified as consist with the rural zone, resulted in the Court being satisfied the underlying planning rationale was not offended by the application, and it could be approved.
This case is another decision about short-term accommodation uses, but in slightly different context. The appeal related to the Council’s decision, under a local law, to refuse an application to allow “the operation of short stay letting” – a prescribed activity under the Noosa Shire Council Local Law No. 1 (Administration) 2015 (Local Law). The statutory basis for the appeal was section 229 of the Planning Act 2016, which allows an appeal to be made against the decision of a local government under a local law about the use of premises.
The Appellant was the owner of a duplex at Sunshine Beach. The premises had the benefit of a development approval, issued in 2015, for a material change of use described as ‘Multiple Housing Type 2 – Duplex’. The owner wanted to use the duplex for short-term accommodation and came up against an approval requirement under the Local Law.
The Local Law made it an offence to carry out a prescribed activity without a current approval granted by the Council. The “prescribed activity” under the Local Law was the “operation of short stay letting” which, by operation of the relevant definition, was letting the premises by the owner to someone else, on a commercial basis, for a period of less than three months. The criteria for granted the approval was set out in the Local Law, and included whether the operation of short stay letting could be lawfully conducted on the premises. That criterial meant the Court had to consider the scope of the 2015 development approval for Multiple Housing Type 2 – Duplex, and whether that authorised short stay letting.
The question was answered in the negative. After considering the planning scheme provisions that applied at the time the 2015 approval was granted, the Court determined that “Multiple housing” – a “use class” under the 2006 Noosa Plan – referred to permanent or semi-permanent residents and could be contrasted to the “visitor accommodation” use class, where the types of uses referred, at least in part, to short-term accommodation. The Court considered that it was clear the scheme drew a distinction between permanent/semi-permanent occupation, and short-term accommodation (and that the 2006 scheme contained a clear indication that the nesting diagram which showed the “use classes” was meant to inform the meaning of the defined uses in the scheme). The Court also considered that the term “short stay letting” under the Local Law was an analogue of “short term accommodation”. The Court concluded that the 2015 approval did not authorise the operation of short stay letting.
The sole issue in this submitter appeal was whether a proposed 3 storey multiple dwelling on Tedder Avenue at the Gold Coast would cause unacceptable shadow impacts on the neighbouring property, contrary to reasonable expectations.
The development application was impact assessable, and three submissions opposing the development had mentioned shadow impacts. The planning scheme contained assessment benchmarks requiring development to provide a well-managed interface (one of the criteria in the building height uplift provision in the strategic plan), for development to maintain the level of amenity expected for the area (an overall outcome in the General development provisions code), and for buildings to be designed and located to ensure that shadows cast did not detract from comfortable living, and provided access to adequate sunlight to private and public spaces having regard to the summer and winter solstice and spring and autumn equinox, as well as the cumulative impact of the shadow and existing shadows (a performance outcome, also in the General development provisions code).
In the appeal, expert evidence was provided by three architects (called by the submitter appellant, by the developer, and by the Council). The architects called by the developer and by the Council relied on shadow diagrams prepared having regard to the parameters contemplated by the performance outcome in the General development provisions code. The shadow diagrams compared the shadow impacts of the proposed development and a code assessable development that complied with the relevant acceptable outcomes in the planning scheme. There were some slight differences in opinions between the architects called by Council and the developer, but both were ultimately satisfied that the shadowing was either not significantly greater than an alternative, code compliant development, or that the additional impacts were relatively minor.
The architect called by the submitters produced shadow diagrams that:
The architect also applied a “reasonable solar amenity expectation” criteria, which (the Court found) had no statutory basis in the planning scheme or elsewhere. It was not an approach used in Queensland, and not a provision within City Plan.
The Court ultimately preferred the evidence of the architects called by the developer and by Council, The Court found that the analysis undertaken by the submitters involved unhelpful parameters and presented inaccurate shadow diagrams.
The Court was satisfied, on the evidence, that there would not be unacceptable amenity impacts, and that the development complied with the relevant assessment benchmarks. Council’s decision approving the application was upheld.
This case involved another submitter appeal, again with a primary focus on amenity impacts. The proposed development site was located at Greenslopes. The owner of the site (St Maroun’s Maronite Church Brisbane) had lodged a redevelopment proposal, which involved removal of the existing church and parish residence buildings, the retention of the four pre-1947 dwelling houses (to be reused as parish residences) and the construction of a new church building and church hall. There was also an outdoor seating area and plaza.
The submitter appellants were local residents who did not dispute that the site was suitable for the development, but were concerned to ensure the development did not result in unreasonable amenity impacts. The appellants contended that, amongst other things, the hours of operation and levels of patronage would result in unacceptable noise impacts and were beyond the reasonable expectations of the community.
The conditions proposed limited the overall patronage of the site to 400 people (with particular limits applicable to each of the church, hall and outdoor seating area components). Proposed hours of operation for the church were 8am to 9pm Monday to Sunday and, for the hall, 10am to 10pm Monday to Sunday.
The concern from the appellants was that the hours (particularly for the hall) were excessive, and not controlled to avoid impacts on nearby sensitive uses. The acoustic engineers retained by the proponent and the appellant recommended a range of noise mitigation measures to satisfy technical requirements with respect to noise emissions. The proponent’s expert had also developed a noise management plan.
While it was accepted that the development could be designed to comply with technical standards, concerns arouse because compliance with the acoustic criteria was reliant upon the implementation of conditions limiting the patronage and operations of the church hall and outdoor areas. If the arrangements for controlling noise were not achievable, noise exceedances would occur.
The Court was ultimately satisfied that the concerns did not warrant refusal of the application. Relevant factors included that:
It was also relevant that the existing Church facility already generated noise impacts on outdoor areas and the streets.
The Court determined the proposed development could be conditioned to achieve compliance with assessment benchmarks, and refusal of the application was not warranted. The exercise of discretion favoured approval of the development application.