Body Corporate 'Greatwood' CTS 19855 v Maroochy Shire Council

[2001] QPEC 3

PLANNING AND ENVIRONMENT COURT OF

QUEENSLAND

CITATION:	Body Corporate “Greatwood” CTS 19855 v. Maroochy Shire Council & Ors [2001] QPE 003
PARTIES:	BODY CORPORATE “GREATWOOD” CTS 19855 (Appellant) v. MAROOCHY SHIRE COUNCIL (Respondent) and CAMERON CHEYNE LINCOLN (First Respondent by Election) and MARIE ANNIE STERLING (Second Respondent by Election)
FILE NO/S:	Appeal No. 26 of 1999
DIVISION:	Planning and Environment Court
DELIVERED ON:	6 February 2001
DELIVERED AT:	Maroochydore
HEARING DATE:	23 – 25 October 2000
JUDGE:	K S Dodds DCJ
ORDER:	The appeal is dismissed.
CATCHWORDS:	BUILDING CONTROL AND TOWN PLANNING – TOWN PLANNING – REZONING – application to amend plan of development for special facilities zoned land – urban designation in strategic plan – environmental considerations
COUNSEL:	S M Ure for the appellant C L Hughes for the respondent In person for the first respondent by election In person for the second respondent by election
SOLICITORS:	Crilly Lawyers for the appellant G N Phillips for the respondent

[1] This is an appeal against the refusal by the respondent to approve what is in effect
an application to rezone land.

1. In March 1998, the appellant sought amendment of the plan of development of existing Special Facilities (Group Housing development) zoned land (Lot 1 of the Special Facilities zoned land) to facilitate the creation of five additional allotments and a new common area (the subject land). The new allotments were to be created in the then existing common area in the plan of development of Lot 1 of the Special Facilities zoned land (hereafter referred to as Lot 1).

2. The subject land together with other land (the Special Facilities zoned land) was rezoned in August 1991 to include it in the Special Facilities (Group Housing development) zone with an accompanying plan of development for a ten (10) group title subdivision for detached dwellings with a maximum height of two storeys subject to specific environmental protection requirements. The application for rezoning had sought rezoning of a large area of Rural A zoned land and a small area of Residential A zoned land to a Special Facilities (residential with environmental protection) zone with a view to a group title subdivision for a low density residential subdivision with the maintenance of the surrounding common property in an environmental protection zone managed by collective owners. Strict control over retention of vegetation and minimum disturbance of the whole site was proposed as an important part of the proposal.

3. Also in 1991, the total area of the Special Facilities zoned land was subdivided into two lots, Lot 1 which included the subject land and Lot 2. There was approval for five group title lots, subsequently increased to six in Lot 1. The average allotment area was 1060 m2. The remaining common area was 4.436 ha. Access to the group title lots was provided from the Clearview Court cul-de-sac which adjoined the northern boundary of Lot 1 towards its eastern side. The six lots were all located towards the eastern or southern boundary of Lot 1. The large common area occupied the balance. Another cul-de-sac, Garden Court touched the northern boundary of Lot 1 and the subject land towards its western side at the end of a gully containing remnant rainforest (Notophyll Vine Forest).

4. In 1999 there was an amendment to the survey plan of Lot 1 which realigned the boundaries of the existing group title allotments, enlarging each of the existing six lots and deleting access to the common area from Clearview Court. This was sought at or about the time the application to amend the plan of development was made. The outcome is that there are now six lots ranging in area from 3005 m2 to 1.099 ha and a common area of 1.461 ha.

[6]	The respondent refused the application in August 1999. Its reasons for refusal were notified as:
1. Strategic Plan

(a)	The proposal conflicts with Objective 3.4 of the Strategic Plan in that the proposal will result in significant clearing of Priority One and Priority Two vegetation and does not provide for the adequate protection of habitat and environmental resources located on the site.
(b)	The proposal conflicts with Objective 3.5 of the Strategic Plan in that it will degrade the amenity of existing and future residential areas by clearing significant areas of vegetation.
(c)	The proposal conflicts with Objective 10.2 of the Strategic Plan in that it will detrimentally impact upon habitats so as to threaten the environment of rare and threatened species including the Pararistolochia Praevenosa and remove significant amounts of vegetation which has high conservation value.
(d)	The proposal conflicts with Objective 10.3 of the Strategic Plan in that it will fragment an existing fauna and flora corridor linking between habitats of conservation significance.

2.

Draft Buderim Local Area Plan Plan in that it will degrade a sensitive environmental area and does not propose to develop the site using ecologically sustainable design principles.

3.

Draft Maroochy Shire Planning Scheme slope residential) precinct of the draft Maroochy Shire Planning Scheme considering the site’s slope conservation and amenity value.

1. The respondent recently notified further reasons for refusal namely:

1.  The proposed development is contrary to good town planning principles and in particular:

(a)	It is inconsistent with the original application for rezoning the land by including it in the Special Facilities zone and it is inconsistent with the material placed before the council in respect of that original rezoning particularly material indicating that significant areas of bushland, habitat and flora would be preserved;
(b)	It is inconsistent with the original rezoning approval which was granted on the basis that such vegetated areas would be preserved.
(c)	It is inconsistent with subsequent approvals granted in respect of the development of the land including subdivision approvals all of which provided for the preservation of such vegetated area.

2.          The proposed development is contrary to the Body Corporate and Community Management Act and steps taken pursuant to that legislation including the submission and adoption of a bushland management plan for the subject land prepared by Jaeger Environmental dated May 1999.

1. The subject land is situated on the lower northern slopes of the Buderim escarpment. Its topography is steep with slopes varying mainly from nine degrees to seventeen degrees. To the north below the escarpment, development comprises mainly conventional detached housing with a small number of low/medium density unit developments. Lot sizes are generally in the range of 750 m2 to 1000 m2. Towards the escarpment lot sizes are larger; between 1500 m2 and 2500 m2. In this area, there are a number of ridges and valleys or gullies extending north from the base of the escarpment. Apart from the houses on Lot 1 there is some detached housing to the east beyond the boundary of Lot 1. To the west is quite a large tract of largely bushland which includes what was originally part of the Special Facilities zoned land before subdivision into Lots 1 and 2. It also contains a group title development. The subject land and lands to the south and southwest are relatively heavily vegetated, with native vegetation providing a green background on the escarpment. Land on the escarpment south of the subject land remains Rural A.

2. The planning scheme in force when the application was made and refused was the now superseded 1985 Town Planning Scheme and 1996 Strategic Plan. Under the 1985 scheme, the Special Facilities zone was intended for a wide range of activities not necessarily covered by other specific zones in the scheme. The use could be “identified on the scheme maps by specific reference so that not only can it be protected as such but it cannot be changed to other inappropriate uses without rezoning”. The table of zones made it clear the land could not be used for any purpose other than the particular purposes notated on the scheme maps or a supplementary purpose carried out in conjunction with the notated purpose which in the opinion of the respondent was allied and compatible with the particular purpose. In the 1996 Strategic Plan the subject land and surrounding land had an urban designation. Such a designation “indicates areas of existing land preferred for predominantly residential development”.

3. The respondent’s new planning scheme, Maroochy Plan 2000 came into force on 1 June 2000. Its format is in part different from the scheme it replaced. Its stated aim is to advance “ecological sustainability” in the local authority area in accordance with the purpose of the Integrated Planning Act. Instead of zones the local authority area is divided into planning areas each containing precincts divided into different precinct classes. Each class has described its intent and its performance measures. At the time of the application it was in the process of preparation. It was put on public display on 12 June 1999 and adopted by the respondent in February 2000.

4. In Maroochy Plan 2000, Lot 1 including the subject land is included in Precinct 9 Upper Slopes Residential Precinct Class Hill Slope Residential of Planning Area 6 Buderim. Land to the north of the subject land including Garden Court, is in Precinct 3, Buderim Scarp Residential Precinct Class Neighbourhood Residential of Planning Area 6 Buderim. In its Strategic Plan, the subject land retains an urban designation.

5. Section 6.1.26(2) of the Integrated Planning Act 1997 requires that the appeal must proceed as if the Local Government (Planning and Environment) Act 1990 had not been repealed. Section 3.4(1) of the latter Act requires that the local government in deciding the application in accordance with the planning scheme in force at the time the application was lodged “is to give such weight as it considers appropriate to the new planning scheme”. The court on appeal from the local government decision approaches the matter in the same way: Alati v. Brisbane City Council (1994) QPLR 112; Rods Harbour Development Corporation Pty Ltd v. Brisbane City Council (1998) QPELR 247.

6. The appellant bears the onus of establishing to the satisfaction of the court that its application should be approved or allowed and the appeal upheld: section 7.1A(2B) Local Government (Planning and Environment) Act 1990.

7. Objectives 3.4 and 3.5 of the 1996 Strategic Plan occur in the urban development part of the plan. Such development is said to “[embrace] development in those areas where residential uses of an urban density dominate”. The planning strategy to be employed in areas designated urban includes recognition that areas within this designation “possess significant natural attributes important to the character or environment of a locality”. Consequently, “development proposals in these areas should seek to preserve significant habitat”. Further “[t]he urban designation may include land which is considered to have a significant ecological value and sensitive development options would be appropriate to adequately incorporate this land into the urban fabric with minimal impact”.

8. Objective 3.4 is “[t]o ensure that the physical environment can sustain urban and rural residential development”. The objective recognises “that the protection of certain natural areas is necessary… for the maintenance of [the shire’s] natural environmental integrity… development within the urban designation… should have regard to areas of natural habitat”.

9. Implementation provisions of Objective 3.4 include that development applications for land which contains ‘valued habitat’ (vegetation worthy of preservation or significant under the vegetation survey undertaken by Turnbull and Olsen (1992)) “are to be accompanied by an environmental impact statement addressing any likely impact of the proposal on the important habitat elements of the designated area”: see (2). “If after assessing any environmental impact statements or environmental assessments [the respondent] is not satisfied that a sensitive habitat or environment can adequately sustain a proposed development, it may refuse the application”: see (6).

10. Objective 3.5 is “to enhance the amenity of existing and proposed residential areas… ” Implementation Clause 1 thereof includes that the respondent when assessing an application in the designated urban area will have regard to “designs which are developed which have regard to the retention of significant vegetation… and the retention of valued habitat or corridors connecting valued habitat”.

11. Objective 10 occurs in the natural resources part of the plan. This part of the plan sets out the planning strategy to be employed in protecting the natural resources of the shire. It acknowledges that central to the strategy is the location, objectives and implementation criteria of the preferred dominant land uses of Conservation and Rural or Valued Habitat which are intended inter alia to contribute to the protection of rare and threatened fauna and flora and maintain significant and representative fauna and flora. However it is not restricted to these land uses.

[19] Objective 10.2 is protection of those habitats of terrestrial and aquatic fauna and
flora that are considered significant from an ecological point of view.

1. Implementation Criteria 1 thereof provides that, on land designated Conservation, Urban (my underlining) and Rural or Valued Habitat, development will not be permitted “which is likely to require the removal or destruction of rare and threatened flora (or) otherwise impact on the habitat so as to threaten the environment of… rare and threatened species”.

2. Objective 10.3 is “to protect or provide fauna and flora corridors linking to or between habitats of conservation significance”. It includes the “protection and rehabilitation of vegetation corridors… utilising remnant vegetation to link to or between habitats of conservation significance” so as to retain “significant stocks of endemic fauna and flora” and allow “species to move between areas of remnant vegetation thereby enabling gene flow to occur within fauna and flora populations”.

3. When the application was lodged Maroochy Plan 2000 had not been put on public display. It appears from the reasons for refusal of the application that at the time there was a draft Buderim Local Area Plan. That plan was never adopted as a final town planning instrument. It was overtaken by Maroochy Plan 2000 in its Planning Area 6 Buderim and in the Buderim Local Area Code in Volume 4 thereof.

4. Objective 3.4 of the 1996 Strategic Plan appears as section 3.5.4 of Maroochy Plan 2000. Objective 3.5 of the 1996 Strategic Plan appears as section 3.5.5 of Maroochy Plan 2000 with some changes. Relevantly, its implementation provisions refer to the retention of significant vegetation and the retention of valued habitat or corridors connecting valued habitat. Objective 10.2 and 10.3 of the 1996 Strategic Plan generally appear as sections 10.5.2 and 10.5.3 of Maroochy Plan 2000.

5. In Maroochy Plan 2000 is a focus on conservation of the Buderim escarpment as open space “using ecologically sustainable principles”. In the vision statement for Planning Area 6 Buderim there is reference to retention of significant areas of vegetated open space. “The Buderim escarpment and other important landscape and environmental features such as ridgelines, waterways and areas of remnant forest will be protected for their ecological and scenic value”. It sets out that whilst residential development may occur these are key considerations impacting upon whether development will be supported.

6. Despite the stage Maroochy Plan 2000 had reached at the time of this application, I do not consider it should be entirely ignored. It should be given weight to the extent that it continues with and reinforces (or detracts from) aspects of the earlier planning instruments that focus on ecological and environmental issues.

[26] One of the desired environmental outcomes of Maroochy Plan 2000 is environmental management. To achieve it, strategic implementation measures include comprehensive assessment and effective management of both the likely individual and cumulative impacts of development on the natural and built environments to ensure ecologically sustainable development.

1. An individual application, which in itself has only a relatively minor impact on the environment, may with other relatively minor impacts accumulate into a significant impact. That is no more than a common sense proposition. Of some relevance here is that an accumulation of impacts from clearing of forests in the area of the subject land has resulted in only remnants of Notophyll Vine Forest remaining.

2. An important function of Planning Area 6 is to protect the intactness of the Buderim escarpment. There is recognition that the planning area includes an important mosaic of areas of remnant native vegetation dominated by rainforest. The plan records that these areas support a rich diversity of environmentally significant plant and animal species and contribute in a major way to the landscape character of the locality and the shire. There is reference in the vision statement to protection of the Buderim escarpment and areas of remnant forest for their ecological value. There is an indication that the extent to which development proposals achieve protection of remnant vegetation will be key considerations in the respondent’s assessment and development which compromises these values will not be supported. Key character elements of the planning area are set out and include under environmental values recognition that the vegetated Buderim escarpment is a defining feature of Buderim’s green appearance but has been partially degraded by inappropriate development practices in the past. It sets out that it is critical to the character and amenity of Buderim and the shire that the remaining vegetation and escarpment areas be protected. As far as practicable the planning scheme seeks to prevent the intensification of development on the Buderim escarpment. When it does occur it will be relatively low density and will be designed so as not to impact unnecessarily on the remnant vegetation cover.

[29] Precinct 9 Precinct Class Hill Slope Residential is said to comprise of predominantly steep and sloping land that supports extensive remnant vegetation and wildlife habitats. The precinct recognises that the vegetated slopes are of high conservation habitat and amenity value. The intent of the precinct is to primarily conserve the conservation and habitat values and landscape character of the remnant bushland. It recognises that urban development may be appropriate in certain locations within the precinct but should be limited to forms of residential use that retain most of the land in an undeveloped and natural state and do not compromise the landscape and environmental values of the precinct. Premises should be sensitively designed, low impact and very low density compared to conventional suburban residential premises. Development will be most favourably considered on sites where vegetation has previously been cleared and should be sited and designed to avoid erosion and extensive earth works. The maximum number of dwelling units that will be supported should not exceed an average of four per hectare. Clearing of native vegetation should be minimised other than for previously approved sites for dwellings and existing mature vegetation and habitats should be conserved and enhanced.

1. Two town planning consultants gave evidence; Mr Ryter for the applicant and Mr Dillon for the respondent. Each discussed town planning matters each considered of relevance to the proposal. The evidence of each to the extent it exposed relevant town planning considerations was of assistance.

1. Evidence about ecological and environmental issues was provided to the court by Dr Charles-Edwards for the appellant and Mr Chenoweth for the respondent. Both witnesses appeared to have appropriate expertise. Additionally there was evidence in the form of an environmental report by Jaeger Environmental prepared for the appellant at the application stage which incorporated a fauna assessment undertaken by Ecological Management Services (EMS): see Exhibit 5. The report purports to classify the ecological value of vegetation on the subject land and advance solutions to minimise the impact of the proposal on fauna and flora during construction and there after.

2. From this evidence, I conclude that the subject land contains open eucalypt forest, a small area of which (about seven per cent) has been cleared or degraded and remnant closed rainforest Notophyll Vine Forest in the gully areas. The latter plant community occupies about one-fifth of the subject land. There are three such gullies. These gullies combine into one gully that in times of inundation becomes a northwest flowing watercourse in the narrow arm of the subject land adjoining the cul-de-sac of Garden Court. The gullies function as intermittent watercourses and otherwise as the sites of remnant pools or moist areas. It is this latter piece of the subject land that is the proposed access to the development.

3. Vegetation on the subject land has been classified by the witnesses concerned with ecological and environmental issues according to the work and Turnbull and Olsen 1992 “Vegetation Survey and Assessment of Landscape within the Boundaries of the Maroochy Shire”. Open eucalypt forest is classified as ‘priority two’ vegetation. Remnant closed rainforest is classified as ‘priority one’ vegetation. ‘Priority one’ conservation status comprises “areas worthy of conservation because of their State, regional and/or local significance”. ‘Priority two’ conservation status is accorded to “areas worthy of maintenance as natural resource communities within which certain development may occur”.

4. The application the subject of this appeal involves 1.118 ha of the present common area of 1.461 ha. Approval will facilitate subdivision of this common area to create five additional lots and a new common area. The allotments will range in area from 659 m2 to 1108 m2 with a balance common area of 0.66 ha. Access is proposed from the existing Garden Court cul-de-sac. It will remove the gully referred to occupying a narrow piece of the subject land.

5. The authors of the Jaegar Report considered that the gully Notophyll Vine Forest in the part of the subject land adjoining the Garden Court cul-de-sac was degraded by exotic and weed invasions due to the effect of human habitation at its edges so that it no longer qualified as ‘priority one status’ but should be accorded ‘priority two status’. Thus its conservation significance was reduced.

6. Analysis of the proposal by Jaegar indicated that remnant Notophyll Vine Forest (‘priority one’ vegetation) occupied approximately 1010 m2 of the subject land and that about 330 m2 of that would be removed by the proposed development. The proposed access road and earthworks would require removal of about 2400 m2 of vegetation comprising the 330 m2 of priority one vegetation referred to above, 550 m2 of priority two degraded Notophyll Vine Forest (in the gully to Garden Court) and 1520 m2 of the priority two open forest. The removal of ‘priority two’ open forest for building envelopes on the subject land if the proposal were to proceed would involve removal of a further 1900 m2 of ‘priority two’ open forest. This equates to removal of about 4300 m2 (39 per cent) of the vegetation on the subject land including 29 of 77 surveyed trees with a trunk diameter of greater than 300mm. About 37 per cent of the proposed common area would be occupied by access roads, driveways, carparking and associated batters.

7. “Edge effect” which is referred to in the Jaeger Report and to a significant extent in the evidence of Dr Charles-Edwards, describes the intrusion into native vegetation of exotic and weed species commonly through the interface of human habitation and native bushland.

8. Dr Charles-Edwards considered the respondent’s refusal of the proposal was not justified on ecological grounds. He considered that provided potentially noxious exotic garden species were not used around proposed dwellings in the development and these areas were landscaped with appropriate endemic native species the environmental value of the area was likely to be enhanced. He regarded the proposal as an opportunity to harden up the edges of the native bushland to maintain the integrity of woodland to the south on the escarpment and to control edge effects already apparent in the gully to Garden Court and in the understorey of the eucalypt forest. He thought it difficult to identify any substantive ecological/environmental basis for attributing significance to the area of the proposed rezoning. He did not consider the subject land important as a bushland corridor linkage for wildlife. He thought the environmental management plan proposed by Jaegar entirely appropriate.

9. Mr Chenoweth was of a different view. It was his opinion that any developable land in the present common property was now inaccessible without significant damage to ecologically sensitive gullies and their vegetation, faunal habitat and local wildlife corridor values. The proposed development would involve clearing of an unacceptably high amount of ‘priority one and two’ vegetation including in the latter category large, older trees of significant habitat value. In the former category the gullies provide habitat for aquatic invertebrates and as a local wildlife movement corridor. He considered the proposed filling of the gully to Garden Court and destruction of the vine forest which in practical terms would occur if the proposal were approved was inconsistent with even a ‘priority two’ status. He considered that vegetation removals estimated by Jaegar to be in the order of 33 per cent of the on site ‘priority one’ vegetation and 35 per cent of the onsite ‘priority two’ vegetation was not ecologically sustainable. After reviewing the Jaegar report and the EMS report, he also considered the subject land was ecologically and environmentally significant as fauna and avifauna habitat and as a bushland corridor linkage. In his opinion the proposed development would cause further fragmentation of this remnant bushland habitat.

10. In my view the approach of Mr Chenoweth should be preferred. I consider that the part of the present common area of Lot 1 of the Special Facilities zoned land, which will be impacted upon by the proposal, has ecological and environmental significance. It would undoubtably be preferable for degradation of native vegetation not to have occurred from the edge effects of human habitation. It is practicably inevitable unless all householders are educated and totally committed environmentalists or unless there is active, ongoing management of an area to contain the effect. The latter was an aspect of Dr Charles-Edwards' evidence. In his view, approval of the proposal would involve a retreat of the edge up the escarpment and provide an opportunity to establish new edges between human habitation and the native forest and to “harden up” the edges by appropriate management practices. I note there was no evidence from the appellant about past management of the common area of bushland or about what was proposed if Dr Charles Edwards preference was to be pursued.

11. Public notification of the application resulted in 29 objections and two petitions; one containing 21 signatures and the other 316 signatures. Two of the objectors became respondents by election and gave evidence. Another four objectors, Mr Shield, Mr Roberts, Mr Russell and Mr Kerr gave evidence. Like the two respondents by election, they were all residents of Garden Court. Grounds of objection included using Garden Court as access for the proposed development resulting in noise, safety and privacy concerns, the removal of riparian vegetation, drainage concerns, that the proposed development was contrary to the intent and density of the existing Special Facility zone and adverse environmental impacts concerning flora and fauna.

12. These witnesses all gave evidence about the amenity of the area, the vegetation on the subject land and the abundant native wildlife. Generally the witnesses, including the two respondents by election, said that when they purchased in Garden Court they inquired about the bushland to the immediate south which includes the subject land and were reassured by the Special Facilities zoning that it was environmentally protected. Some saw Exhibit 16.

13. The expectation the witnesses spoke of whilst understandable was not necessarily well grounded. What the Special Facilities zoning achieved was to limit the development. It did not in itself prevent an application to rezone. It meant that any application to rezone would be publicly advertised and interested persons would have an opportunity to object.

14. There is no question that the amenity of Garden Court is high. It includes attractive houses located in a relatively short cul-de-sac. The area is quiet. The escarpment bushland including the subject land to the south provides a green backdrop. As might be expected, native wildlife is evident. One of the objector witnesses, Mr Roberts who has lived in Garden Court for five years took a close interest in the environment in and around Garden Court, including the subject land. He appeared to be a careful and precise observer and recorder of flora, fauna and avifauna. I accept his evidence. It adds to the information available from the EMS and Jaegar reports, which was collected over a relatively short period of time. Specifically I accept that he has sighted more than one of the threatened Richmond Bird Wing butterflies in and about the area and that he has observed large specimens of what are probably Pararistolochia Praevenosa vine, the host plant to the butterfly in the remnant rainforest gully to Garden Court. I also accept that he has identified koalas in the area including the subject land.

15. If the proposal proceeds a not insignificant amount of vegetation from the subject land, part of the green backdrop of the escarpment to the south of Garden Court, will be removed. Garden Court will no longer be a cul-de-sac. The remnant rainforest in the gully adjoining Garden Court will be removed. So will the gully, which will be piped. It will become a roadway into the proposed development. Apart from anything else all these things will have an adverse impact on the amenity of Garden Court. However standing alone such an adverse impact would not justify refusal of the proposal.

16. The appellant pointed out that the 1996 Strategic Plan had as a key issue in the urban areas the advantage of encouraging infill development. It submitted that the proposal was infill development. There was residential development to the north, east and west and in the south the six residential lots approved in the original rezoning to Special Facilities (Group Housing development). Furthermore it submitted that the proposed development had regard to areas of significant habitat. It had sought by its design to preserve such areas disturbing only the minimum necessary to enable the development to be located. Most of the subject land (upwards of 70 per cent) was to be retained in its natural state. Clearing of native vegetation was minimised. Building envelopes were located in areas which had been cleared or degraded. The development was very low density compared with other urban development.

17. The appellant submitted that in the 1996 Strategic Plan and Maroochy Plan 2000 the subject land retained an urban designation whereas it could have been given a conservation or rural or valued habitat designation or in Maroochy Plan 2000, included as a special management area or into another precinct which specified particular conservation desires or outcomes. It contended that the earlier rezoning from Rural A to Special Facilities with the plan of development did not mean that use of the land was frozen. Rather the proposal must be considered on its merits in the light of the appropriate planning instruments. What was proposed was development on privately owned land that had an urban designation in the Strategic Plan. The proposal was environmentally sensitive and considered in the light of the appropriate planning instruments there was no environmental or town planning impediment to the proposal.

18. The appellant submitted the issues in this matter were similar to the matter before Quirk DCJ in Alex Forest Preservation Association Inc v. Maroochy Shire Council & Anor (1996) QPELR 222. In that case the land under consideration was proposed to be rezoned from the Special Facilities (Church Complex) zone to a number of other zones including Public Open Space, Special Facility (Accommodation Units), Residential B and Residential A. The land had an urban designation in the 1996 Strategic Plan. His Honour noted that other parts of the Strategic Plan contained designations such as conservation and rural or valued habitat and that it was against that background that the validity of expectations in respect of future development of the land must be judged. In those circumstances he considered little assistance could be derived from other areas of the Strategic Plan which in a general way indicated the desirability of retaining where possible the natural environment.

19. The Alex Forest case as here involved land in private ownership with an urban designation in the Strategic Plan. It was an objector appeal. The proposal was supported by the local authority. It was apparently seen as a best compromise solution to competing interests in that it permitted the rezoning referred to and achieved the transfer of a significant portion of the forest into public ownership. His Honour’s remarks were made in the context of that case. I do not understand His Honour to be saying that parts of a strategic plan indicating the desirability of retaining or protecting the natural environment are of no significance. They are considerations in the balancing of matters of relevance by the respondent and by the court: see Cairns City Council v. Hessels (1998) 98 LGERA 404 where the Court of Appeal in another context did not support giving insufficient weight to aspects of a planning scheme which made it clear that land in a residential zone with an urban designation might not be suitable for subdivision.

20. A strategic plan sets out broad desired objectives: Lewiac Pty Ltd v. Gold Coast City Council (1994) 83 LGERA 224. It should be read broadly, not pedantically in interpreting it. A practical, sensible approach is called for: Yu Feng Pty Ltd v. Maroochy Shire Council (1996) 92 LGERA 41. “[T]he statements of intent or of aims or of objectives are intended to provide guidance in the difficult task of balancing the relevant facts, circumstances and competing interests in order to decide whether a particular proposal should be approved or rejected”: Degee & Anor v. Brisbane City Council & Anor (1998) QPELR 287 per Skioen SJ DCJ at 209.

21. The submissions require careful consideration. The subject land has an urban designation in the strategic plans. On the other hand the plans make it clear that ecological and environmental issues also have significance in respect of land with that designation. The application to rezone and the rezoning of the land in 1991 closely addressed ecological and environmental issues. The subject land was part of a larger portion of land rezoned from Rural A to Special Facilities (Group Housing development) involving a very low-density development with an associated plan of development retaining a large portion of the land to be managed as common area in its natural state.

22. It is true that the proposed residential intensification proposed on the subject land retains a low urban density roughly three times less than what might be expected in an ordinary urban subdivision.

23. In the final analysis however, I am not persuaded that the application should be approved. On the evidence before me the impact of this proposal on the environment on and about the subject land both intrinsically and in its cumulative effect makes it inappropriate. Additionally there is the effect the proposal would have upon the amenity of Garden Court. Whilst encouragement of infill development may be one of the issues in land with an urban designation, it will not necessarily prevail in locations where for sufficient ecological or environmental reason the nature of the development proposed is inappropriate.

[54] After considering all the evidence and the arguments advanced by the appellant I
am not persuaded that the appellants application should be approved or allowed.

1. The appeal is dismissed.