Altitude Corporation Pty Ltd v Isaac Regional Council
[2010] QPEC 127
•18 November 2010
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Altitude Corporation Pty Ltd v Isaac Regional Council [2010] QPEC 127
PARTIES:
ALTITUDE COPORATION PTY LTD
(Appellant)AND
ISAAC REGIONAL COUNCIL
(Respondent)FILE NO/S:
06/2009: 2225/2009: 119/2010
DIVISION:
Planning and Environment
PROCEEDING:
Hearing of an appeal
ORIGINATING COURT:
Planning and Environment Court of Queensland, Brisbane
DELIVERED ON:
18 November 2010
DELIVERED AT:
Brisbane
HEARING DATE:
23 – 27 August 2010 and 24 September 2010
JUDGE:
R Jones DCJ
ORDERS:
1. Appeal BD6 of 2009 (the minor change appeal) is allowed;
2. Subject to the removal of the covenants over Lots 501 and 503 and the threat of the covenant over Lot 505 appeals BD2225 of 2009 (the condition appeal) and BD1119 of 2010 (the reconfiguration appeal) are allowed.
3. The appeals be otherwise adjourned for notification of conditions and be listed for review on 19 January 2011.
CATCHWORDS:
PLANNING LAW – Proposed Residential Subdivision at Morinbah – adjacent to existing subdivision – adjacent to high voltage transmission line and easement – subject land left vacant as part of previous subdivision approval – conflict with town plan – minor change to existing development – cancellation of existing development condition – draft transmission code – requirement for buffer areas adjacent to transmission line
Integrated Planning Act 1997
Altitude Corporation Pty Ltd v Isaac Regional Council [2009] QPEC 51
Aria Property Group Ltd v Maroochy Shire Council (2008) QCA 169
Arpedco Pty Ltd v Beaudesert Shire Council (1980) Qd R 88
Brisbane Wharves and Wool Dumping Pty Ltd & Ors v Brisbane City Council & Anor (1994) QPLR 1
Brown v Brisbane City Council [2005] QPEC 26; (2005) QPELR 629
Esk Shire Council v Jackson [2000] QPEC 72 (2001) QPELR 253
Hawkins & Izzand v Permarig Pty Ltd and Anor (2001) QPELR 414
Maher v Hervey Bay City Council (2008) QPEC 123
Mariner Construction Pty Ltd v Maroochy Shire Council (2000) QPELR 334Ridgehaven Retirement Village Pty Ltd v Caloundra City Council [2004] QPELR 439
Walker v Noosa Shire Council (1983) 2 Qd R 86
Walker v Wilson (1991) 172 CLR 195
Webster v Caboolture Shire Council (2009) QPELR 455
Westfield Management Ltd v Pine Rivers Shire Council (2004) QPELR 337COUNSEL:
Mr S. Ure of counsel for the appellant
Mr A. Skoien of counsel for the respondent
SOLICITORS:
McDonnell Balanda Lawyers, for the appellant
King and Company Solicitors, for the respondent
These proceedings concern:
(i) An appeal against a refusal of the respondent to approve a request for a minor change to a development approval pursuant to s 3.5.24 of the Integrated Planning Act 1997 (IPA). The minor change appeal
(ii) An appeal against the respondent’s refusal to cancel, pursuant to s 3.5.33 of IPA, a condition imposed in respect of the same development approval. The conditions appeal
(iii) An appeal against the respondent’s refusal of a development application pursuant to s 3.2.1 of IPA to permit reconfiguration of the subject land. The reconfiguration appeal
Pursuant to transitional provisions of the Sustainable Planning Act 2009 (SPA), the appeal is, for the main part, to proceed as though SPA had not commenced.[1] Pursuant to s 4.1.50(1) of IPA, the appellant carries the onus of establishing that the appeals should be upheld.
[1]SPA s819.
Background
On 2 December 2004, BMA Cole Pty Ltd made an application to the then Belyando Shire Council for a development permit for the reconfiguration of a lot and a material change of use to facilitate the development of 143 detached residential dwellings. The proposed lot layout is depicted on Plan 04072D-13.[2] The application was approved subject to conditions on 14 April 2005.
[2]Exhibit 1, p 41.
Adjoining the eastern boundary of the land the subject of the development application was a high voltage electricity transmission line and associated easement. Between the western boundary of the easement and the eastern most boundary of the proposed residential lots was a balance area of land which was, generally speaking, approximately 40 m in width but widened to a triangular shaped area at its southern end.
On 30 May 2006, following negotiations between the developer and the then Council, a Negotiated Decision Notice granting a Development Permit for a revised sub-division of 143 residential lots plus five separate lots was issued. The balance area referred to above became lots 501, 503 and 505. It is that land that is the subject of these appeals.
Between May 2006 and July 2008 the appellant became the registered proprietor of the subject land. On 21 July 2008 the appellant made a request to the respondent to change the existing development approval to permit the sub-division of the subject land into 28 residential lots plus areas to be dedicated for park. The request to change the development approval was refused by the respondent on 25 November 2008. This refusal underlies the appeal referred to above as the minor change appeal.
On or about 3 April 2009 the appellant lodged an application for a Development Permit for the reconfiguration of a lot to sub-divide the subject land into 28 lots. This application was refused by the respondent resulting in the reconfiguration appeal.
On 7 July 2009 the appellant made a request to cancel condition 29 of the original development approval. The respondent failed to decide the request within the statutory time frame provided for under IPA and, on 14 August 2009, the appellant appealed the “deemed refusal” of the respondent to cancel that condition. The conditions appeal.
On 13 August 2010 pursuant to an order made by this court all three appeals were listed to be heard together with the evidence in one appeal taken to be the evidence in each of the appeals.
The Subject Land
Access to the subject land is via Mills Drive to the north, although further to the south an extension of Nonette Street (approximately through the middle of Lot 505) has been constructed. That extension of Nonette Street was constructed across lot 505 without the permission of the appellant. However, that those works appear to be unauthorised is not an issue in these appeals. The eastern boundary of the subject land adjoins the electricity transmission line easement.
On 31 January 2009 the new town planning scheme took effect (the Scheme). Under that Scheme the subject land was allocated to the urban zone. Under the previous town plan the land had been given a “special purposes” designation. The land is approximately two kilometres east of the town of Moranbah and to its immediate west adjoins the sub-division the subject of the original BMA Coal application now known as the Central Highlands Estate. To its east and east of the transmission line easement is an extensive and ongoing residential sub-division known as the Isaac Views Estate. Between the eastern most boundary of the transmission line easement the closest western boundary of residential sub-division in the Isaac Views Estate is a vacant buffer area of approximately 25 m in width.
The topography of the subject land is unremarkable and is relatively sparsely vegetated. These characteristics however do not mean that the land has no ecological significance. There is some evidence of dumping and storing of foreign materials on the land.
To the north of the subject areas of land largely in their natural state. To the south the dominant land type is cleared grazing land.[3]
[3]Refer to Ex.20.
The proposal
The proposal seeks to subdivide the land into 28 allotments together with a new road and dedicated park areas.
The size of the lots range from 700 m2 and 900 m2, with one larger lot (Lot 28) at the southern end of the land being 1435 m2. Generally speaking, when compared to lot sizes in the surrounding developments, the proposed lots could be described as being generously sized. Building envelopes of in excess of 400 m2 are to be provided and will be set back from the western boundary of the transmission line easement by at least 20 metres. The primary reason for this setback is to ensure that no habitable building is erected thereon. This would not, of course, prevent the construction of garages and entertainment areas and facilities. Two areas of public park would be provided. One at the south eastern end of the proposal containing an area of about 2,695 m2. The other park is 1,504 m2 and located between Lots 9 and 10 of the proposal.[4]
[4]For details of Proposal C report of Mr Venn, Exhibit 2, Figure 5.
An unusual feature of the proposal, one which attracted considerable criticism from the respondent, is the proposed road layout and design. For the most part the road carriageway does not exceed a width of 5.5 metres and reduces to 3.5 metres at certain points to accommodate existing trees. According to the appellant, this is consistent with its philosophy to protect and retain that vegetation which can be retained and which is “worth protecting”.
Another particularly contentious element of the proposal is that it would require the destruction of a number of existing trees. Sixty-one trees are located on the subject land. The proposal would require the destruction of 18, in the main to accommodate roadworks. According to the appellant, of these 18 trees 13 are in poor condition. A further 19 trees have been identified by experts retained by the appellant as being in poor health or dead. Depending on the condition of those trees they may also be removed. It is proposed by the appellant that regardless of how many trees are removed during development, they will be replaced at a ratio of three to one.
The minor change appeal
As a consequence of an information request issued by the respondent on 6 May 2009, the 28 lot subdivision applied for 21 July 2008[5] was amended.[6]
[5]Shown in Ex 1 at pp.105-107: also Mr Vennis Report, Ex 2 figs 4 (a) to 4 (c).
[6]Amended layout is shown in Ex 2, Fig 5: Also Ex 4, app 4. The information request and response thereto is in Ex 1 at pp209 to 273.
It is submitted on behalf of the appellant that the principal difference between the two proposals is that now the proposed road has been narrowed from 5.5m to 3.5m in places and has a number of kinks or curves designed into it to preserve existing trees. In the circumstances of this appeal the court must not consider a change to the application on which the decision being appealed was made unless the change is only a minor change.[7]
[7]IPA s4.1.52(2): s350 SPA.
That the change could be described as being minor for the purposes of the legislation was not contested by the respondent.[8] The respondent’s position in respect of the subdivision of the subject land is identified in paragraph 1.7 of Mr Skoien’s (counsel for the respondent) written submissions:
[8]Respondent’s written reply, para 2.
“The Respondent’s Position
1.7 In short, the Respondent submits that:
(a) the proposed subdivision is a poor form of development, combining substandard design outcomes and adverse impacts for both the potential residents of the proposed subdivision and the exisiting and future residents of the surrounding locality.
(b) the proposed subdivision conflicts with the current planning scheme for the locality (the “current planning scheme”); and
(c) the Appellant has identified not one single reason why the clear, sound, planning intent for the locality (encapsulated in the former planning scheme for Moranbah, the current planning scheme, the original approval and the statutory covenants registered over the buffer land) should be modified.”
The changes between the original proposal and that now advanced by the appellant are described in Mr Venn’s[9] report at pages 5 and 6. After considering the changes I am satisfied that they constitute only a minor change to the application/ development for the purposes of s4.1.52 of IPA.
[9]The town planner relied on by the appellant.
As mentioned above, on 31 January 2009 the subject land was designated within the urban zone area of the current town planning scheme for the Belyando Shire Council. In Mr Ure’s (counsel for the appellant) written submission[10] it is asserted that as a consequence of a previous decision of this court the land is to be taken to have had, pursuant to the former scheme, been zoned “Residential A”. In support of that submission reference is made to the judgement of Her Honour Kingham DCJ in Altitude Corporation Pty Ltd v Isaac Regional Council.[11] No specific part of the judgment is referred to in support of the submission and such a consequence is not apparent from a reading of the conclusions and order made by Her Honour. I can find no support for the contention that the subject land should be treated as having been zoned Residential A under the former scheme and therefore reject it.
[10]At para 40.
[11]2009 QPEC 51.
Further, while I accept there is some force in the argument that the subject land could not have been meant to be designated “Major Public Open Space” in the 1993 Strategic Plan[12] because it is privately owned, I reject it also.
[12]See Ex 16.
The definition of Major Public Open Space: “This designation includes areas of public land which are of such scenic and ecological interest as to warrant minimum change” does not necessarily rule out the inclusion of privately owned land within that designation. I also consider it is more likely than not that the area of land meant to be caught by that designation in the vicinity of the subject land extends beyond the boundary of the electricity easement.[13]
[13]In Ex 16 the QEGB easement is identified within Precinct 4. The area designated MPOS in the vicinity of the subject land is materially wider than easement area identified.
However, in the circumstances of these appeals, the former Scheme is only of limited relevance. The applications for the reconfiguration of the subject land and the cancellation of condition 29 were made after the current scheme came into force. That said, while the proposal might not contribute to the allocation of and maintenance to buffer areas between development and the transmission line easement, I do not consider much of the respondent’s criticism of the proposal in light of the former scheme to be justified.[14] The proposal would largely be consistent with the respondent’s desire to ensure that future development in the area conformed with existing residential lay out at the eastern side of Moranbah.
[14]Mr Skoien’s written submissions at para at 2.5 and 3.6.
The Issues in the Appeals
Mr Ure identified the issues in the appeals as:[15]
[15]Written submission at para 51.
(i) alleged conflict with a draft State Transmission Code;
(ii) alleged conflict with the “Conservation Code of Project Central Highland Estate and Isaac Views Estate, Moranbah” approved on 19 January 2010;
(iii) does the proposal provide for continuity of a suitable vegetation corridor to sustain linkages within the urban area for the movement of native species;
(iv) visual amenity;
(v) alleged conflict with the Urban Zone Code;
(vi) alleged conflict with the Reconfiguring a Lot Code;
(vii) alleged conflict with Outcome 2 of the Reconfiguring of a Lot Code as the proposal does not provide for appropriate servicing of the proposed lots; and
(viii) alleged inconsistency with condition 29 of the original approval and of the development covenants pursuant to that condition which apply to the land.
To that list of issues I would add, as a discrete issue, the reasonable expectations of the community proximate to the proposal.
According to Mr Skoien the proposal is in substantial conflict with the Scheme because it:[16]
[16]Mr Skoien’s written submissions para 4.8.
(i) reduces separation to the powerline easement;
(ii) turns its back on the remainder of the Central Highlands Estate.
(iii) removes almost all usable open space in the buffer land (with the remaining open space linked to the very southern extremity;
(iv) orientates itself towards the powerline easement, and the high voltage powerlines (rather than away from the powerline easement);
(v) involves the removal of considerable numbers of existing canopy trees; and
(vi) involves farcical allocation of areas for replanting of vegetation to replace the native vegetation lost (which vegetation is supposed to provide both ecological function and visual amenity function).
These criticisms are largely consistent with the opinions expressed by Ms Roughan; the town planner relied on by the respondent.[17]
[17]See for example Ms Roughan’s conclusions to her report, Ex 6 at p.28.
Pursuant to s3.5.13 of IPA if an application that is code assessable is in conflict with the scheme, it may only be approved if there are sufficient grounds to justify the approval despite conflict.[18] However, a decision concerning such an application must not compromise the achievement of a desired environmental outcome (DEO) of the scheme.[19]
[18]s 3.5.13(3).
[19]s 3.5.13(4)
In determining whether a proposal conflicts with the scheme and/or compromises a DEO, the scheme must be construed as a whole and in a broad, practical and common sense way which best achieves its identifiable purposes and objectives.[20]
[20]Westfield Management Ltd v Pine Rivers Shire Council (2004) QPELR 337 at 342; Arpedco Pty Ltd v Beaudesert Shire Council (1980) Qd R 88 at 94; Maher v Hervey Bay City Council (2008) QPEC 123 at para [20].
The subject land as a buffer to the transmission line
At least up until the subject land was placed in the urban zone under the current scheme, there seems little room for doubt that its intended purpose in the original development, was to act as a buffer between the transmission line and the proposed subdivision. This is clear from the assessment report accompanying the 2004 development application by BMA Coal.[21] Also, development conditions 3 and 29 imposed by the respondent concerning the development respectively provide:
“3. The development shall be generally in accordance with supporting information supplied by the applicant with the development application and the plans.
29. The Applicant shall register a statutory covenant on the title, over that part of the land described in the proposal as a ’40 metre wide buffer strip’ between the subdivision and the electricity transmission line easement. The statutory covenant shall be entered into between Belyando Shire Council and the land owner, and would be for the purpose of a buffer. (Condition to remain until electricity outcome decided).”
[21]Eg. Ex 1 at pp.46,50,51 and accompanying plans.
The words “generally in accordance with” where used in condition 3 should be construed to mean that the development must, in a real and material way, conform and be consistent with the supporting information.[22]
[22]Walker v Wilson (1991) 172 CLR 195 at 200, 207-208.
The conclusion that the subject land was originally intended by BMA Coal and the respondent to act as a buffer between the then proposed development and the transmission line is consistent with reading the development conditions in a sensible and not overly technical way[23] and does not offend the general principle that any ambiguity in a development condition should be construed against the imposing authority.[24] No real ambiguity on this issue exists.
[23]Mariner Construction Pty Ltd v Maroochy Shire Council (2000) QPELR 334 at para 16; Esk Shire Council v Jackson (2001) QPELR 253 at paras 15-16.
[24]Mariners Construction Pty Ltd v Maroochy Shire Council at para 16; Hawkins & Izzand v Permarig Pty Ltd and Anor (2001) QPELR 414 at 416.
Consistent with condition 29, covenants were registered over Lots 501 and 503 of the subject land. As I understand the evidence, a covenant in the same terms was prepared concerning Lot 505 but, perhaps not surprisingly, it has not been executed by the appellant. The description of the covenant is[25]:
“(the) establishment and preservation of a buffer zone between residential land and an electricity transmission line easement…”
[25]Ex 25.
That the original applicant was not the appellant is of little relevance. The appellant, in taking control of the development of the Central Highlands estate, effectively stepped into the shoes of BMA Coal and, in that capacity entered into the abovementioned covenants with the respondent as covenantor.
That the original intent of the subject land is quite clear is not the end of the matter. Section 3.5.33 of IPA recognises that where sufficient justification exists development conditions may be varied and even cancelled. Also, it is necessary to have due regard to the fact that in the current scheme the subject land was designated urban. There is no evidence that this designation involved a mistake on the part of the respondent. However, it is likely that it is a decision the respondent now regrets.
The Issues:
Conflict with the Draft State Transmission Code
It is submitted on behalf of the respondent that the proposal would result in a reduction of separation between residential development and the transmission line easement and the orientation of the dwellings towards the transmission line. These are matters which are addressed in the Draft State Transmission Code (DSTC), the original development application by BMA Coal[26] and the current scheme[27].
[26]Ex 1 at pp.38-39.
[27]Eg. Schedule 2 and MCU Performance Criteria and Acceptable Solutions 30 and 31 (pp4.2.9- 4.2.10).
It is submitted on behalf of the respondent that the proposal should be assessed against the DSTC. I do not accept that submission. The evidence is that this code has been in draft form since about 2004 but never finalised and adopted in any authoritative way. It can be readily distinguished from the CAMCOS impact assessment study considered to be a relevant document in Ridgehaven Retirement Village Pty Ltd v Caloundra City Council[28] and the port stratergy documents considered in Brisbane Wharves and Wool Dumping Pty Ltd & Ors v Brisbane City Council & Anor[29].
[28][2004] QPELR 439.
[29](1994) QPLR 1.
That the DSTC has no direct relevance does not mean that where the philosophy of the DSTC has been incorporated into the scheme it cannot be considered.
The Conservation Corridor Project
On behalf of the respondent it is argued that the fact that the proposal is in conflict with this project militates against its approval. The project appears to have only achieved some level of formality in January 2010.[30]
[30]See Ex 11.
The project lacks certainty in a number of significant areas. It is said to “(seek) to finalise the actions required to commence implementation of vegetation plantings to advance the establishment of this strategic area”. Despite this objective no definitive action or outcomes are finalised. Also, it is not made clear how the intended community participation in tree planting could be effected on private property.
The lack of any clear outcomes or action, together with the uncertainty associated with how many of the broadly stated intentions might be able to be achieved, lead me to conclude that little weight should be accorded to this document. It is not a document or policy of the type envisaged under section 4.1.52(2) of IPA and is distinguishable from documents of the status considered in Ridgehaven and Brisbane Wharves.
In any event a number of the more important stated intentions would not necessarily be thwarted by the proposal. For example, the proposal should not prevent suitable planting within the transmission line area.[31] The evidence is that the planting associated with the proposal (if successful) would provide a movement corridor for transient native species equivalent to that which exists now and would provide an effective screening of the transmission line. Further, the two proposed parks would provide space (albeit fairly limited) for public use which does not exist now.
[31]Subject to the consent of the grantor and grantee of the easement.
For the above reasons I do not consider that any conflict between the proposal and this project could justify refusal of the proposal.
Community Expectations
I do not accept Mr Venn’s evidence that in its present state the subject land is an “unkempt wasteland”. However, I do accept that in its present state, it is largely unremarkable save for its contribution for flora movement and limited screening of the transmission line.[32]
[32]Photographs of the subject land can be found on the front cover and p.3 of Dr Olsen’s report (Ex 8) and Mr McGowin’s report (Ex 3) at pp.6-7.
I accept that the likely expectation of the community within the Central Highlands estate would be that the subject land would remain vacant. However, I also accept Mr Venn’s evidence to the effect that their expectations would not be very high. The objective evidence supports Mr Venn’s opinion. The physical characteristics of the land have already been discussed. The evidence is that by and large the adjoining owners have not only orientated their houses away from this land but also fenced it off with solid five to six foot high colourbond steel fences. To use Mr Venn’s words the neighbours of the subject land have turned their backs to it.[33]
[33]T2-88 L10-20.
While the proposal might not be consistent with community expectations for the land I have reached the conclusion that, provided the intended planting could be achieved, any such inconsistency would not result in a loss of amenity or otherwise be a disappointment for the relevant community in the existing estate.
The continuity of a suitable vegetation corridor
If the proposal were to proceed and the intended planting failed for whatever reason, there would be a material negative impact on the already limited vegetation corridor providing for the movement of some native animal species.
The existing tree diversity on the land is low. And, while it provides a “core” element of habitat value, the likelihood of significant species (over the subject land and adjacent easement) is likely to be occasional and transitory “at best”.[34]
[34]Ex 4 at pp.55-56 joint experts report.
Importantly the relevant experts were of the opinion that the proposed planting would provide a suitable (or comparable) fauna corridor linkage[35] and, with the introduction of a shrub layer, habitat value might be enhanced.[36] I do not consider that these opinions or conclusions reached by Messrs Caneris and Agnew are materially affected or detracted from because of Dr Olsen’s evidence concerning the likely regeneration of existing vegetation following the breaking of the recent drought.
[35]Per Mr Caneris, T1-23 L 23-40:v T1-28 l 29-35.
[36]Per Mr Agnew, T3-100 L40-60.
On behalf of the respondent it is contended that the relevant experts agreed that the advice of an arborist was required to determine whether the proposed planting would survive in the limited space available.[37] No specific evidence was pointed to in support of that submission.
[37]Respondents written submission para 7.1(a) and footnote 27.
On a number of occasions Dr Olsen said that he had not seen a report by an arborist which supported the proposed planting. Save for an investigation of some of the existing trees I do not recall Dr Olsen stating that the advice of an arborist was necessary to determine the survival of new planting. Dr Olsen’s concerns about the need for an arborist to investigate the prospects of survival of some existing trees was shared by Mr Caneris[38] and Mr Mcgowan[39]. It is the intention of the appellant, under advice from Messrs Caneris and McGowan, to retain an arborist to investigate those matters.
[38]Eg T1-46 L55-60- T1-47; T1-48 L 2-20.
[39]Eg T1-74 L5-20.
While the advice of an arborist is required to investigate the prospects of survival of some of the existing trees there is no basis for concluding that, absent evidence from an arborist, the prospects of survival of the proposed planting is uncertain. It is clear from the evidence of Mr Caneris that he is confident of its survival.[40] In Mr McGowan’s opinion the advice of an arborist is not necessary.[41] Messrs McGowan and Caneris have the qualifications and experience to express such opinions and I accept them. No arborist was called to say that what is proposed would probably fail.
[40]Eg T1-23 L 20-40: T1-67 L 35-50..
[41]Eg T2-6 L 45-60.
Accordingly, I find that the planting proposed will provide a comparable fauna corridor to that which presently exists, even allowing for its further regeneration following the drought.
Visual Amenity
In the context of these appeals visual amenity has two aspects. As acceptable landscaping in its own right. Second, as effective screening from the transmission line.
The existing landscape is reflected in the photographs contained in Dr Olsen’s report.[42] The proposed planting schedule and landscape design in diagrammatic form is contained in the report of Mr Caneris.[43]
[42]Ex 8 at front cover and p.3.
[43]Ex 4, see also Ex 5.
At a visual level the proposal would result in a more attractive outcome while still retaining much of the character of the local vegetation types. Of course as Mr Van Pelt identified more effective screening could be carried out if the whole of the subject land was used. However, in circumstances where the appellant is under no legal obligation to carry out or permit such planting that could only occur with its consent.
Those residences in the Central Highlands Estate closet to the transmission line face away from it. Other residences within the estate are largely screened from it by urban development.
While I accept that the lot sizes and proposed building envelopes would permit houses to be erected which have their living areas orientated away from the transmission line it is more likely than not, in my view, that a material number of houses would, to varying degrees, be orientated towards it.
However, the totality of the evidence on this issue leads me to conclude that the planting proposed would result, not only a more visually pleasing landscape, but also in more effective screening from the transmission line. Notwithstanding that there would be significantly less land available for planting after subdivision, the density of the planting purposed would ensure this. Further planting options would of course be open to each individual lot owner after purchase.
Another significant advantage associated with the proposal is the creation of landscaped public park areas.
Before moving onto the next topic I should specifically deal with the six functions of buffer land identified by Mr Skoien[44]. They are:
[44]His written submissions, para 7.4
(i) ecological value (with regard to flora and for all fauna, irrespective of significance, and irrespective of the time spent on the buffer land);
(ii) separation from the powerline easement;
(iii) open space as a break in the urban fabric of the locality;
(iv) open space for use for passive recreation;
(v) a green, vegetated backdrop to the urban area; and
(vi) a screen to the powerline easement and the powerlines therein.
For the reasons expressed above the proposal adequately addresses (i) (v) and (vi). As to (ii): it was not made clear why it is necessarily desirable to be separated from the boundary of the easement. Separation and visibility are not necessarily the same. As I understand the respondent’s scheme physical separation between lots and the easement is not required.[45] As to (iii) and (iv): The most directly relevant “urban fabric” in these appeals is the Central Highlands and Isaac Views Estates. At present they are separated by the subject land (40m) the easement (40m) and the Isaac Views buffer (25m). If the proposal proceeds this break in the urban fabric of about 105m is reduced to between 66.5 and 70m. In circumstances where significant landscaping will be carried out and some land will become available public park, a sufficient break in the urban fabric will still be maintained. As the subject land is privately owned it is not, and, in my opinion not capable of being (subject to compulsory acquisition), available to the public for passive recreation.
[45]Schedule 2.10.
Alleged conflict with the Urban “Zone” Code
Section 4.2 of the scheme identifies various uses, assessment catagories and applicable codes. S4.2.1 (1) identifies a number of uses under the heading “Material change of use” (“MCU”) including detached housing. Building works not associated with a MCU are dealt with under s4.2.1(3) of the Scheme. Under the Urban Zone the applicable code for a MCU “detached house” (and for many other uses) is the Urban “Zone” Code. Reconfiguring a lot is dealt with under s4.2.1(2) of the scheme which provides:
“(2) “Reconfiguring a lot”
Type Assessment Code Applicable Code “Reconfiguring a lot” other than where located within the “Emerging Community Area” as shown on Zoning Map 3 Code Assessment if all proposed lots are equivalent to or larger than the minimum area set out in AS2 of the Reconfiguring a Lot Code
Impact Assessment otherwise
Reconfiguring a lot Code
Reconfiguring a lot Code
The relevant application before the Court is for a reconfiguration of a lot not for a MCU. Accordingly, as the subject land is not shown on zoning map 3 as an “Emerging Community Area”, the applicable code is the Reconfiguring a lot Code (RLC).
Mr Skoien, as I understand his argument[46], says that regard has to be had to the Urban “Zone” Code because the proposal should be looked at as if it was a part, albeit by way of a minor modification, of the original Central Highlands development, including its approval process. With respect, I do not accept that this approach is correct. Since the original application a new town plan has come into existence and the zoning of the subject land has changed from special purposes to urban. I can see no sound basis in either fact or law which might justify the application of the Urban “Zone” Code in the determination of those appeals. Notwithstanding this finding, consistent with the approach adopted by Mr Ure, I will deal with some of the matters raised by the respondent relevant to that code.
[46]T2 – 65 L28 to T 2- 67 L1- 10; T 5 -7 to T 5-8.
Ms Roughan’s concerns about the Urban Zone Code were that the proposal was in conflict with the following performance criteria of the scheme: PC 8 (separation of land uses); PC 16 (streetscape and landscape); PC 17 (street orientation); PC 18 (garages and carports) PC 19 (visual privacy) and PC 30 (vegetation).
Ms Roughan’s concerns about PC 30 were shown to be based on a misunderstanding of the scheme. There is no conflict with PC30. PC 17, 18 and 19 are concerned with what is to be built on the land. Even if those PC’s were relevant (which they are not) the evidence is that houses could be erected on the lots which would meet the criteria. In respect of PC 18 there is no basis for Ms Roughan’s concerns about front yards being dominated by garages and carports.
Performance criteria 8 is not relevant. Specific PC’s deal with separation between residential uses and transmission line. The relevant PCs are capable of being met,
As to PC 6, with the set back of the building envelopes on the proposed lots, areas exist for onsite landscaping and recreation areas. There is no suggestion that PC 6(a) and (b) are in issue.
Even if PC16 was relevant, the size of the lots would be likely to encourage design and material use in character/ identity with surrounding development. Landscaping is to be provided to a standard which will not only provide an attractive screen from the transmission line but also an attractive streetscape. The introduction of housing and street lighting onto the subject land will be likely to tend to reduce anti-social behaviour.
However, the subdivision of the subject land does raise an issue which did not exist before. Namely, the overlooking of houses on the subject land by those on the eastern side of Schifcofske Street and vice versa. This issue is exacerbated by the fact that the building envelopes on the proposed lots leave less space at the rear for landscaping than might otherwise be available.[47] Owners of lots on the subject land would expect neighbours to the west but that is not the case for the residents in Schifcofske Street. If PC 19 were relevant to this approval it might cause some tension with the proposal. But, not enough to create any genuine conflict. Non compliance with an acceptable solution does not necessarily create conflict with a town planning scheme.[48] The respective houses will face away from each other. They would not be in direct sight of one another. Also, as AS19 identifies, issues of privacy can be addressed at the design and construction phase.
[47]Refer also to PC19.
[48]Aria Property Group Ltd v Maroochy Shire Council (2008) QCA 169 at para [63].
For the reasons given and to be given [49] I do not consider there to be any conflict with s4.2.2.(3) of the scheme. There is no rational basis for Ms Roughan’s conclusion that the proposal would conflict with Urban “Zone” Code Outcomes 3(b), (f) or (j). Accordingly, in the event that I am wrong about the applicability of the Urban “Zone” Code, I do not consider there to be and real or genuine conflict between its intentions and objectives and the proposal.
[49]Regarding road, traffic and sewerage issues.
The Reconfiguration of the Lot Code (RLC)
In her report[50] Ms Roughan also stated that the proposal is in conflict with PC 7 (layout and design); PC 8 (the transmission line and easement) and PC 19 (vegetation retention ) of the RLC. Other issues are road design and sewerage.
[50]Ex 6 p.26.
Performance Criterion 7, 8 and 19 provide:
“PC 7 Layout and design
The reconfiguring of lots:
(a) ensures safe and liveable communities;
(b) ensures safe and legible vehicle and pedestrian movement areas and roads;
(c) integrates with adjoining land; and
(d) optimises the protection of environmental values, significant features, open space areas and high conservation or landscape values
PC 8 Electricity transmission line easement
Lot layout and design adjoining an electricity transmission line easement promotes community safety and health and well being.
PC 19 Vegetation retention
Reconfiguring a lot retains vegetation for the:
(a) protection of scenic quality;
(b) protection of general habitat;
(c) protection of soil equality;
(d) establishment of open space corridors and networks; and
(e) purpose of positive climate response.”
No acceptable solution is prescribed for PC 7 and PC 19. Regarding PC 8, acceptable solution (AS) 8 states “Lot layout and design is in accordance with Schedule 2, Division 4… Section 4.1, Diagram 2.”
Regarding PC7, the proposal would be consistent with maintaining safe and liveable communities and desirable environmental objectives would be achieved. The proposal will be sufficiently integrated with the existing Central Highlands estate and less directly with the Isaac Views estate via the extension of Mills Drive and Nonette Street. Vehicle access is addressed below. There are no pedestrian issues.
Regarding PC 8 the schemes set back requirements are met and there are no health issues. The only real tension between the proposal and the scheme is that it is likely that a number of houses, when built, will be orientated to varying degrees towards the transmission line. Noncompliance, with an acceptable solution does not necessarily create conflict with a town planning scheme. There must be some real and identifiable variance or disagreement with it. Even for a town the size of Moranbah it would not be reasonable to expect that in every residential development no lots faced powerlines. Schedule 2.10, Diagram 2 of the Scheme recognises this by only “promoting” that houses be orientated away. In any event, for reasons given, I am satisfied the proposed planting will significantly reduce the visibility of the transmission line and, in particular, the steel towers.
Having regard to the matters addressed above, it is not necessary to say anything more about “vegetation retention” (PC19).
In Ms Roughan’s opinion, the proposal was also in “conflict” with Desired Environmental Outcome (DEO) 3.3.1.[51] If a DEO is “compromised” the proposal must be refused.[52] Compromise in the context of s3.5.13(4) of IPA must mean that the achievement of the DEO must be materially threatened or placed in peril.[53]
[51]Ex 6, p.25.
[52]IPA, s3.5.13(4); Webster v Caboolture Shire Council (2009) QPELR 455 at para [101].
[53]Webster at para [103]; Brown v BCC (2005) QPELR 629 at para [9].
By reference to the matters raised in these appeals it seems to me that Ms Roughan considers that the proposal would compromise the respondent’s desire to ensure that residential developments “contribute to the quality of the urban environment”. Mr Skoien contends that the proposal is an “attempt to cram as many standard residential allotments into the available space as possible.”[54] I do not agree. The proposal provides for larger residential lot sizes and two park areas. It is otherwise, apart from road widths, generally consistent with the surrounding residential development. DEO 3.3.1 is not compromised.
[54]His written submissions, para 3.1.
Roads and sewerage
The road servicing the subdivision is located within a 10 m wide reserve. There will be no footpath on its eastern side. The road pavement width will, for the most part, be 5m but will reduce to 3.5m in width in at least two locations. Narrowing of the road, as I understand the plans, coincides with curves or bends in the road to accommodate existing trees.
From a town planners perspective Ms Roughan was concerned that the road would create a long “gun barrel” effect, creating the look and feel of lots being squeezed into a narrow strip of land. If lots were purposed on the eastern side of the road I would be inclined to agree with Ms Roughan. But that is not proposed. The eastern side of the road will be landscaped. In addition the “gun barrel” and/ or “squeezing effect” effect will be lessened by there being at least three directional changes in the road[55] and by the widths of the lots themselves. On balance, I consider the concerns of Ms Roughan to be exaggerated.
[55]At the southern end from about Lot 22, opposite Lot 15 and 16 and Lots 6,7 and 8.
In respect of the engineering evidence there does not appear to be any material dispute concerning the width of the carriageway between the engineers.[56] Indeed there is evidence that on 14 November 2008 the respondent’s Acting Director of Essential Services, considered that, subject to appropriate conditions, there were no engineering objections to the proposal. Of relevance in this regard is that the speed limit over the road is to be limited to 30 km per hour and the total catchment is 28 lots.
[56]Dr Johnston for the appellant and Mr Gould for the respondent: Refer to the joint reports of the engineers in Ex 1, and Mr Gould’s Report Ex 22 at para 7.3.
Mr Gould’s real concern about the road is the adequacy of the reserve width or average road reserve width and, in particular, the adequacy of the road verges.
At page 43 of the publication Queensland Streets the functions of road verges are discussed and performance criteria specified. Mr Gould’s concerns were largely limited to whether there was sufficient verge to adequately deal with parking.[57] Dr Johnson, while acknowledging that he was not a traffic engineer, was strongly of the opinion that the current road design proposal was adequate, but if it was shown to be inadequate it could be remedied by relatively minor layout design.[58]
[57]T4-33 L38-48; T4-34.
[58]T4-8 – T4-9.
Concerns regarding road reserve widths do not justify refusal. If it became apparent, perhaps after consideration by a traffic engineer, that some modification was required that could be readily accommodated.
The other outstanding issue between the engineers is the location of the sewerage pumping station. The only issue is whether the existing station can remain where it is or be relocated to the eastern side of the proposed road in the vicinity of its intersection with Nonette Street. It would be more appropriate in my view to maintain a separation between the pump station and the nearest residences more in line with the present level of separation. That is, on the eastern side of the proposed road. However, it is not an insignificant consideration that the respondents Acting Director of Essential Services, did not consider its relocation necessary. In any event the station’s location is a matter that can be readily resolved. I agree with Dr Johnson and Mr Gould that this issue should not be an impediment to the approval of the proposal.[59]
[59]Ex 22, p.4, para 6.10.
Condition 29 and the Covenants
The terms of condition 29 and the purpose of the registered covenants over Lots 501 and 503 and intended for Lot 505 are set out above. Condition 29 and the covenants are primarily concerned with the establishment and preservation of a buffer strip between houses and the transmission line easement.
That the subject land is 40m wide is consistant with Schedule 2.9, Division 4.1 of the Scheme. However, as I understand the scheme, “buffer” land does not have to be public land or entirely passive land. That is, for example the rear or side boundaries of residential lots can adjoin the easement.[60] It is also clear that the imposition of a 40m buffer is not an inflexible rule. On the eastern side of the transmission line in the Isaac Views estate the buffer width is 25m. This buffer is not a part of any of the residential lots and, in some locations, will accommodate drainage works which of course could be landscaped within acceptable engineering parameters. To the north of the subject land and also adjacent to the western boundary of the easement is a subdivision in Barron Court. This subdivision has some of features in common with the proposal. Over a distance (about 145 metres) a road and access lane adjoins or is close to the easement boundary. Four of the proposed lots have their nearest boundaries only about 10m removed from the easement boundary. However, building is to be set back from the easement boundary by 20m. Planting over the majority of this area is required.[61] At the southern end of the subdivision the buffer width reduces to 17.243m.
[60]For eg see p.5.3 of the scheme, PC 8 and AS8 and schedule 2.10
[61]See Ex10, revised layout and orders 58 and 63 of 13 August 2010.
Notwithstanding the similarities, including that all residential accommodation be set back 20m from the nearest easement boundary, the respondent says there are significant differences between them;[62] namely in the Barron Court development:
(i) The road widths are consistent with Queensland Streets;
(ii) Extensive potions (and proportions) of land adjoining the easement will remain undeveloped.
(iii) Vegetation at least 10m in width is required
(iv) All of the Lots are orientated away from the transmission lines.
[62]Written submissions at para 4.7.
These distinctions are more apparent than real in my opinion. If there are in fact any real issues concerning the road reserve width and verges they can be readily addressed. With road and park dedications and building envelopes set back 20m from the easement a significant proportion of the proposal adjacent to the easement will also be consistent with the objectives of the scheme, that is, devoid of “habitable buildings”.[63] While the width of planting will not be 10m I am satisfied that the planting proposed will provide an attractive landscape and effective screening from the transmission line. In this context it is also relevant that the proposal will provide two areas of public park and for more intensive planting then exists now. Finally, for the reasons given I do not consider the orientation of the proposed lots to be a decisive issue.
[63]Eg 5.3, PC 8 and AS 8 of the Scheme.
While I do not accept that condition 29 at present entirely lacks utility, in circumstances where the proposal would result in a superior outcome overall and is not in any genuine conflict with the scheme, there are good grounds for cancelling it pursuant to s3.5.33 of IPA.[64]
[64]The proposal will provide (i) a fauna corridor at least the equivalent of (and probably superior to) that existing; (ii) superior landscaping including buffering the transmission line (ii) public park areas (iv) an environment less likely to attract antisocial behaviour.
There is one final matter that needs to be addressed. The existing covenants and arguably the intended covenant over lot 505, would, unless set aside, thwart the proposal.
Mr Ure submitted to the effect that in the event I were to allow these appeals, the respondent as “a responsible entity”, would join forces with the appellant to have the existing covenants removed. Having regard to the respondent’s attitude at the time of final addresses, as conveyed by Mr Skoien, I very much doubt it. That aside, this Court does not have the jurisdiction to deal with the covenants in the manner required. Both Messrs Ure and Skoien argue that the covenants will have to be dealt with in the Supreme Court and that I should not attempt to pre-judge the outcome of any such proceedings. I agree.
For the reasons given I would allow the appeals concerning the issues of minor change of use. But for the covenants, I would also allow the appeals concerning Condition 29 and the refusal of the reconfiguration of a lot application. In Walker v Noosa Shire Council[65] the Full Court considered that it was within the discretion of this Court to allow the appeal subject to the necessary consents from the appropriate authorities. I am not aware of any reason why I could not allow these appeals subject to the removal of the covenants over Lots 501 and 503 and the threat of the covenants over Lot 505. That the respondent is likely to oppose any proceedings brought concerning the covenants would not render such findings futile. It would be improper to second guess the outcome of such litigation.[66] I realise that it might take some time for the issues concerning the covenants to be resolved but this course of action, it appears to me, would bring more certainty the parties concerning the outcome of these appeals.
[65](1983) 2 Qd R 86; per Thomas J with DM Campbell and McPherson JJ agreeing.
[66]Walker at p.88 LG to 89 LB.
Accordingly the orders are:
1. Appeal BD6 of 2009 (the minor change appeal) is allowed;
2. Subject to the removal of the covenants over Lots 501 and 503 and the threat of the covenant over Lot 505 appeals BD2225 of 2009 (the condition appeal) and BD1119 of 2010 (the reconfiguration appeal) are allowed.
3. The appeals be otherwise adjourned for notification of conditions and be listed for review on 19 January 2011.
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