Council appeals large development in residential area

Redland City Council has lodged an application to the Court of Appeal against the Judgement of the Planning and Environment Court in respect of development constructed at 22 Danielle Street, Cleveland as a Community Residence.

The State Planning Regulation allows development that meets the definition of a Community Residence to proceed without the need for planning approval from Council where certain criteria are met.

Council’s position is that the development at 22 Danielle Street does not satisfy the definition of a Community Residence.

The constructed development is a two-storey building with nine bedrooms, nine bathrooms and four carparks on a 708sqm block in a low-density residential area.

The development in question has boundary setbacks from the front at 2.2m, to the sides at 1.55m, and rear from 1.64m. It has a 76 per cent site cover with a pool and patio built to a boundary.

The site plan for 22 Danielle Street shows that the two-storey, nine-bedroom, nine-bathroom building covers 76 per cent of the 708sqm block. The rear boundary setback is 1.64m.

Council is committed to supporting the need for community residence accommodation in the city, however, believes that this needs to be balanced with the community’s reasonable expectations for their neighbourhood.

Local communities should expect development to respect the building code standards that apply to all other buildings in a residential area where you can park in a driveway, have appropriate setbacks to maintain privacy and introduce screen plants alongside boundaries.

This development does not even meet siting and privacy requirements for multiple dwelling development in higher density zones.

Council believes that this form of development is indicative of development that is being undertaken statewide and acts as a precedent, meaning that oversized or inappropriately located and designed community residence development can occur on all residential lots, which could include buildings of multiple storeys (over two) with no road or side setbacks.

The developer could have elected to reduce the size of the building, through reducing the number of bedrooms to ensure the building was consistent with the residential neighbourhood and expected building code outcomes, while still providing accommodation for up to six persons as provided for under a Community Residence.

The appeal is unrelated to it being disability support accommodation, though noting the Queensland Government planning exemption for a community residence also allows for the only other lawful use of a Community Residence to be for youth justice accommodation purposes.

The appeal is to the Court, but Council has also committed to undertake advocacy, in conjunction with other Councils, with the Queensland Government to change the law to ensure appropriate outcomes for Community Residences to avoid poor design outcomes that have resulted for existing residential communities.

The statewide implications include that Community Residences under the State Planning Regulation override local planning controls including hazard overlays like fire and flood, and environmental and heritage protections, meaning they could be constructed in these hazard or protected areas.

Council is seeking that the Queensland Government simply ensure Community Residence buildings are required to comply with the compulsory building code requirements that all other residential buildings must, to ensure neighbourhood amenity is preserved.

The development initially was brought to Council’s attention due to the concerns of a significant number of the property’s neighbours about the amenity and aesthetic impacts of such a large building in a quiet residential area.

The development is in a low-density residential area. BACKGROUND 22 Danielle Street, Cleveland

In October 2022, Council commenced an investigation into a complaint relating to building works that were taking place at 22 Danielle Street, Cleveland.

Neighbouring residents were concerned about the amenity and aesthetic impact of such a large building in a quiet, low-density residential area.

The building work comprised: a two-storey building with nine bedrooms, nine bathrooms and four carparks on a 708sqm block in a low-density residential area in Cleveland. The development has boundary setbacks from the front at 2.2m, to the sides at 1.55m, and rear from 1.64m, 76 per cent site cover, with a pool and patio built to a boundary.

The side boundary setback is 1.55m. The front boundary setback is 2.2m.

The developer maintains that the use of the proposed development was a Community Residence and therefore was accepted development which did not require assessment or approval from the local government. On this basis, the developer was only required to engage a private building certifier to grant a development permit for the building works.

Council disagrees that the building works constitute community residence and instead maintains the building works constitute a multiple dwelling which is assessable development under the Redland City Plan 2018 (the Planning Scheme).

It is Council’s view which is supported by experts that the built form of the development can accommodate eight persons who require assistance or support with daily living needs and therefore, the development cannot be defined as a Community Residence, that has a maximum limit of accommodating no more than six persons.

The builder could have elected to reduce the size of the building, through reducing the number of bedrooms to be consistent with the residential neighbourhood and expected building codes.

Expert advice indicates that the proposed development is unnecessarily large in terms of the design and the size and scale of the building works has the potential for unacceptable amenity and character impacts on adjoining properties and the streetscape.

The ground floor plans for 22 Danielle Street. The upper level plans for 22 Danielle Street. Community Residence definition

Community Residence is defined in Schedule 24 of the Planning Regulation 2017 (Qld) as follows:

Means the use of premises for residential accommodation for – No more than –

(A) 6 children, if the accommodation is provided as part of a program or service under the Youth Justice Act 1992; or

(B) 6 persons who require assistance of support with daily living needs; and

No more than 1 support worker; and Includes a building or structure that is reasonably associated with the use in paragraph (a). Court proceedings

(3188/22 Redland City Council v Boutique Capital & others)

(Note: All court documents can be located electronically via File Summary courts.qld.gov.au)

In December 2022, Council commenced proceedings by way of an originating application in the Planning and Environment Court seeking a declaration that the development at 22 Danielle Street was not a Community Residence as defined under the Planning Regulation 2017 and that the development approvals issued by the private certifier were not the appropriate approvals for the development and were therefore invalid.

In its proceedings, Council submitted to the Court that considering the residential capacity and design of the built form the development at 22 Danielle Street did not satisfy the definition of a Community residence under the legislation.

The developer admitted during the Court proceedings that the building was built oversized for economic purposes.

Council put on evidence from a town planner, visual amenity expert, access consultant and an occupational therapist to support its case.

Council argued that the development was assessable development which required an application for a material change of use for multiple dwellings and referral to Council for assessment.

The developer (Respondent) argued that the development is a building which can satisfy the definition of community residence as it is reasonably associated with the use of residential accommodation.

Outcome of 3188/22

In January 2024, Her Honour Judge McDonnell DCJ handed down her judgement and ultimate outcome in the proceedings.

Council’s application to the Court was unsuccessful and its application was dismissed.

In reaching her decision, Judge McDonnell considered the definition of a Community Residence under the legislation.

Her Honour found that the Regulation does not require a Community Residence to comprise a single dwelling with shared communal areas (lounge, living, dining and so on).

Rather, Her Honour found that a Community Residence may comprise multiple individual dwellings (such as individual units) and that it is only the use of the premises in its entirety that must be reasonably associated with a single community residence.

Her Honour determined that a development offence had not been committed by the property owner, developer or private certifier and completion of the development and subsequent use of the premises as a Community Residence would not be an offence.

Council believes that this decision acts as a precedent, meaning that oversized or inappropriately located and designed community residence development can occur on all residential lots which could include buildings of multiple storeys (over two) with no road or side setbacks.

The oversized development at 22 Danielle Street, Cleveland. Next steps – Court of Appeal

(2081/24 Redland City Council v Boutique Capital & others)

(Note: the electronic court file is available here File Summary courts.qld.gov.au)

Judge McDonnell’s judgement leads to significant uncertainty with respect to the ultimate built form of Community Residences on Redlands Coast.

Council is mindful of the impact this judgement will have on residents and its implications on the town planning intentions for the locality.

Council has filed an application with the Supreme Court (Court of Appeal) seeking orders that Council have leave to appeal to the judgement of Judge McDonnell.

Council is currently awaiting a return date on the application, and if allowed, an appeal process could take a further 8-12 months for a decision to be handed down.

Council’s appeal is unrelated to the development being disability support accommodation, though noting the State Government planning exemption for a community residence also allows for the only other lawful use of a community residence to be for youth justice accommodation purposes.

Additional steps

Council has committed to undertake advocacy, in conjunction with other Councils, with the Queensland Government to change the law.

Council is seeking that the Queensland Government simply ensure Community Residence buildings are required to comply with the compulsory building code requirements that all other residential buildings must, to ensure neighbourhood amenity is preserved.