Caralan P/L v Caloundra City Council
[2011] QPEC 80
•17 June 2011
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Caralan P/L & Anor v Caloundra City Council [2011] QPEC 80
PARTIES:
CARALAN PTY LTD ACN: 077 333 218 & ANOR
(Appellant)V
CALOUNDRA CITY COUNCIL
(Respondent)FILE NO/S:
64 of 2006
PROCEEDING:
Hearing of an appeal
ORIGINATING COURT:
Planning and Environment Court at Maroochydoore
DELIVERED ON:
17 June 2011
DELIVERED AT:
Brisbane
HEARING DATE:
28 February 2011 and 1, 2, 3 March 2011
JUDGE:
Griffin SC, DCJ
ORDER:
The appeal is dismissed
COUNSEL:
L. Manning (Solicitor) for the Appellant
S. Ure for the Respondent
SOLICITORS:
P and E Law for the Appellant
DLA Phillips Fox for the Respondent
Caralan Pty Ltd the appellant is a residential developer who sought a Development Permit for a Material Change of Use for Park Residential Development (a consequential amendment Rural to Park Residential) and the reconfiguring of a lot (two lots into 79 lots and a park lot plus two balance lots).
On 14 June 2004 the appellant and another (Avilka Pty Ltd) made an application to the Caloundra City Council for the above development which was impact assessable. The site is at 147-191 Railway Parade, Glasshouse Mountains and is properly described as part of Lot 96 on C311431 and part of Lot 97 on C311431.
The application essentially to use old parlance was an application to rezone the subject land from Rural Zone to Park Residential and to subdivide it into 79 park residential allotments with two balance lots. The proposal included lots to have a minimum area of 1,500 square metres. There was public notification of the proposal and on 19 January 2006 Council refused the application notifying by decision notice the appellants on 23 January 2006.
The subject site
The site comprises approximately 15.09 hectares on both lots and the land is on the western side of Railway Parade at Glasshouse Mountains with its northern boundary at approximately 1.3 kilometres from the northern boundary of the township of Glasshouse Mountains.
Immediately to the south is an isolated subdivision which both parties agree (I think properly) to be an anomalous residential subdivision (Glasshouse Meadows Estate) the survey plan for which was sealed in 1996 and prior to a relevant planning instrument the Transitional Planning Scheme for Caloundra which came into effect in 1996.
Relevantly to the south-west and north of the site are extensive areas of farming principally pineapple farms and on the eastern side of the Railway Parade on the other side of the railway line area other areas of rural products. The site can be seen clearly in its context in the aerial photograph in Appendix 2 of Exhibit 2B.
The subject site is, according to the evidence of Mr Pike who farms the area, presently operating as part of a larger pineapple farm and has been farmed commercially, relatively successfully in combination with other lands used by him. This farming has continued for 10 to 12 years and the subject site which he leases from Ms Mittlestadt is to run out in approximately 18 months.
Relevant legislative provisions relating to the appeal
The appeal was commenced on 23 February 2006 at which time the Integrated Planning Act 1997 (IPA) was in force.
Pursuant to s.819(2) of the Sustainable Planning Act 2009 (the “SPA”) the Court must hear and decide the appeal under the repealed IPA as if the SPA had not commenced.
At the time the application was made, the operative Planning Scheme was the Caloundra City Council Planning Scheme 1996. The current Caloundra City Plan 2004 came into effect on 29 September 2004.
Consequently, the provisions of s.4.1.52 of the IPA apply. That section provides, relevantly:-
“4.1.52 Appeal by way of hearing anew
(1)An appeal is by way of hearing anew.
(2)However, if the appellant is the applicant or a submitter for a development application, or is a person who has applied for approval of a proposed master plan, the court—
(a)must decide the appeal based on the laws and policies applying when the application was made, but may give weight to any new laws and policies the court considers appropriate; …”
The 1996 Caloundra City Council Planning Scheme is a Transitional Planning Scheme so that provisions of s.6.1.30 of the IPA apply.
Pursuant to the Local Government (Planning and Environment) Act 1990 (“the repealed Act”) the establishment of the proposed Park Residential subdivision on the land would have required both an application to rezone the land from the Rural Zone to the Park Residential Zone and an application for subdivision.[1]
[1]Ex.17, p.16, Table 6.3, column 1, No. 14.
Therefore, pursuant to s.6.1.30(3)(a), the application must be decided under s.4.4(5), (5A) and 5.1(6) and (6A) of the repealed Act.
Section 4.4(5A) of the repealed Act provides (as does s.5.1(6A)):-
“(5A) The local government must refuse to approve the application if‑
(a)the application conflicts with any relevant strategic plan or development control plan; and
(b)there are not sufficient planning reasons to justify approving the application despite the conflict.”
Pursuant to s.4.1.50(1) of the IPA, the Appellant bears the onus of proof.
Town planning issues
Pursuant to the 1996 Transitional Planning Scheme, all of the land was allocated to the Rural Zone. The majority of the land also had a Rural Preferred Dominant land use designation while a smaller portion in the south eastern corner had a Park Residential PDLU designation.
Pursuant to the current Scheme (the 2004 Scheme), the totality of the land is allocated to the Rural Precinct in the Pumicestone Planning Area.
The appellant argues that the court should assume that the Park Residential designation over portion of the south-eastern corner of the subject site should in fact be a designation covering all of the site to the east of the Bat Creek boundary which is a natural boundary of the subject site.
In this case the allocation of the land to the Rural Zone is apparently a precise cadastral exercise and there is no reason to suppose that it should be set aside apart from the argument advanced by the appellant that it seems logical because of the natural boundaries to do so.
In my view, the designation of the site as Rural Zone should be maintained. I do not regard there being an appropriate planning reason to change the designation. I accept the respondent’s submission that the Scheme requires an application to rezone or subdivide land in the Rural Zone even if it has Park Residential designation should be assessed against the State Planning Policy 1/92 and the balance of the Scheme.
Planning instruments relevant to this appeal
The issues on appeal relate to questions of conflict (if any) with a variety of planning instruments that are agreed to be relevant for consideration in this appeal and the question whether, even if there is conflict, to what extent and whether there are “sufficient grounds” to justify the proposed development in the event of conflict.
For the respondent’s part it is argued that there are substantial and significant conflicts and that there is no sufficient ground to justify the proposed development in the light of those conflicts. The appellant argues that whatever conflict there is, is of such minimal consequence that having regard to the substantial benefits to the community and a variety of reasons, there are sufficient grounds to justify the proposed development.
The relevant planning documents are these:
· State Planning Policy 1/92 which deals with good quality agricultural land (GQAL);
· Provisions of the 1996 (Transitional) Caloundra City Council Planning Scheme;
· The superseded 2004 Caloundra City Council Planning Scheme;
· The present South East Queensland Regional Plan 2009-2031.
The respondent argues that the proposed development conflicts with:
(a) The 1996 Scheme in relation to the intent of the Rural Preferred Dominant Land Use (PTLU) designation and related strategic objectives.
(b) The intent of the Urban PTLU designation and related Strategic Plan objectives;
(c) The Residential Areas Strategic Plan Objective relating to Amenity;
(d) The intent of the Rural Zone; and
(e) The minimum area and dimensions of lots in the Subdivision Provisions Part 6 for the Rural Zone.
The respondent argues that the proposed development fails to protect Good Quality Agricultural Land (GQAL) contrary to SPP 1/92, the 1996 Planning Scheme and the 2004 Planning Scheme as well as the South East Queensland Regional Plan (SEQRP).
The respondent also argues that the proposed development conflicts with the 2004 Planning Scheme by compromising specific Desired Environmental Outcomes DEO as well as conflicting with overall outcomes for both the Pumicestone Planning Area Code and the Reconfiguring a Lot Code. The conflict is said to extend to SEQRP by conflicting with the intent of the Regional Landscape and Rural Protection Area with regulatory provisions and to be in conflict with the Specific Desired Regional Environmental Outcomes and Associated Principles.
I will deal shortly however with the way in which these conflicts should be analyzed having regard to the specific legislative regime which applies to this appeal and the way in which each of the Planning Schemes should be regarded.
It is common ground that the planning expert called by the respondent has summarized the issues of conflict in the following way. It is convenient to set them out here as follows:
(a) The introduction of urban development into the inter-urban break;
(b) the subsequent change in the intended rural character of the locality;
(c) the loss of good quality agricultural land in an area of commercial agricultural production; and
(d) the overall ineffective nature of the proposal in terms of a development with respect to the use of infrastructure and loss of agricultural land.
IPA sets out a general framework for assessment in this appeal which is by way of re-hearing (“hearing anew”) by assessing firstly the application against the 1996 Planning Scheme and then giving consideration to what weight is to be accorded to the 2004 Planning Scheme and SEQRP. It is desirable to set out in some detail the operation of the legislative provisions as they apply to this appeal.
Legislative provisions
The respondent for its part has summarized the issues in the appeal as follows:
1. The proposal is in conflict with State Planning Policy 1/92 “Development and Conservation of Agricultural Land”.
2. The proposal is in conflict with the 1996 Scheme in particular:
(a) The 1996 Strategic Plan;
(b) The intent of the Rural Zone;
(c) The 1996 Subdivision of Land Provisions;
3. The proposal is in conflict with the 2004 Scheme in particular:
(a) DEO’s 1, 2 and 4;
(b) The Overall Outcomes for the Rural Precinct Class;
(c) The Pumicestone Planning Area Overall Outcomes (2)(a)(iv), (2)(c);
(d) The Pumicestone Planning Area Specific Outcomes 02;
(e) The Reconfiguring a Lot Code, Specific Outcome 02;
4. The proposal is in conflict with the SEQRP 2009‑2031.
The agricultural land experts agree that UMA 1, 4 and 7 are good quality agricultural land. UMA’s 4 and 7 are Agricultural Land Class A and UMA 1 is Class B, both classes being good quality agricultural land pursuant to the State Planning Policy.
It is agreed that UMA 6 soils are GQAL, but Mr Walker thought that it may be needed for the storage of machinery. It is currently not farmed because the owner of the land, Ms Mittelstadt lives on that part of the parcel. Mr Thompson is of the view that when that arrangement ceases, a farmer farming the lands in association with other lands would use some of the lesser quality lands e.g. UMA 2, 3 or 5 for the purposes of storage of machinery and would farm UMA 6.
There is a total of 8.1 hectares of Good Quality Agricultural Land on the subject land. It should be noted that even the areas which are not good quality agricultural land pursuant to the Policy, i.e. Areas 2, 3 and 5 are being successfully cultivated by Mr Pyke.
The appellant’s view of the 2004 Planning Scheme and SEQRP
According to the approach the appellant’s expert Mr Dillon demonstrated in paragraphs 156, 157, 302 and 304 of the Joint Planning Report (Exhibit 2B), Mr Dillon regards the authors of those Planning Schemes as simply having got the boundaries wrong. Mr Dillon for his part would not have allocated the subject land to Rural Precinct in the 2000 Scheme nor to the Regional Landscape and Rural Production Area designation in the SEQRP. Furthermore Mr Dillon does not agree with the Council and State Government policy of containment of the township of Glasshouse Mountains to areas which are depicted in Map GHM1 in Appendix 12 to Exhibit 2B and Exhibit 20 SEQRP Glasshouse Mountains Urban designation.
If that is the approach and argument of the appellant it seems to me unable to be substantiated. In my view the court has no warrant to substitute the appellant’s view of appropriate designation of lands (even though nonetheless a reasonable and understandable one) for the designation of land as it is indicated in the Planning Strategies of the Council and State Government. [2]
[2] See Grosser v Council of the City of Gold Coast [2001] QCA 423.
It is convenient now to deal with the arguments advanced.
Conflict with State Planning Policy 1/92
State Planning Policy 1/92 provides relevantly:-
“2.2 The agricultural industry remains one of the most Important components of the national and state economies. As with any industry, world markets and economic factors create cycles of prosperity interspersed with periods of difficulty for agriculture. Economic downturns and particular crop surpluses should not obscure the fact that productive land provides the long term basis for an efficient and flexible agricultural industry that can be responsive to changing demands for products and which generates community wealth through income and employment.
3 Land Conservation and Development
3.3 Nevertheless, development without regard to the need for land conservation and the continuing importance of agriculture would be unacceptable. The best and most versatile farming land has a special importance and should not be built on unless there is an overriding need for the development in terms of public benefit and no other site is suitable for the particular purpose. This land is a valuable resource that should, in general, be protected from irreversible development. In such cases, additional weight needs to be given to the agricultural factor.
…
4.4 Although the demand for agricultural products fluctuates, once land is built on or subdivided, its return to agriculture is seldom Practicable. Therefore a decline in the market for a particular crop should not justify development on land traditionally used for growing that crop. Markets change and the land could be cultivated for other purposes.
4.5 Similarly, land ownership and the size of farm holdings should not override land quality when determining a site’s suitability for development. A policy which would allow the development of small sites or holdings, irrespective of land quality, would merely encourage fragmentation of ownership followed by further development pressures. The viability of farm holdings varies with the crops selected, and tenure patterns are flexible: an appropriate choice of crop or amalgamation of holdings can overcome the problem of the uneconomic farm unit. Therefore, land subdivision policies and controls should not inhibit restructuring and farm amalgamation: in some instances, subdivision will be necessary to enable the assimilation of parcels with adjoining properties.
4.6 Cases will arise where local authorities have to consider development proposals on Good Quality Agricultural Land. In such instances, a ‘key’ principle should be whether an overriding need in terms of benefit to the community can be demonstrated for the development at that particular location.
4.7 In this context, small scale sub‑divisions, especially ‘rural residential’, merit special mention. In purely agricultural terms, such sub‑divisions lead either to a loss from production or generally less efficient and productive use than commercial agriculture. Yet rural residential development is flexible in its locational requirements. Accordingly, such development is inappropriate on Good Quality Agricultural Land, while smaller rural sub‑divisions generally should be assessed on their agricultural merits.
4.8 The proximity of development, particularly where there is a significant residential component, can inhibit farming practice, thereby limiting the extent to which the inherent land quality can be exploited: for example, crop spraying and cane burning are two operations which cause conflicts with adjoining residential properties. Clearly, such conflicts should be avoided if possible but, where new developments have to be located on or adjacent to Good Quality Agricultural Land, measures to ameliorate potential conflicts should be devised wherever practicable.
…
Policy Principles
1. Good quality agricultural land has a special importance and should not be built on unless there is an overriding need for the development in terms of public benefit and no other site is suitable for the particular purpose (Section 3).
2. The alienation of some productive agricultural land will inevitably occur as a consequence of development, but the Government will not support such alienation when equally viable alternatives exist, particularly where developments that do not have very specific locational requirements (for example, ‘rural residential’) are involved (Paragraphs 4.6-4.7).
…
5. Due consideration should be given to the protection of good quality agricultural land when applications for rezonings, consent, or subdivision are being determined (Paragraph 4.1)
7. The fact that existing farm units and smallholdings are not agriculturally viable does not in itself justify their further subdivision or rezoning for non‑agricultural purposes. Subdivision provisions and policies should be devised in a way that encourages amalgamation of titles where this would enhance farm viability (Paragraph 4.5).”
The Guidelines provide:-
“2.3 Agricultural land suitability is a rating of the ability of land to maintain a sustainable level of productivity. The factors used to assess agricultural land suitability are the soil, topographic and climatic limitations which determine sustainable productivity. Explicit evaluation of economic factors such as the size of production units are not included as they are not considered relevant to the quality of the resource.
…
4.12If the subject land is found to be good quality agricultural land, the local authority should refuse the application unless:
• there is an overriding need in community terms of public benefit for the proposal, and the proposal cannot be located on alternative sites of poor agricultural quality; or
• the subject land is located so that farming, either alone or in association with surrounding parcels, is not practicable: for example, a small isolated parcel of land surrounded by urban land uses.
(emphasis added)
It is to be noted with respect to oral submissions made by the appellant that in Clause 3.3 the expression:
“The best and most versatile farming land has a special importance and should not be built on unless … there is an overriding need for the development in terms of public benefit …”.
The submissions made by the appellant suggested there was a type of “hierarchy” in relation to “the quality” of the GQAL.
The expression “good quality agricultural land” is not in my view susceptible of any differentiation within its qualification and in that respect I reject the submission made by the appellant.
Furthermore, in Clause 4.9 of the Policy referred to above the expression “the various provisions described above should all be based on the premise that existing commitments stand and that ‘down zoning’ is not being advocated” was relevant in this case.
Clause 4.2 of the guidelines provides:-
Land committed for non‑rural development or sub‑division
4.2 There will be instances where the subject land is effectively committed for development or subdivision by the planning scheme. Such a commitment would comprise the following:
• an unequivocal inclusion of the site in an area depicted for non‑rural* uses in a strategic plan or DCP, where development approval is not contingent upon consideration of the agricultural land quality; or
• the inclusion of the subject land in a zone which permits non‑rural* uses ‘as‑of‑right’; or
• a sub‑division proposal which exceeds or meets the minimum lot size prescribed by the Planning Scheme for the zone, and there is no discretion to raise the minimum size.
* non-rural includes ‘rural residential’ land use.”
In relation to Clause 4.2 I am satisfied that the proposal does not meet any of the three dot points of that clause. I accept the respondent’s submission that Development Approval of Park Residential designated land, both for the re-zoning component from Rural to Park Residential and the subdivision component are dependent upon consideration of the agricultural land quality pursuant to the Local Planning Park Policy Residential LPPR, the objectives of the Strategic Plan and the Subdivision of Land Provisions. All of these variously require an application of the State Planning Policy 1/92 to land zoned Rural even if it is designated Park Residential when re-zoning in the subdivision is sought. Furthermore, in relation to the balance of the clause, the land is not included in a zone which permits non-rural uses as of right for it is zoned Rural and the subdivision sought does not “exceed or meet the minimum lot size for sites prescribed by the planning scheme”. Here the subdivision applies for 1,500 square metre minimum lot size. The Rural Zone however in which the land is located prescribes a 40 hectare minimum size.
The land itself, on agreed evidence, is that UMA 1, 4, 6 and 7 are all GQAL and although UMA 6 is currently not being used for pineapple farming. That is where Ms Mittlestadt is residing. The land, on the evidence of Mr Thompson (which I accept) is capable of being used for pineapple farming particularly in combination with other areas owned or leased by a pineapple farmer (as is the case presently with Mr Pyke). This provides a total of approximately 8.1 hectares of GQAL in a total
11.5 hectares of actual cultivation area. Should the proposal be allowed 8.1 hectares therefore of GQAL would be permanently alienated from productive rural use such use being identified specifically by the policy as being inappropriate on GQAL that is residential rural land (see policy principle 2). Furthermore, as submitted by the respondent, this policy is obviously not merely directed at present considerations but has future that is generational considerations as well. The land as presently farmed by Mr Pike has the future possible use of amalgamation with other properties and in terms of viability (policy principle no. 7) as Mr Pike’s present operation suggests the land is perfectly viable.
Need
Policy principle 1 refers to the special importance of GQAL unless there is an overriding need for the development.
The determination of “overriding need” is dealt with by the Planning Guidelines to the State Planning Policy in the following manner:-
“4.13 Determining “an overriding need in terms of public benefit depends upon the circumstances of the particular proposal. Some obvious cases of “overriding need” which are likely to justify the loss of the agricultural land illustrates the principles.
4.14 State Planning Policy 1/92 cites the example of a tourist development that could provide the opportunity to diversify the economic base of an area and support a growing State industry. A mining proposal is likely to offer similar advantages locally, as well as providing significant export revenue for the State as a whole. Finally, major infrastructure (for example roads, railways, aerodromes and dams) usually have specific siting/location requirements that might require the loss of some good quality agricultural land.
4.15 These examples should not be regarded as a justification for every proposal involving such development. Each proposal should still be assessed on its merits to determine the degree of community advantage.
4.16 Instances of proposals for residential development on good quality agricultural land are likely to be more frequent. In such cases the need for the development should be established in the context of other undeveloped land designated for urban or residential development by the Strategic Plan. Also relevant is the availability of alternative sites that are not of good agricultural quality, but could be serviced reasonably and could meet the same housing demands. Where an area is reasonably close to a local authority boundary, consideration of suitable alternative sites should include those in the neighbouring local authority.”
Consequently, the provisions of s.4.1.52 of the IPA apply. That section provides, relevantly:-
“4.1.52 Appeal by way of hearing anew
(1)An appeal is by way of hearing anew.
(2)However, if the appellant is the applicant or a submittter for a development application, or is a person who has applied for approval of a proposed master plan, the court—
(a)must decide the appeal based on the laws and policies applying when the application was made, but may give weight to any new laws and policies the court considers appropriate; and
…”
The scope and effect of s.4.1.52 of the IPA is of some importance in this appeal. The section on its face requires a two step approach: first, the appeal must be decided on the laws and policies applying when the application was made; second, a decision must be made as to what weight, in the circumstances under consideration, should be given to any new laws and policies the Court considers appropriate.
The 1996 planning scheme was replaced by the Caloundra City Plan 2004 (“the 2004 planning scheme”). In determining the weight to be given to the 2004 planning scheme an assessment should be undertaken in accordance with s.3.5.5(2) of the IPA which provides:
“If the application is for development in a planning scheme area, the assessment manager must carry out the impact assessment having regard to the following—
(a) the common material;
(b) the planning scheme and any other relevant local planning instruments;
(c) if they are not identified in the planning scheme as being appropriately reflected in theplanning scheme—
(i) State planning policies, or parts of State planning policies; and
(ii)for the planning scheme of a local government in the relevant area for a State planning regulatory provision—the provision; and
iii) for the planning scheme of a local government in a designated region—the region’sregional plan;
Note—
For declared master planned areas, see also section 2.5B.70 (Assessable development requiring impact assessment).
(d) any development approval for, and any lawful use of, premises the subject of the application or adjacent premises;
(e) if the assessment manager is not a local government—the laws that are administered by, and the policies that are reasonably identifiable as policies applied by, the assessment manager and that are relevant to the application;
(f) the matters prescribed under a regulation (to the extent they apply to a particular proposal).”
All of the documents Listed in 3.5.5(2) are documents the Court is required to have regard to. The development of the adjoining Glass House Meadows Estate is also a “have regard to” matter in the assessment.
The decision is then made under s.3.5.14(2) of the IPA which provides:
“If the application is for development in a planning scheme area, the assessment manager’s decision must not—
(a) compromise the achievement of the desired environmental outcomes for the planning scheme area; or
(b) conflict with the planning scheme, unless there are sufficient grounds to justify the decision despite the conflict.”
This decision is then considered in determining the weight to be given to the 2004 planning scheme. The Court must then determine the weight to be given to the 2004 planning scheme.
In determining the weight to be given to the South East Queensland Regional Plan (“the SEQRP”) an assessment should be undertaken in accordance with s.3.3.15 of the IPA, the concurrence agency assessment, which provides:
“3.3.15 Referral Agency assess application
“(1) Each referral agency must, within the limits of its jurisdiction, assess the application—
(a) against the laws that are administered by, and the policies that are reasonably identifiable as policies applied by, the referral agency; and
(b) having regard to—
(i) any planning scheme in force, when the application was made, for the planning scheme area; and
(ii) each of the following, if they are not identified in the planning scheme as being appropriately reflected in the planning scheme—
(A) State planning policies, or parts of State planning policies;
(B) for the planning scheme of a local government in the relevant area for a State planning regulatory provision—the provision;
(C) for the planning scheme of a local government in a designated region—the region’s regional plan; and
(iii) if the land to which the application relates is designated land—its designation; and
(c) for a concurrence agency—against any applicable concurrence agency code.
(2)Despite subsection (1) a referral agency—
(a) may give the weight it considers appropriate to any laws, planning schemes, policies and codes, of the type mentioned in subsection (1), coming into effect after the application was made, but before the agency’s referral day; but
(b) must disregard any planning scheme for the planning scheme area if the referral agency’s jurisdiction is limited to considering the effect of the building assessment provisions, on building work.”
The test is to “assess against” the regional plan as compared to “have regard to” the planning scheme.
This assessment is then considered in determining the weight to be given to the SEQRP which cannot under s.4.1.52 be considered to have a prescriptive effect. Assessing the weight to be given to any new laws and policies is a matter for the Court.
The 1996 Caloundra City Council Planning Scheme is a Transitional Planning Scheme so that provisions of s.6.1.30 of the IPA apply.
A new planning scheme is proposed to replace the 2004 scheme and that is expected in approximately two years. Both “need experts” agree that this new scheme will make provision for some 15 to 20 years of supply of appropriate land.
Much evidence was devoted to the issue of need on a shire wide basis where it was said that there was some 20 years supply of residential land. Importantly, in focussing on rural residential land in the railway township corridor (which it seems to me is the most appropriate focus of attention) although Mr Norling for the respondent gave evidence that there was approximately 9 to 10 years worth of supply Mr Owens for the appellant said that there was a supply of about six years of rural residential land in that railway corridor. With the inception of the new scheme approximately only two years away and with an appropriate supply contemplated within that scheme of 15 to 20 years supply identified this suggests that there is something in the order of at least six years worth of supply which overtakes the commencement of the new scheme.
Both present supply and future supply under the new scheme lead to a conclusion that there is no pressing or strong need for further development of the kind contemplated by the appellant. I accept the evidence of Dr Brown that there is no real need in a market sense because of the present supply and as to the second limb of the test that is “that no other site is suitable for the purpose” exhibit 6 reveals that all of the lots greater than 1500 m2 in table 6 and 7 of that exhibit are available for such a purpose.
Having regard to all of the above, in relation to State Planning Policy 1/92 I am satisfied that the proposal is squarely in conflict with that Policy.
Conflict with the 1996 Strategic Plan
The operation of this plan is central to the appeal and the development itself must be judged against the 1996 planning scheme and it must be decided whether there is conflict with the scheme. The relevant sections of the Planning and Environment Act are 4.4(3), 4.4(5) and 4.4(5A). The test to be applied is that the proposed development should not be approved if there is a conflict with the Strategic Plan and further that there are not sufficient planning grounds to justify approval despite the conflict.
The submission for the appellant is that there is no conflict with the 1996 Strategic Plan in that a substantial eastern part of the land was included within the park residential designation in the 1996 Strategic Plan. Furthermore that particular park residential designation in the 1996 Planning Scheme was not cadastrally based and in accordance with accepted standards of interpretation the Strategic Plan designation should extend to the logical nature feature of Back Creek in which case all of the land proposed to be developed for park residential purposes should be taken to be within the park residential designation and therefore not in conflict.
This approach, it is argued by the appellant, is consistent with the definition of Strategic Plan as then contained in the Planning and Environment Act in that a Strategic Plan specifies in general terms the future preferred dominant land uses.[3] In tandem with this fundamental argument by the appellant is that, because of the nature of the application it is legally impermissible to place much, if any weight on the Intent of Rural Zone because the applicant sought to take the land out of that zone and include it in a zone consistent with the Strategic Plan designation. Whatever conflict there may be it is argued by the appellant dissipates in relation to the subject land in the event an approval of a material change of use so far as it relates to the part of the site proposed to be developed for Park Residential Development. Any alleged conflict referred to by the respondent with the rural and urban preferred dominant land use is of limited relevance to an assessment of this application.
[3]See s 1.4 P&E Act “Strategic Plan”.
For its part the respondent argues forcefully that there is substantial and significant conflict with the 1996 Strategic Plan.
In essence the respondent argues that the proposal is fundamentally in conflict with provisions of the Strategic Plan in that it will by creating 79 park residential allotments alienate for all time GQAL land rather than conserve it.
It is argued that the proposal is fundamentally in conflict with the following provisions of the Strategic Plan in that it will, by creating 79 Park Residential allotments alienate for all times Good Quality Agricultural Land, rather than conserve it.
1. Implementation 8(a)(a) in that the majority of the subject land is included in the rural designation, and has been included in the Rural Zone to protect the Good Quality Agricultural land.
2. Implementation 8(a)(b) which requires the Council to, in assessing applications, take into account the intent of the Rural designation in the Strategic Plan, the intent of the provisions of the Rural Zone in the Planning Scheme and State Government Policies and Guidelines relating to the preservation of Good Quality Agricultural Land i.e. State Planning Policy 1/92.
3. Implementation 8(b) as the proposal will extensively fragment Good Quality Agricultural Land into not only uneconomic allotment sizes, but into allotment sizes which will no longer be capable of use for primary production.
4. Implementation 8(b)(a) which makes it clear the Council will not support any rezoning of lands zoned rural to a Zone under which is permitted a lower minimum area, other than in accordance with the Strategic Plan. The subject land is Zoned Rural and the Applicant seeks to effectively rezone land in the Rural Zone which has a minimum subdivision area of 40 hectares to Park Residential with allotments of 1,500 square metres in area.
5. Objective 8(b)(b) requires the Council to have regard to the subdivision of land provisions in Council’s current subdivision policies and guidelines. The subdivision of land provisions[4] in s.6.1 provide that:-
[4]Ex.17, p.12.
“A person must not subdivide land unless‑
(a)the development complies with:
(v)the requirements of relevant state planning policies and local planning policies.”
The Park Residential Designation
Local planning policy “Park Residential Development”[5] provides that “rezoning and subdivision applications for park residential are approved only after consideration of … agricultural land …”.
[5]Exhibit 17 p 24.
The mere fact that land is designated park residential does not I conclude indicate that it is inevitable that a rezoning application for that land must succeed. The use of the expression agricultural land must in the context of its use refer to GQAL otherwise the expression it seems to me and its purpose is rather meaningless. Furthermore such expression “agricultural land” in the context is an indication that an application to rezone land from Rural Zone to Park Residential Zone will not be approved on GQAL consistent with a constant theme which is apparent through the entirety of the planning scheme. This, to my mind leads to a conclusion that the proposal is substantially in conflict with the relevant Strategic Plan.
This however is not an end of the matter and consideration must be given to whether there are “sufficient planning grounds to justify the proposal”. The question was considered by the Court of Appeal in Weightman v Gold Coast City Council & Anor:
"Sufficient planning grounds
The proposal must be refused in such a situation if there are not sufficient planning grounds to justify the approval despite the conflict. The discretion, as White J observed in Grosser v Council of the City of the Gold Coast, is couched in negative terms, that is, the application must be dismissed unless there are sufficient grounds. This is a mandatory requirement. If there is a conflict, then the application must be rejected unless there are sufficient planning grounds to justify its approval despite the conflict. The primary judge wrongly held that it was directory only.
In order to determine whether or not there are sufficient planning grounds to justify approving the application despite the conflict, as required by s.4.4(5A)(b) of the P&E Act, the decision-maker should:
(1) examine the nature and extent of the conflict;
(2) determine whether there are any planning grounds which are relevant to the part of the application which is in conflict with the planning scheme and if the conflict can be justified on those planning grounds;
(3) determine whether the planning grounds in favour of the application as a whole are, on balance, sufficient to justify approving the application notwithstanding the conflict.
The first task required of the decision-maker, as the learned primary judge recognized, is to consider the nature and extent of the conflict. The conflict may be minor or major in nature or indeed anywhere on the continuum between those two extremes. The conflict in this case is a major one, arising as it does from an absolute prohibition on the height of any development exceeding the maximum stipulated height of three storeys."
As I have already indicated there is a substantial conflict with the Strategic Plan although planning reasons have been raised by the witness Mr Dillon. Fundamentally the proposal alienates 8.1 hectares of GQAL. Should there be approval, there is no reticulated sewerage to the land. Although an email sought to be used by the respondent suggestive of the fact that Unity Water (the responsible authority for sewering the land) was highly unlikely to provide sewerage because of the ongoing costs, I am not prepared to accept that email as a proper expression of Unity Water’s opinion.
The evidence is that Mr Grieve who has an interest in the appellant’s case organised for sewerage infrastructure to be taken to a position under the railway line and at a relatively short distance from the block. On the other hand the court has no power to order Unity Water to sewer but it is fundamental to the appellant’s submissions that the appellant is prepared to carry out sewerage in the event of approval being given as a condition for approval. There are other items of infrastructure which are proximate to the proposed site. These are connected with the Glass House Meadows development and include electricity, roads, pathways.
The proposal in my view however would have the effect of enlarging both the anomalous development of Glass House Mountains Estate and create an expansion of an essentially urban semi-urban development (to use a non specific term) in an area that is beyond the intended urban boundary of the township of Glass House Mountains.
Furthermore both joint economic need experts agree that the proposal would have negligible impact on housing affordability. The site is one which is protected to some extent from Railway Parade and the environs by the vegetation around it although as Mr Brown said in evidence there is none the less particularly at night time there would be discernible presence from lighting of such a 79 allotment development.
None of the matters raised by Mr Dillon at p 46 of exhibit 2B suggest to me that the proposal (as I have concluded, squarely in conflict as it is with the 1996 scheme) have collectively or individually demonstrated sufficient grounds that would warrant the approval despite the conflict I have identified.
Conflict with the intent of the Rural Zone
The intent of the Rural Zone is; “to conserve areas of agricultural, open space and scenic significance and to facilitate a broad range of rural activities. Some non rural uses which compliment or provide a service to rural areas may be allowed.
Conflict with Subdivision of Land Provisions
In relation to the Subdivision of Land Provision provided in s 6.1; “a person must not subdivide land unless the development complies with: … (v) the requirements of relevant state planning policies and local planning policies”. In my view the proposals are directly in conflict with the intent of Rural Zone and the subdivision of land provisions.
The 2004 Scheme and Alleged Conflict with DEO’s 1, 2 and 4
DEO 1 provides relevantly:-
“Caloundra City has a diverse, dynamic and sustainable economy founded on-
(4) The sustainable use of natural economic resources and rural enterprises (which combines production with processing), where:
(d)Good quality agricultural land remains available for productive use, contributes to the City’s scenic amenity and is protected from incompatible development.”
The proposal is squarely in conflict with this provision.
For the reasons discussed above, the proposal will compromise the achievement of this DEO.
DEO 2 provides:-
“(1) Defined urban growth boundaries which create distinct urban and rural township communities, where:
(a)Defined urban growth boundaries are maintained and a pattern of development promoted that leads to the creation of identifiable coastal urban and hinterland township communities, with each:
(i)separated by greenspace;
(ii)displaying a distinctive character; and
(iii)being provided with local services, usable open space and access to public transport within convenient walking distance of dwelling units.”
This DEO (as does the SEQ Regional Plan) plans for a contained, discrete urban area for Glasshouse Mountains township.
The subject proposal seeks to introduce a significant number of residential lots of urban character as an island of development, some 670 metres north of the existing planned boundary in both the 2004 Scheme and the South East Queensland Regional Plan, extending up to some 1.2 kilometres north of the urban boundary of the township. This will compromise the achievement of the DEO.
DEO 4 provides that key elements of Caloundra City’s character and identity are:-
“(1) The natural heritage, including:
(c)(i)Urban growth boundaries are maintained and a pattern of development promoted that secures;
(C)the inter-urban breaks which separate each hinterland township linked by the North Coast Railway.”
Whilst the proposal may be screened to some extent from Railway Parade, there will be no doubt be evident to passers-by that there is development in this location.
A loom of light will be seen at night, and during the day the development will be capable of being glimpsed through the vegetation. The proposal will compromise the achievement of this DEO.
There has been some divergence of judicial opinion with respect to the application of s.3.5.14(2)(a). There is some authority that suggests to compromise a DEO there would have to be an "obvious and significant cutting across of that DEO in such a manner that its achievement on a Shire wide basis had plainly been compromised.[6]"
[6]Koerner v Maroochy Shire Council (2004) QPELR 211; Handley v Brisbane City Council (2005) QPELR 80.
However, in Webster v Caboolture Shire Council[7] at paras 102‑107 Brabazon DCJ queried the construction given by these PEC decisions to the words "desired environmental outcomes for the planning scheme area". His Honour rejected interpretations of the statutory words which imported the necessity that the achievement of the DEO on a shire wide or city wide basis is required.[8]
[7](2008) QPEC [82].
[8]Webster at (106).
With respect to the meaning of the word "compromise", His Honour said:-
"Compromise
[102]It is helpful to refer to the explanatory note to the Bill which proposed s.3.5.14(2) to parliament. It was prepared by parliamentary counsel. See 1997 Explanatory Notes at page 1966;
"Decision if application requires impact assessment
Clause 3.5.14 sets out the decision rules for impact assessment. This clause also needs to be read together with clause 1.2.2 (Advancing Act's purpose). The clause is structured to place strong emphasis on the planning scheme. Achievement of the desired environmental outcomes must not be compromised and there must be no conflict with the planning scheme unless there are sufficient justifiable planning grounds. This is consistent with the significant role of the planning scheme under the Bill. The desired environmental outcomes may be regarded as the essence or core of a planning scheme, and this clause makes it clear that the impact assessment decision must not threaten their achievement. Planning grounds that may be sufficient to justify a decision which conflicts with a planning scheme may, for example, be on the basis of new information available since the scheme was made, incorrect information being included in the scheme, or a factual error of the scheme itself."
[103]That note refers to a decision which "threatens" the achievement of a DEO. The idea of a threat is consistent with the dictionary definition of "compromise": to expose a risk or danger, to imperil, to involve in a hazardous course …exposed to risk, danger or discredit - OED."
The Webster approach has received approval of the Court of Appeal (albeit obiter) in Aldi Stores (A Limited Partnership) v Redland City Council (2009) QCA 346 at para [19].
Had the proposal been lodged under the 2004 Scheme, the Court would have been obliged to refuse it.[9]
[9]S.3.5.14(2)(a) of the IPA.
As the planners agreed, significant weight should be given to the provisions of the 2004 Scheme. The compromise of the DEO’s militate against any approval of this proposal.
In dealing with the 2004 scheme, although I have identified conflict with the scheme I am satisfied nonetheless that some regard should be paid to the 2004 scheme although it should receive considerably less weight than the 1996 Planning Scheme. This is so because;
· The 2004 Scheme came into existence approximately eight years after the application was made.
· The 2004 Scheme itself (in respect of which some amendments are contemplated) has only about two further years of its life to run. For those reasons in my view the 2004 Scheme should be accorded modest weight only in the entire assessment of this application.
Conflict with the Overall Outcomes (2)(a)(iv) 2(c) of the Pumicestone Planning Area
Overall Outcome (2)(a)(iv) provides:-
“(a) the planning area’s primary role is as an inter‑urban break between greater Brisbane and the Caloundra Coastal Urban area, with:
(iv)Rural Residential Settlement contained to the Rural Residential Settlement Precinct adjoining the townships of Glasshouse Mountains, Beerwah and Landsborough.”
The Rural Residential Settlement Precinct is as depicted in Map PPP1A.[10] The subject land is not in that Precinct, rather it is removed to the north of the town of Glasshouse Mountains some considerable distance, and is allocated to the Rural Precinct.
[10]Ex.17, p.68.
Overall Outcome (2)(c) provides relevantly:-
“(c) development in the Rural Precinct provides for productive and sustainable rural activities…”
These Overall Outcomes are clear statements. The subject proposal is squarely in conflict with these Outcomes.
ISSUE (iii)(d) SPECIFIC OUTCOME 02 FOR THE PUMICESTONE PLANNING AREA
Specific Outcome 02 provides:-
02 Reconfiguring a lot:
(a) protects the capability of rural lands for ongoing productive use;
S2.1 Land in the Rural Precinct is retained in lots with a minimum lot size as 40 hectares.
sustainable rural activities…”
The proposal is fundamentally in conflict with the Specific Outcome.
ISSUE (iii)(e) – RECONFIGURING A LOT CODE
Specific Outcome 02 of the Reconfiguring a Lot Code provides [11]:-
“02 Lot size and dimensions:
(a)are consistent with the Planning Area Overall Outcomes and Specific Outcomes in the applicable Planning Area Code.”
[11]Ex.17, p.90.
As has been seen above, the proposal for a lot size in the order 1,500 square metres is completely inconsistent with the Planning Area Overall Outcomes which seek a 40 hectare minimum for land in the Rural Precinct and seeks to protect the capability of rural lands for ongoing productive use.
ISSUE (iv) – CONFLICT WITH THE SOUTH EAST REGIONAL PLAN 2009-2031
The South East Regional Plan allocates the subject land to the Regional Landscape and the Rural Production Area.
The SEQRP provides:-[12]
“An application conflicts with the SEQ Regional Plan if it does not comply with the sub‑regional narratives in Part C or the regional policies in Part D. If there is an inconsistency between the sub‑regional narratives in Part C and the regional policies in Part D, the sub‑regional narratives prevail.”
[12]Ex.13, p.5.
The same theme with respect to the critical importance of the protection of Good Quality Agricultural Land for rural production which runs through the Local Government’s Planning Schemes, also is a principal tenet of the South East Queensland Regional Plan. It provides:- [13]
“Supporting rural production
Strong and viable rural communities are to be maintained so that they continue to contribute to not only the state’s economy, but to the health, character, liveability and self‑sufficiency of the region. Rural production lands will be protected from further fragmentation and urban encroachment.”
[13]Ex.13, p.11, column 3.
The Regional Landscape and Rural Production Area intent provides:-[14]
“Intent
The Regional Landscape and Rural Production Area (RLRPA) identifies land with regional landscape, rural production or other non‑urban values. It protects this land from inappropriate development, particularly urban or rural residential development.” (my emphasis)
[14]Ibid p.15, column 1.
The subject land is allocated to this designation as a consequence of its Good Quality Agricultural Land and the fact that it is otherwise a productive rural area. The SEQRP provides that the intent of the urban footprint is inter alia:-[15]
“The urban footprint identifies land that can meet the region’s urban development needs to 2031 in the more compact form.”
[15]Ibid p. 15,column 2.
Provisions of the SEQRP relevant to the appeal include Desired Regional Outcome 4:-
“Desired regional outcome 4
Regional natural resources and rural production areas are protected, managed, enhanced and used sustainably.
…
4.2.1Protect the region’s good quality agricultural land and provide for its long‑term and sustainable agricultural use” [16]
[16]Ibid, p.68.
Desired Regional Outcome 5:-
“Desired regional outcome 5
Rural communities are strong and viable with sustainable economies contributing to the health, wealth, character and liveability of the region.
…
By prohibiting further fragmentation and urban development in the Regional Landscape and Rural Production Area, the SEQ Regional Plan makes a strong statement about protecting the future of agricultural lands and rural communities.
On the urban fringe, however, where rural lands are close to urban development, community expectations and speculation about the potential for future urban development are likely to continue. In the past, conflict between rural activities and urban uses has generally seen farming curtailed where housing has been allowed to encroach into agricultural areas. The financial burden of servicing urban encroachment scattered around the urban fringe is not sustainable and is curtailed by the Urban Footprint and the urban consolidation policy framework of the SEQ Regional Plan.[17]
…
[17]Ibid, p.73.
5.2.1 Consolidate future rural population growth within existing towns and villages.
5.2.2 Ensure the consolidation of future rural population growth within existing towns and villages does not fragment productive rural land.”[18]
[18]Ibid, p.74.
Desired Regional Outcome 8:-
“Desired regional outcome 8
A compact urban structure of well‑planned communities, supported by a network of accessible and convenient centres and transit corridors linking residential areas to employment locations establishes the context for achieving a consolidated urban settlement pattern.[19]
[19]Ibid, p.90.
The appellant contends that at note 6 on p 92 of the Plan support is provided for the present proposal that is the proposal provides no more than a minor adjustment to the urban footprint enlarging the Glass House Meadows Estate as it presently stands.
I am not disposed to agree. The proposal does not appear to me to be a logical extension of the existing urban area bypassing as it does the rural designated land described as “the Horn Land” to the southern side of the Glass House Meadows Estate and as such is therefore in my opinionm in conflict with the provisions of the South East Queensland Regional Plan.
As to the weight to be given to this plan, whilst it is essential to give it some recognition it should be given, in the entire constellation of various planning documents relevant to this appeal, no more than modest weight. I note a theme which runs through this scheme which attempts to preserve and protect rural land.
Conclusion
The proposed development is one which in my view is substantially in conflict with the fundamental scheme applicable to this appeal the 1996 Strategic Plan. Furthermore the other relevant planning documents including the 2004 scheme and the SEQRP demonstrate that the proposal is also in conflict to some extent with those schemes. I have already concluded that there are no sufficient planning grounds to justify the approval despite any level of conflict and in the circumstances. Therefore the appeal should be dismissed.
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