Barns and Barns v Maroochy Shire Council
[2010] QPEC 2
•3 February 2010
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION: | Barns and Barns v Maroochy Shire Council [2010] QPEC 2 |
PARTIES: | James Thomas Barns and Lynette Joy Barns (Appellants) v Maroochy Shire Council (Respondent) |
FILE NO/S: | 2434 of 1998 |
DIVISION: | Planning and Environment |
PROCEEDING: | Appeal from Council decision rejecting claim for compensation for injurious affection resulting from introduction of new Strategic Plan |
ORIGINATING COURT: | Brisbane |
DELIVERED ON: | 3 February 2010 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 21 April - 1 May, 27 July - 31 July, 6August - 7 August, 13 August -19 August 2009, adjourned to 2 December for oral submissions. |
JUDGE: | Searles DCJ |
ORDER: | APPEAL DISMISSED |
CATCHWORDS: | PLANNING AND ENVIRONMENT – ASSESSMENT OF COMPENSATION – ENVIRONMENT - GOOD QUALITY AGRICULTURAL LAND – PLANNING NEED - COSTS OF DEVELOPMENT – PREMATURITY/LEAP FROGGING FLOODING AND DRAINAGE – ACID SULPHATE SOILS – TRAFFIC ENGINEERING – TOWN PLANNING CONSIDERATIONS Local Government (Planning and Environment) Act 1990 Local Government (Planning and Environment) Regulation 1991 Local Government Act 1936 Local Government Act 1985 Nature Conservation Act 1992 Environmental Protection Act 1994 Vegetation Management Act 1999 1985 Shire of Maroochy Planning Scheme State Planning Policy 1/1992 |
COUNSEL: | G. Gibson QC with M. Williamson – Appellant C. Hughes SC with R. Litster SC and A. Skoien – Respondent |
SOLICITORS: | P&E Law - Appellant Sunshine Coast Regional Council Legal Services – Respondent |
INDEX
INTRODUCTION………………………………………………………………………………………...7
AFFECT OF CHANGE IN STRATEGIC PLAN………………………………………………………...7
BACKGROUND FACTS…………………………………………………………………………………8
Land to the North………………………………………………………………………………….9
Land to the East…………………………………………………………………………………...9
Land to the West and South……………………………………………………………………….9
Land to the South-East – Peregian Springs and Coolum Ridges………………………………….9
Peregian Springs…………………………………………………………………………………..9
Coolum Ridges…………………………………………………………………………………...10
Extent of Nearby Urban Development…………………………………………………………...10
The Norfolk Estate Application………………………………………………………………….10
APPROACH TO THE ASSESSMENT OF COMPENSATION………………………………………..10
The Issue to be Determined………………………………………………………………………13
THE APPELLANTS’ AFTER VALUATION CASE…………………………………………………...14
THE APPELLANTS’ BEFORE VALUATION CASE…………………………………………………15
PLANNING CONTROLS…………………………………………………………………………….....17
Local Government Act 1936 - 1985……………………………………………………………..17
1985 Planning Scheme…………………………………………………………………………...21
1985 Strategic Plan………………………………………………………………………………22
Local Government (Planning and Environment) Act 1990 – PEA……………………………...23
Local Government (Planning and Environment) Regulation 1991……………………………...29
State Planning Policy 1 of 1992………………………………………………………………….30
Urban Areas PDLU………………………………………………………………………………30
Urban Areas PDLU………………………………………………………………………………33
Strategic Plan Part B – Supporting Information…………………………………………………36
1996 Strategic Plan – Effective from 10 May 1996 ……………………………………………38
PDLU’s Objectives and Implementation Provisions…………………………………………….39
Agricultural Protection…………………………………………………………………………...39
Relevant Objectives in 1996 Plan re Agricultural Protection PDLU…………………………….39
The Natural Resources Strategy – 1996 Strategic Plan………………………………………….40
Conservation Rural or Valued Habitat PDLU’s – Objectives and Implementation Provisions………………………………………………………………………………………...43
Objectives and Implementation Criteria for Conservation and Rural or Valued Habitat PDLU Designations……………………………………………………………………………………...44
Urban Areas and Future Urban PDLU’s…………………………………………………………49
DOES PEA SECTION 3.5.4(D) EXCLUDE THE APPELLANTS’ ENTITLEMENT TO COMPENSATION – THE SPARKE POINT? ………………………………………………………….51
Status of Strategic Plan…………………………………………………………………………..58
PEA s 4.4(5A) …………………………………………………………………………………...59
Conclusion re s 3.5.4(d) Argument………………………………………………………………60
ENVIRONMENTAL CONSIDERATIONS GENERALLY …………………………………………...60
1992 Amendment to PEA………………………………………………………………………..61
State Planning Policy 1 /1992……………………………………………………………………61
The Turnbull and Olsen Report………………………………………………………………….61
Nature Conservation Act 1992 and Environmental Protection Act 1994………………………..62
ISSUES ………………………………………………………………………………………………….63
ENVIRONMENTAL ISSUES…………………………………………………………………………..63
Identified Physical Characteristics………………………………………………………………63
Fauna…………………………………………………………………………………………….64
Effect of Motorway on Fauna……………………………………………………………………67
Impact of Logging Activities on Fauna………………………………………………………….68
Mr Agnew………………………………………………………………………………………..68
Fauna Experts’ Review of Development Applications Prior to November 1992 ……………….70
Review of Development Applications made Between December 1992 and May 1996………....70
Flora……………………………………………………………………………………...………71
Dr Olsen’s Conclusions……………………………………………………………………….…75
Dr Carter’s Conclusions…………………………………………………………………………75
Conclusion re Environmental Issues Dealt with by Caneris, Agnew, Carter & Olsen……….…77
PEREGIAN SPRINGS AND COOLUM RIDGES APPROVALS…………………………………..…78
Peregian Springs…………………………………………………………………………………78
Coolum Ridges………………………………………………………………………………..…82
Council’s Response re Peregian Springs and Coolum Ridges……………………………..……85
Conclusion re Significance of Peregian Springs and Coolum Ridge Approvals………….….…85
NORFOLK ESTATES APPLICATION……………………………………………………………...…86
Council Disputed Issues in Norfolk Estates Appeal…………………………………………..…88
State of Queensland Disputed Issues…………………………………………………………….89
Conclusion re Norfolk Estate Appeal……………………………………………………………90
GOOD QUALITY AGRICULTURAL LAND……………………………………………………….…91
SPP1/92……………………………………………………………………………………….….91
Planning Guidelines…………………………………………………………………………...…92
Appellants’ Response re Good Quality Agricultural Land ………………………………….…..92
Is the Land Committed under State Planning Policy 1/92? ……………………………….…….94
Evidence re Good Quality Agricultural Land……………………………………………………97
Dr Gilbert - Appellants………………………………………………………………………..…98
Gilbert Report 3 April 2009…………………………………………………………………...…99
Mr Sutherland – Council………………………………………………………………………..100
Dr Gilbert/Mr Sutherland Joint Written Statement…………………………………………..…101
Dr Matthew – Council……………………………………………………………………..……103
Conclusion re Good Quality Agricultural Land………………………………………………...106
PLANNING NEED……………………………………………………………………………………..106
Appellants’ Argument re Planning Need……………………………………………………….107
Council’s Argument re Planning Need…………………………………………………………107
Conclusion re Planning Need…………………………………………………………………...109
COSTS OF DEVELOPMENT………………………………………………………………………….109
Development Costs…………………………………………………………………………..…109
Bring-forward Cost Stage 3 Sewer Works……………………………………………………..110
Adjustment for Stage 1 Bring-forward Costs of External Sewer Works………………………111
Upgrades to Pump Stations P1 and P7………………………………………………………….111
The 375 mm Water Main ………………………………………………………………………112
The Murdering Creek Road Roundabout………………………………………………………113
Conclusion re Costs of Development…………………………………………………………..114
PREMATURITY/LEAP FROGGING…………………………………………………………………115
FLOODING AND DRAINAGE………………………………………………………………………..117
ACID SULPHATE SOILS…………………………………………………………………………..…117
TRAFFIC ENGINEERING ISSUES…………………………………………………………………..118
TOWN PLANNING CONSIDERATIONS……………………………………………………………118
Council’s Argument re Town Planning Issues…………………………………………………123
Planning Background…………………………………………………………………………...123
Principles Governing Interpretation of Planning Schemes……………………………………..126
Conclusion re Town Planning…………………………………………………………………..128
MARKET VALUE OF LAND AS AT 10 MARCH 1996……………………………………………..128
Hypothetical Development Method of Valuation………………………………………………129
Primary Valuation - $4,740,000………………………………………………………………...133
Henderson First Alternative Valuation Basis - $5,851,100…………………………………….134
Henderson Second Alternative Valuation Basis - $3,565,000………………………………….134
Henderson Third Alternative Valuation Basis - $3,909,000……………………………………134
Amended Covey Plan…………………………………………………………………………...134
Henderson Fourth Alternative Valuation Basis - $1,714,000…………………………………..135
Council’s Criticisms of Appellants’ Valuations………………………………………………..136
Council’s Valuation Evidence – Mr Slater……………………………………………………..138
Appellants’ Criticism of Slater Valuation………………………………………………………139
Other Valuation Issues…………………………………………………………………….……140
Conclusion re Valuation Evidence……………………………………………………..……….140
PURCHASER’S FINAL DECISION……………………………………………………..……………140
SCHEDULE “A”. ……………………………………………………………………………..……….142
SCHEDULE “B” ……………………………………………………………………………………....145
INTRODUCTION
This is an appeal against the decision of the Council rejecting the appellants’ claim for compensation pursuant to s 3.4 of the Local Government (Planning and Environment) Act 1990 (PEA). The hearing took place over a protracted period of 20 days commencing on 21 April 2009, from then to 1 May, 27 to 31 July, 6-7 August and 13 -19 August when it was adjourned for oral submissions on 2 December. Subsequently the parties delivered extensive [401 pages] written submissions. Shortly before 2 December it was agreed that oral submissions would not proceed on 2 December and would be set for a later date if thought necessary after I had read the written submissions. It was not necessary.
The appellants are the registered owners of Lot 31 on RP 858565 situated at Monak Road, Weyba Downs (the Land). The basis of the claim is that, as a consequence of the introduction of a new Strategic Plan on 10 May 1996 (Relevant Date), replacing the 1985 Strategic Plan, the Land was injuriously affected within the meaning of that term in s 3.5 of the PEA resulting in the reduction in its value.
The Council resists the claim on two bases: firstly, that there is a statutory exclusion of the claim under s 3.5(4)(d), s 3.5(5) and s 4.4(5A) of the PEA and, secondly, even if that exclusion does not operate to defeat the claim, the value of the Land was not injuriously affected by the introduction of the 1996 Strategic Plan so the appellants have suffered no loss.[1]
AFFECT OF CHANGE IN STRATEGIC PLAN
[1]Council’s primary submissions paragraphs 20 and 155.
Under the 1985 Plan the Land was zoned Rural A. Approximately 103.6 ha were included in the Urban Areas Preferred Dominant Land Uses (PDLU) designation and, the balance of approximately 51.4 ha was included in the Rural Areas PDLU designation. The land in the urban areas PDLU comprises most of the northern portion of the Land and a triangle of land on the eastern side of the southern portion. The Rural Areas PDLU land comprises an approximately 6 ha triangle on the western side of the northern portion adjacent to the Noosa National Park and a larger triangle in the western section of the southern portion.[2]
[2]See Plan Exhibit 1A p. 21.
After the Relevant Date, upon introduction of the 1996 Strategic Plan, the Land remained in the Rural A zone under the Planning Scheme but its PDLU designation was changed in that:-
(a)most of the Land was designated Rural or Valued Habitat PDLU;
(b)land in the north-east corner of the northern portion, the north-west portion of the southern portion and a drainage line running roughly north/south through the middle of the Land over both the northern and southern portions, was designated Conservation PDLU; and
(c)a small area of land on the eastern end of the northern boundary of the northern portion of the Land was designated in the Agricultural Protection PDLU.[3]
The heavily vegetated parts of the Land were generally included in the Rural or Valued Habitat PDLU and Conservation PDLU by the 1996 Strategic Plan.
BACKGROUND FACTS
[3]See Plan Exhibit 1A p.22.
The Land, some 155 ha in area, was purchased by the appellants in 1975 as an investment with potential for future subdivision. Since its acquisition it has been used intermittently for forestry activities.[4]
[4]Statement James Barns [2] and [9].
The Land is divided by the Sunshine Motorway (Motorway) with the area to the north of the Motorway (Northern Severance) having an area of approximately 92.6 ha and the area to the south (Southern Severance) an area of approximately 62.4 ha.
The Land is, and was at the Relevant Date, heavily vegetated with a mixture of dryland vegetation communities (ie open Eucalypt forest) and wetland vegetation communities (ie heath[5]). The Land is traversed by a number of gully lines in which wetland flora and fauna communities are predominant. Those gully lines drain the Land from north to south generally away from Lake Weyba.
[5]See aerial photographs Exhibit 15 (1994), Exhibit 16 (2000), Exhibit 17 (2004), Exhibit 35A (larger version Exhibit 15), Exhibit 42 1996; Exhibit 1B Tab 22 flora experts joint statement.
Murdering Creek Road forms the eastern boundary of the Land from Murdering Creek Road roundabout to its intersection with Monak Road, which latter Road then proceeds in a westerly direction upon most of the length of the Northern Severance, to its intersection with Lakewood Drive, which Road then proceeds off to the north towards Lake Weyba. The western end of the Northern Severance, for practical purposes, adjoins the Noosa National Park separated only by the unformed road reserve of Monak Road.
From the north-west corner of the Land south of the Motorway, the western boundary of the Land runs in a roughly southerly direction from the Motorway to intersect with the southern boundary which, in turn, proceeds in an easterly direction back to Murdering Creek Road roundabout, but is stepped, about half the way along its length, thereby creating the two roughly triangular blocks that comprise the Southern Portion.
Land to the North
Between the Land and Lake Weyba to the north land in private ownership, excluding the Noosa National Park, is used for rural or rural residential purposes.
Land to the East
At the Relevant Date there were some rural and rural residential allotments to the east of the Land with the rural residential allotments fronting Murdering Creek Road directly opposite the Land. That land continues to be used for rural or rural residential purposes. Further to the east of the Land, a large swath of vegetated land, running from Marcus Beach to Peregian Beach South, including Lake Weyba, now forms part of the Noosa National Park and separates the Land and its environs from the townships at Peregian Beach, South Peregian Beach and Marcus Beach on the Coast.
Land to the West and South
At the Relevant Date there were vegetated rural allotments to the west of the Land while allotments to the south of the Land then comprised a mixture of vegetated allotments and allotments under agricultural use (originally sugarcane). Nothing has changed in this regard since the Relevant Date.
Land to the South-East – Peregian Springs and Coolum Ridges
Peregian Springs
By Council resolution of 24 October 1989 under the 1985 Planning Scheme the Council approved the rezoning of some 335 ha of land to the south-east of the Land from Rural A zone to Residential A[6] (Peregian Springs). That rezoning was gazetted almost four years later on 20 August 1993.[7]
Coolum Ridges
[6]Exhibit 1E Tab 85 p. 945; Tab 93.
[7]Exhibit 1E Tab 111.
Further to the south-east of the Land and to the south of Peregian Springs, an area of 182 ha of land (Coolum Ridges Estate) was rezoned from Rural B to Residential A under the 1985 Planning Scheme pursuant to an order of the then Local Government Court dated 13 March 1991.[8] As at the Relevant Date no development had commenced on either Peregian Springs or Coolum Ridges.
Extent of Nearby Urban Development
[8]Exhibit 1F pp. 1201 and 1241.
It is common ground that at the Relevant Date there was no urban development in the locality surrounding the Land. The closest such development was at Peregian Beach South, Peregian Beach, and Marcus Beach, with Coolum Beach, further south, also developing.
The Norfolk Estate Application
In November 1994, some 18 months before the 10 May 1996 Relevant Date, Norfolk Estates Pty Ltd (Norfolk Estates) contracted to buy the subject Land for $9m with a deposit of $10,000 and conditional upon the granting of rezoning and subdivisional approvals to authorise development and use of the Land for residential and commercial purposes.[9] That application also included adjoining land being Lot 2 on RP 195990 (the ‘Cox land’).
[9]Exhibit 1D Tab 46.
On 13 January 1995 Norfolk Estates lodged an application for the rezoning of the Land from Rural A to Residential A.[10] On 2 August 1995 Norfolk Estates lodged an appeal on the basis of deemed refusal by the Council but that appeal did not proceed, and was subsequently withdrawn on 13 October 1997.[11] More will be said of Peregian Springs, Coolum Ridges and the Norfolk Estates’ application when dealing with the substantive issues in this appeal.
APPROACH TO THE ASSESSMENT OF COMPENSATION
[10]Exhibit 1D p. 541.
[11]Exhibit 1D p. 925.
The section of the PEA dealing with the assessment of compensation is s 3.5(8) which relevantly provides:-
“(8)Subject to subsections, (2A) and (9), the following provisions are to have effect in assessing compensation in respect of a claim made under subsections (1)(a):-
(a)the amount of compensation is, subject to paragraphs (b), (c) and (d) to be an amount equal to the difference of the market value of the interest immediately after the time of the coming into operation of the provision of the Planning Scheme by virtue of the operation whereof the claim for compensation arose and what would have been the market value of that interest if the provision had not come into operation;
(b) …
(c) …
(d) …”
As to the determination of market value two statements of Griffiths CJ and Isaacs J from Spencer v Commonwealth[12] are instructive. Griffiths CJ said:-
“…In my judgment the test of the value of land is to be determined, not by enquiring what price a man desiring to sell could actually have obtained for it on a given day ie, whether there was in fact on that day a willing buyer, but by enquiring ‘what would a man desiring to buy the land have had to pay for it on that day to a vendor willing to sell if for a fair price but not desirous to sell?’ It is, no doubt, very difficult to answer such a question, and answer must be to some extent conjectural. The necessary mental process is to put yourself as far as possible in the position of persons conversant with the subject land at the relevant time, and from that point of view to ascertain what, according to the then current opinion of land values, a purchaser would have had to offer for the land to induce such a willing vendor to sell it, or, in other words, to enquire at what point a desirous purchaser and a not unwilling vendor would come together.”
[12](1907) 5 CLR 418 at 432, 441.
In the same case Isaacs J said:-
“To arrive at the value of the land at the date, we have, as I conceive, to suppose it sold then, not by means of a forced sale, but by voluntary bargaining between the plaintiff and the purchaser, willing to trade, but neither of them so anxious to do so that he would overlook any ordinary business considerations. We must further suppose both to be perfectly acquainted with the land, and cognisant of all circumstances which might affect its value, either advantageously or prejudicially, including its situation, character, quality, proximity to conveniences or its inconveniences, its surrounding features, the then present demand for land, and the likelihood, as then appearing to persons best capable of forming an opinion, of a rise or fall for what reason whatsoever in the amount in which one would be otherwise be willing to fix as the value of the property.”
In a similar vein, in Kettering v Noosa Shire Council[13] Robin QC DCJ said:-
“60.The question to be determined is not whether a particular development application would have been approved or refused. The question is whether, in the minds of a hypothetical vendor and purchaser there was potential for the additional development components identified by Kettering[14] Cf. Fastsigns Pty Ltd v Gladstone City Council [2005] QPELR 711 at [61], [62], [68], and [71].
61.In that context, the hypothetical purchaser described in Spencer is not to be taken to be a dewy-eyed dreamer who will take the most optimistic view of all things, and nor is the purchaser to be regarded as a wilting lily who will proceed with such pessimism that each potential problem will be seen to result in failure: Yalgan Investments Pty Ltd v Albert Shire Council [1997] – [1998] 17 QLCR 331 at 341 – 342.
62.A related point is that where the highest and best use is not a use actually in existence, and planning approval has not been obtained at the relevant rate for that highest and best use, the vendor and purchaser must necessarily engage in some prediction about the prospect of obtaining approvals. To do so they will not engage experts to work up a development application to a high degree of detail, but will undertake those investigations necessary to produce a state of satisfaction that the highest and best use is achievable: see Yalgan at 342 and Pajares v State of Queensland [2003] QLC 0044 at [74] – [80].
63.Given that the hypothetical prudent purchaser is not a dewy-eyed optimist or a wilting lily, he will accept some risk in realisation of the highest and best use. That risk will be reflected in the value: see Fastsigns at [68] – [69] and Heavy Lex No. 64 Pty Ltd v Chief Executive Department of Transport [1990] 20 QLCR 29 at 347.”
[13][2007] QPELR 605 at 622.
[14]Kettering v Noosa Shire Council [2007] QPELR 605.
It seems to me that the hypothetical prudent purchaser[15] (purchaser) looking to purchase the subject Land would be one who, at the very least :-
[15] In referring to the purchaser, the use of the masculine gender includes the feminine
(a)was properly advised on all relevant issues by appropriate experts without necessarily getting detailed reports but, as is said above, with sufficient detail to properly inform;
(b) had some experience in property development;
(c)was accustomed to assuming risks to achieve rewards;
(d)was accustomed to risk identification and assessment; and
(e)would not take what would be seen as unacceptable risks involving too much uncertainty and/or too much financial exposure.
The Issue to be Determined
The decision to be made in this matter involves the theoretical exercise of looking into the mind of a hypothetical purchaser on 10 May 1996, over 13 and a half years ago, in relation to the acquisition of the Land based on its potential for urban and associated development in accordance with the Covey Plan[16]. The question for determination is not whether or not any such application would have been successful either by Council approval or appeal to this Court from its refusal. Rather, the question is what the purchaser, properly advised, would have paid for the Land at the Relevant Date as reflecting his assessment of the prospects of obtaining approval for the rezoning for Urban development as described.
[16]Exhibit 11.
That requires identifying the likely advice the purchaser would have received from experts on relevant issues identified by them as relevant to the application, the purchaser’s assessment of that advice, and his decision as to the appropriate purchase price based upon that advice.
It is important to focus on the requirement that the purchaser be “properly” advised. Implicit in that concept is that any advisor would identify both the positive and negative aspects of any issue under advice. The purchaser is not one who makes decisions through rose coloured glasses. The positives and negatives of that hypothetical advice are reflected in the various opinions of the experts called by both parties. I proceed on the basis that on each of the issues the purchaser would have been advised in accordance with the opinion of each of those experts. To continue the imagery of this somewhat artificial exercise, one may envisage the hypothetical purchaser sitting in a boardroom with each of the experts, being advised by them issue by issue and, at the end of the discussion, making an assessment of the risk profile of each issue. The risk profile is the extent to which, in the mind of the purchaser, a particular issue may be seen to impact upon the prospects of approval of the subject application, both severally and jointly with other issues.
With all advice on board, discussed by the purchaser and the experts and assessed by the purchaser, the final decision will then be made by the purchaser as to the price he would be prepared to pay for the Land.
THE APPELLANTS’ AFTER VALUATION CASE
It is common ground between the parties that the value of the Land after the coming into operation of the 1996 Strategic Plan is $750,000.[17]
THE APPELLANTS’ BEFORE VALUATION CASE
[17]Said variously to represent seven rural allotments of 20 ha each (Council’s written submissions [477]; seven large lots in the northern severance and one lot in the southern severance (Appellants’ submissions [50]; five rural lots (Henderson report Exhibit 64 p. 2 [4]) and seven lots (Slater report Exhibit 63 Annexure D3 p.2).
The appellants’ case is that the highest and best use of the Land immediately before the introduction of the 1996 Strategic Plan was the Urban Development depicted on Layout Plan 0802-CAL-SO1A prepared by Noel Covey & Associates and dated February 2008 (Covey Plan).[18] That plan provided for a range of residential allotments and supporting land uses including[19]:-
[18]Schomburgk Report Exhibit 2 p. 44; Exhibit 11
[19]Exhibit 2 [4.1.2] and [4.1.4].
(a) 1,034 traditional Residential A Lots ranging in size from 633 m² to 1,655 m² with the majority between 700 m² and 1,000 m²;
(b) 59 Residential B Lots of between 755 m² and 1,548 m² in size located adjoining the community facilities and primary school and in close proximity to commercial and retail uses. These lots are intended to accommodate higher density residential development;
(c) nine commercial lots adjoining Murdering Creek Road, one of which is a large lot proposed for a convenience retail centre with the remaining eight smaller lots to accommodate other commercial and retail activities;
(d) 10 light industrial lots;
(e) land identified for a primary school, community uses and Churches in close proximity to the commercial and industrial precinct and the higher density Residential B Lots; and
(f) 27.885 ha of parkland including a large area identified for ovals and active recreation adjoining the primary school and a series of parks and reserves.
The appellants’ valuer, Mr Henderson, has assessed the value of the Land in the before case at $4.740m[20] based upon three assumptions:-
[20]Exhibit 64A.
(a) that the prudent purchaser would agree a price for the Land on the basis that an application to rezone the Land to achieve the development in the Covey Plan was achievable[21];
(b) that the cost of development depicted in the Covey Plan equated to $35,740,880[22]; and
(c) that land suitable for residential development throughout the Sunshine Coast at the relevant time was in limited supply.[23]
[21]Exhibit 64 p. 12.
[22]Exhibit 64 p. 14.
[23]Exhibit 64 p. 11.
As an alternative to the value of $4.740m the appellants argue that there are two other possible alternative valuations which involve a more limited development in the event that the Court concluded that it was unlikely that a prudent purchaser would agree a price for the Land on the basis of the development in accordance with the Covey Plan.
Two further options are reflected in those alternative valuations, namely, the development of the Northern Severance and, as a further alternative, the development of that Northern Severance restricted to the dryland sections only and with provisions for parkland and 40m buffers to nearby wetlands.[24]
[24]Exhibit 83.
With those two alternatives and the original Covey Plan development it is said that the alternative valuations are[25]:-
[25]Appellants’ Submissions [51].
| Description | Covey Plan | Northern Severance Drylands only with 40m Buffers | Northern Severance only |
| Before case valuation | $4,740,000[26] | $3,909,000[27] + agreed value of southern portion $325,000[28] | $1,714,000[29] |
| Less after case valuation | $750,000 | $750,000 | $750,000 |
| Compensation claimed | $3,990,000 | $3,159,000 | $964,000 |
[26]Exhibit 64A.
[27]Exhibit 84.
[28]Transcript 18.35.45 – 55.
[29]Exhibit 64 p. 17.
PLANNING CONTROLS
Local Government Act 1936 - 1985
This legislation governed the rezoning approvals of Peregian Springs and Coolum Ridges. Relevant provisions are:-
“32A. Environmental Impact.
(1)Without derogating from any of its powers under this Act or any other Act, a Local Authority, when considering an application for its approval, consent, permission or authority for the implementation of a proposal under this Act or any other Act, shall take into consideration whether any deleterious effect on the environment would be occasioned by the implementation of the proposal, the subject of the application.
(2)A Local Authority may, from time to time, adopt by resolution a policy statement prescribing that an application for its approval, consent, permission or authority for the implementation of a proposal of a type specified in such policy statement shall be accompanied by an environmental impact study report and statement of impact and the matters and thing which shall be dealt with in such report and statement.
(3)A copy of any policy statement adopted by a Local Authority under subsection (2) shall be open to inspection and shall be available for purchase at the office of the Local Authority upon payment of such sum as it may fix by resolution, but not exceeding the cost of printing or otherwise reproducing such copy.
(4)Upon the adoption by a Local Authority of a policy statement under subsection (2), every applicant to the Local Authority for approval, consent, permission or authority in respect of a proposal of a type specified in such policy statement shall accompany this application with an environmental impact study report and statement of impact setting out the matters and things prescribed by such policy statement as being relevant to that type of proposal.
(5)Where an application is made to a Local Authority for its approval, consent, permission or authority for the implementation of a proposal of a type in respect of which it has not adopted a policy statement under subsection (2) and the Local Authority is of the opinion that the implementation of such proposal may have a deleterious effect on the environment, it may cause the applicant, at his expense, to submit an environmental impact study report and statement of impact in respect of his application and in that event shall specify the matters and things which shall be dealt with in such report and statement.
(6)In any case where the Local Authority makes application for the approval by the Minister or the Governor in Council of any proposal in accordance with this Act or any other Act the Minister may require submission to him of an environmental impact study report and statement of impact in respect of such proposal.
(7)For the purpose of complying with a request from the Minister in accordance with subsection (6)-
(a)the Local Authority may submit to the Minister, a copy of an environmental impact study report and statement of impact already supplied to the Council in respect of the proposal the subject of the application referred to in the said subsection (6); or
(b)if no report and statement have been required by and supplied to the Local Authority, the Local Authority may and is hereby authorized to require the person who applied for its approval, consent, permission or authority in the first instance in respect of the proposal to submit without cost to the Local Authority the environmental impact study report and statement of impact as required by the Minister.
(8)For the purpose of this subsection the term “Local Authority” shall include Brisbane City Council.”
…
Section 33(1) included this definition:-
“Strategic plan”“A plan that specifies in general terms future preferred dominant land uses for the town planning scheme area for the progressive development of lands within such area during the period for which the scheme[30] has force and effect”.
[30]That section also includes a definition of “Town planning scheme” or “scheme” – scheme for town planning; “Town planning scheme area” – the area included within a town planning scheme.
…
Section 33(2D) described the Composition of a Strategic Plan as:-
“Strategic plan”“A strategic plan referred to in subsection (2A) shall consist of-
(a)a map or series of maps identifying preferred dominant land uses;
(b)a statement of objectives of the Local Authority in relation to preferred dominant land uses together with other criteria for determining the type, scale or distribution of other uses required as an integral component to service the preferred dominant land uses;
(ba) copies of writings for the implementation of that plan;
(c)copies of writings containing supporting information used or in connexion with for the preparation of that plan”.
Section 33(6A)(d) dealt with applications for rezoning the matters to which regard was required to be had in making a decision to either approve, refuse approval or approve subject to reasonable and relevant conditions.
Those matters were identified in section 33(6A)(e) and included:-
“(i)whether the proposal, if permitted, or buildings erected in conformity with the proposal, or both the proposal, if permitted, and the buildings so erected would-
(A)create a traffic problem or increase an existing traffic problem;
(B)detrimentally affect the amenity of the neighbourhood;
(C)create a need for increased facilities such as schools, shops or other normal service provisions;
(ii)the balance of zones in the town planning scheme area as a whole or that section of that area within which the land is situated;
(iii)whether the inclusion of the land in the zone in which the land is proposed to be included would be in accord with, or conflict with, the strategic plan (if any) or any development control plan;
(iv)whether the land or any part thereof is so low-lying or so subject to flooding as to be unsuitable for use for all or any of the uses permitted with or without the consent of the Local Authority in the zone from which the land is proposed to be excluded and in the zone in which the land is proposed to be included;
(v)whether having regard to the permitted uses with or without the consent of the Local Authority of land in the zone in which the land is proposed to be included and the potential of the subdivision if the land is included in the zone in which it is proposed to be included-
(A)water, gas, electricity, sewerage and other essential services should be made available to the land and to each the separate parcel thereof if the land were subsequently subdivided;
(B)the provisions of section 32A of this Act should be applied;
(vi)the situation, suitability and amenity of land in relation to neighbouring localities.”
1985 Planning Scheme
The 1985 Planning Scheme was prepared pursuant to the 1936 LGA and comprised the following[31]:-
(a) the Schedule to the Town Planning Scheme;
(b) by-laws; and
(c) the Strategic Plan, comprising Part A, Part B and the Strategic Plan map.
[31]Exhibit 1C Tab 37 p. 333.
For the purpose of the Schedule to the 1985 Scheme the subject Land was included in the Rural zone.[32] The Statement of Intent for the Rural zone provided[33]:-
“The intent of this Zone is to identify and to protect significant areas for a wide range of rural activity. Minimal subdivision requirements are set down in Chapter 36 Subdivision of Land by-laws with the intention of facilitating this range of rural activities and providing the maximum flexibility to preserve viability of established farming.”
[32]Exhibit 2 [3.1.3]; p. 52 [5].
[33]Exhibit 1C Tab 37 p.341.
The Table of Zones for the Rural zone identified the permitted, permissible and prohibited uses on the land within that zone.[34] As of right, uses able to be commenced without consent of the Council included:-
[34]Exhibit 1C Tab 37 p.349.
(a) agriculture;
(b) animal husbandry;
(c) dwelling houses; and
(d) farm machinery sheds.
Prohibited uses in the Rural zone included commercial premises, educational establishments, local services, and medical or dental centres.
The subdivision of land by-law in Chapter 36 of the Planning Scheme envisaged that land in the Rural zone could be subdivided into 20 ha allotments where the land had less than a 10% slope over 70% of its area.[35] Chapter 48 of the Scheme containing the Preservation of Trees by-law[36] relevantly provided:-
“(1)The ring-barking, cutting down, topping, lopping, removing, poisoning, injuring or wilful destruction of any tree or trees of fifty (50) cms or more in girth measured at the base of the tree or of any tree or trees as the Council may specify by resolution from time to time is prohibited save and except in the following circumstances that is to say:
…
(h)where the land on which the tree is growing is included in the Rural A zone under any Town-Planning Scheme.
1985 Strategic Plan
[35]Exhibit 1C Tab 37 p. 385.
[36]Exhibit 1C Tab 37 p. 393.
The Strategic Plan comprises[37]:-
[37]Exhibit 1C Tab 37 pp. 360-361.
“(a) a map identifying the Preferred Dominant Land Uses for the Shire of Maroochy;
(b) a statement of objectives of the Maroochy Shire Council in relation to the Preferred Dominant Land Uses for the management and progressive development of lands within the Shire – Part A; and
(c) a supporting information document containing the background and supporting data used in the preparation of the Strategic Plan – Part B.”
Part A of the Strategic Plan comprises a number of elements,[38] relevantly the Explanatory Outline and Statement of Objectives for the Urban and Rural Areas PDLU. Those Objectives and the PDLU’s were determined in relation to the Principal Strategic Plan goal which was expressed as[39]:-
“To enhance and safeguard, the health, safety, convenience and the economic, social and general welfare of the residents and amenities of the Shire in order to achieve the best possible balance between development, including tourist orientated development, in the Shire and conservation of the natural environment and the cultural heritage whilst, at the same time, promoting confidence through consistent development control of the Shire and the proper management of the Shire resources.”
The Strategic Plan provided that that broad goal would be achieved by the implementation of the Strategic Plan and Statement of Objectives against the background and by way of the Town Planning Scheme.
Local Government (Planning and Environment) Act 1990 – PEA
[38]Exhibit 1C Tab 37 p. 360.
[39]Exhibit 1C Tab 37 p. 361 left-hand column.
The Local Government (Planning and Environment) Act 1990 (PEA) came into force in April 1991. As at the Relevant Date, in relation to the assessment of an application to rezone land, the PEA provided[40]:-
[40]Part 1A, s 4.4(3A) and 5(A) were later introduced by Act No. 37 of 1992 which commenced on 23 July 1992.
“Assessment of proposed planning scheme amendment
4.4(1)Upon receipt of a statutory declaration referred to in section 4.3(10) and being satisfied that public notice has been given in accordance with section 4.3(4) and (4A), the local government is to consider the relevant application to amend a planning scheme or the conditions attached to an amendment of a planning scheme and any objections duly made in respect of the application.
…
(3)In considering an application to amend a planning scheme or the conditions attached to an amendment of a planning scheme a local government is to assess each of the following matters to the extent they are relevant to the application –
(a)whether the proposal, if approved, or buildings erected in conformity with the proposal, or both the proposal, if approved, and the buildings so erected would –
(i)create a traffic problem, increase an existing traffic problem or detrimentally affect the efficiency of the existing road network;
(ii)detrimentally affect the amenity of the neighbourhood;
(iii) create a need for increased facilities;
(b)the balance of zones in the planning scheme area as a whole or that part of that area within which the relevant land is situated and the need for the proposed planning scheme amendment;
There is no sub-paragraph (c).
(d)whether the land or any part thereof is so low-lying or so subject to inundation as to be unsuitable for use for all or any of the uses permitted or permissible in the zone in which the land is proposed to be included;
(e)whether, having regard to the permitted or permissible uses of the land and the potential for subdivision in the zone in which it is proposed to be included water, gas, electricity, sewerage and other essential services should be made available to the land and to each separate allotment thereof if the land were subsequently subdivided;
(f)the impact of the proposal on the environment (whether or not an environmental impact statement has been prepared);
(g)the situation, suitability and amenity of the land in relation to neighbouring localities;
There is no sub-paragraph (h).
(i)the advice given by it, in respect of any consideration in principle concerning the relevant land pursuant to section 4.2;
(j)whether any plan of development attaching to the application pursuant to a requirement of the planning scheme should be altered;
(k)where the land is land prescribed pursuant to section 8.3A, the site contamination report in respect of the land;
(l)such other matters, having regard to the nature of the application, as are relevant.
(3A)The local government must have regard to relevant State planning policies in making its decision on the application.
…
(5)In deciding an application made to it pursuant to section 4.3 a local government is to –
(a) approve the application; or
(b) approve the application, subject to conditions; or
(c) refuse to approve the application.(5A)The local government must refuse to approve the application if –
(a)the application conflicts with any relevant strategic plan or development control plan; and
(b)there are not sufficient planning grounds to justify approving the application despite the conflict.
(7)Upon the local government making a decision on an application in accordance with subsection (5) the chief executive officer is, within 10 days of the date of the decision, to notify the applicant and every principal objector of the decision.
(8)The applicant or any person who has duly objected may appeal to the Court pursuant to section 7.1 against the decision of the local government.
…
Environmental Impact
8.2(1)Without derogating from any of its powers under this Act or any other Act, a local government, when considering an application for its approval, consent, permission or authority for the implementation of a proposal under this Act or any other Act, is to take into consideration whether any deleterious effect on the environment would be occasioned by the implementation of the proposal, the subject of the application.
(2) If a person intends to apply to a local government for –
(a)an approval, consent, permission or authority in relation to a planning scheme for a designated development; or
(b)an approval, consent, permission or authority in relation to an interim development control provision for a designated development;
the person must, in accordance with the regulations, request the chief executive of the department to tell the person if an environmental impact statement is necessary and, if it is necessary, its terms of reference.
(3)The chief executive must, as soon as possible after receiving the request –
(a)give a written acknowledgment to the applicant of its receipt; and
(b)decide if an environmental impact statement is necessary; and
(c)if the chief executive decides that an environmental impact statement is necessary – decide its terms of reference.
(4)The chief executive may decide that an environmental impact statement in relation to a designated development is not necessary if –
(a)a relevant study, that is not outdated, was prepared and, in the chief executive’s opinion, there are no significant environmental issues that were not covered in the relevant study; or
(b)the chief executive is satisfied that a referral agency has made a study that included environmental issues for the area the subject of the development and it is not outdated; or
(c)in the chief executive’s opinion, the consequence of the approval, consent, permission or authority in relation to the designated development is minor.
(5)The chief executive must consult with all the referral agencies in relation to –
(a)whether an environmental impact statement is necessary; and
(b) if a statement is necessary – its terms of reference.
…(11D)When it decides an application to which subsection (2) applies, the local government must have regard to the Environmental Impact Statement submitted with the application as well as any other matters relevant to the application.
…
(12)Where an application is made to a local government for a proposal which is not a designated development and the local government is of the opinion that the implementation of the proposal may have deleterious effect on the environment, it is to –
(a)require the applicant to submit an environmental impact statement in respect of the proposal, the subject of the application; an
(b)specify the matters and things which are to be dealt with in that statement.
(13)In any case where the local government makes application for the approval by the Governor in Council of any proposal not being a designated development in accordance with this Act or any other Act, the chief executive may require the submission of an environmental impact statement of the proposal.
…
(15) In this section –
“designated development” means –
(a)a proposal prescribed by regulation for the purposes of this section; or
…
“referral agency”, in relation to an environmental impact statement for a designated development, includes –
(a)the chief executive of the department that is responsible for the administration of Acts for the protection of the environment; and
(b)any local government in whose area the development is proposed; and
(c)the chief executive of any other department or statutory body that the chief executive of the department considers must be consulted.
…”
Local Government (Planning and Environment) Regulation 1991
Section 16 of the Local Government (Planning and Environment) Regulation 1991 relevantly provided:-
“Environmental impact – designated developments
16.The following types of proposals (other than proposals which the Local Authority regards as of a minor or ancillary nature) are prescribed for the purposes of Section 8.2 of the Act:-
…
(b)a proposal relating to a development (other than a dwelling-house, out-building or farm building) on land located in or having a common boundary with, an area referred to in Schedule 2.”
For the purpose of s 16(b) of the Local Government (Planning and Environment) Regulation 1991, Schedule 2 prescribed as the tenth of the areas to which s 16(b) applied:-
“10.Wetland, whether fresh, brackish or marine, including coral reefs, mangrove areas, mudflats, sand flats, sandy beaches, seagrass beds, and tidal marshes.”
State Planning Policy 1 of 1992
State Planning Policy 1 of 1992 was introduced in December 1992 subsequent to the introduction of s 4.4(3A) of the PEA on 23 July 1992 which required a local government to give consideration to any relevant state planning policies in assessing an application to rezone land. The policy (SPP1/92) dealt with the protection of ‘Good Quality Agricultural Land’ (GQAL) which will be discussed in more detail later.
Urban Areas PDLU
The relevant Implementation Objectives for the Urban Areas designation are[41]:-
[41]Exhibit 1C Tab 37 p.362.
“Urban Areas
3.-
(1) Objective-
To direct future urban growth so as to secure the orderly and proper development of urban centres in a manner consistent with the existing urban structure of the Shire.
a) The urban areas shown as preferred dominant land use on the Strategic Plan may be progressively converted to urban use by way of rezonings. Contiguous areas may also be considered where the Council is satisfied that orderly and economic growth will occur. These additional urban areas have generally been zoned rural on the scheme maps so that before urban development can be achieved, rezonings will be necessary and financial contributions may be obtained so that the new areas can be efficiently serviced.
b) The rezonings necessary to achieve urban development will be determined on their merits, and where they exist, by a series of development control plans indicating the preferred zone for the particular property or locality.
c) Rezonings for the urban purposes will only be permitted within the areas mentioned in (a) above, with the exception of certain tourist type developments and special facility uses.
d) The inclusion of areas within the preferred dominant land use as urban areas does not mean that all such properties may be rezoned and developed for urban purposes. Many areas, because of their physical characteristics, including aesthetic aspects, steeply sloping terrain, areas with instabilities because of slope and areas subject to flooding, will be retained in their natural state. This will also apply to areas abutting major roads and watercourses required as buffer space.
e) A planning report will be required as part of the procedure to enable the Council to consider rezoning for urban purposes.
f) The Council will encourage future administration centres, including Government centres, intended to serve the region, to be established in Nambour.
(2) Objective-
To develop upon and consolidate urban areas
a) The existing urban areas have generally been indicated by some form of positive urban zoning on the town planning scheme maps so that, rezonings will not be necessary in order to achieve consolidation of these existing areas. Development will, however, have to accord with any development control plan requirements to ensure the proper and orderly growth of these areas.
b) The consolidation of existing urban areas will be a matter to be considered by the Council in determining rezoning for new urban growth.
(3) Objective-
To ensure that the future expansion of urban areas and development of new urban centres occurs in locations capable of being adequately serviced with public utilities having at the same time regard to the orderly extension of such public utility services.
a)The principal areas indicated as urban areas on the Strategic Plan have been selected as areas which can be serviced with public utilities provided new urban development takes place on a progressive basis, so that all public utility services and access to the new areas can be economically provided. This aspect is an important one which will be considered by the Council in determining rezoning applications, not only in accordance with development control plans but on their merits prior to the introduction of such development control plans.
b)Certain areas indicated as urban areas on the Strategic Plan relate to the small towns including but not limited to, Woombye, Palmwoods, Mapleton, Montville, Eumundi and Eudlo where the Council sewerage schemes do not exist in determining rezoning applications within such urban areas the Council will, among other matters, require the provision of sewerage reticulation or effluent disposal satisfactory to the Council.
(4)Objective-
To ensure that new urban growth does not conflict with environmentally sensitive and/or conservation areas and does not include land which has flooding, slope instability or other engineering problems which cannot be satisfactorily overcome.
a)In considering rezoning applications within the new urban areas and development applications in accordance with the indicated preferred dominant land use on the Strategic Plan, the Council will take into consideration all the relevant planning aspects including:-
(i)The effect of the development which will follow the rezoning or the particular development proposal upon the environment. In order to [do] this the Council will require the applicant to supply a planning report giving an assessment of the proposal;
(ii)In considering rezonings and development proposals within the new urban areas and within existing urban areas, the Council will have regard to flood areas, engineering and access constraints, together with areas of slope instability, in accordance with reports and maps contained in Part B.”
Rural Areas PDLU
The explanatory outline for this designation states[42]:-
“These areas are shown on the Strategic Plan in light brown. They include valuable sugarcane land and valuable horticultural land which are to be protected as such. These areas are identified on Queensland Department of Primary Industries maps contained in Part B.
The rural areas also cover the balance areas of the Shire not required for other preferred dominant land uses and may include rural residential developments.”
[42]Exhibit 1C Tab 37 p.361 Right-hand column.
Two objectives relevant to the Rural Areas PDLU Designation are[43]:-
[43]Exhibit 1C Tab 37 p. 363 -364.
“RURAL AREAS
7.-
(1) Objective-
To protect the Shire’s prime agricultural land including valuable cane land from unnecessary and undesirable intrusions by other land use activities.
a)The rural areas shown as a preferred dominant land use on the Strategic Plan have been supported by Rural A and Rural B zoning on the town planning scheme maps. These rural zones will be maintained, with rezonings for other than rural purposes limited so that they respect this objective.
b)Areas of valuable cane land have been indicated on plans supplied by the Queensland Department of Primary Industries included in Part B. These valuable cane areas will be protected generally by Rural A zoning, with some Rural B zoning. Where valuable cane land is included in a Rural A zoning the Council will not permit rezonings to Rural B for horticultural purposes where this involves unnecessary loss of valuable cane land. Further, the Council will not consent to the establishment of extractive industries in areas of valuable cane land.
c)Valuable horticultural land has been indicated on a plan supplied by the Queensland Department of Primary Industries as included in Part B. These areas will be protected by both Rural B and some Rural A zoning.
d)The rural areas will be further protected by the structure of the Rural A and Rural B zones whereby undesirable uses are prohibited.
(2) Objective-
To provide sufficient land in suitable attractive rural locations within the Shire to meet the demands for the rural residential living, whilst ensuring that their location is not prejudicial to existing and traditional viable rural land use activities.
a)Provision of an adequate supply of land to satisfy this demand shall be made by way of rezonings generally within the areas shown as rural preferred dominant land use. Specific identification of preferred rural residential areas have not been made.
b)The rezonings necessary to achieve rural residential development will be determined on their merits and upon reference to the criteria specified in the relevant section of the Local Government Act together with any other matters which the Council considers are relevant, including but not limited to the following:-
(i)Whether the proposal will be compatible with the predominant land use of the locality or prejudice the viability of traditional rural land use, urban land use or extractive industry use or potential;
(ii)Whether the proposal will constrain the orderly development of urban areas;
(iii)Its effect upon environmental matters including conservation of the established amenity, existing landscape, escarpments, tree lines, view lines, bushland, open space, tourist value and scenic quality in general;
(iv)Whether the proposal will conform to any relevant Policy or Statement adopted by the Council.
(v)The proximity of the land to existing urban centres.
c)The keeping of animals of a domestic kind within the Rural Residential Zone will be controlled under the provisions of Chapter 31 of the Council’s by-laws and not under the provisions of the town planning scheme. The keeping of animals on a commercial basis will be controlled in accordance with Division III – Table of Zones of Part II – Zoning of the Schedule to the scheme.”
Strategic Plan Part B – Supporting Information
The following extracts from Part B[44] are relevant:-
[44] Exhibit 62
Page 14:
“Urban Areas
The urban areas shown as a preferred dominant land use on the Strategic Plan were determined by a long process involving an assessment of the following factors:-
(1)Existing and long term capacity to provide all public utility services necessary to serve new urban development. This involved use of Master Plan information supplied by the Shire Engineer in relation to water supply, sewerage, drainage and transportation.
(2)The philosophy of securing orderly development throughout the Shire including the expansion and consolidation of existing principal centres and towns throughout the Shire.
(3)The physical characteristics, suitability of the bulk of the terrain included in the urban areas as being suitable for such development.
(4) Existing and future capacity to service the areas by road.
(5)The extent and location of areas zoned for urban development as contained within the old Town Planning Scheme.
(6) …”
Page 17:
“(b)The main characteristics of nature and resource conservation areas and reserves are summarised in Table V1-3 (Tagged p. 332AK). Conventional standards for the provision of these reserves (eg area/population) should not be used, instead, the criteria of viable ecosystems and representative habitats and species should be expertly determined and applied. Resource conservation areas and reserves should again be expertly identified and evaluated and used for the protection of resources such as sugar cane and horticultural production lands, forestry and minerals.”
Nature and Resource Conservation
Data has been collected relating to all the elements relating to conservation, comprising national parks, environmental parks and public and private open space, and these have been incorporated directly and fully into the Strategic Plan as a preferred dominant land use. …”
Page 27:
“Constraints
1)In Part A reference has been made to the various constraints which have, to a large extent, determined the preferred dominant land uses indicated on the Strategic Plan. As stated in the Introduction, the selection of the preferred dominant land uses was not simply a theoretical town planning exercise, but also involved an assessment of the relevant values of the various resources. …”
Page 31:
“…The Strategic Plan indicating the preferred dominant land uses has consciously been constructed so that its application will be indicative rather than definitive. Its Shire wide implications will be to provide a guide to the future as envisaged by the Council rather than be inflexible and precise about what is after all an indefinite matter.”
1996 Strategic Plan – Effective from 10 May 1996
This Plan consisted of various elements, namely, the vision, key issues, the strategies, the preferred dominant land uses, objectives and implementation criteria and the Strategic Plan map.
Vision
The following statement is to be found in the vision dealing with environmental and aesthetic values[45]:-
“The environmental and aesthetic vision for the Shire is one which values, protects and promotes significant habitats and the processes for ecological sustainability, protecting the current high level of bio-diversity which exists in the Shire. Ensuring a high standard of environmental and aesthetic amenity is important, not only to the local residents, but also underpins the tourism industry within the State.
Given the continuing high rates of population growth and continuing expansion of tourism within the Shire, it is essential that the natural resources are identified, assessed and captured in a manner appropriate to their ecological and aesthetic value, ensuring their attention in perpetuity.
Certainly the traditional approach to conservation, consisting of the development of a system of a National Parks and other Government controlled land, is clearly unable to protect all significant habitats and ecological processes. There is a need for the protection for a much wider pool of resources on land in private ownership, as well as publicly owned land, and there is a need to develop a range of land use solutions which satisfactorily ensures protection for the environment and aesthetic resources of the Shire.
Within this environmental framework will be the creation of a townscape exhibiting a strong sense of place and a high standard of urban design, appropriate to the lifestyle and character of the Sunshine Coast and adapting to the changing needs of the community.”
PDLU’s Objectives and Implementation Provisions
[45]Exhibit 1C Tab 39 p. 406.
As stated above, the Land under the 1996 Strategic Plan is designated in three PDLU’s, namely, Agricultural Protection, Conservation and Rural or Valued Habitat. The vast majority of the Land was included in the last of these.
Agricultural Protection
There are two small areas in the north-eastern and south-western corners of the Land within this designation.[46] In relation to this designation the 1996 Strategic Plan provides[47]:-
“The Agricultural Protection designation identifies good quality agricultural land apart from land determined to be required for other purposes and land which contains vegetation worthy of preservation and significant vegetation as determined by the Turnbull and Olsen Report (1992). The principal intention of this designation is to retain the land for agricultural purposes and consequently protect the future viability of agriculture in the Shire. To this end, intensive agricultural activities will be allowed within these designated areas, while uses which contradict this intention or threaten this agricultural capability will not be permitted.
The boundary to the Agricultural Protection is based on defining good quality agricultural land and consequently the location may vary to that shown in line with more detailed assessments undertaken in accordance with the State Government Planning Policy Guidelines for the Identification of Good Quality Agricultural Land.”
Relevant Objectives in 1996 Plan re Agricultural Protection PDLU
[46]Exhibit 1C Tab 39 p. 473.
[47]Exhibit 1C Tab 39 p. 425.
Objectives 6.1 and 6.2 provide:-
“IMPLEMENTATION
1. On land in designated Agricultural Protection areas, Council will not approve applications for any purposes other than agriculture and rural activities which do not compromise the potential of the land to be used for agriculture or purposes necessarily ancillary to these uses. It will not approve subdivision applications which may compromise the efficient operation of these areas for primary production.
2. On land within the Rural or Valued Habitat designation, Council will not approve applications for development other than agriculture, other farming or ancillary uses unless:
(a) it can be demonstrated that the proposed use is appropriate to the site and would not be likely to undermine the existing use of any adjoining land for agricultural purposes. Council will consider the agricultural significance of the land and to that end, may require the applicant to carry out detailed land resource studies. The above would not apply to land containing valued habitat where the significant vegetation is essentially being retained.
(b) the land is within the Permissible area for Rural Residential development and the development proposed is Rural Residential and is justified under Objective 3.8.”
The Natural Resources Strategy – 1996 Strategic Plan
The provisions dealing with the Rural or Valued Habitat PDLU designation are to be found in s 10.0 Natural Resources which term is defined as referring to plants, animals and micro-organisms and their relationship with the non-living organisms on which they depend.[48] The relevant key issues identified are these:-
[48]Exhibit 1C Tab 39 p. 439.
“The key issue forming the basis for the Natural Resources strategy include:
· The association of significant natural resources with Maroochy Shire including:
…
- the vegetated and rural character of much of the Shire.
The key issue forming the basis for the Natural Resources strategy include:
· The association of significant natural resources with Maroochy Shire including:
…
- the vegetated and rural character of much of the Shire.
· …
· …
· …
·
· The essential need to retain the considerable and significant natural resources of the Shire including the protection of all aquatic and marine environment, terrestrial habitats, the diverse geological features and the natural character of the Shire so that:
- the natural aesthetics of the Shire can be maintained;
- the quality of life of residents is protected;
- a sustainable tourist industry is assured;
- the need to strive for a high environmental standard for the reasons given above is maintained;
- as well as a desire for longer term environmental sustainability is achieved.
· …”
The Natural Resources Strategy relates to the conservation and Rural or Valued Habitat PDLU’s and the strategy is in these terms[49] :-
[49]Exhibit 1C Tab 39 p. 439 right-hand column.
“1.Central to the Strategy is the location, objectives and implementation criteria of the preferred dominant land uses of Conservation and Rural or Valued Habitat. These designations are intended to:-
-contribute significantly to the protection of rare and threatened fauna and flora;
-maintain significant and representative fauna and flora;
-preserve significant geological formations and prominent escarpments;
-discourage additional soil erosion;
-provide a measure of protection to the aquatic and marine ecosystems;
-repair riparian systems and other significant environments.
2.The Conservation preferred dominant land use includes those areas designated as possessing the most highly valued areas of vegetation as well as land in public ownership intended to be preserved in a natural or semi natural state, such as National and Conservation Parks. This designation also includes vegetated and degraded creek corridors whose protection and rehabilitation is paramount in establishing sustainable ecosystems.
3.The Rural or Valued Habitat Designation includes extant vegetation units, often in private ownership, which form linkages between the principal conservation areas and major vegetation corridors within and outside the Shire. It also incorporates other land where vegetation protection or rehabilitation is considered appropriate because of slope, potential for landslip or for its aesthetic values.
4.While the emphasis for this Strategic Plan has centred around the identification and protection of vegetation, it has been assumed that the development of an appropriate Strategy for the conservation of terrestrial flora will also result in the conservation of the fauna populations.
5.A strong environmental framework requires not only the protection of resources through limiting land uses in designated locations, but requires also the establishment and implementation of an appropriate array of development guidelines and standards for all other forms of development. Such guidelines and standards, imposed as conditions on development, will:
· adopt a best practice approach;
· reinforce the remaining environmental objectives;
· seek a high standard of environmental amenity.
6. Aquatic and marine ecosystems are to be maintained through the retention and rehabilitation of creek corridors, through land use measures intended to reduce soil erosion, and where required, through creek bank stabilisation and requiring sedimentation and retardation controls in new development.
7. Under the Natural Resources Strategy, as proposed, the maintenance of land in its natural state is considered a legitimate land use in itself. This means that in some parts of the Shire development opportunities are limited to those which ensure the natural resource values for that site or adjoining areas are protected in perpetuity.
8. The conservation and Rural or Valued Habitat designations also intend to protect wetland areas which are valuable natural physical and biological treatment systems of water quality and quantity.”
Other Valuation Issues
Apart from the above main issues, there were other differences of opinion between the parties arising from the valuation evidence relating to advertising costs, profit and risk factor, rates and land tax, charges, holding charges, and interest charges. None of those, in my view, were of sufficient magnitude to make any appreciable impact on the figures relied upon by Mr Henderson in his valuations having regard to the numbers involved.
Conclusion re Valuation Evidence
I consider that a properly advised purchaser, having regard to the authorities on the appropriateness of the hypothetical development method of valuation and Mr Slater’s evidence, would have serious doubts as to its appropriateness. Further, I consider that the differences of opinion between the valuers would leave the purchaser with a serious question in his mind as to what, indeed, was the true value of the Land on an urban development basis and what level of profit, if any, would be available in the event of any development in accordance with the Covey Plan. Those reservations would heighten in relation to the development in accordance with the amended Covey Plan given the substantial reduction in the number of developed lots contemplated coupled with the absence of a corresponding reduction in the project costs given that some would remain constant whatever the number of lots. The purchaser, properly advised, could not, in my view, have confidence as to value by reference to Mr Henderson’s valuations.
PURCHASER’S FINAL DECISION
In my view, against the background of the purchaser’s imputed assessment of each of the issues I have dealt with, he would conclude, on balance, that approval for development of the Land for urban purposes in accordance with the Covey Plan or the amended Covey Plan would not be granted. He would further conclude that the highest and best use of the Land was for development of seven 20 ha rural lots as agreed between the parties on the after case. The purchaser would pay no more than its value on that basis, agreed at $750,000.
It follows that I am unpersuaded that there is any difference between the market value of the Land immediately after the time of coming into effect of the 1996 Strategic Plan and its market value had that Plan not come into operation[339] with the result no compensation is payable. The appeal is dismissed.
[339]PEA s 3.5(8)(a).
Schedule “A”
STATE PLANNING POLICY 1/92
3.3 Nevertheless, development without regard to the need for land conservation and the continuing importance of agriculture would be unacceptable. The best and most versatile farming land has a special importance and should not be built on unless there is an overriding need for the development in terms of public benefit and no other site is suitable for the particular purpose. This land is a valuable resource that should, in general, be protected from irreversible development. In such cases, additional weight needs to be given to the agricultural factor.
4.1 Local authorities will be expected to include provisions regarding the conservation of good quality agricultural land when preparing, amending or reviewing planning schemes, particularly when framing strategic plans, development control plans or local planning policies. Applications for rezonings, consent uses and subdivision should be considered in the context of such provisions. In the absence of specific agricultural land provisions, or where such provisions are considered inadequate, the Government will be guided by the principles set out in this Policy when considering applications for the approval of planning schemes, rezonings and other scheme amendments.
4.4 Although the demand for agricultural products fluctuates, once land is built on or subdivided, its return to agriculture is seldom practicable. Therefore, a decline in the market for a particular crop should not justify development on land traditionally used for growing that crop. Markets change and the land could be cultivated for other purposes.
4.5 Similarly, land ownership and the size of farm holdings should not override land quality when determining a site’s suitability for development. A policy which would allow the development of small sites or holdings irrespective of land quality, would merely encourage fragmentation of ownership followed by further development pressures. The viability of farm holdings varies with the crops selected, and tenure patterns are flexible: an appropriate choice of crop or amalgamation of holdings can overcome the problem of the uneconomic farm unit. Therefore, land subdivision policies and controls should not inhibit restructuring and farm amalgamation: in some instances subdivision will be necessary to enable the assimilation of parcels with adjoining properties.
4.6Cases will arise where local authorities have to consider development proposals on good quality agricultural land. In such instances, a ‘key’ principle should be whether an overriding need in terms of benefit to the community can be demonstrated for development at that particular location.
4.8The proximity of development, particularly where there is a significant residential component, can inhibit farming practice, thereby limiting the extent to which the inherent land quality can be exploited: for example, crop spraying and cane burning are two operations which cause conflicts with adjoining residential properties. Clearly, such conflicts should be avoided if possible but, where new developments have to be located on or adjacent to good quality agricultural land, measures to ameliorate potential conflict should be devised wherever practicable.
4.9 There should be no financial compensation implications for local authorities as a result of implementing this Policy. The various provisions described above should all be based on the premise that existing commitments stand and that ‘down zoning’ is not being advocated.
POLICY PRINCIPLES
Good quality agricultural land has a special importance and should not be built on unless there is an overriding need for the development in terms of public benefit and no other site is suitable for the particular purpose (Section 3).
The alienation of some productive agricultural land will inevitably occur as a consequence of development, but the Government will not support such alienation when equally viable alternatives exist, particularly where developments that do not have very specific locational requirements (for example, ‘rural residential’) are involved (Paragraphs 4.6-4.7).
When preparing, reviewing or amending planning schemes, local authorities will be expected to include provisions for the conservation of good quality agricultural land, regardless of the effect of market fluctuations on its viability (Section 4).
The preparation of strategic plans should include an evaluation of alternative forms of development, and significant weight should be given to those strategies which minimise the impacts on good quality agricultural land (Paragraph 4.2-4.3).
Due consideration should be given to the protection of good quality agricultural land when applications for rezonings, consent, or subdivision are being determined (Paragraph 4.1).
Where a planning scheme does not ‘contain adequate agricultural land conservation provisions, the Government will be guided by the principles set out in this Policy when considering applications for the approval of planning schemes, rezoning and other scheme amendments (Paragraph 4.1).
The fact that existing farm units and smallholdings are not agriculturally viable does not in itself justify their further subdivision or rezoning for non-agricultural purposes. Subdivision provisions and policies should be devised in a way that encourages amalgamation of titles where this would enhance farm viability (paragraph 4.5).
Local Authority planning provisions should aim to minimise instances of incompatible uses locating adjacent to agricultural operations in a manner that inhibits normal farming practice. Where such instances do arise, measures to ameliorate potential conflicts should be devised wherever possible (Paragraph 4.8).
Note: The Policy principles should be read in conjunction with the main text.
Schedule “B”
Planning Guidelines:
The Identification of Good Quality Agricultural Land
2.1Good quality agricultural land is land which is capable of sustainable use for agriculture, with a reasonable level of inputs, and without causing degradation of land or other natural resources. In this context, agricultural land is defined as land used for crop or animal production, but excluding intensive animal uses such as feedlots, piggeries, poultry farms and plant nurseries based on either hydroponics or imported growth media.
2.2 Four classes of Agricultural Land have been defined for Queensland (Refer Table 1 and Attachment 1). Class A land in all areas is considered to be good quality agricultural land. In some areas, Class B land (where agricultural land is scarce) and better quality Class C land (where pastoral industries predominant), are also considered to be good quality agricultural land.
Table 1
| Agricultural Classes | Description |
| Class A | Cropland – land that is suitable for current and potential crops with limitations to production which range from none to moderate levels. |
| Class B | Limited cropland – land that is marginal for current and potential crops due to severe limitation; and suitable for pasture. Engineering and/or agronomic improvements may be required before the land is considered suitable for cropping. |
| Class C | Pasture land – land that is suitable only for improved or native pastures due to limitations which preclude continuous cultivation for crop production; but some areas may tolerate a short period of ground disturbance for pasture establishment. |
| Class D | Non-agricultural land – land not suitable for agricultural uses due to extreme limitation. This may be undisturbed land with significant habitat, conservation and/or catchment values or land that may be unsuitable because of very steep slopes, shallow soils, rock outcrop or poor drainage. |
2.3Agricultural land classes are based on an assessment of the agricultural suitability of the land for specified agricultural uses. Agricultural land suitability is a rating of the ability of land to maintain a sustainable level of productivity. The factors used to assess agricultural land suitability are the soil, topographic and climatic limitations which determine sustainable productivity. Explicit evaluation of economic factors such as the size of production units, are not included as they are not considered relevant to the quality of the resource. Methods of agricultural land suitability assessment have been published by the Department of Primary Industries (DPI) and others (see Section 10).
2.4 Existing land resource mapping throughout the State has been interpreted to this classification contained in Table 1[340] to provide information on the location of good quality agricultural land. This is a simplification of existing land resource information, to enable the best agricultural resources within each local authority area to be identified for planning purposes. Attachment Figure 2 provides this interpretation based on the best available information.
[340]Supra.
2.5The definition of what constitutes good quality agricultural land within a local government area is a DPI responsibility, although local agricultural industries, local authorities and other relevant groups will be consulted.
4.1State Planning Policy 1/92 applies to all areas of good quality agricultural land, irrespective of whether farming activity is present. When assessing planning applications, the following issues need to be considered to determine what information is required and how the Policy should be applied.
4.4 Any proposals on site ‘committed’ as defined above should normally be considered on their planning merits without reference to the agricultural issues. In these circumstances, an agricultural land quality assessment would clearly be unnecessary.
4.5Rejecting proposals for development despite some commitment in the planning scheme could have compensation implications. Therefore only in exceptional cases should consideration be given to setting aside a commitment because of the need to retain a particular site in agricultural use. For example, the loss of land from agricultural production might prejudice the viability of the processing industry such as a sugar mill. In such cases, an assessment of a site’s agricultural quality would be required to substantiate the case for retention.
4.9In all other cases the agricultural quality of the subject land should be established to determine whether the principles of State Planning Policy 192 are applicable.
4.12If the subject land is found to be good quality agricultural land, the local authority should refuse the application unless:
· There is an overriding need in community terms of public benefit for the proposal, and the proposal cannot be located on alternative sites of poor agricultural quality; or
· The subject land is located so that farming, either along or in association with surrounding parcels, in not practicable: for example, a small isolated parcel of land surrounded by urban land uses.
4.16Instances of proposals for residential development on good quality agricultural land are likely to be more frequent. In such cases, the need for the development should be established in the context of other undeveloped land designated for urban or residential development by the strategic plan. Also relevant is the availability of alternative sites that are not of good agricultural quality, but could be serviced reasonably and could meet the same housing demand. Where an area is reasonably close to the local authority boundary, consideration of suitable alternative sites should include those in the neighbouring local authority.
5.1Information on land resources is available at different levels of detail and presented on maps at different scales, depending on the intensity of data collection. These Guidelines differentiate between broad-scale information (1:50 000 – 1:500 000 scale) appropriate for strategic and regional planning; and detailed information (1:2 500 to 1: 10 000) which is essential for detailed land resource assessment and processing of planning applications.
5.2Land resource information has been collected at a broad-scale by DPI and CSIRO, and is available for most areas of the State , however, the application of this information to detailed development assessment is limited.
5.7Where development of rural land is proposed, the broad scale maps in strategic plans or other sources should be used by local authorities to indicate to proponents whether good quality agricultural land is likely to be affected.[341] In cases where such information indicates that the subject land has no agricultural land of good quality, further analysis is usually unnecessary. However, if the local authority has additional information suggesting the subject land is good quality agricultural land, then a detailed assessment should be requested. Some weight may be given to any history of previous cultivation and/or erosion of the subject land.
[341]In this case the broad scale mapping by Capelin indicates six land use categories that are considered by DPI to be good quality agricultural land. Those categories include the subject land.
5.8If good quality agricultural land is indicated on the maps, the proponent may wish to apply for ‘consideration-in-principle’ where local authorities have this provision available. The local authority may either declare its opposition to the proposal at this stage or specify that a detailed assessment of land resources should be included with any formal application submitted. In some cases, the broad-scale mapping information may be sufficient for the assessment of planning applications in the areas of uniform suitability for agriculture.
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