Burcher and Keilar Fox & McGhie Pty Ltd v Ipswich City Council and Brisbane City Council
[2001] QPEC 70
•1 November 2001
PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND
CITATION: Burcher and Keilar Fox & McGhie Pty Ltd v Ipswich City Council and Brisbane City Council [2001] QPEC 070 PARTIES: CYRIL BURCHER and
KEILAR FOX & McGHIE PTY LTD Appellants
And
IPSWICH CITY COUNCIL Respondent
And
BRISBANE CITY COUNCIL Co-RespondentNo 3764 of 1999 DIVISION: Planning and Environment PROCEEDING: Appeal ORIGINATING COURT: DELIVERED ON: 1 November 2001 DELIVERED AT: Brisbane HEARING DATE: 15,16,17,18 October 2001 JUDGE: Judge Robin QC ORDER: Appeal dismissed CATCHWORDS: Integrated Planning Act 1997 s6.1.29, s6.1.30
Local Government (Planning and Environment) Act 1990 s4.4(3), (5) and (5A)
Appeal to Planning and Environment Court from deemed refusal by Ipswich City Council of 1998 application for material change of use to “Park Residential” – land was in Moreton Shire prior to its amalgamation with City of Ipswich – Ipswich Planning Scheme Strategic Plan (1999) in large measure picked up the former Moreton Shire Draft Strategic Plan - land zoned Rural with preferred dominant land use of Conservation area – land transferred to Brisbane City under the Local Government (Boonah, Brisbane, Esk, Ipswich and Laidley) Regulation 1999, effective from April 2000 – Brisbane City Council (already a Co-respondent on account of Brisbane Water) became respondent in the Appeal – no step taken by Brisbane City Council to prevent continued operation of Ipswich Planning Scheme, which was “imminent” at the time of the application, and the basis of its assessment – conflict with Strategic Plan found, in that the Plan precluded urban development (which included Park Residential) both in Conservation areas and where not envisaged in the Council’s Benchmark Development Sequencing Strategy – appellants failed to show preferred dominant land use was inappropriate, or could better be achieved by their proposal – no sufficient planning grounds to overcome conflict with Strategic Plan – no “planning need” shown – appeal dismissed.
Mustercliffe Pty Ltd v Brisbane City Council (1991) QPLR 111
Hervey Bay Developments Pty Ltd v Hervey Bay City Council (1994) LGERA 216
Thomas Holdings Pty Ltd v The Gold Coast City Council (1991) QPLR 32
Brownless v Council of the Shire of Caloundra (1990) QPLR 260
Jones Flint & Pike Ltd v Maroochy Shire Council (1999) QPELR 434
Allied Estates Pty Ltd v Noosa Shire Council (2000) QPELR 97
AmpolPetroleum(Q’land) Pty Limited v Pine Rivers Shire Council (1989) QPLR 133
Telfrid Corporation Pty Ltd v Logan City Council (2000) QPELR 90
Northern Beaches Development Pty Ltd v Mackay City Council (1999) QPELR 364
Jural No 11 Pty Ltd v Caboolture Shire Council (1999) QPELR 88
Beck v Council of the Shire of Atherton (1991) QPLR 56
Lewiac Pty Ltd v Gold Coast City Council (1996) 2 Qd R 266
Standfield v Gold Coast City Council (1996) QPLR 136COUNSEL: Mr S Ure for the appellants
Mr M Hinson SC for the respondents
SOLICITORS: James Walker for the appellants
Brisbane City Legal Practice for the respondents
REASONS FOR JUDGMENT
What the appellants hope to gain from this appeal is a successful outcome for their IDAS Development Application made on or about 26 November 1998 for a Material Change of Use to Park Residential of Mr Burcher’s land at Lake Manchester Road, Mt Crosby. The land is Lots 1 and 2 on RP 816911 and Lot 161 on Plan S31880. It is about 10km north-east of the Ipswich CBD and 25km from the Brisbane CBD. The area is 139.574 hectares, with a frontage to the road of 1.02km which is broken by a site excised for reservoir purposes. The land has had an eventful “planning history” since Mr Burcher acquired it in 1964. It is presently zoned Rural.
In 1981, the appellant Keilar Fox & McGhie, acting on behalf of Peter Kurts (Developments) Pty Ltd lodged a successful application to the Moreton Shire Council for rezoning and subdivision of the land. As Mr Keilar puts it in a useful historical account, the overall determination “essentially allowed for the development of 7,000m2 lots as per the then By-law requirements of the Moreton Shire Council.” The rezoning did not proceed, because the developer did not comply with a Council condition requiring the lodgment of an appropriate bond to ensure performance of certain works required under the rezoning approval.
Mr Keilar’s company was next engaged as a consultant by another developer who applied for rezoning of the land from Rural to Low Density Residential in November 1989. The application was withdrawn in June 1991 following extensive discussions and negotiations with the Council. These problems related to the proposed Kholo Creek quarry site; this is located near the subject land to the northeast and has a quarry resource whose development has been seen as very much in the public interest.
Mr Burcher began enquiries on his own account in September 1994: “Council’s response of 11 September 1996 advised a number of issues required attention and in particular the Kholo Creek hard rock resource was the major issue and that provision of a haul route would need to be addressed”. The next development followed amalgamation of Moreton Shire and Ipswich City, following which the Council advised they were proceeding to develop a Strategic Plan that would include Mr Burcher’s land. There was a proposal to include it in a Conservation Area, which Mr Burcher successfully objected to, to the extent that the land was deleted from the Environmental Protection zone and included in a Rural Conservation zone. On further representations, advice came that “our objection to the Strategic Plan designation and Town Plan designation had been successful and that the land was now placed in the Rural zone.” The application for Material Change of Use was then lodged; the minimum allotment size sought (or permitted) for Park Residential land is 4,000m2.
Public notification of the application elicited one submission in support (from the neighbouring landowner in the West, perhaps with an eye to emulating Mr Burcher’s proposed development) and two in opposition. Boral Resources (Qld) Pty Ltd objected, based on its professed concern not to see the Kholo Creek quarry development compromised or rendered more costly to achieve; the eastern one of a number of haul routes under consideration from the quarry site to the Warrego Highway (and associated buffer zone) is located on the site. The other objector was Brisbane Water, an emanation of the Brisbane City Council, raising various concerns, including the protection of its large water treatment facility at Mt Crosby, which was claimed to come under inappropriate jeopardy if large scale residential development close by (on the site) were permitted, with up to 170 residential allotments shown in indicative subdivisional layout. It is not necessary in the circumstances to decide the validity of the concerns expressed by Mr Lindeboom in this connection.
So far as the Ipswich City Council is concerned, Mr Keilar records that on 23 June 1999 he was sent a copy of a recommendation by Council officers that the Material Change of Use application be approved on certain conditions – he responded with comments and alternative plans providing for the proposed haul route and associated buffer. By this time, the Council was out of time to decide the application. Mr Keilar next was provided with a draft set of recommendations by Council officers recommending that the application be refused. The Council made no decision and this appeal was therefore instituted against a deemed refusal. On 27 January 2000, the Council’s Planning & Development Committee recommended that the Council support the application, despite this appeal. It may well be that the presence of the respondent and co-respondent in the appeal prevented its being compromised. Boral has now dropped out.
The Brisbane City Council remains a party, not only by reason of its submission through Brisbane Water, but also as the local government.
The Local Government (Boonah, Brisbane, Esk, Ipswich and Laidley) Regulation 1999 contains the basis on which the transfer of Mr Burcher’s land to the City of Brisbane occurred. The “changeover day” for Area F was 7 April 2000 – see Queensland Government Gazette 28 April 2000. It was common ground that the public had about a year’s notice of the changes. Brisbane City Council is now the local government. Originally a co-respondent in the appeal, it therefore replaces Ipswich City Council as the respondent. However, until positive steps are taken in relation to the transferred area, the Ipswich local laws, and more pertinently its town planning instruments continue to apply. Thus, there has been no reference to Brisbane’s town planning arrangements, and it has not been contended that such indications as there may be in them against Park Residential or equivalent development (now generally unwelcome in new developments, presumably because they are typically unsewered and are generally difficult to service, residences being relatively scattered) had any relevance. What was contended to be relevant (and with this I agree) was the regard that is and should be paid to developments near the boundaries of local government areas which may have cross-boundary impact, even though there may be no regional planning as such. See Mustercliffe Pty Ltd v Brisbane City Council (1991) QPLR 111, especially at 116.
The effect of s6.1.29 and s6.1.30 of the Integrated Planning Act 1997 is to refer the IDAS development application back to s4.4 (3), (5) and (5A) of the Local Government (Planning and Environment) Act 1990, which bring matters back to the familiar exercise required by sub-s(5A), requiring an examination of whether “(a) the application conflicts with any relevant strategic plan or development plan,” in which case the application must be refused unless “(b) there are … sufficient planning grounds to justify approving the application despite the conflict.” Sub-s(3) is usually taken as indicating at least some of what might constitute “planning grounds”.
Although the appellants’ consultant town planner, Mr Challoner resisted any suggestion that conflict existed with the Strategic Plan included in the 1999 Ipswich Planning Scheme, it must be found that there is conflict. I agree with Mr Challoner that there is little point in seeking conflict with the 1982 Moreton Scheme in view of the fact that the introduction of the 1999 Ipswich Planning Scheme was imminent when the application was submitted. (The draft Moreton Strategic Plan in fact was never gazetted, although it formed the substantial basis for the current Strategic Plan for the amalgamated City of Ipswich).
I agree with Mr Challoner that conflict with the now superseded 1987 Brisbane Town Plan is irrelevant as well (it has never applied to the subject land), with the exception of the Mustercliffe “good neighbour” implications; in this regard there is a coincidence between the Brisbane Strategic Plan’s incorporation of extensive areas in the western part of the city in a “Green Space Area” designation and its recognition of regional green space linkages with the adjoining parts of Ipswich city, where the site is located. The Brisbane Strategic Plan likewise recognises the Kholo Creek quarry resource and the desirability of protecting it from intrusion by incompatible uses. The Ipswich Strategic Plan mirrors these concerns. Exhibit 25 is a composite of the Ipswich and Brisbane Strategic Plan maps. The “Kholo Creek known key resource area” lies at the boundary to the west. The land to the north, east and west is designated green space system in Brisbane, Conservation Area in Ipswich; to the south, in Ipswich there is a Not Committed Area which, further south abuts extensive Urban Development Areas extending northwards from the Warrego Highway.
Mr Challoner seized on s1.1 of the Ipswich Strategic Plan – Background, which contrasted the former Ipswich City Strategic Plan and the former Moreton Shire Draft Strategic Plan as “very different in terms of scale and level of detail shown”:
“The new Strategic Plan encompasses the 1629km2 area of the new amalgamated City of Ipswich. In terms of its land use focus it is highly strategic in nature and adopts more of a broad brush style which is similar to the former Moreton Shire Draft Strategic Plan.”
Mr Challoner concludes that the plan should not be utilised in the manner of a cadastrally based zoning plan. However, from other maps available (including cadastrally based ones) – and I would say on the strategic plan map itself, an intention to include the land west of Lake Manchester Road in a Conservation Area is clear. Mr Challoner considers the land a logical extension of the Park Residential Area immediately to the east across Lake Manchester Road. So much may be accepted, although it begs the question whether there ought to be any extension at all. There is nothing illogical in preserving a completely different pattern of land use west of the road. Figure 4.2 in the Scheme shows a Benchmark and Development Sequencing Plan embodying the Ipswich Council’s preferred timetable for future urban development. In formulating it, considerations of economic efficiency and Council’s budgetary constraints obviously inform the priorities. The “urban” development areas are variously coloured to indicate their place within five year, ten year and fifteen year timeframes which correspond with “existing plus committed urban land”, “low cost plus some medium cost land” and “medium cost plus some high cost land” respectively. There are two (literally) grey areas north and south of the CBD captioned “beyond 2013”. Park Residential is separately acknowledged in terms of the five-year and ten-year windows, the latter being largely “infill”. The subject land has no place in this Sequencing Plan. Mr Challoner’s approach (denying conflict) is that the Ipswich Planning Scheme permits development that is out of sequence where the cost of such development is borne “upfront” by the developer, who must meet full cost of provision of the necessary infrastructure.
However, Mr Vann, the respondent Council’s consultant planner said of the relevant provision, (paragraph (5) in Objective 1 in s4.11: Prioritised Growth Areas and Benchmark Development Sequencing Strategy):
“I don’t think it can be read to say that the scheme intends a development in areas which are not otherwise intended for urban development can be utilised for that purpose simply because upfront costs would be paid.”
(Transcript page 302). This comment neatly identifies the competing approaches.
There are two strong indications in the Strategic Plan which in terms preclude urban development of Mr Burcher’s land, in which context it ought to be noted that Urban Development is defined as including “various forms of residential development ranging from Park Residential – acreage living to minimum density housing, business and employment centres and other supporting urban land uses.” The first is in s4.8 Conservation Strategy under Objective 1 Implementation Criteria:
“1. No urban development will be permitted within the Conservation areas of City as allocated on the Strategic Plan Map.”
The other is under s4.3 Urban Development Area Strategy under Objective 1 -
To ensure that the development of Urban Areas takes place consistent with the long-term framework for urbanisation of the City:
“Implementation Criteria
1. No urban development will be permitted to take place outside those areas allocated as Urban Development Areas and Future Urban Development Investigation Areas on the Strategic Plan Map.
2. The phasing of the development is to occur in accordance with Council’s “Prioritised Growth Areas and Benchmark Development Sequencing Strategy””.
Mr Challoner’s answer to the Preferred Dominant Land Use of Conservation of the Strategic Plan was that the values to be preserved by that PDLU are more imperilled by the ability within the Rural zone to clear vegetation where clearing relates to the management practices associated with agriculture, pastoral production or animal husbandry commenced prior to the appointed day (Mr Burcher would be entitled to carry out such clearing - which it was suggested, possibly in terrorem, could remove all or nearly all trees) and by the proposed haul route, assuming the eastern route is selected. Mr Challoner’s report (Exhibit 1) states:
“It is considered that the keeping and breeding of livestock could have a greater detrimental impact on the environment than a strictly controlled park residential development coupled with the introduction of a suite of environmental initiatives (such as building location envelopes, re-vegetation initiatives, weed removal programmes) which may have the net result of improving the land’s value as a buffer to core conservation areas to the north.”
Mr Challoner thought the haul route would constitute a more sensible western boundary for Park Residential development than Lake Manchester Road.
As to s4.3 of the Strategic Plan, Mr Challoner did not set too much store by the recognition of Park Residential development as urban development, sewerage in particular not being provided:
“Park Residential Development (ie lots in excess of 4000m2 in area) is more akin to a park-like/non-urban settings. The proposal is clearly not urban in character and the provision of urban services will not give the proposal an urban character.”
While a good deal of flexibility has to be admitted before the court declares that there is conflict with a strategic plan, I cannot accept Mr Challoner’s approach here.
(It is convenient here to note that a good deal of the appeal hearing was devoted to evidence of the parties’ expert ecologists, Dr Porter and Mr Warren. At their closest points, as the crow flies, the land and Brisbane Forest Park are separated by a distance of 1.4km as scaled by one witness. The land forms part of a connection from the Brisbane Forest Park to the Brisbane River through forested foothills. The ecologists agree the site has been degraded considerably, through almost total clearing in the past. They also agree (although differing in their view of the proper classification and extent of it) that there are ecological communities, particularly about the course of Cameron’s Creek which meanders through the property before joining Kholo Creek and then the Brisbane River, which merit preservation; the indicative subdivisional layouts allocate most of them to park areas. The land forms part of a corridor (only Mr Warren could describe it as “major”) extending south from the Brisbane Forest Park. Mr Warren took a far more precautionary approach, attributing to the site, even in its “degraded” state, the function of habitat for a considerable range of species (birds, mammals, reptiles and amphibians) some of which are threatened and of national significance, on the basis of their presence having been noted not on the land, but nearby, whereas Dr Porter’s approach was limited to what had been found on the land. Even there, there was conflict, in particular as to whether koalas used it, which conflict I would resolve in the affirmative, accepting Mr Warren’s evidence. On such issues as this, financial constraints are always likely to mean that observations of fauna and flora are more or less hit and miss, or incomplete. The appellants bear the onus of proof in this proceeding. To the extent that their case depends on showing that the PDLU of Conservation area is inappropriate, so that in this area of potential conflict the Strategic Plan is of no real concern, they have failed to show it.)
There was some debate as to whether, if the appeal succeeded, the court should set conditions of the kind Mr Challoner envisaged in a “suite”. Hervey Bay Developments Pty Ltd v Hervey Bay City Council (1994) LGERA 216, 220 establishes this may be done at the “rezoning” stage. Mr Ure, for the appellants, urged that this ought to be done later, at the subdivision stage. While he submitted that criticisms made of the three layout plans suggested so far, in a preliminary way, were irrelevant (because in principle the right outcome can be engineered in due course), I am left with the impression that there may be such difficulties here that the court ought to set some conditions (at least) at this stage should the appeal be allowed. I found the following part of Dr Porter’s evidence (pages 218-219) illuminating:
“Perhaps I can cut to the chase on this. Am I right in thinking that the subdivision lay-out shown in either plan 17, 18 or 19 would not be satisfactory to you from your perspective? -- --- The ideal situation is – in this case is to have either cluster developments in a lot of communal land or Council owned parkland.
Yes?-- and obviously that – those small allotments located, you know, to make the place attractive to sell it, you know, that’s a development argument. But there are these estates around in Australia that do that. We keep coming up against the argument the Council won’t manage anything that’s put in a park. They want it all in private ownership. You know, the issue was talked about earlier was this, how do you put the, you know, the bell on the cat when the Council won’t play the part. And what this development’s done has said we’ll have big blocks but a – well, one suggestion was a vegetation protection means or easement or something over the balance of blocks so it’s not interfered with. The opportunity is there to do that and to keep, you know, nearly 60-80 per cent of the vegetation that’s forested input into these and it’s – there’s more goes into a subdivision plan than just the environmental things. There’s engineering, there’s the whole cahoots. And a lot of Council by-laws and requirements for engineering roadworks all the time make it extremely difficult to get in place sensible conservation requirements on subdivisions. And you’d be aware of that from your experience in Court.
What about things like fencing of allotments?-- Well, you’d have a problem if there’s no fencing.
…
------if – while you’re going to inhibit fauna movement, aren’t you?—and – yeah, they do and they make a mess.”
There is perhaps an oblique allusion here to the phenomenon which in the present climate seems politically inescapable, that private owners are left to bear a good deal of the burden of maintaining the Conservation areas and their equivalents. The intent of this PDLU in the scheme is:
“(10) Conservation Areas
This land use allocation covers the Principal Conservation Areas, i.e. areas of major conservation significance including core habitat areas, significant bushland remnants, major habitat corridors and major freshwater wetlands. It is intended that most of this land will be left in its natural state and conserved through a suite of initiatives including voluntary conservation agreements, private land holder support, vegetation clearance controls, rural conservation zoning and acquisition of key core habitat areas.”
Mr Hinson SC who appeared for the respondent resisted the notion of downplaying the Strategic Plan as “broad brush,” “highly strategic” or “not cadastrally based”, and cited a number of authorities indicating that:
“A Strategic Plan is an important document in considering the future or forward planning of a local authority area, and should, particularly on rezoning applications, be given significant weight. The fact that the proposal substantially conflicts in many instances with various objectives as set out in the Strategic Plan, is particularly important”
to quote Row DCJ in Thomas Holdings Pty Ltd v The Gold Coast City Council (1991) QPLR 32, 36. In Brownless v Council of the Shire of Caloundra (1990) QPLR 260, Quirk DCJ said that:
“… central to the Respondent’s opposition to the proposed rezoning, was that its planning strategies do not envisage that this land should go to Rural Residential development…
…
In the scheme the land is zoned Rural. The Strategic Plan, although not meant to be read cadastrally, does, if one has regard to fairly readily recognisable features on the Plan, indicate that the subject land is outside the area which is allocated a preferred dominant use of “Rural Residential” and is designated within that where the allocation is “Rural”.
…
I find that a basis for the subject land being given a “preferred dominant use” of Rural has been established, and that it is appropriate that this Strategic Plan should be read in this way. The Court is not the planning authority and it would, in my view, be inappropriate for it to approve a rezoning squarely in conflict with the formally expressed planning strategies of the Respondent.”
As to the court’s eschewing assuming the role of planning authority, Mr Hinson cited also Jones Flint & Pike Ltd v Maroochy Shire Council (1999) QPELR 434, 439, and authorities cited there. On the more general question he cited also Allied Estates Pty Ltd v Noosa Shire Council (2000) QPELR 97,100C-D, 104A-C and 105F-H, Ampol Petroleum(Q’land) Pty Limited v Pine Rivers Shire Council (1989) QPLR 133, 136, Telfrid Corporation Pty Ltd v Logan City Council (2000) QPELR 90, 92-93, Northern Beaches Development Pty Ltd v Mackay City Council (1999) QPELR 364, 366E-I, 370F-I and 371E-G (as to the suitability of a road as a line of demarcation), Jural No 11 Pty Ltd v Caboolture Shire Council (1999) QPELR 88, 95C, 98-99, and Beck v Council of the Shire of Atherton (1991) QPLR 56, 59 (discussing a PDLU that has become obsolete). In Lewiac Pty Ltd v Gold Coast City Council (1996) 2 Qd R 266, in the leading judgment in the Court of Appeal, Thomas J said at 273:
“The other submission on behalf of the appellant which needs to be noted is that a strategic plan may not prescribe mandatory requirements such as a specific height or storey limitation. Reliance was placed upon Curtis v. Beaudesert Shire Council [1983] 1 Qd.R. 201, 206; and Zieta No. 59 Pty Ltd v. Gold Coast City Council [1987] 2 Qd.R. 116. The submission somewhat overstates the effect of those cases. The two principal points in those cases are that a strategic plan is only an objective, and not every objective in such a plan has to be met before the proposal of an applicant may be accepted; and that the general objective of strategic plans is to specify aims, objectives and strategy. There is however nothing that prevents a degree of particularity in the statement of something that is after all only an objective. As forward planning strategy it contains relevant matters for consideration by a court.”
In presently relevant respects, the Ipswich Planning Scheme deals with the area where Mr Burcher’s land is located with a good deal of precision. In my opinion, no case can be sustained that anything along the lines of misapprehension about the land, planning provisions becoming obsolete, or the like exists. The PDLU, in particular, can be justified. I am not attracted to the in terrorem argument that the PDLU goals might be better achieved by dispensing with the classification as a basis for denying conflict between the outcome if the application succeeds and the Strategic Plan. Certain comments of Quirk DCJ in Allied Estates felicitously express the tenor of my conclusions here:
“I was referred to other cases decided in this Court where environmental concerns were overcome by a demonstration, on a balance of probabilities, that such concerns could be met by a properly engineered solution.
…
These were cases where such concerns were raised directly as a reason for an adverse exercise of discretion in respect of a particular proposal. This case is somewhat different in that the matter of a proposal’s ability to meet environmental concern arises in a discussion of the rigidity with which certain strategic planning indications should be understood and applied. (103-4)
…
Where privately owned land is environmentally sensitive, an indication (by the elected planning authority in the statutory planning instruments) of the extent to which its development is considered acceptable is the preferred approach.
…
The subject land is plainly in that category and in respect of it each of the Strategic Plans has recognised that there must be balance between the proprietor’s interest in developing the site and those of the community in providing appropriate environmental protection. This is seen in the designation of part of the site for urban use and part to be retained as Open Space. The merits of the decision made might be debatable and this is illustrated by the difference in the views of the experts who gave evidence. What cannot be said however is that the balance that has been struck by the planning authority demonstrably lacks foundation. (105)
…
As far as the subject land is concerned the task facing the planning authority was clear enough. It involved an allocation to either a designation that envisaged urban development or one that did not. The result might well be said to be a careful approach to the matter of environmental protection but that is something clearly within the province of the elected planning authority and not a matter with which the Court should interfere.
The essential difficulty for this proposal was its intended departure from the balance that had been struck by the strategic planning of the Respondent. (106-7)”
Having found conflict with the Strategic Plan in the application, the court must consider whether, notwithstanding the conflict, there are planning grounds justifying the approval of the application. In many respects, there are no objections to it. The land is suited to the proposed new use.
The Court heard evidence from Mr Colin Beard and Mr Viney, showing that there are no traffic issues counting against the proposal; they differed only insofar as Mr Beard favoured a narrower sealed surface along the Lake Manchester Road frontage of 6.5 metres, as opposed to Mr Viney’s 7 metres, as a measure to dissuade drivers from speeding. Mr Viney thought they would speed anyway and that it was better to provide a wider trafficable surface. There is also a (presently unimportant) issue about what length of the roadway running outside the site should be upgraded by the developer.
There are no issues as to the provision of town water to a residential subdivision on the site, which is now accepted as feasible.
Another pair of “opposed” experts was Mr Leighton and Mr McAlister. The latter contends that the steepness and soil types encountered on the site would pose problems for disposal of effluent, sewerage not being available. Mr Leighton expressed confidence that acceptable solutions could be found. I am not prepared to dissent from his confident approach, but would observe that, should development of the site proceed on the basis of anything like the presently contemplated range of 139-170 residential allotments, very careful attention would have to be paid to this aspect before subdivision occurs. The court was assured there need be no fears that the Brisbane City Council lacked expertise to set and enforce suitable conditions for septic and other non-sewerage disposal methods.
Turning to more positive “planning grounds”, need was the principal one invoked. The evidence shows that park residential developments are popular. The one under consideration for the site would be similar to (certainly in no way inferior to) a number in the locality which were the subject of evidence, and which were viewed in conjunction with an inspection of the site itself on the first day of the hearing. The proposal is feasible and the evidence establishes a level of demand for developed sites of the kind envisaged such that the developer could expect a satisfactory level of sales. This does not establish a planning “need”, as shown by many cases in which the court has been satisfied that a proposed development, for example, a new service station, would attract enough customers to be successful, but that there was no “need” for that development. Popular as park residential subdivisions might be, and disappointing as an end coming to their proliferation in the locality might be to many, I am quite unable to accept that there is any imperative or community need of the kind the court should acknowledge for expansion of this kind of residential development.
Mr Viney perhaps tested the limits open to him as a traffic expert in criticising this type of development in section 3 of his Report:
“3.0 Traffic Issues
3.1 Reasons for Refusal
From a traffic engineering viewpoint, the development is undesirable because it significantly extends the supply of park residential designated land over that envisaged by the Strategic Plan.
Such developments are extremely inefficient in that:i)They generate long trips on the road network for basic services and facilities (work, shopping and school trips);
ii)The resultant road network placed under council maintenance has fewer lots/kilometer to contribute to costs through rate charges than for more compact residential developments;
iii)Public transport services cannot be economically provided;
iv)The road layout is generally not conducive to effective access in the event of bush fire;
v)The length of local access streets tends to encourage higher than appropriate vehicle speeds;
vi)The impact of generated traffic on the existing road network tends to extend over a wide area.
For these reasons, the spread of park residential development beyond the designated areas set out in the planning instruments is undesirable and should be resisted.”
In my opinion Mr Viney makes a valid “planning” point.
I agree with Mr Vann’s discussion of “need” in his report, Exhibit 16:
“5.2 Need
The concept of planning need as applied to this proposal has two components, namely:· Whether the community, as a whole, would be better off by approval of the application, and
· Whether there is any need to commit the land for the proposed form of development given provision made for this elsewhere.
In assessing these tests, it is clear that the land is part of a broad area with environmental and conservation values which the community, through the properly adopted planning documents applicable to the site, have expressed a desire to retain. Approval for park residential purposes would erode the contribution of the land to those values and it could not be argued that the community as a whole would be better off as a result of its development for these purposes, even though there may be some people who would wish to live in the development.
On the second point, it has already been documented that extensive areas of Ipswich City have been made available for urban (including park residential) development, whilst the finalised version of the Northern and Inner Western Corridors Structure Plan, which is now in force in the adjoining part of Ipswich City, provides considerable areas for large lot development (similar to what is proposed here) in the Chuwar, Karalee and Barellan Point localities to the south of the Brisbane River in this area. Therefore, there is no need to commit the subject land for this form of development.”
I have commented elsewhere on whether the development is “logical”, and regard this aspect as neutral rather than as positive or negative.
As I understand the appellants’ case, the planning grounds relied on to justify their proposal, notwithstanding the conflict the court has found to exist with the Strategic Plan, appear in Mr Challoner’s report Exhibit 1:
“72.Although it is stated that no urban development will be permitted within land designated Conservation (see para.27 herein), there are other provisions which suggest that some development may be allowed and in any event there is sufficient reason to allow the proposed development on account of the following;
· The subject site represents a logical extension of existing park residential development on the eastern side of Lake Manchester Road.
· The proposed haulage route, which traverses part of the subject site, represents a more appropriate western limit to park residential development than Lake Manchester Road.
· The conservation significance of that part of the subject site lying to the east of the haulage route will be considerably reduced if a haulage road is eventually constructed along this route, as now appears likely.
· A strictly controlled park residential development with building location envelopes and provision for revegetation as well as weed control, etc. could make better provision for the protection of the site’s conservation values than would the continued use of the site for grazing.
· Park residential development, although classified as urban development under the Planning Scheme, is quite distinct from normal urban development.
· There is a continuing demand for park residential allotments as evidenced by the findings of Buckley Vann (See para 60 herein) and the subject site is particularly suitable for the satisfaction of this demand, provided that an adequate buffer is provided along the haulage route.
73.If provision is made for the haulage route, including its associated buffer, the future establishment of a haulage road along the route will not be prejudiced. Neither will the exploitation of the Kholo Creek resource be prejudiced by the proposal.
74.The site does not comprise good quality agricultural land.”
It will be noted that, essentially, Mr Challoner is arguing that the development would do no real harm. I suppose, in that context, weight ought to be given to the consideration that a private landowner should be allowed to make reasonable profitable use of his property. The positive aspect urged in respect of protection of the site’s conservation value by the proposal seems to me too speculative. One of the considerations not fully explored was bushfire risks, which, on the limited evidence given, may require a good deal of clearing and not only close to residences, as a preventative measure.
Mr Challoner raised similar arguments in response to the respondent’s claim that the proposal did not represent orderly development. I think the respondent’s claim in this regard is made out. Quite apart from the very strong policy against urban development (including park residential development) in the area, there remains unresolved what will happen regarding the haul route. On the evidence, including that of Mr Hore, who was not required to go into the witness box, the probability is that the eastern route will be adopted. It might be rightly regarded as mischievous for the court (effectively) to rezone Rural land to Park Residential in face of a resumption for haul road purposes which has been foreshadowed for a long time. It was suggested by Mr Ure that the court could “rezone” only half of his clients’ land, making its best guess at the final precise location of the haul route and buffer areas. If this were possible, the whole exercise, to my mind, simply highlights that the court would be acting in a premature way. All of the planning documents place a high priority on exploitation of the Kholo Creek quarry resource which necessarily involves getting quarry products to market. In my view, orderly development tends to dictate deferring a decision on the fate of Mr Burcher’s land until the future is less unknown in relation to location of the haul route and buffer areas. Compare Standfield v Gold Coast City Council (1996) QPLR 136.
In all of the circumstances, I am quite unable to find that planning grounds have been shown to justify this court’s acting to approve the proposal notwithstanding conflict with the Strategic Plan. The appeal should therefore be dismissed.
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