Bojam Pty Ltd v Play Hard Entertainment Pty Ltd & Ors
[2009] QPEC 58
•19 June 2009
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Donaldson & Anor v Brisbane City Council & Anor [2009] QPEC 58
PARTIES:
MELISSA DONALDSON
and
GEOFF TIMMS
(Appellant)
v
BRISBANE CITY COUNCIL
(Respondent)
and
FIG TREE POCKET DEVELOPMENTS PTY LTD
(Co-Respondent)
FILE NO/S:
3515 of 2008
DIVISION:
Planning and Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
Brisbane
DELIVERED ON:
30 June 2009
DELIVERED AT:
Brisbane
HEARING DATE:
Site inspection – 3 June 2009; Hearing – 10, 11 and 12 June 2009
JUDGE:
Rackemann DCJ
ORDER:
The appeal will be dismissed. That further hearing will be adjourned to allow the parties to consider conditions.
CATCHWORDS:
PLANNING AND ENVIRONMENT – 12 lot subdivision – best design test – lack of detailed design – precautionary principle – whether overdevelopment – conformity with planning strategy – hydraulic impact – traffic – privacy – loss of vegetation and bushland character – ecological impact – ecological sustainability – compliance with codes – sufficient grounds to approve notwithstanding conflict
Cases considered:
Buderim Private Hospital Pty Ltd v Maroochy Shire Council & Anor [1996] QPELR 251; [1996] QPEC 17
Garyf Pty Ltd v Maroochy Shire Council & Ors [2008] QPEC 101
Jedfire v Logan City Council [1995] QPELR 41; [1994] QPEC 47
Multispan Australia Pty Ltd v Department of Main Roads & Anor [2008] QPELR 509; [2008] QPEC 14
SDW Projects Pty Ltd v Gold Coast City Council [2006] QPEC 74Wingate Properties Pty Ltd v Brisbane City Council [2001] QPELR 272; [2001] QPEC 5
COUNSEL:
M Donaldson and G Timms for the appellant (self-represented)
B Job for the respondent
A Skoien for the co-respondent
SOLICITORS:
M Donaldson and G Timms for the appellant (self-represented)
Brisbane City Legal Practice for the respondent
Tobin King Lateef for the co-respondent
Introduction
The appellants, who are adverse submitters, appeal against the Council’s approval of a 12 lot subdivision proposed by the co-respondent on land situated at 350-354 Fig Tree Pocket Road and more particularly described as Lots 7 and 8 on RP73434.
The site is approximately 2.353ha in area. It has frontages to Fig Tree Pocket Road (to the west) and Ruth Miller Close (to the north). It features two waterway corridors. One is a centrally located north-south corridor, the natural form of which terminates at the northern boundary of the subject site (where it enters an underground pipe, before emerging into a vegetated area to the north of Sprenger Street). The other runs east-west at the southern boundary.
Land to the north and to the east of the site has been developed for low density residential housing. The submitters reside in an adjoining dwelling at the end of Ruth Miller Close, which is a dead-end street providing access to residential housing of a suburban character.
The Council’s decision was subject to two submitter appeals. The other appeal was by adjoining residents to the east of the subject site. Their concerns have been ameliorated by minor amendments to the proposed development. They now support approval.
The Proposal
It is proposed to reconfigure the site to create 12 residential lots, with a new road and access easements. The current proposed plan of layout is drawing D2796-02X[1]. That is somewhat different from the plan upon which the Council’s decision was based, but the differences are minor for the purposes of s 4.1.52 of the Integrated Planning Act 1997 (Qld) (the IPA).
[1]Exhibit 19.
The proposed 12 lots range in area from 1,002m2 to 3,193m2, with an average lot size of 1,818m2. Proposed Lots 1 to 6 are to be situated in the eastern part of the site. They are to be accessed via an extension of Ruth Miller Close, terminating with a cul-de-sac head on the subject site. Lots 7 to 11 lie in the north-western part of the site. They are intended to be accessed via a common driveway from the Ruth Miller Close extension. Lot 12, upon which an existing house is to be retained, will use its existing access from Fig Tree Pocket Road.
Each of the proposed lots has an identified building location envelope (BLE) situated outside of the waterway corridors[2], with the balance of each of the lots identified as Environmental Protection Zones (EPZ). The average BLE size is approximately 740m2. The majority of the site and the majority of the surveyed native canopy trees on the site are to be retained within the EPZ.
[2]Although, as Ms Donaldson points out, the common driveway and the individual access to the BLE for Lot 9 would cross the waterway.
The Issues
The issues in the appeal relate to town planning and alleged detrimental impact on the environment and upon the appellants’ amenity.
The grounds of appeal also alleged a lack of need for the proposed development. The appellants explained that issue as a contention that there is no need to develop the site in the way proposed, because a better alternative design could be adopted. The appellants say that they are not opposed to development of the subject site for residential purposes, but take issue with aspects of the proposal, including the most proximate BLE (for proposed Lot 9) and with the driveway access to Lots 7 to 11 being via Ruth Miller Close, rather than Fig Tree Pocket Road, as they would prefer.
Best Design Test
The contention that a better plan of layout, at least so far as the appellants are concerned, could have been formulated, permeated the appellants’ case, including the evidence of their experts. For example, when it was put to the appellants’ town planner, Mr Ryan, that the relevant test was one of acceptability, he responded that, “I would have thought I was looking, as a town planner, at the best outcome”[3].
[3]T 3-42.
The co-respondent, in this case, bears the onus of establishing that the submitter appeal should be dismissed[4]. To discharge that onus, the co-respondent must establish that its proposal is sufficiently meritorious to warrant approval, having regard to the issues in the appeal. The focus, in this respect, is on the proposal at hand. Absent some statutory planning provision to the contrary, an applicant for approval is not ordinarily required to prove that no better plan of layout could possibly have been adopted. The Court does not ordinarily apply a “best design” test. As Brabazon QC DCJ said in Wingate Properties Pty Ltd v Brisbane City Council[5]:
“It is not the function of this court (or indeed any planning authority) to refuse an application because it considers that the proposed use is not the best possible use for the site. It is not the function of the court to redesign a proposal. Its function is to pass judgment on that which is proposed. In this case, the issue is whether or not the current proposal has been shown to be acceptable. The fact that some alternative proposal may be thought to be even more acceptable is by the way. If the current proposal is acceptable, then that is enough.”
[4]Section 4.1.50(2).
[5][2001] QPELR 272 at 276.
It might be noted that the alternative favoured by the appellants is not necessarily superior in all respects. As Mr Beard explained, the access currently proposed is, from a traffic engineering perspective, superior to one which would see more lots gaining access from Fig Tree Pocket Road.
Town Planning Provisions
The acceptability of the proposal, and its associated impacts on the environment and upon the appellants’ amenity, must be considered in the context of the relevant planning strategies contained in City Plan. Because the application was the subject of impact assessment, the decision on the application must not compromise the achievement of the Desired Environmental Outcomes (DEOs) for the planning scheme area. It also must not conflict with the planning scheme, unless there are sufficient grounds to justify the decision despite the conflict[6]. The appellants’ further and better particulars[7] refer to many provisions of different parts of City Plan. In the course of submissions however, they were prepared to restrict their case to those referred to in their written outline[8].
[6]Section 3.5.14.
[7]Exhibit 1, Tab 12.
[8]T 3-62.
Pursuant to City Plan, the subject site is:
(a) within the “Residential Neighbourhoods” element of the Strategic Plan;
(b) within the “Emerging Community Area”;
(c) within a “Potential Development Area” and, more particularly, the “Very Low Density Residential Housing Area” under the Fig Tree Pocket Local Plan;
(d) mapped under the Local Plan as containing waterway corridors, landscape features and some steep slopes; but
(e) is not mapped as a Habitat Area or Ecological Corridor in the Local Plan.
The Strategic Plan is contained in Chapter 2 of City Plan. It contains a statement of “vision”, sets out the DEOs and strategies for the City and deals with certain elements of the City. The appellants’ written submissions do not deal with Chapter 2. It may be noted however, that the Strategic Plan[9] acknowledges that some parts of the Emerging Community Area are unsuitable for urban development, where there is a need to protect or preserve certain environmental features. It goes on to provide that:
“Proposals for development on land subject to these considerations must demonstrate that the values of the site and locality had been properly considered and will be protected.”
[9]Section 4.1.23 of City Plan.
The provisions of City Plan dealing with Areas and assessment processes for those Areas are contained in Chapter 3. The statement of intent for the Emerging Community Area provides, in part, as follows:
“The Emerging Community Area is generally suitable for urban purposes at some future time. These areas have not been fully investigated and may contain pockets of land unsuitable for development because of scenic or environmental constraints…”
The DEOs for the Emerging Community Area[10] include the following:
[10]Section 4.2 of City Plan.
“…
2.Land is developed in an orderly sequence, and in accordance with a neighbourhood structure and/or Local Plan.
3.Land is developed in a sustainable manner to reflect the general form of the city by integrating development sites, community infrastructure, green spaces and important natural features.
4.Significant historical, architectural, typographic, landscape, scenic, social, recreational and cultural features and associations, as well as fauna and flora habitats, fauna movement corridors, wetlands, and waterway corridors, are protected and enhanced and incorporated into the overall development of the area.
5.Development is well planned and integrated with surrounding land uses, and is supported by basic community facilities.
8.Urban design promotes a sense of place and identity and community safety.
9.Adequate telecommunications infrastructure, power, water and sewerage utilities are available to serve future resident, business and community needs.”
The appellants’ written outline alleges that the proposal would compromise the achievement of DEOs 3, 5[11], 8 and 9. There seems no basis to positively conclude that DEO 9 would be compromised. The allegation is that insufficient information has been given about those things, but DEO 9 was not one of the issues notified in the appellants’ particulars. The evidence (discussed later) satisfies me that the proposal would not compromise the achievement of the other DEOs.
[11]Although the reference to DEO 5 might be a mistaken reference to DEO 4, since the allegation is a failure to protect fauna and flora habitats, fauna movement corridors or waterway corridors.
The subject proposal falls within the “generally inappropriate” category in the level of assessment table as involving:
“Reconfiguring a lot to create additional lots where any of those lots are smaller than 10ha where no structure plan has been approved.”
It is the absence of an approved structure plan which triggered that level of assessment. It should be noted however, that the DEOs for the Emerging Community Area contemplate development in accordance with a Structure Plan “and/or Local Plan”. In this case, development of the subject site is contemplated by the Local Plan. Further, as the town planning experts agreed in their joint report[12], the structure planning exercise which was undertaken as part of the development application, was appropriate from a layout perspective, particularly having regard to constraints. They all agreed that development is occurring in an orderly sequence. In the circumstances, the absence of an approved structure plan ought not stand in the way of an approval.
[12]Exhibit 6, Tab D, pg 7.
City Plan sets out a number of matters which should be demonstrated by a proposal for generally inappropriate impact assessable development[13]. Those which were relied upon in the appellants’ written outline are as follows:
[13]Chapter 3, pg 6, s 2.5.2 of City Plan.
· The proposal does not generate greater traffic movement or hazard than is reasonably expected in the surrounding locality by reason of:
(a) on-site and on-street parking;
(b) number or type of vehicle movements;
(c) manner of access to the site.
…
· The shared use of telecommunications infrastructure occurs to minimise disruptions and adverse impacts on amenity, communities and the environment.
…
· The proposal does not result in unreasonable risk or hazard on-site or to adjoining lands.
Insofar as the first and third of those is concerned, the appellants contended that the additional traffic movements associated with the subject site would be unreasonable and result in risk and hazard. Those matters are dealt with later when discussing the evidence of the traffic engineers. I am satisfied that the proposal would have no unreasonable impact in that regard.
Insofar as the second of those considerations is concerned, the appellants again submitted that there is insufficient analysis of the adequacy of utilities, but that is not one of the issues which was notified in the appeal.
One of the other considerations listed in City Plan is that “the proposal does not detract from the appearance, environment or amenity of the locality”. On the evidence (discussed later), I am satisfied that the proposal will not detract from those things.
The site falls within part of Brisbane which is covered by a Local Plan. Such plans do not replace the Area allocations ascribed in Chapter 3, but put forward more locally focussed desired land use and built form objectives. They override any other parts of City Plan with which they conflict[14]. The Fig Tree Pocket Local Plan is one of the local plans for outer suburbs. Those suburbs “have been planned for in greater detail to achieve more functional and integrated communities and to protect the environmental features of these localities”[15]. Certain environmental and scenic constraints are mapped and discussed within the local plans. These include waterway corridors, habitat and ecological corridors, and landscape features[16]. Insofar as waterways are concerned, City Plan provides that:
“…Waterway corridors shown on local plans are the result of studies that more accurately depict the extent of the corridor than the generic City Plan waterway corridors. These corridors are not suitable for development and are therefore not included in a Potential Development Area, unless the local plan specifically states otherwise.”
[14]See Chapter 3, pg 9 of City Plan.
[15]Chapter 4, pg 287 of City Plan.
[16]Chapter 4, pg 287, s 4.2.1 of City Plan.
“Landscape features” cover land identified as containing scenic or geological features, or vegetation with landscape value or local ecological values.
The subject site is mapped as containing a waterway corridor (but is not mapped as an habitat area or ecological corridor). The appellants rely upon the statement that, “These corridors are not suitable for development and are therefore not included in a Potential Development Area”. However, the balance of the provision acknowledges that a given local plan might nonetheless include a mapped waterway within a Potential Development Area. As counsel for the respondent pointed out, there are many local plans which exclude mapped waterway corridors from the Potential Development Area[17]. In the case of the Fig Tree Pocket Local Plan, the specific waterway corridors on the subject site are nevertheless mapped as included within the Potential Development Area.
[17]See Exhibit 2A.
The appellants also contend that the density of the subject proposal is inappropriate. City Plan states that a yield of 5 dwellings per hectare applies to Very Low Density
Residential development in the Potential Development Areas. The subject development is very low density in those terms[18]. The appellants’ contention to the contrary relied on excluding that part of the subject site which is included within the waterway corridor, on the basis that waterway corridors are not included in Potential Development Areas. As already observed however, the whole of the site, including that within the mapped corridor, is also mapped as included within the Potential Development Area under the Fig Tree Pocket Local Plan.
[18]5 lots per hectare on the subject site, suggest 11.7 allotments which, when rounded to the nearest whole number, coincides with the density of the subject proposal.
The Fig Tree Pocket Local Plan contains provisions relating to various elements. Insofar as waterway corridors are concerned, the Local Plan provides as follows[19]:
“Development is not appropriate in waterway corridors to protect the hydraulic, recreational and aesthetic functions and ecological values. However, if part of a dwelling is proposed within a waterway corridor, it must be demonstrated that the overall ecological values of the site are maintained through proposed rehabilitation or other measures.”
[19]Section 2.1.1 of City Plan.
The appellants emphasised the first sentence, however the balance of the provision suggests that there is no absolute prohibition on development in waterway corridors in all circumstances, so long as the overall ecological values of the site are maintained[20]. That qualification expressly refers to where part of a “dwelling” is within the waterway corridor, but the provisions dealing with the Very Low Density Residential Area also speaks of such areas being where “development” must be “restricted”. Similarly, the Subdivision Code speaks of infrastructure design and layout being designed to “minimise” the crossing of waterway corridors and to ensure that “any such crossings” protect the various functions of the areas, corridors and features[21]. The evidence (discussed later) satisfies me that the overall ecological values of the site will be maintained.
[20]Section 2.3.1 of City Plan.
[21]Performance Criteria 15.
The site is also mapped in the Local Plan as within a broader area described on Map A of the Local Plan as:
“Central elevated part of suburb containing a consolidated area of waterways, steep land and mature vegetation which has cumulative ecological values higher than other parts of Fig Tree pocket and the surrounding area. Bushland landscape character is important in the area”.
Insofar as the Potential Development Areas are concerned, the Local Plan provides:
“Development of sites smaller than 5ha may be considered appropriate where they comply with requirements of the Local Plan code …
As this Local Plan area is close to urban services and facilities and has land suitable for residential purposes, a balance is needed between moderate population increases in the area and protecting, retaining and enhancing the ecological, riparian, bushland and semi-rural landscape character values of the area.”
The Local Plan seeks to achieve a “balance” between moderate population increases (through development which conforms with the Local Plan code) on the one hand and the protection of certain values on the other. How that is to be achieved in the case of Very Low Density Residential Development is further explained in s 2.3.1 of the Local Plan as follows:
“…
This area contains steep land and a large number of waterways where development must be restricted. In addition to the generic provisions for the Very Low Density Residential Potential Development Area, the following strategies apply in this area to preserve these characteristics:
· encouraging clustering of dwellings to reduce development footprints, on land available for development;
· allowing different lot sizes and titling so that ecologically significant areas can remain undisturbed as common property as part of large allotments;
· ensuring that fencing associated with a Building Location Plan and along lot boundaries is designed to allow for the movement of fauna;
· entering into voluntary conservation agreements with land owners to help in managing their land.”
Relevant codes include the Fig Tree Pocket Local Plan Code, the Biodiversity Code, the Subdivision Code and the Waterway Code. The appellants rely upon various provisions of those codes.
The Proposal’s Response to the Planning Strategy
The planning strategy which emerges from the various provisions of City Plan recognises the potential for the subject land to be developed for residential purposes, but seeks a balanced approach. A moderate population increase is to be facilitated by Very Low Density Residential Development in a form which clusters the built form and respects the constraints and features of the site, particularly those recognised in the Local Plan.
The co-respondent proposes:
(a) reconfiguration to achieve a moderate population increase, by very low density residential development;
(b) BLEs within each lot, to ensure that subsequent development occurs only in certain parts of the site;
(c) varying lot sizes;
(d) clustering of BLEs in areas beyond the mapped waterway corridors and, in the main, in those parts of the site which are more cleared or which contain pest or non-native vegetation;
(e) access from an extension of Ruth Miller Close which, while intruding into the waterway corridor at the northern extremity of the subject site, branches off, so as to minimise the extent of intrusion;
(f) including land otherwise within EPZs;
(g) the retention, within the EPZs, of some 60% of the existing surveyed canopy trees on the subject site[22];
[22]T 1-150, ll 45-50.
(h) including, within the EPZs, the land adjacent to the southern boundary of the site, a 10m wide corridor along Fig Tree Pocket Road (except where the existing house on Lot 12 encroaches into that area), a 5m buffer to adjoining development to the east and a 3m buffer to the common boundary with the appellants’ property (and indeed, to other properties on the northern boundary of the subject site between the Ruth Miller Close extension and Fig Tree Pocket Road);
(i) the use of fauna friendly fencing.
The conditions of approval include those which:
(a) require the development to be carried out generally in accordance with approved plans (Conditions 1, 2 and 3);
(b) require prospective purchasers of lots to be notified of the EPZ, the requirements pertaining to it, and to fauna friendly fencing (Condition 4);
(c) contain arboricultural requirements, in terms of civil works, pruning and certification (Condition 7);
(d) require submission for approval and subsequent implementation, of a detailed Rehabilitation Plan, including a maintenance plan (Condition 8);
(e) require submission for approval, and subsequent implementation, of a detailed Vegetation Management Plan (Condition 9);
(f) require certification, by an engineer, that all engineering design plans are designed in accordance with the Vegetation Management Plan (VMP) (Condition 10);
(g) advise of the requirement for a permit to be obtained pursuant to the Natural Assets Local Law (Condition 11);
(h) identify the EPZ, exclude all land disturbing site works[23] as well as buildings, associated outbuildings and other structures from it, require fauna friendly boundary fencing, and the survey and pegging of EPZ boundaries (Condition 12);
[23]The condition may need amendment to permit land disturbance necessary for the construction of the drainage works at the northern boundary, and construction of those parts of the access driveway which is within the EPZ.
(i) require a registrable environmental covenant, with the Council as covenantee (Condition 13);
(j) require submission of an earthworks plan in accordance with the Filling and Excavation Code and the Council’s Subdivision and Development guidelines (Condition 17);
(k) require the design and construction of retaining walls to be in compliance with the Filling and Excavation Code (Condition 21).
Residual Planning Issues
That approach would appear to respond to the planning strategy which emerges from City Plan. Ms Havill, the town planner, called by the respondent, and Mr Bews (the town planner called by the co-respondent) consider that it warrants approval, from a town planning perspective. Mr Ryan however, continued to have concerns, particularly about the proposal’s likely impact on the appellants’ amenity and also about the adoption of a shared access way for Lots 7 to 11 which intrudes into the waterway corridor (to connect to the extension of Ruth Miller Close) in lieu of a connection to Fig Tree Pocket Road, as the appellants would prefer. He summarised the residual town planning issues as follows[24]:
[24]Exhibit 13, pgs 3-4.
(a) the residential density of the proposed development would adversely affect the amenity of adjoining Lot 13 and RP893134 through loss of protective vegetation, noise, stormwater runoff, privacy and increased vehicle movements and the proposed shared accessway;
(b) the extent of buffering between proposed Lot 9 and the adjoining Lot 13 is inadequate;
(c) a shared access way from Fig Tree Pocket Road in lieu of the proposed shared accessway which crosses a waterway corridor would reduce the adverse environmental impacts of the proposal and the result is loss of amenity on adjoining allotments;
(d) there is insufficient documentation/assessment to determine with certainty the full impact of the proposed works, vegetation loss and adverse effect on the amenity of adjoining Lot 13 with certainty.
Lack of Detailed Design/Precautionary Principle
Mr Ryan sought to invoke the precautionary principle in relation to the last of those issues. In short, Mr Ryan’s contention was that, given the constrained nature of the site, detailed design work ought to have been carried out at this stage, rather than being deferred to the operational works stage.
As the Court has pointed out in the past[25], development design is commonly an iterative process. An applicant for approval for a material change of use or for the reconfiguration of a lot is not always required to descend to matters of detailed design. That is more commonly associated with subsequent applications for approval of operational works. What is required in a given case will depend upon the type of approval which is sought and the matters of relevance in the particular case. In this case, the degree of uncertainty arising from a lack of more detailed design is not such as to call for the refusal of the application, although it may be reasonable to require documents such as the VMP and the environmental covenant, required by conditions of approval, to be resolved to a greater extent before conditions of approval are finalised.
[25]See Buderim Private Hospital Pty Ltd v Maroochy Shire Council & Anor [1996] QPELR 251 at 254; SDW Projects Pty Ltd v Gold Coast City Council [2006] QPEC 74; and Garyf Pty Ltd v Maroochy Shire Council & Ors [2008] QPEC 101.
There is a degree of uncertainty, particularly relating to the prospect of retaining some individual trees. If the retention of particular individual trees was critical, then the lack of greater certainty may be more significant. I am satisfied however, that it is not. This is not an appropriate case to apply the precautionary principle in such a way as to refuse the development application.
Overdevelopment
The first two of Mr Ryan’s issues assert that the proposal would have an undue impact upon the appellants’ amenity by reason of excessive density and inadequate buffering. His third point relates to the environmental and amenity impacts of the shared driveway for Lots 7 to 11. He contended that, by seeking to achieve the density proposed on a constrained site, the development had been pushed closer to the boundaries, resulting in inadequate buffering, loss of amenity and destruction of further vegetation. Statements from Mr Timms[26] and Mr Green[27] (the appellants’ adjoining neighbour), raising environmental and amenity concerns, were also tendered.
[26]Exhibit 14.
[27]Exhibit 15.
Attention was drawn to Acceptable Solution A7.2 to P7 of s 5.2.2 of the Subdivision Code[28], which refers to each Building Location Plan in a “Very Low Density Residential Potential Development Area identified in a Local Plan” being “not within 20m of any other Building Local Plan or dwelling, or within 10m of a lot boundary”. That is something of a recipe for development which is more spread out across a site. The proposal does not adopt that acceptable solution. That does not mean that it offends the performance criteria[29], which is focussed on whether there is an adverse impact on, amongst other things, waterway corridors and wetlands and landscape or scenic features.
[28]Chapter 5, pg 235 of City Plan.
[29]Section 1.1 of chapter 5 of City Plan explains that, while the acceptable solutions represent the preferred way of complying with performance criteria, there may be other ways of doing so while still meeting the purpose of the code.
That provision of the Subdivision Code applies to land so designated in local plans across the city. The Fig Tree Pocket Local Plan contains a specific strategy which encourages clustering. In this case, the positioning of the BLEs reflects a strategy of “clustering” them in a way which minimises adverse impact on the values of the site. The consequence is that some parts of the site are to be developed more intensely then would be the case if development was spread more evenly across the site. In this case it is the area outside the waterway corridors (including that proximate to the appellants’ property) which are the logical focus of clustered development. This is consistent with the strategy expressly adopted in the Fig Tree Pocket Local Plan. It is, I am satisfied, also consistent with the performance criteria. It is not the result of overdevelopment.
As it happens, the appellants’ property is proximate to where some of the BLEs are to be clustered, a bund and swale is to be constructed for drainage purposes and the Ruth Miller Close extension and the shared driveway to Lots 7 to 11 is also to be constructed. I appreciate that this causes the appellants some concern, but I do not consider that the proposal is a case of overdevelopment. I also do not consider that it is likely to have an unreasonable impact upon them.
Hydraulic Impact
Both Mr Timms and Mr Green (the adjoining neighbour to the west of the appellants) expressed concern about the management of storm water. The proposal is to divert surface stormwater runoff, which currently crosses the northern boundary of the subject site in the vicinity of proposed Lots 7 and 9. Surface runoff would be diverted to the proposed road reserve, through the implementation of an earth bund and swale arrangement along (but within) the northern boundary of the subject site, between Ruth Miller Close and Fig Tree Pocket Road.
The appellants’ further and better particulars raised two issues. Firstly, they took objection to the removal of the existing surface flow across their allotment. While one might ordinarily expect this to be welcomed by an adjoining resident, Mr Timms, in his statement, spoke of the effort and expense he had gone to, to “embrace” the drainage path.
Mr Collins (the hydraulic expert called by the respondent) and Mr Coles (the expert called by the co-respondent) pointed out however, that the design of the bund and swale can easily be altered to maintain surface flow onto the appellants’ land. As Mr Collins also pointed out, that could be achieved by use of a pipe, with a control valve. That would not only permit flow to be maintained, but would also give control over the capacity of the flow, to afford some flood protection[30]. That can be provided for in the conditions of approval.
[30]T 2-60, 2-64.
The second issue was the effect the construction of the Ruth Miller Close extension and the driveway access for Lots 7 to 11 may have on stormwater flows. The evidence of Mr Coles and Mr Collins, which I accept, is that the effect of the works would be negligible, due to the low volume of stormwater flows. Further, minor modifications can be made to the proposed location of the driveway, to accommodate tree retention or traffic requirements, without any significant effect on the hydraulics[31].
[31]See the joint report, Exhibit 6, Tab B.
Further Mr Collins’ evidence, which I accept, is that, with appropriate conditions and design, the hydraulic function of the waterway will be protected. He regarded the effect of the development on the hydraulic function of the waterway as involving, at worst, a “no worsening” but potentially an improvement, given the proposal to remove weed species and rehabilitate the vegetation in the waterway corridor, which will limit erosion and control the weed problem[32].
[32]T 2-61-62.
Traffic
The appellants’ concerns with respect of traffic relate to the use of Ruth Miller Close for access. The question is as to the nature and extent of the consequent impact and whether any likely adverse impacts would be unreasonable.
Ruth Miller Close currently terminates at a dead end, at the northern boundary of the subject site. It does not currently have a cul-de-sac head. Its physical form rather suggests its future possible extension onto the subject site. The absence of a cul-de-sac head leads to the need for undesirable heavy vehicle movements, reversing along Ruth Miller Close. The extension of Ruth Miller Close so that it terminates with a cul-de-sac head on the subject site, would obviate that existing problem. The provision of a cul-de-sac head is a benefit which the proposal would secure. The extension would also be an advantage for the three adjoining lots to the north of the site and east of Ruth Miller Close. They would be able to more directly access the new Ruth Miller Close, rather than continue to use an existing shared driveway arrangement.
The evidence of the traffic engineers, Mr Crank and Mr Beard, in their joint report[33], was that:
[33]Exhibit 6, Tab A.
1. Taking account of the very low speed environment in Ruth Miller Close (maximum 20 km/hr), sight distances to and from the subject driveways were considered to be acceptable, and it was not considered that the available sight distances would lead to any significant traffic safety issues.
2. There is no perceived significant traffic operational problems associated with the proposed driveway to Lots 7 to 11, taking account of its relatively short length, low operating speed and low traffic volumes. One widening to allow a passing spot near the middle of the driveway would be desirable.
3. The extended length of Ruth Miller Close is acceptable.
4. The post development traffic volumes in Ruth Miller Close are quite acceptable for a residential access place, being less than the desirable maximum in a street of this type.
I accept their evidence.
Mr Timms expressed some concern about the number of wheelie bins which may be left at Ruth Miller Close near his house. The residents of proposed Lots 1 to 6 could be expected to leave their wheelie bins at or around the cul-de-sac head, which is well removed from the appellants’ property. Some of the existing residents to the north of the subject site, but east of Ruth Miller Close might also be expected to use that location. Some of the residents in Lot 7, 8 and 11 might choose to leave their bins at Fig Tree Pocket Road. Some residents will no doubt leave them at Ruth Miller Close, near where the common driveway would meet the extension of that street. The sight of wheelie bins on rubbish collection days is, of course, common place in an urban environment. I do not consider that it would unreasonably impact upon residential amenity in this case.
Mr Timms also expressed some concern about the use of Ruth Miller Close for visitor parking. The Ruth Miller Close extension incorporates some visitor parking near Lots 1 to 6, whereas, the shared driveway for Lots 7 to 11 does not. As Mr Beard explained[34], one would expect that visitors would try to park within the properties that they are visiting. Some might park in Ruth Miller Close, but that is consistent with its function. I do not consider that it is likely to lead to any unreasonable adverse impact on amenity.
[34]T 1-109.
Mr Timms’ concerns about increased traffic volume and consequent amenity and safety issues, were dealt with in the joint report of the traffic engineers. Mr Beard’s evidence in chief, which I accept, was that[35]:
“The traffic speeds and traffic volumes upon both the extension of Ruth Miller Close and on the common driveway are so low that there are no practical amenity or safety or any other considerations that are genuine issues in respect of this. The traffic volumes are very low, the traffic speeds are very low, exactly as you would want in an access place like this.”
[35]T 1-106, ll 1-12.
More specifically, in relation to Mr Timm’s concern about the interaction of vehicles accessing the subject site with those reversing out of his property, Mr Beard’s evidence, which I accept, was[36]:
“Well, look, anytime you’ve got vehicles traversing onto a roadway, you’ve got some potential for hazard, but its completely normal and, if anything, the situation we’ve got here is much safer than you get on most driveways because the vehicle speeds here are lower and the traffic volumes are lower. It really is – in relative terms, it in fact remains a very safe environment.”
[36]T 1-106, ll 29-36.
Insofar as traffic volumes are concerned, Mr Beard’s evidence, in cross-examination, which I also accept, was:
“…you are still talking about traffic volumes that are well within the level that you expect for the lowest order of a residential street, which is an access street which provides access of up to, say, 30 houses.”
His evidence was that if someone was particularly alert to the traffic volumes and was “out there looking for it” then they might notice a difference but:
“‘in terms of normal residential amenity, no, one car going past at very low speed every four minutes would have a negligible impact on amenity.”[37]
[37]T 1-108.
I am satisfied that the proposed development would not have any unreasonable or unacceptable impact on traffic safety or amenity.
It might be noted that, as Ms Donaldson accepted in the course of submissions, the extension of Ruth Miller Close to provide access to Lots 1 to 6 is necessary if development is to be achieved on that part of the site. The only alternative would be an access from Fig Tree Pocket Road which completely traversed the central waterway to give access to those lots.
The alternate access, which the appellants preferred, related to the common driveway access for Lots 7 to 11 only. The traffic engineers agreed that it might be possible to obtain access from Fig Tree Pocket Road for those lots, but as Mr Beard pointed out, the access via Ruth Miller Close is superior from a traffic engineering perspective[38]. Further, access to Fig Tree Pocket Road would require dealing with some slope issues[39] and would potentially require some tree removal to achieve sight distance[40].
[38]T 1-104.
[39]T 1-104-105.
[40]T 1-105.
The subject proposal is meritorious from a traffic perspective. It utilises the most appropriate access from a traffic planning perspective, overcomes some of the existing difficulties associated with the abrupt termination of Ruth Miller Close, has advantages for some adjoining residences and does not have any unreasonable impacts on others, including the appellants.
Privacy
Privacy issues were raised, particularly with respect to the position of Lot 9 relative to the appellants’ property. Mr Green also expressed some concern for privacy.
The subject proposal has some potential for overlooking and loss of privacy as a result of future dwellings, particularly the future dwelling within the BLE for proposed Lot 9. That is not necessarily unacceptable. Some degree of overlooking is a relatively common feature of living in an urban environment. City Plan does not require absolute protection from overlooking. As counsel for the respondent pointed out, it seeks to meet “realistic expectations” of future amenity. In that regard, it seeks to prevent the intrusion of development which could “seriously detract” from residential amenity, whilst allowing development which complies with the Plan and mitigating the effects of new residential development on existing dwellings[41]. The question is not whether there will be an impact, but rather as to the reasonableness of that impact, having regard to its nature and extent and to the measures proposed to mitigate that impact.
[41]Section 4.2.1, ch 2, pg 17 of City Plan.
The position of the BLE for Lot 9 relative to the existing houses of the appellants and Mr Green is depicted in the context plan[42]. My appreciation of the evidence was assisted by my site inspection.
[42]Exhibit 1, Tab 4.
The primary orientation of the existing houses is not towards the BLE for proposed Lot 9. The southern end of the appellants’ house (ie that closest to the common boundary with subject site) is a blank façade[43]. The house is otherwise primarily orientated to the east, towards Ruth Miller Close. The appellants’ pool and associated outdoor recreation space is at the northern end of their property. There are some windows and a deck on the western side of the dwelling. Some of the windows are relatively small and provide ventilation. The deck, as well as a larger set of double hung windows to a small rumpus room, are at the northern part of the western façade[44].
[43]T 3-31.
[44]T 3-31,32.
The Greens’ house, which is situated directly east of the appellants’ property, sits at a higher elevation and has a deck which could have the potential to overlook the appellants’ property. That potential is mitigated by vegetation along their common boundary, which might possibly provide some degree of screening from some part of a future dwelling on the BLE for proposed Lot 9.
The precise position and design of future development within the BLE for proposed Lot 9 is unknown. If, on a worst case scenario, that future dwelling were located at the northern extremity of the BLE and so oriented as to be likely to facilitate overlooking, then it would still be 3m from the common boundary. It would, in turn, be separated to a greater degree from the nearest point of the existing dwellings. In the case of the appellants’ dwelling, there would be an even greater separation from any window or deck which might be overlooked. The appellants referred to the greater separation afforded to residents to the east, but that does not lead to the conclusion that the 3m separation to the appellants’ boundary is insufficient or unacceptable.
Separation is not the only proposed mitigation strategy. The 3m buffer between the BLE on proposed Lot 9 and the northern boundary of the subject site is to be included within an EPZ and is to be developed for the bund and swale arrangement, to deal with stormwater. The appellants point out that the construction of the bund and swale will involve the removal of existing vegetation. It is proposed however, for the bund to be planted up and for fauna friendly fencing to be installed along the common boundary. This proposal is depicted in the buffer landscape plan[45]. The evidence of Mr Collins was that the drainage channel could be designed to permit vegetation to be also planted in the swale (as well as the bund) to assist in screening[46]. The buffer landscape plan ought be amended to reflect that.
[45]Exhibit 1, Tab 6, Plan VN03.
[46]T 2-61.
Mr Collins also acknowledged that the drainage channel might be able to be ‘bent a little’ to possibly preserve some of the existing vegetation[47]. A condition could be imposed to require the applicant to do so, to the extent that is practical, but the acceptability of the proposal is not dependent on the survival of the existing vegetation along the boundary.
[47]T 2-65 ll 42-50.
Given the matters of orientation, context, separation and buffering, I am satisfied that there will be no unreasonable impact in terms of overlooking or loss of privacy.
Loss of vegetation and bushland character
The appellants are also concerned about the loss of vegetation and bushland character.
When the proposal is considered as a whole, the extent to which the site and the majority of existing surveyed canopy trees are to be retained within the EPZs (together with the proposed rehabilitation and supplementary planting) will, I am satisfied, respect the local plan’s objective of achieving moderate population increases, by new development, whilst also protecting bushland landscape character in the central elevated part of the suburb. That would not however, be achieved in the same way on each and every part of the site.
As has already been observed, the proposal adopts the “clustering” approach which is encouraged by the local plan. Accordingly, there will be parts of the site which will make a greater contribution to the bushland landscape character and other parts of the site where more vegetation will be lost, as a result of the clustering of development. That is an unsurprising consequence of the strategy which is supported by the local plan.
It may be noted that there will be no requirement for future residents to remove all trees within the BLEs. It would not surprise if some future residents decided to retain some trees[48]. The assessment however, is not reliant upon that.
[48]An indication of the extent of trees within other properties in the immediate vicinity appears from the Context Plan – Exhibit 1 Tab 4.
Existing vegetation will be lost from areas of the site which are proximate to the appellants’ property. That will occur in particular by reason of the extension of Ruth Miller Close, the construction of the driveway for Lots 7 to 11, the construction of the swale and bund for stormwater management and the future development within the BLEs, including the BLE for proposed Lot 9.
There is some uncertainty about the extent of tree loss which will be associated with that part of the development which is proximate to the appellants’ property. The proposed plan for reconfiguration shows the location of the existing surveyed trees. It also indicates which trees are proposed to be removed and which are proposed to be retained. Mr Bishop, the aborculturalist called by the co-respondent, pointed out however, that the trees proposed for retention had not been the subject of detailed individual arborcultural assessment for the purposes of producing the proposal plan.
Mr Coles gave some further detail about the extent of works which would be associated with the construction of the shared driveway proximate to some of the trees noted for retention. His evidence is that this will closely follow the natural terrain[49]. His work suggests there will be no need for cutting. There will be a need for some fill, which is estimated at between 600-900mm at most[50]. His plans show a 2m minimum distance from the edge of the filling to the retained trees[51]. He believes that the trees proposed for retention in conjunction with the construction of the driveway can be retained[52].
[49]T 2-50.
[50]He described section FF as a worst case – T 2-51.
[51]Exhibit 8, pg 14, T 2-51.
[52]T 2-52.
Mr Bishop recommended that the sewer and rainwater pick up points proposed on the eastern side of proposed Lot 7 be moved further up the slope, to help preserve the cluster of trees in the north western corner of Lot 9. The proposal plan ought be amended to reflect that.
Mr Bishop’s evidence, which I accept, is that the proposal has provided for the viable retention of most of the trees on site which are proposed for retention, including most of the trees on proposed Lot 9[53] proximate to the appellants’ property (assuming appropriate management). In his view however, there are some which are proposed for retention but which might not survive, particularly in the longer term[54]. He expressed particular reservations about Trees 125 and 126 towards the south western corner of Lot 9. The Council’s approval required the BLE to be cut back at that corner, in an apparent attempt to better provide for those trees, but Mr Bishop still considers them to be at risk. His report also suggests that two trees in Lot 10 (Tree 107, Tree 50) would be at risk.
[53]T 1-39, l 20.
[54]T 1-36, ll 30-35.
It should be noted that the “at risk” trees to which Mr Bishop referred, are not now proposed for removal. Measures will be directed to their retention, consistent with the reconfiguration plan. Dr Olsen was more optimistic than Mr Bishop about the likely success of those measures. Nevertheless, I accept that there is some uncertainty about the prospects of retaining some individual trees and that it is appropriate for the assessment be carried out in a way which recognises the risk of their loss.
Even if the worst is assumed, in relation to the trees for which Mr Bishop expressed a concern, I do not consider that there would be an undue detrimental impact upon visual amenity or bushland landscape character. The extent of tree retention otherwise, together with proposed plantings, will still give the development the appearance of one which is in a bushland setting. The site will continue to contribute to the bushland landscape character of the central elevated part of the suburb. It will also provide an appropriate level of visual amenity for the appellants.
There is only one individual tree which is a significant landscape tree for the purposes of the Council’s Natural Assets Local Law. That tree straddles the boundary of proposed Lots 2 and 3. It is situated at the eastern part of the subject site, well removed from the appellants’ property. It is proposed for removal, but the tree has previously suffered damage. I accept the evidence of Mr Bishop that its structural integrity is presently so compromised that its long-term prospects are not good[55]. It is likely to fail in any event. Mr Bishop recommended its removal. Its proposed removal ought not lead to refusal of the development application.
[55]Exhibit 3, pg 4.
Ecological impact
With the exception of the southern perimeter, the subject land is otherwise surrounded by urban settlement. The site does not have any mapped remnant regional ecosystems. No individual tree is recognised as significant, other than for its landscape value. The understorey of the on-site vegetation is dominated by a wide array of environmental weeds. What remains of the canopy element of the former native vegetation is relatively youthful, as is evidenced by the dearth of substantive tree hollows. The site is in need of rehabilitation to restore some of its former viability and integrity[56].
[56]See generally Exhibit 4, pg 3-5.
The impact of the proposal on flora values was carefully considered by the experienced and respected botanist Dr Olsen, who was called by the respondent. I accept his evidence. As Dr Olsen attested, it is not the retention or loss of any individual tree which is critical to the protection of flora values in this case, but the proportion and location of what is to be retained and rehabilitated[57]. In this respect, Dr Olsen is supportive of the strategy of retaining approximately 60% of the existing surveyed canopy trees and doing so by retaining and rehabilitating the waterway corridors (except for the area required for access), which may be expected to be more species rich and of greater ecological significance in the local area.[58]
[57]T 1-50, 51.
[58]T 1-51, l 30.
As Dr Olsen pointed out, the proposed rehabilitation is important to remove weeds and to stimulate natural revegetation. The weeds currently impede natural regeneration. Their removal would improve the quality of the site, from a flora perspective, and provide for natural regeneration, which “will more than adequately compensate for the loss of individual trees”[59]. Importantly, it would also remove a seed source for weeds, which is a risk for the broader area[60]. His evidence, which I accept, is that the development would not lead to a diminution in the value of the site from a flora perspective, even when it is first constructed. Further, there will be a benefit overtime, as the natural regeneration takes off[61].
[59]T 1-69, l 51.
[60]T 1-54.
[61]T 1-70,71.
The impact of the proposal from a fauna perspective was assessed, for the Council, by Mr Agnew, whose evidence I also accept.
The tree cover which exists on the site forms a contribution to a semi-continuous arc of natural areas which extends north from the Brisbane River (to the south of the site), then trending in a north-westerly direction towards Cubberla Creek. This contributes to fauna movement, by serving as “stepping stones” between larger and more locally notable habitats. As such, fauna movement opportunities supported by the site are largely limited to values for highly mobile fauna such as birds.
While the development will result in the removal of some potentially suitable habitat, Mr Agnew’s evidence, which I accept, is that the proposal “will not have any significant impact on local or regional populations of any species of conservation significance or, in a practical sense, the diversity (of the) native fauna known or likely to use the site”[62]. He concluded[63] that the proposal:
1. represents a responsible approach to the development of the site; and
2. in a practical sense, proposes measures that are likely to maintain the capacity of the site to cater for the suite of native fauna known or likely to use the site.
[62]Exhibit 5, pg 97.
[63]Exhibit 5, pg 8.
The predominant value of the site, from a fauna perspective, is its value for more highly mobile species such as birds. It would also be used by other species, including the koala. The existing vegetation on site would not support a resident animal, but may provide a contribution of habitat. The existence of the Ruth Miller Close extension (and shared driveway) may have some disturbing and distressing effect for an animal which was accustomed to using that area. However, provided there is no fence blocking its movement, the animal will orient itself to the changes[64]. Dr Kerlin did not quibble with Mr Agnew’s evidence in this respect, and was prepared to describe the impact as minor[65].
[64]T 1-80.
[65]T 1-34, l 32.
Mr Agnew explained that there is a significant benefit to be obtained from the proposed rehabilitation, in terms of supporting natural regeneration, to be augmented by additional plantings[66]. In cross-examination, he confirmed his view that the fauna habitat values will be protected by the proposed development[67]. While he readily acknowledged that the proposal would necessarily result in the loss of some habitat[68], he considered that the fauna movement corridor would be protected and enhanced by the proposal[69].
[66]T 1-75.
[67]T 1-83, ll 7-9.
[68]T 1-84, l 22.
[69]T 1-84, l 15.
The likely ecological impact of the proposal was also assessed, for the co-respondent, by Dr Watson. In his view, the proposal, subject to appropriate conditions, is appropriate.
Whilst Dr Watson also acknowledged[70] the obvious, ie that development will result in some loss of vegetation in the short term, he concluded that:
“In the longer term with the rehabilitation, removal of weeds and a replanting strategy the overall ecological values would-could at least be considered the same if not improved for the site and for the locality – or for the area within the hatching” (the central area on the Local Plan map).[71]
I accept that evidence.
[70]T 1-101, ll 38-46.
[71]T 1-101.
The opinions of Mr Agnew, Dr Olsen and Dr Watson were not dependent upon the retention of particular individual trees, the future which is subject to some uncertainty.
The likely ecological impact of the proposal was also assessed, for the appellants, by Dr Kerlin, whose time had been volunteered by the Australian Koala Foundation. Dr Kerlin’s particular area of interest is koalas. His report acknowledges that the site is not designated under mapping associated with the draft South East Queensland Koala State Planning Regulatory provisions and the Nature Conservation (Koala) Conservation Plan 2006 and Management Program 2006-2016, although he thought that it should be.
In his appeal report, Dr Kerlin addressed the following “key issues” (adopting the numbering from his report):
“8.The approved development plan fails to provide adequate setbacks for trees to be maintained within the EPZ.
9.Driveway access to the proposed development via Ruth Miller Close will also exert negative impacts on the integrity and viability of the EPZ.
10.Management of the EPZ would in my opinion be better achieved under management as a single land parcel, rather than the piecemeal approach preferred by the approval.
11.The level of detail provided with respect to the rehabilitation plan and the environmental covenants associated with development is lacking. Without such detail, the proposed development cannot be properly assessed against the biodiversity code.”
The first of those issues relates to the uncertainty as to the retention of some trees. That has already been discussed in the context of Mr Bishop’s evidence. As Dr Olsen, Mr Agnew and Dr Watson attested however, the survival of those particular trees is not critical in terms of ecological impact of the proposal. Dr Kerlin sought to place some significance on Tree 125 (a large eucalypt) on the basis that it had the potential to form hollows over time. It does not have hollows at this time and I am unpersuaded that its retention is critical.
The second “key issue” again related to the appellants’ preference for Lots 7 to 11 to gain access from Fig Tree Pocket Road rather than via a driveway connection to the extension to Ruth Miller Close. Dr Kerlin also described this as his “preferred solution”. As Dr Kerlin and the appellants point out, the planning scheme does seek to seek to protect the waterway. The extent of intrusion has however, been minimised and the values otherwise protected. Intrusion occurs only at the very northern part of the site, close to where the natural form of the waterway currently terminates at a pipe, which runs under Ruth Miller Close. The proposed extension intrudes into the waterway for a relatively short distance at that point, before branching off to the west, to serve Lots 1 to 6 and to the east, to serve Lots 7 to 11 via a shared driveway. That is, the extension and the common driveway get out of the waterway corridor as quickly as possible. Further, rather than relying upon individual driveways, the design incorporates a single shared driveway for Lots 7 to 11, thereby minimising the intrusion.
While it is true that a hypothetical access from Fig Tree Pocket Road could result in an even reduced level of intrusion into the waterway:
(i) there would still need to be an intrusion for of the extension of Ruth Miller Close, to serve Lots 1 to 6;
(ii) the additional “intrusion” arising by means of the driveway access to Lots 7 to 11 is quite contained, and will result in the loss of only a relatively small number of additional trees and no undue impact on the waterway;
(iii) the driveway will be a relatively narrow paved area between trees. Mr Bishop’s evidence is that there would be “fairly small gaps between canopies over the road”[72]. It will be used by a very low volume of vehicles travelling at very low speed. Mr Beard’s evidence is that the speed would be only of the order of 5-10 kph[73]. There will be no adverse impact on the hydraulic function of the waterway. The value of the corridor for fauna in terms of its flora and its function as a corridor will not be diminished overall and will be improved, having regard to the proposed protection and rehabilitation otherwise;
(iv) Dr Kerlin expressed concerns that the driveway would result in vegetation loss, edge effects and impact on fauna, particularly that which is not highly mobile (eg koala). Vegetation loss will not be great and can be minimised with appropriate management. Edge effects can also be minimised by management and is not, in any event, a very significant concern in this case[74]. The risk of koalas or other fauna being hit by vehicles on the driveway is quite low in the circumstances[75]. Dr Kerlin acknowledged that the risk is diminished if the speeds are kept low[76]. When it was put to him that the driveway would present no greater barrier to the movement of fauna than is already faced by the existing condition of Ruth Miller Close, he responded “generally speaking I think, you know, the impact is minimal”;
(v) there are good traffic engineering reasons to permit access via Ruth Miller Close; and
(vi) the proposal is such that the values of the site are appropriately respected and protected notwithstanding the limited intrusion.
[72]T 1-38.
[73]T 106.
[74]See T 1-31.
[75]Even Dr Kerlin’s evidence did not portray the risks as being very great, T 2-32,33.
[76]T 2-35.
Dr Kerlin’s third “key issue” relates to his preference for a single management regime for the EPZ, rather than placing responsibility on individual land owners. His particular preference is understandable, but that put forward by the co-respondent is quite acceptable. City Plan does not insist upon the style of management regime preferred by Dr Kerlin[77]. As Dr Olsen pointed out, peer pressure from adjoining neighbours can provide an incentive for individual lot holders to abide by their responsibilities. The fact that the site will be handed over to the individual lot owners in a rehabilitated state will provide some incentive for them to maintain their properties in that condition[78].
[77]For example, A4.2 of the Biodiversity Code contemplates that significant biodiversity areas may be protected by inclusion under a protective covenant as an alternative to A4.1, which contemplates transfer to community ownership control.
[78]T 1-55, l 20.
The last of Dr Kerlin’s “key issues” relates to the level of detail in the rehabilitation plan and the environmental covenants. He explained the alleged deficiencies in his examination-in-chief. Some of his points are valid, but they can be remedied in the documents prior to conditions being finalised. I do not accept that the development cannot be properly assessed at this stage.
In the course of cross-examination Dr Kerlin agreed that the proposed rehabilitation would be beneficial. He was prepared to concede that if the environmental covenants are strong and enforced, then the development will not necessarily lead to any nett loss for the central area of which the subject site forms part[79].
[79]T 2-36, 37.
To the extent there was conflict in the evidence, I generally prefer the considered and balanced evidence of Dr Olsen, Mr Agnew and Dr Watson to that of Dr Kerlin. I am satisfied that the proposal protects and preserves the values of the site in its context and, indeed, will lead to an improvement of the areas to be retained, rehabilitated and revegetated. It also offers the prospect of some nett improvement over time.
Ecological Sustainability
The appellants assert that the proposal is contrary to IPA’s purpose of seeking to achieve ecological sustainability. The Act defines ecological sustainability as a balance that integrates:
(a) protection of ecological processes and natural systems at local, regional, State and wider levels; and
(b) economic development; and
(c) maintenance of cultural, economic, physical and social well being and communities.
City Plan states that it was prepared to advance the purpose of the Act. The balancing of the three components of ecological sustainability, and the integration and co-ordination of core matters are primarily reflected in the citywide DEOs and supporting strategies, from which other provisions of the Plan flow[80].
[80]Chapter 1, pg 5 of City Plan.
Moreover, ecological sustainability involves a balanced approach. City Plan endeavours to reflect that balance, in the applicable planning strategies. The evidence satisfies me that the proposal reflects a balanced approach, which integrates the three components of ecological sustainability and does so in a way which responds well to the planning strategy adopted in City Plan for advancing the purpose of the Act.
Codes
The appellants contend that the proposal conflicts with a number of codes. In some instances they rely upon non-adoption of acceptable solutions. As has already been noted, that does not, in itself, establish conflict. The performance criteria may be met by an alternative solution. My conclusions in relation to compliance with codes is largely dictated by my conclusions about the issues already dealt with. The evidence satisfies me that the proposal complies, or at least largely complies, with the performance criteria. I will turn to the specific provisions referred to in the appellants’ outline.
As to the Fig Tree Pocket Local Plan Code:
(i) P1 – the road reserve and streetscape will reflect the landscape character of Fig Tree Pocket. It is the bushland landscape character which the Local Plan identifies as important in the central area, of which the site forms part. This has been dealt with earlier. The appellants rely on what they say is a departure from acceptable solutions A1.4 and A1.5. The former relates to minimisation of tree clearing. The road layout does appropriately minimise clearing, although it is possible that the appellants preferred alternative design might do so to an even greater extent. A1.5 refers to certain things, including drainage treatments, being designed to incorporate tree retention. The appellants point out that trees will be lost in the construction of the bund and swale along the northern boundary. That seems somewhat beside the point in relation to the appearance of the “road reserve and streetscape”, which is the focus of the performance criteria. In any event, the proposed planting will mitigate the impact of that clearing.
(ii) P2 – the development, insofar as it is proposed on steep slopes, will not cause additional erosion, sediment loss or impact on adjacent lands and waters. The treatment of stormwater has been discussed earlier. The report of Mr Perkins[81], a geologist from Soil Surveys Engineering Pty Ltd, establishes that there are no significant slope stability issues in respect of the proposal. Appropriate building techniques can be applied in the construction of retaining walls. Vegetation retention has also been discussed earlier. The appellants rely on what they say is a lack of certainty. I am satisfied that there is sufficient certainty to conclude that the performance criteria will be met.
[81]Exhibit 9.
(iii) P3 – I am satisfied that the ecological features of the site will be protected and managed to ensure their long-term viability. The development does respond to and retain the higher cumulative ecological and bushland landscape character values and will result in no nett loss of ecological values in the central area of Fig Tree Pocket indicated on Map A.
(iv) P4 - Vehicular access to Fig Tree Pocket Road is restricted, as the performance criterion requires. The appellants refer to this provision more to contend that access for Lots 7 to 11 could be achieved via a shared access from Fig Tree Pocket Road without offending the performance criteria. The “best design” argument has been dealt with earlier.
The evidence of Dr Olsen, Mr Agnew and Dr Watson satisfies me that the proposal is consistent with the Biodiversity Code. The appellants’ outline refers to P1, P2 and P3. The first of those two relate to ecological features and processes (P1) and ecological corridors (P2). P3 relates to fire management, which was not an issue in the case. The appellants might have been intending to refer to P5, which relates to waterways and wetlands. The evidence (discussed earlier) satisfies me that the proposal meets the performance criteria of the Code.
The appellants drew attention to the loss of the significant landscape tree in the eastern part of the site. To the extent this causes any arguable conflict, the evidence of Mr Bishop as to the condition of the tree and its likely failure, provides sufficient grounds to approve the application notwithstanding. The appellants also referred to the effect of the proposal on the waterway. For the reasons already discussed, I am satisfied that there will be no significant adverse impact. Indeed there is the prospect of improvement. The appellants criticised the level of information available. I am satisfied that the level of information is sufficient to conclude that proposal ought be approved.
As for the Subdivision Code:
(i) 5.1.1 P1 – the performance criterion requires previous planning to be recognised and integrated into neighbourhood design and lot layout. The acceptable solution refers to the lot layout providing for and integrating the requirements of any Local Plan, approved Structure Plan and surrounding subdivisions. There is no approved structure plan. If the absence of an approved structured plan resulted in conflict then, for the reasons given earlier, there are sufficient grounds to justify approval notwithstanding. The proposal is consistent with the Local Plan. There are no “requirements” of any surrounding subdivisions, although it may be noted that the proposal will complete Ruth Miller Close, by providing a cul-de-sac head and will also provide alternative access for existing lots to the north of the subject site, but east of Ruth Miller Close.
(ii) 5.1.1 P5 – the proposal recognises and would reinforce neighbourhood identity. The appellants point to the loss of the trees. I am satisfied that tree retention and replanting is sufficient to ensure that the performance criterion is met.
(iii) 5.1.4 P15 – for the reasons given earlier, I am satisfied that infrastructure design and layout minimises the crossing of the waterway corridors and ensures that crossings are consistent with protection of the function of the corridors. The performance criterion does not require that there be no crossings under any circumstances.
(iv) 5.1.4 P16 – the performance criterion requires the layout to be designed to protect and promote views of landscape features. There is a tree which is recognised as a significant landscape tree, but which will be removed. To the extent that this causes any degree of conflict, the condition and likely future of the tree provide sufficient grounds to justify approval notwithstanding. The proposal is otherwise not in conflict with the performance criterion.
(v) 5.1.4 P19 – the performance criterion relates to habitat areas and ecological corridors. It requires their revegetation and rehabilitation. The site is not mapped as such in the Local Plan, although it forms part of the central area which is said to have cumulative ecological values higher than other parts of the suburb. To the extent that it is applicable, the performance criterion is met.
(vi) 5.2.1 P2 – the appellants’ outline suggests that they intended to refer to P3. Both performance criteria relate to the size and dimensions of proposed lots, in order to achieve certain things. In the case of P3, that includes protecting natural features, special features such as trees and views and addressing site constraints. I am satisfied that the performance criteria are met. Vegetation loss has been discussed earlier. To the extent that the intrusion into the waterway and loss of Tree 240 result in any arguable conflict, there are sufficient grounds to approve notwithstanding.
(vii) 5.2.2 P7 – the performance criterion requires each lot to have a suitable area available for a potential dwelling, ancillary structures and access that does not adversely impact on, amongst other things, waterway corridors and landscape or scenic features. The BLEs are outside of the waterway corridors, but, as the appellants point out, the access (including the individual access from Lot 9 from the shared driveway) is not. It should be noted however, that whilst AS7.2 refers to each building location plan being “outside waterway corridors … and landscape features (not in a Potential Development Area)” the whole of the site is mapped as within a Potential Development Area. Further, the requirement in the performance criterion is that the area for development “not adversely impact”[82], rather than for there to be no intrusion. Provisions of City Plan otherwise, including the Local Plan, contemplate the prospect of some intrusion, so long as the values are protected. That is what the proposal would achieve. To the extent that the intrusion gives rise to any conflict, then there are sufficient grounds to approve notwithstanding, having regard to the location, extent and effect of the intrusion and the maintenance of values otherwise, through protection rehabilitation and revegetation. The gravity of any conflict is not major and is overwhelmed by the merits of the proposal otherwise. The appellants also rely on non adoption of AS7.2, including as to the separation and setbacks of BLEs. For the reasons given earlier, that does not establish conflict with the performance criterion.
[82]Which should be read as referring to an adverse impact which is significant, unnacceptable or unreasonable. See Jedfire v Logan City Council [1995] QPELR 41 at 43H; Multispan Australia Pty Ltd v Department of Main Roads & Anor [2008] QPELR 509 at 510G.
I am also satisfied that the proposal is consistent with, or can be conditioned to be consistent with, those provisions of the Waterway Code relied upon by the appellants. I note that, in the joint report of the town planners, there was agreement that “there is some provision for development within waterway corridors and that the approved layout makes significant attempt to protect the integrity of the waterways” although Mr Ryan thought it was not the “optimum outcome”. For the reasons previously given I am satisfied that there are sufficient grounds to warrant approval notwithstanding any conflict which may be said to arise by reason of the limited intrusion into the waterway. The appellants rely on Dr Kerlin’s criticism of the content of draft documents such as the VMP and covenants. I have already acknowledged that some of that criticism has force, but they are matters which can be remedied. They do not justify refusal of the development application.
Conclusion
I am satisfied that the proposal is one of substantial merit, which warrants approval. In particular, I am satisfied that it:
1. responds well to the planning strategy of achieving moderate population increase, through very low density residential development in a form which clusters the built form and respects the constraints, values and features of the site, particularly those recognised in the local plan;
2. does not constitute overdevelopment;
3. would not have undue impact on amenity, or on the environment;
4. would not compromise the achievement of the DEOs for the Planning Scheme area;
5. complies, or at least largely complies, with the planning scheme otherwise. To the extent there is conflict, or arguably so, there are sufficient grounds to justify approval despite the conflict.
The appeals will be dismissed, but I will adjourn the further hearing to enable the parties to consider conditions.
2
0