Chesol Pty Ltd v Logan City Council - [2007] QPEC 1

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Chesol Pty Ltd v Logan City Council [2007] QPEC 001

PARTIES:

CHESOL PTY LTD as trustee for the

THE CHIOU SEE INVESTMENT TRUST

Appellant

LOGAN CITY COUNCIL

Respondent

FILE NO:

4140 of 2006

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Brisbane

DELIVERED ON:

30 January 2007

DELIVERED AT:

Brisbane

HEARING DATE:

2, 3, 4, 5, 10, 11 and 12 May and 15 June 2006, with written submissions being received to 25 October 2006

JUDGE:

Rackemann DCJ

ORDER:

The appeal will in due course be allowed. The further hearing will be adjourned to permit consideration of appropriate conditions.

CATCHWORDS:

Material change of use – reconfiguration – Transitional Planning Scheme – subdivision of 16 ha lot in 2 lots and development of a retirement village, development limited to cleared areas with balance to be dedicated for conservation – proposed use prohibited in the zone – bushfire hazard – traffic and transport – engineering infrastructure – ecological impact – visual amenity and character precedent – need and community benefit – overall merit – relevance of ecological sustainability - conflicts with Transitional Planning Scheme and IPA Planning Scheme – approval notwithstanding conflict

COUNSEL:

Mr P J Lyons QC, with him Mr B Job for the Appellant

Mr C L Hughes SC, with him Mr J Houston for the Respondent

SOLICITORS:

Anderssen Lawyers for the Appellant

Corrs Chambers Westgarth for the Respondent

CONTENTS
Introduction  3
The Issues  4
The Decision Framework  5
Merit Issues  6
(i)     Bush Fire Hazard  6
(ii)     Traffic and Transport  6
(iii)    Engineering Infrastructure   7
(iv)    Ecological Impact  7
(A)      Introduction  7
             (B)      Water Quality  8
(C)      Koalas  9
(D)      Other Fauna  10
             (E)      Flora  11

(v)     Visual Amenity and Character  14
(vi)    Precedent, cumulative impacts and the death of a thousand cuts16
(vii)   Need and Community Benefit  17
(viii) The Merits Overall and Ecological Sustainability  22
Planning Documents in Force when the Application was made                   27
(i)     The Transitional Planning Scheme  27
(A)      Zoning Provisions  27
           (B)      The Strategic Plan  30

(ii)     Local Planning Policy No. 24  35
(iii)    State Planning Policy 1/97  36
(iv)    Approval Notwithstanding Conflict  38
New Planning Documents  40
(i)     The 2006 Planning Scheme  40
(ii)     State Planning Policy 1/05 and SEQ Regional
Plan Interim Guideline: Koalas and Development              45

(iii)    The SEQ Regional Plan  45
Historical Planning Documents  46
Conclusion  47

Introduction

This applicant appeal is against the Council’s decision, on 12 October 2004, to refuse an application for a development permit for a material change of use and reconfiguration to facilitate development of a retirement village and a subdivision, from one lot into two, with respect to land at 224-250 Dennis Road, Springwood and more particularly described as Lot 44 on RP30625.

The subject site has an area of about 16.5 hectares and a frontage to Dennis Road of approximately 270 metres. The Dennis Road frontage is skewed to the side boundaries, such that the eastern side boundary is longer than the western boundary. The site has an effective width of about 221 metres. There is a ridgeline which runs in an approximately east-west direction across the middle of the site. That part of the site which is closest to Dennis Road features the now disused sporting fields for John Paul College and associated facilities such as an ablutions block, shed and bitumen paved car park. That use was approved in 1985, under the 1982 town planning scheme. Its use would likely have involved significant activity on the site from time to time.

Part of the site has, in the past, been heavily modified through tree clearing and extensive earthworks, including cut and fill, to establish the playing fields and associated facilities. This has created embankments up to about 10 metres high. That part of the site is largely cleared, although there are some trees, including towards the south-east corner of the site. To the north of the playing fields, the balance of the site is eucalypt forest.

The site lies at the eastern extremity of Dennis Road. The Daisy Hill State Forest adjoins to the immediate east. The site is within the catchment for the Leslie Harrison Dam and the ‘Koala Coast’. The urban residential areas of Springwood lie approximately only some 600 metres or so to the west. A ‘Blue Care’ nursing facility is some 900m to the west. A range of community facilities are also within relatively close proximity to the west. The locality towards the eastern part of Dennis Road is characterised by lots of varying sizes, typically much smaller than the subject, but much larger than typical suburban allotments. While some of those allotments are largely forested, many have cleared areas. Land use is somewhat mixed including not only large houses, but also a kennel and a truck depot in addition to the disused facilities on the subject site. The site is in a near to urban locality, with services already connected. Development in the locality occurs within what may generally be described as a ‘treed’ setting.

The proposed new southern lot was to contain the retirement village, with the larger northern lot to contain a single dwelling house and access track via an easement. The proposal has however, been changed. The proposed dwelling house will not be pursued in the event of approval. It is now proposed to develop the retirement village in that part of the site previously used for the playing fields and associated activities, with the balance of the site to remain undeveloped and preserved for conservation purposes into the future.

The appellant has obtained a separate approval for clearing within the forested areas, for the development of the dwelling house and access track. That approval might be exercised if this appeal is dismissed. Any approval of the subject application however, would be on the basis that there be no development within the forested areas to the north of the proposed retirement village.

Reference was made to a number of options for securing the preservation of the forested part of the site. At the time the application was made there was reference to making it a Nature Refuge (a type of protected area) under the Nature Conservation Act, which contains provisions for binding conservation agreements between the Minister and landholder or binding conservation covenants. Ultimately, it was said, on behalf of the appellant, that it was willing to adopt the best option to make the land available for preservation, preferably through ‘dedication’[1] to some third party, for ecological purposes. Identification of the most appropriate mechanism was otherwise deferred, pending a decision on whether the application ought be approved or refused. The only purpose of any reconfiguration would be to facilitate a ‘dedication’ of the forested part of the site.
[1]The term used in the appellant’s submissions

The critical issue in the appeal is the acceptability or otherwise of the proposed retirement village. That proposed facility was also slightly modified. It includes:

•   116 independent living units
•   a caretaker’s residence
•   a community centre with pool, gymnasium and games room
•   an open air recreation area
•   a small chapel
•   administration offices
•   medical rooms for visiting health practitioners and
•   visitor car parks throughout the complex

The units are proposed to be two storeyed and a mix of two and three bedrooms. Each is to have an undercover garage. The proposed units are to be arranged in individual buildings in a “quadplex” configuration. Entry to the complex is to be off Dennis Road at the eastern end of the site, via a driveway along the eastern boundary. There is to be a secure gated entry where the driveway reaches the community centre. The development site is to be re-contoured to provide a more natural land form. The village is to be fenced on all sides with fauna friendly fencing. The complex is to have a dedicated mini bus service for residents. Some changes have been made to the detail of the proposal.

It was not suggested that any of the changes to the proposal were more than minor and I was satisfied that it was appropriate to proceed to determine the matter on the basis of the modified proposal.

The Issues

The respondent’s issues in the appeal and particulars thereof were set out in an eight page consolidated list and a letter identifying additional provisions of the South East Queensland Regional Plan[2]. They may be summarised as principally relating to:
[2]Exhibit 3, p 1

(i) The impact of the proposal on the environment, including on water quality, fauna and flora;

(ii) The impact of the proposal on the amenity and character of the locality;

(iii) The design of the facility, its exposure to bushfire risk, its location and remoteness from facilities;

(iv) Conflict with various planning documents;

(v) An absence of need, or sufficient need to warrant approval;

(vi) An absence of sufficient planning grounds otherwise to warrant approval notwithstanding conflict with the planning documents.

The issues referred to many provisions of several planning documents. The respondent was ultimately prepared to limit itself to those provisions addressed in its written submissions at the conclusion of the hearing[3].
[3]T553

The Decision Framework

The development application was made in 2004, during the currency of the Transitional Planning Scheme. The Court is required to decide the appeal based on the laws and policies applying when the application was made, although weight may be given to any new laws or policies (s 4.1.52(2)).

An application, to which a Transitional Planning Scheme applies, must be made and processed under the IPA (s 6.1.28(1)), but ss 3.5.4 and 3.5.5 do not apply for assessing the application (s 6.1.29(2)) and ss 3.5.13 and 3.5.14 do not apply for deciding the application (s 6.1.30(2)). Instead, the matters listed in s 6.1.29(3), to the extent relevant to the application, apply for the assessment. The relevant provisions of the Repealed Act, referred to in s 6.1.30(3), apply in deciding the application.

The proposed material change of use would, under the Repealed Act, have required a rezoning application. The matters of relevance in assessing the application include the matters stated in s 4.4(3) of the P & E Act and the application is decided pursuant to s 4.4(5) and (5A) of that Act. Section 4.4(5A) requires the application to be refused if it conflicts with any relevant Strategic Plan or development control plan and there are not sufficient planning grounds to justify approving the application despite the conflict. The subdivision component of the application would, under the Repealed Act, have been assessed by reference to s 5.1(3) and decided under s 5.1(6) and (6A). Section 5.1(6A) was in similar terms to s 4.4(5A).

A consideration as to whether there are sufficient planning grounds, for the purposes of s 4.4(5A) or s 5.1(6A), requires an identification of the nature and extent of any conflict, a determination of whether there are any planning grounds which are relevant to the part of the application which is in conflict, and which justify approval and, finally, a determination of whether the planning grounds in favour of the application as a whole are, on balance, sufficient to justify approval notwithstanding conflict[4].
[4]See Weightman v Gold Coast City Council (2002) 121 LGERA 161

The principles to be applied in the construction of planning schemes are summarised in Westfield Management Limited v Pine Rivers Shire Council & Ors [2004] QPELR 337.

While the subject proposal was a prohibited use within the prevailing zone under the Transitional Planning Scheme, that is not fatal to the application. By reason of s 6.1.2(3) of the IPA, the proposal’s status as a prohibited use is simply taken to be an expression of policy that the use is inconsistent with the intent of the zone in which the use is prohibited. As has already been observed, an application for its approval may be made and the application is required to be assessed and considered on its merits. The legislation admits of the prospect of such applications being approved, even where they would conflict with the Strategic Plan, provided there are sufficient planning grounds.

The issues in dispute require a consideration of policy. A more flexible approach in the application of policy is required compared with other statutory provisions[5]. The consideration of policy primarily requires an identification of the planning objectives at which it is directed, and its application should be with a view to ensuring that such objectives are achieved[6].
[5]E.g. Norris Clark and O’Brien Pty Ltd v Brisbane City Council [1996] QPELR 262 at 264, T Matthews and Dodd Architectural Group v Brisbane City Council [1997] QPELR 388
[6]Vadale Pty Ltd v Landsborough Shire Council [1985] QPLR 338 at 341

Subsections 4.4(3A) and 5.1(4A) of the Repealed Act required the local government to “have regard to” any relevant State planning policy in making its decision. That requirement was to take the policy into account, consider it and give due weight to it, but does not mean that the decision maker is bound to apply it strictly[7]. Section 6.1.29(3)(e) provides that State Planning Policies are documents which apply for assessing an application to which a transitional planning scheme applies.
[7]E.g. Town of Walkerville v Adelaide Clinic Holdings (1985) 55 LGERA 176 at 186-188

Some reliance was placed, by the respondent, upon historical planning documents. While the legislation provides authority for giving weight to new laws and policies which come into force after the making of a development application, the same cannot be said in respect of historical planning documents.

Merit Issues

Bushfire Hazard

The bushfire risk was assessed by Mr Friend who concluded that[8]:

“It is therefore, my opinion that the facility would not be at risk to a bushfire event within surrounding bushland. Threats to the facility can be managed and assisted by the design and layout of infrastructure proposed for this facility.”

[8]Exhibit 4, p 28

The Council did not call any evidence to the contrary. Mr Friend was not required for cross-examination. I accept his evidence.

(ii) Traffic and Transport

Traffic and transport issues were considered by Mr Holland and Mr Eppell, who provided a brief joint report for the Court’s benefit. As is apparent from their report[9], the traffic and transport issues, which relate to the form of the immediate site access and connectivity to the pedestrian footpath system, are matters for conditions in the event of approval.

[9]Exhibit 3, p 41

(iii) Engineering Infrastructure

The Council’s issues asserted that the site lies outside the area for which municipal water supply and sewerage infrastructure could reasonably be provided. These matters were investigated by Dr Johnson and by Mr Bristow. The site was found to be connected to the Council’s municipal water supply system and the municipal sewerage reticulation system and it was ultimately accepted that the proposed development could be adequately serviced, subject to the imposition of conditions. In the course of submissions it was conceded by senior counsel for the respondent, that there were no water supply and sewerage issues which warranted refusal of the application[10].

(iv) Ecological Impact

[10]T550-551

(A) Introduction

The potential environmental impact of the proposal was a matter of interest in the processing and assessment of the application.

The application was referred to the Environmental Protection Agency as an advice agency. That agency did not oppose the application. Its response, dated 29 July 2004, recommended that, in the event of an approval, the applicant be required to lodge a Nature Refuge Management Plan and a Clearing Plan at the operational works stage.

The Queensland Parks and Wildlife Service wrote a letter of support for the proposal. The reasons given for its support were as follows:

“1. The QPWS has inspected the subject land and confirms that the land has the attributes that would make it eminently suitable for inclusion in the Nature Refuge estate.
2.   Approval of the development application would result in a Nature Refuge being established over a significant parcel of land with high biodiversity values recognised at both the State and Commonwealth levels.
3.   The proposed Nature Refuge would compliment the values of the Daisy Hill State Forest and represents the only proposal of its type for privately owned bushland adjoining Daisy Hill State Forest.
4.   The proposed Nature Refuge would represent one of a very limited number of such protected areas within the more urbanised areas of south-east Queensland and as such represents an excellent opportunity to promote the conservation of the region’s bio-diversity values.
5.   The QPWS has received a formal request from the applicant (Chiou See Anderson) to commence the process leading to the establishment of a Nature Refuge.
6.   The proposal for the establishment of a retirement village in the cleared areas of the site represents an appropriate and low impact land use that is consistent with the preservation of the bio-diversity values of the site locality.

Public notification of the proposal attracted more submissions in support than in opposition. There was only one objection which was from the owner of a nearby kennel, who was concerned about possible ‘reverse amenity’ issues. It has subsequently been withdrawn. Those who wrote submissions in support of the proposal included the Wildlife Preservation Society of Queensland, Logan Branch Inc, a representative of which gave evidence in the appeal. That submission[11] recorded a view that:

“the proposed development provides a good balance between nature conservation and the development of needed accommodation for a growing sector of the local population”.

[11]Exhibit 3, p 409

Despite that level of support, it is apparent from the adverse internal report and recommendation, that the council’s environmental management officer took a different view. The officer concluded, among other things, that the threat to koala habitat values and impacts from stormwater were not adequately identified and mitigated by the proposal.[12]

[12]Exhibit 3, p 420

(B) Water Quality

The site is within the catchment area for the Leslie Harrison Dam, although it represents only 0.04 per cent of the catchment area and is over 9 kms from the water surface of the reservoir. The stormwater quality issue was examined by Dr Johnson, who found that[13]:
[13]Exhibit 8, p 8

• sufficient water quality management devices can be incorporated within the site to ensure compliance with the relevant water quality objectives; and
• compliance with the water quality objectives ensures that water quality within the Leslie Harrison Dam catchment would not be adversely affected by the proposed development of the site.

Indeed the modelling demonstrated that there would be a beneficial effect on water quality within the catchment by reason of the development lowering the total contaminant loading leaving the site in stormwater runoff, compared to the existing situation[14].

[14]Exhibit 8, p 31

Dr Johnson’s findings were not challenged. I accept his evidence.

(C) Koalas

The site lies within the Koala Coast region, which has been the subject of State planning policies. The likely impact of the proposal upon koalas was the subject of assessment by Dr Frank Carrick (who was retained by the appellant) and Mr Agnew (who was retained by the Council). They produced a joint report[15] for the benefit of the Court. There were no recorded points of disagreement. The points of agreement included:
[15]Exhibit 3, p 42

(i) The site supports habitat values for koalas;

(ii) The extent and quality of that habitat differs throughout the site with the highest value koala habitat being in the northern sector;

(iii) Both the habitats and location of the site are important in terms of the site’s contribution to the local natural area network of fauna habitats.

(iv) The potential impacts of the proposal are a loss of carrying capacity, interruption of movement across the site, increased predation by dogs and the generation of increased night-time vehicular traffic;

(v) If the retirement village, identified in the proposed plans, were approved with appropriate site management conditions:

• it is likely to provide sufficient permeability for koala movements, both east-west and north-south, so that there will not be a significant impediment;

•   it is unlikely to have a significant negative impact to the koala carrying capacity and may produce a small increase in carrying capacity long-term;
•   with the proposal to prohibit the keeping of dogs within the retirement village, there will be no increased predation by dogs and may be a reduction;
•   additional night-time vehicle traffic is likely to be minor and unlikely to result in a significant increase in koala morbidity or mortality.

(vi) Subject to the northern part of the site being permanently preserved as forest and protected from clearing, the proposal is unlikely to result in aggregate in an overall detriment to koala habitat value in the long term.

Dr Carrick was called to give evidence and was cross-examined. He stood by the opinions expressed in the joint report. He expressed the view that, with the deletion of clearing for the house previously proposed in the northern section of the site, the koalas would likely “be much better off”[16] if the current proposal proceeded than if there were no retirement village approved in the southern part of the site, but there was clearing in the northern part to accommodate a dwelling. He also confirmed his view about the likely insignificant effect of traffic increases, having seen Mr Holland’s traffic generation predictions[17]. Under cross-examination, he maintained that, with the plantings proposed through the development, there would be a small increase in carrying capacity and very little impact, if any, on the linkage function of the site, in its fully developed form[18].
[16]T275 line 45
[17]T278
[18]T295 line 20-25

I accept Dr Carrick’s evidence and am satisfied that the proposal would not result in significant adverse impact on koalas, would have the potential for some benefit and would represent a better outcome, for koalas, than if the existing tree clearing approval were acted upon.

The likely impact of the proposal on fauna, other than koalas, was examined by Mr Delaney (who was engaged by the appellant) and Mr Agnew. They also provided a joint report for the assistance of the Court[19]. There were no points of disagreement. The points of agreement included:
[19]Exhibit 3, p 63

(i) The site supports habitat values which are potentially suitable for a variety of species of conservation significance. These values are enhanced by the context of the site, that is, adjoining the western edge of the Daisy Hill State Forest. Both the habitats and location of the site are important in an ecological sense, providing a contribution to the local natural area network of fauna habitats.

(ii) Fauna habitat values for the majority of the species are linked primarily with that part of the site adjacent and to the north of the sports field complex. That area supports the highest value habitat for those species and native fauna diversity in general. Species of conservation significance likely to utilise the southern cleared area are aerial foragers, which will feed over both urban development and natural areas. There is little potential impact arising from the proposed development of the southern cleared area.

(iii) The development of a residential dwelling and vehicle access within the northern forested part of the site would reduce habitat values for the majority of the species of conservation significance. For several of those species that development within the northern forested part of the site may lead to the abandonment of those bushland habitats.

(iv) The northern forested part of the site should be retained in its current condition.

(v) Subject to the imposition of a number of conditions, set out in the joint report, approval of the retirement village would not be likely to have any adverse impacts upon fauna species of conservation significance that inhabit the site locality.

I accept that evidence.

Mr Agnew’s report described the cleared portion of the site as supporting low biodiversity values[20] and expressed the view that the implementation of matters agreed with Dr Carrick in their joint report, would bring about “positive outcomes for a variety of fauna species, including species of conservation significance”[21].
[20]Exhibit 13 page 6
[21]Exnibit 13 page 2

Mr Delaney gave evidence and was cross-examined. In the course of that evidence he also expressed the view that a retirement village with no clearing in the northern part of the site is probably a better outcome, for fauna, than clearing for a house in the central part of the site[22]. I also accept that evidence.
[22]T314

In the course of Mr Chenoweth’s evidence, reference was made to the use that fauna, including macropods, currently make of the disused sports fields, for movement and grazing. This was not something Mr Agnew had relied upon. The retirement village will reduce the amount of available grass. The grassed disused sports fields do not represent the natural state of the site and would not continue in their present state if, as Mr Chenoweth preferred, the area was rehabilitated or regenerated to a forested state. The proposed development will not be an impenetrable barrier to fauna movement. I do not regard the reduction in grassed areas to be a significant matter.

(D) Flora

The proposal would preserve the forested areas to the north and provide some supplementary planting of locally indigenous species along the ridgeline. While there are some trees in the southern area which would be lost, it is proposed to carry out substantial additional planting in accordance with a landscape plan. That plan includes the retention of several existing trees, the planting of screening landscape buffers, particularly by way of a 10 metre wide buffer along the Dennis Road frontage, as well as internal landscaping to facilitate koala movement, and cognisance of the fire management plan, rainforest plantings in overland flow paths and some supplementary planting near the western site boundary[23].
[23]Exhibit 6, p 37

The survival of retained trees in the long term, or until their replacements have grown, is proposed to be ensured by best practice construction techniques, vegetation management and arboricultural care.

The joint report[24] of Mr Hassall (who was retained by the appellant) and Mr Chenoweth (who was retained by the Council) records their agreement that, in general, the proposed landscape planting will result in little or no loss of conservation values on the site compared with its current state, given the proposed density and species schedule, including koala habitat trees. I accept that evidence.
[24]Exhibit 7A

Mr Chenoweth described the impact of the proposal on the conservation values of the site as “pretty neutral”, although he acknowledged there would likely be an improvement for koalas. While he did not contend that the subject proposal would have any undue impact on conservation values, he expressed a preference for the site to be used for low density residential development with substantial regeneration of native vegetation over the balance of the cleared area, so as to better maintain fauna movement and forest buffer functions and to achieve enhancement of the conservation values of the site[25]. Mr Chenoweth pointed to some areas where regrowth was naturally occurring in the locality. He considered the density of the proposal to be inconsistent with the potential to achieve enhancement by regeneration and rehabilitation of the cleared areas.
[25]Exhibit 15, para 3.3.4, T437

It should be noted that, unlike some other properties in the locality, the cleared parts of the subject site have been the subject of extensive earthworks which would have impoverished the seed bank and altered the groundwater relationships on the subject site. There is however, an abundant seed bank in the State forest next door, which would likely provide potential for regrowth on the subject site.

It should also be noted that, while the concept of developing a contained area and revegetating other cleared or degraded parts of a site gains support in the 2006 planning scheme[26], it was common ground[27] that, notwithstanding the vegetation management provisions of the new planning scheme, there is presently nothing to prevent the cleared part of the site from being maintained by mowing or slashing, or part of the forested area from being cleared in accordance with the existing clearing permit. The provisions also do not prevent clearing in accordance with any future development approval which might be obtained.
[26]See Table 3.4.12 01 and 05
[27]T 594

Leaving those matters to one side however, Mr Hassall saw difficulties and risks associated with leaving the cleared part of the site for natural regeneration in any event, particularly in the absence of responsible, effective, ongoing and adequate site management. He expressed a concern that[28]:

“An area of 3.6 hectares would take a fair bit of looking after and the question might be as to who would do it and how often, you know, and under what circumstances. Sometimes if there’s no economic imperative, then these things tend, in my experience, tend to be left to chance.”

[28]T97 line 30

His evidence was that, if the site were left untended for a long period, it would potentially be subject to invasion by weeds and, in particular, lantana which already occurs on site. There would be a potential for invasive environmental weeds to become dominant on the site and to pose a risk to the State forest[29]. Mr Hassall also gave evidence that natural regeneration would pose an increased fire risk both to the site itself and to the State forest next door[30].
[29]T97 line 20
[30]T97 line 40

Under cross-examination Mr Chenoweth acknowledged the potential for lantana to “lock up” the regeneration process and said that he would recommend a program for its removal every couple of years[31]. He also acknowledged that pioneer species and grasses pose a fire risk if not managed and that, if fire occurs, it would pose a threat to the adjoining State forest and also potentially inhibit regeneration on the subject site[32]. He acknowledged that at least a “minimal level” of ongoing management would be necessary.
[31]T441
[32]T442

Regeneration does not, of course, happen overnight. Mr Agnew’s report stated that “significant improvements to biodiversity values through natural regeneration processes are likely to take decades”[33]. Mr Chenoweth thought that there would be a net increase in biodiversity within 10 years, although he agreed with Mr Agnew that the emergence of hollow bearing trees may take as long as a hundred years[34]. Mr Hassall’s view was that leaving the large cleared area, immediately adjacent to the State forest, to regeneration (with a large area of wattles, she-oaks and possibly environmental weeds) would increase the risks to the State forest with the result that “the value of the buffer would possibly be a negative”[35]. I accept Mr Hassall’s evidence.
[33]Exhibit 13 page 6
[34]T98, Exhibit 13 page 6
[35]T97-98

Mr Hassall pointed out that the subject proposal, while involving development to the edge of the State forest, provided the function of a buffer through its proposed design and management. In particular, the proposal:

•provides a high degree of protection from fire;
•provides a high degree of protection from weed invasion, because it will be properly landscaped and maintained in accordance with a landscape plan required by a condition of any approval;
•would prevent uncontrolled access by people, but still allow the free movement of native fauna, by the style of boundary fencing;
•would prohibit the keeping of cats and dogs.

Mr Hassall’s evidence, which I accept, was that the proposal would function better as a buffer to the State forest than by leaving the site to naturally deteriorate or rehabilitate[36].
[36]T98

Mr Hassall pointed out that there can be risks, including the unwitting introduction of weeds, with rural residential use[37]. Mr Chenoweth conceded, that a cluster of more intense development, if controlled, can be a preferable form of development[38], and that “the management side of this (the proposal) would mean that you couldn’t come back in 10 years time and see that the adjacent forest has been detrimentally affected except in respect of the encouragement of mickey birds and things like that.”[39] Mr Chenoweth however, expressed a concern that approval of the subject proposal could “create a precedent in that area” leading to impacts more associated with a change of character and expectation than the specific impacts of the subject proposal[40]. He explained that[41]:

“It might be that, for instance, the expectations of the local residents become that this is an urban area and it’s a – because it’s urbanised that there’s a series of other developments occur around it and this becomes quite a major node of entry at the end of Dennis Road to the State forest.”

I do not accept that approval of this proposal would likely have that effect.

[37]T98-99

[38]T445

[39]T446

[40]T451

[41]T444

For the reasons which are stated later, I do not consider that approval of the subject proposal would create a “precedent” authorising a series of other urban developments to occur in a way which would be detrimental to the State forest.

As will be apparent from the above, I generally prefer Mr Hassall’s evidence to that of Mr Chenoweth where they disagree. Mr Chenoweth failed to give sufficient weight to the merits of the proposal and was unduly concerned about it creating a precedent, leading to urbanisation of the locality in a way which could be detrimental to the State forest.

(v) Visual Amenity and Character

The impact of the proposal on visual amenity and character was also examined by Mr Hassall and Mr Chenoweth. Photomontages were produced, which assisted an understanding of the likely visual presentation of the proposal.

The greater part of the site is proposed to be retained in its natural vegetated state, with some supplementary planting. That part of the site includes the more elevated parts, which form the backdrop to this end of Dennis Road and is the most important in visual terms.[42]
[42]T433

As Mr Chenoweth acknowledged[43], the visual catchment of that part of the site which is proposed for development is “small” or “narrow”. Views to and from that part of the site are only available from the immediate vicinity of Dennis Road[44]. The number of people using that part of Dennis Road, from which that part of the subject is visible, is also low[45]. As Mr Hassall said[46], “the proposed development site has very low visibility”.
[43]T430 l 38
[44]Exhibit 6 page 12, T430 l 40
[45]T430 and 457
[46]Exhibit 6, p 12

In their joint report, Mr Hassall and Mr Chenoweth described the current landscaped character of the site and its surrounds as “predominantly natural and rural”. The locality is not (and does not have the appearance of), a typical agricultural or farming area and, as Mr Schombergk pointed out, is unlikely to become such an area in the future. In general terms, it is an area of relatively low density development on relatively large allotments in a treed or bushland setting. Mr Schombergk saw the locality as having something of a semi-rural or rural residential character. That part of the site proposed for development forms the foreground to a vegetated hillside that has previously been cleared and modified to build the playing fields[47]. The site presents a substantial fill batter to Dennis Road[48].
[47]Exhibit 6, p 6
[48]See Exhibit 6, p 10 Digital Image 5

There is presently nothing in the eastern end of Dennis Road which is similar, in built form and density, to the proposed retirement village. It is however, proposed to provide landscape screen planting which will visually integrate the development in its setting. Mr Hassell, in his report, conceded that “glimpses of built form will be obtained through the screen” but added “but these will be subordinate to the landscape character provided by the vegetation” such that “the overall character of a mostly-natural hillside, punctuated by glimpses of residential buildings” will be maintained[49]
[49]Exhibit 6, p 22

The joint report described the effect as follows:

“On completion, the proposed development will change the site from a grassed playing field in a natural setting to a screened medium density residential development in a natural setting. However once the landscape screen planting has grown to a height as shown in the photo montage images of the Dennis Road frontage, the proposed development will have little visual impact on the view from the road or from nearby residences.”

The joint report also recorded an agreement that the proposed landscape buffer along the Dennis Road frontage, if planted and maintained as proposed, would “provide an adequate visual buffer to offset the appearance of the built form as viewed from the road and nearby residences”.

Mr Chenoweth, in cross-examination, described the likely presentation of the proposed development as “a residential development within a bushland setting”[50] and one which would be “attractively integrated” for a development of its size and density[51]. He confirmed that in his view, its visual impact would be limited[52].
[50]T432-433
[51]T433 l 1-5
[52]T433 l 10

As Mr Chenoweth conceded[53], the retention and protection of the greater part of the site in its vegetated state, with some supplementary planting, will assist in maintaining the landscape character and amenity of the locality. His residual concern related to the proposed retirement village.
[53]T443 lines 18-41

While a new more urban land use would be introduced on the smaller part of the site constituted by the disused playing fields, the significance of that change, from a visual amenity and character perspective, is reduced by the limited visual catchment of that part of the site and by the proposed vegetation which, I am satisfied, will substantially and satisfactorily ameliorate any otherwise adverse impacts on visual character and amenity by reason of the built form and, as Mr Hassall said, contribute, in a positive way, to the natural landscape character[54].
[54]Exhibit 6, p23

(vi) Precedent, cumulative impacts and the death of a thousand cuts

A significant theme of the respondent’s case was a concern that approval of the subject proposal would lead to irresistable development pressure for further urban development which would, in turn, have undesirable cumulative impacts. The proposal for the forested part of the site should guard against any residual scope for potential future development pressure for that part of the site. The respondent’s concern however, focussed on development pressure in the locality more generally.

The locality has some attributes which would make it attractive for further development, were that allowed. Owners or developers might seek to obtain development rights and the legislation permits development applications to be made. At the time of formulation of the current planning scheme, owners of land in the locality sought to have it designated in a way which would have permitted significant further subdivision. That development “pressure” was resisted. While that was a matter for the Council, as the local planning authority, it would appear that the Council was right to do so, at least on the evidence adduced in this case. That is not to say however, that the subject proposal ought not be assessed on its merits or that its approval would open the floodgates to the broader urbanisation of the locality, with adverse cumulative effects.

As the Court has observed on previous occasions, each case must be assessed on its individual merits. Such an assessment does not generally create a precedent for other approvals. Statements of principle may have precedent value, but if the subject proposal is approved it will be on the basis of its individual merit, including its merit from an environmental perspective, not on the basis of any principle that the locality, or even the cleared parts of it, should necessarily be urbanized more generally or on the basis that any significant adverse environmental impacts should be disregarded on the basis that it is only one “cut”, which can be accepted in isolation. The Council’s strategic planning for the locality is considered later. While there are areas of conflict or arguable conflict, I do not consider that approval of the subject application would prejudice that strategic planning more generally.

There was no suggestion of any outstanding development application which might be influenced by the outcome in this appeal. Future applications will need to be decided in the context of the decision framework which applies to them. The SEQ Regional Plan, the regulatory provisions of which do not apply to this application, would appear to present a significant hurdle to future attempts to urbanise the locality more generally.

The respondent suggested that an approval of the subject application might be used to pressure the State Government into reviewing the designation of the locality in the Regional Plan. That is, I think, drawing too long a bow. Approval of the subject proposal would not necessitate such a review.

(vii) Need and Community Benefit

The public or community need for the proposed development was examined by Mr Norling and Ms French (retained by the appellant) and Mr McCracken (retained by the Council)[55].
[55]As well as the town planners

The proposal is for 116 independent living units (ILUs), supported by a range of facilities in what would be an “upmarket” retirement village. The proposal would not provide on-site assisted living, hostel or nursing care. It would be suitable mainly for those in good health who are able to care for themselves.

In their joint report[56], Mr Norling and Mr McCracken agreed (and I accept), amongst other things, that (adopting the paragraph numbering from the joint report):
[56]Exhibit 3, p 45

(1)The population of Australia is aging, requiring a significant boost to the quantum and quality of housing stock aimed at servicing this market over the coming years.
(2)Logan City is not immune from this trend and must also provide residential land capable of accommodating adequate volumes and forms of housing stock suitable for retirement accommodation.
(3)Retirement villages have been developed as an affordable means of accommodating a group of retired persons with shared community facilities. The need to keep prices to an affordable level, coupled with the need for large sites able to accommodate sufficient units to support an appropriate range of community facilities has resulted in retirement villages generally locating on vacant, undeveloped sites. Whilst new retirement village products may be invented in the future, present development economics generally preclude retirement villages from displacing other development forms, such as standard residential housing, medium or higher density dwellings or commercial facilities.
(4),(6)Springwood in general, and the subject site in particular, would be an attractive place to live.
(8)Retirement industry research demonstrates that the majority of persons prefer to remain within their local area in their retirement years and the majority of retirement village residents originate from the local area.
(9)The proposal is likely to mainly serve aged residents of Logan City living east of the Pacific Highway plus Tanah Merah. It was assumed, for the purposes of analysis, that up to 70% of residents could be derived from that catchment area.
(13)Within this catchment area, the demand for ILUs is estimated at 115 in 2006 and projected to increase to 213 by 2011 and 383 by 2016.
(14),(15)Within the catchment area, only three retirement villages operate providing a total of 110 ILUs, 92 low care units and 12 high care beds. The only approval for additional ILUs is for an additional 34 ILUs at Tall Trees, which would increase the number within the catchment to 144. Consequently, the projected demand for ILUs within the catchment exceeds the current and approved number of ILUs indicating a strong level of need for additional ILUs to satisfy projected demand, which will otherwise lead to a shortfall of 69 ILUs by 2011 and 239 ILUs by 2016.
(16)Current development economics require at least a 3 hectare site to provide a sufficient number of units to support a range of community facilities such as those envisaged by the subject proposal. Upon examination of the extent of urban residential designated land within the Strategic Plan of the Transitional Planning Scheme, it was discovered that there was only one 3 hectare site capable of accommodating such a facility and that site had already been approved for standard residential allotments and/or medium density dwellings. The Transitional Planning Scheme therefore provided a very limited opportunity to accommodate additional retirement village units.
(17)Smaller sites (under 3 ha) may also be suitable for retirement housing, but generally require higher density and/or fewer community facilities on-site to be feasible.
(18)Under the Draft Town Planning Scheme (now in new Town Planning Scheme), retirement villages are code assessable only in the Residential 250, Residential 600, Local Business, District Business and Shailer Park (SP4 sub-area) zoned lands within the catchment area. An inspection of those lands revealed that there were no vacant sites of an area greater than 3 hectares. Further, it was noted that the new planning scheme’s aim of encouraging retirement villages to locate within easy walking distance of shopping centres is difficult to achieve in a practical sense.
(24)The proposed development would lead to the following community benefits:

(a)   allow more of the projected strong demand for retirement village housing to be accommodated within the catchment area;
(b)     provide a more upmarket retirement village option than previously available within the catchment area with an emphasis on lifestyle features and a landscaped treed environment, again increasing levels of choice. It was noted, however, the upmarket position in the development would extend that level of choice mainly to the wealthier strata of catchment area retirees;
(c)   provide a fourth choice of retirement village within the catchment area;
(d)     provide an attractive location and environment for a retirement village, being within about 3 kilometres of the Springwood business centre;
(e)   generally improve the wellbeing of the retirement community in the catchment area.

It should be noted that, in assessing the extent of the need, the economists left out of account the prospect of the proposal attracting the under 65 aged market. If the proposal were able to take greater advantage of the trends referred to by Ms French and attract a younger retiree, then that would simply serve to strengthen the conclusion that there is a strong need for such facilities.[57]
[57]T132, line 20

The suitability of a facility of the type proposed to meet the emerging trends in the community’s needs was examined by Ms French. In an interesting report, she examined the needs of the ageing “baby boomer” generation. Her conclusion was that[58]:

“Certainly the 50+ have the right of choice and should be offered this innovative alternative that combines living close to nature with the advantages of access to transport, work, business, family and recreational facilities.
It is essential to recognise the changes that are taking place in the needs, lifestyle and even character of the growing 50+ generation. This means especially a demand for new and innovative types of 50+ accommodation that will meet both recreational and employment needs. It is important for Councils not only to recognise these changes, but to act on meeting such needs by encouraging developers with innovative and practical proposals. This particular village has outstanding plans to do just that.”

[58]Exhibit 10, p 18

Ms French was not required for cross-examination and I accept her conclusions in relation to the suitability of the proposal in the context of the trends to which she refers.

Mr Schombergk also considered that the proposal assisted in meeting the need, in what he referred to as a ‘qualitative’ sense, by offering the opportunity for a retirement complex set in a bushland environment (rather than an urban residential area), but still within easy commuting distance to urban facilities[59].
[59]Exhibit 10, p 18

Mr Norling’s evidence, which I accept generally, was that there is a very strong planning, community and economic need for the proposal presently and that the level of need would reach an overwhelming level in the 2011 to 2016 period[60]. Further, his evidence was that the proposal would not result in adverse economic impacts upon existing or planned similar facilities[61] and that the community would experience a significant economic and social adverse impact if the development were not to proceed, although the level of that impact falls short of being ‘extremely large’ at the present time[62].
[60]Exhibit 9, p 10
[61]Exhibit 9, p 8 para 2.7
[62]Exhibit 9, p 8 para 2.8(a)

While concurring in the points of agreement listed above and acknowledging that there will be a strong increase in community need and demand for future retirement village accommodation by catchment residents[63], Mr McCracken expressed the view that the proposal was not “essential” in meeting that need, that there was no “overwhelming” community or economic need for a facility of the scale and market position proposed.
[63]See para 22 of the joint report

Mr McCracken was also of the opinion that development of the proposal “would have unintended but entirely predictable consequences in terms of land owner pressure upon the Council and State Government to allow ‘infill’ development along Dennis Road.”[64] His view was that “construction of the retirement village would almost inevitably generate significant and sustained pressure by landowners to seek an exclusion (of) their properties from Logan City’s Conservation Zone, and to State Government’s Regional Landscape and Rural Production Area …” to the community detriment[65].
[64]Exhibit 12, p 17
[65]Para 25 of the joint report

For the reasons discussed earlier, I am not prepared to place significant weight on fears that approval of the subject proposal would lead to irresistible pressure for infill development of an inappropriate kind.

As to the importance of the subject proposal in meeting the identified need, Mr McCracken relied on the following:

•Some catchment demand can be met by developments outside the defined catchment area but within a 10 km radius. There are other sites, particularly in the Millers Road Underwood area[66], that could accommodate a large retirement village
•Notwithstanding the lack of sites of 3 hectares or more, smaller developments on smaller sites or amalgamated sites are possible.
•The proposal will serve the wealthier strata of retirees who are least constrained in their choice of retirement accommodation or its location and will also draw from beyond the catchment area.

[66]Exhibit 35

Consistently with Mr Norling’s evidence:

•Catchment area residents wishing to live in a retirement village should not be expected to have to move out of the catchment area if their needs can be fulfilled by appropriate development within it.
•Before concluding that the need could be met within a 10 kilometre radius, but outside the catchment area, an analysis of supply and demand in that broader area would have to be conducted. Mr Norling’s analysis suggests that there is a very strong level of demand already placed upon facilities outside the catchment area. A survey of those facilities listed in Mr McCracken’s report indicated relatively low vacancy rates with many retirees on waiting lists for their preferred place of residence[67]. Mr McCracken did not suggest that with the 10 km radius there was any excess supply for the present market[68].
[67]Exhibit 9A, p 2 para (iv)
[68]T 474 l 50
•The facilities from beyond the catchment area are not all truly comparable. The largest facilities referred to in the evidence are River Glen and Palm Lake Resort, which are manufactured home parks. There are a range of other differences in other facilities referred to[69].
[69]See Exhibit 1A p 2 and Exhibit 2A
•The Millers Road Underwood area is outside the catchment area. Although there is vacant land in that area, development around that area in recent times has been dominated by standard residential housing, approvals exist for further such development in the locality and there is no evidence of it being about to be developed in a different manner, although that is a possibility[70].
[70]Exhibit 9A, para 11, T228 l 58 – T229 l 28
•The accommodation of the need within the catchment area via higher density developments on smaller sites and/or by providing fewer on-site facilities would not produce a product comparable to that proposed by the appellant[71].
•That the proposal is an attractive one, which would be of interest to the “wealthier strata of retirees” ought not lead to a conclusion that this segment of the community ought not be serviced by suitable housing options within the catchment area. That the proposed facility would only be used by a relatively small proportion of the population, while relevant, does not mean that there is an absence of need or that the need to which the proposal is directed is weak[72]
•The observation about the “wealthier residents” needs to be seen in context. This is not a facility for the super rich. It would likely attract a higher level of demand and command a higher price than other facilities within the Springwood area because of the attractiveness of the development, its location and facilities and because it will be operated on an “ownership” rather than a rental basis. The catchment area however, is populated by persons living in houses of above average price for Logan City.
•The proposal would provide a choice that is not presently available in the catchment area. Lower socio-economic persons with special needs are serviced by Yurana and Wirunya, whilst middle to higher socio-economic persons with some level of care can be serviced by Tall Trees. Active persons seeking quality independent living however, have little option within the catchment area.
•While those from beyond the catchment area may also be attracted to the facility, it would not simply meet the needs of a “niche market” from beyond the catchment area. As the joint report noted, the proposal “is likely to mainly serve aged residents of Logan City living east of the Pacific Highway plus Tanah Merah”.[73]

[71]Exhibit 9A, para 5

[72]See Kotku Education and Welfare Society Inc v Brisbane City Council & Ors [2005] QPELR 267, Isgro v Gold Coast City Council [2003] QPELR 414.

[73]Exhibit 13, p 47 para 9

I am satisfied that the proposal would materially assist in meeting the existing strong and growing need, from within the catchment area, for appropriate retirement village accommodation, that it would also provide an attractive and appropriate facility for a part of the retirement community not adequately catered for within the catchment to date and would do so in circumstances where the planning documents appear to provide no practical opportunity at present for a comparable facility within the catchment and, at best, very limited practical opportunities to otherwise address the need. I accept that there is a need to provide the means for the identified need to be addressed. I am satisfied that there is a planning need.

I accept that there is a strong planning, community and economic need which the proposal would address and that the proposal would be of community benefit.

The Merits Overall and Ecological Sustainability

The application has substantial overall merit on what was referred to, in the appellant’s written submissions, as a “first principles” basis (i.e. leaving to one side, for the minute, alleged conflicts with the planning documents, which are discussed later). It:

(a)would provide an appropriate and attractive facility to address a strong planning, community and economic need and would be to the community benefit;
(b)would confine development to the heavily modified part of the site which has relatively low environmental values, is physically suitable for the form of development proposed and can be appropriately and efficiently serviced employing existing infrastructure;
(c)is proposed to be sited, designed, controlled and managed so that stormwater runoff does not adversely impact on the Leslie Harrison catchment (and, indeed, improves the runoff passing from the site) and so that there is no significant adverse effect for fauna (including koalas) or flora and some potential benefits. It would also, in effect, perform a buffer function to the adjoining State Forest;
(d)would, if it were acted upon, obviate the prospect of the approved clearing taking place in the forested areas, which would otherwise see not insignificant clearing in the area of greater ecological and visual value, against the recommendations of the ecological experts and with potential adverse consequences;
(e)proposes to retain the forested areas (which constitute the greater part of the site and that part with the highest environmental and visual values) free from development, carry out some supplementary planting and place it under a regime for its longer term protection and management[74];
(f)would, by retaining the forested parts of the site, assist in the maintenance of the landscape character and amenity of locality and, by confining development to the part of the site which has a very limited visual catchment and providing effective landscaping, would improve the natural landscape character of that part of the site, mitigate any potential adverse landscape character or visual amenity impacts of the built form otherwise, and achieve a visually attractive integration of the development within its setting.

[74]Compare Suddaby& Ors v Johnstone Shire Council & Anor, unreported, White DCJ, Planning and Environment Court, Qld, 04/0407, 24 November 2004 at par 29

The appellant also contended that the proposal would advance the purpose of the IPA, which is to seek to achieve ecological sustainability by, amongst other things, managing the process by which development occurs and managing the effects of development on the environment (including managing the use of premises)[75].
[75]See s 1.2.1

Ecological sustainability is defined in s 1.3.3 of the Act as follows:

“Ecological sustainability is a balance that integrates –
(a)protection of ecological processes and natural systems at local, regional, State and wider levels; and

(b)economic development; and

(c)maintenance of the cultural, economic, physical and social wellbeing of people and communities.”

It should be noted that the “balance” which is referred to is a balance which relates to each of the limbs in subparagraphs (a) to (c) inclusive (the ecological, economic and social limbs). Further, the balance is not one which prioritises one limb over the other, but rather one which “integrates” each of the limbs. Ecological sustainability, as defined, is as much about economic development and the maintenance of the cultural, economic, physical and social wellbeing of peoples and communities as it is about the protection of ecological processes and natural systems.

The terms used in the definition of ecological sustainability are explained in s 1.3.6. Section 1.2.3 sets out what advancing the Act’s purpose includes.

It was submitted, on behalf of the appellants, that the proposal is consistent with the purpose of the Act. The submission was, in effect, that it would provide economic development of a kind which would assist in meeting the needs of the community and provide for its social wellbeing (without adverse effect on the wellbeing of people or communities otherwise) while, at the same time, protecting ecological processes. I accept that.

In assessing the extent to which a proposal advances ecological sustainability, it is appropriate to have regard not just to the subject site but to its context. Ecological sustainability is not necessarily advanced if every parcel of land is, in part, used for economic development of a kind which advances the wellbeing of people and communities and, in part, for the protection of ecological processes. Sometimes the promotion of ecological sustainability, at a broader level, will require, for example, a particular area or site to be entirely preserved from development for the protection of ecological processes while another site or area is given over to intense economic development. In coming to the conclusion that the subject proposal would advance the Act’s purpose, I have been mindful of the need to consider not only the site but also its context, including its physical context and its planning context.

The respondent’s submissions, on this topic, emphasised the role of the local planning instruments, particularly those created under the IPA, in providing the expression of that which is required to achieve ecological sustainability.

The planning instruments have an important role to play in promoting the purpose of the Act. The coordination and integration of planning at the local, regional and State levels is one of the ways in which the purpose of the Act is sought to be achieved (s 1.2.1). The 2006 Planning Scheme, in particular, purports to have taken cognisance of the concept of ecological sustainability. Section 2.1.2 of the 2006 scheme provides that:

“Ecological sustainability for the planning scheme area will be advanced if each desired environmental outcome is achieved to the extent practicable having regard to each of the other Desired Environmental Outcomes.”

The Desired Environmental Outcomes in the 2006 planning scheme are discussed later and there are respects in which the proposal departs from the way that scheme seeks to further ecological sustainability. The concept is also one which finds expression in the Strategic Plan in the Transitional Planning Scheme.

The relevance of the purpose of the Act is not however, confined to the creation of the planning instruments. It has already been noted that s 1.2.1 states that the purpose of the Act is to seek to achieve ecological sustainability not only by coordinating and integrating planning at the local, regional and State levels but also by managing the process by which development occurs and managing the effects of development on the environment (including managing the use of premises). Section 1.2.2 provides that:

“(1)If, under this Act, a function or power is conferred on an entity, the entity must –
(a)unless paragraph (b) or (c) applies – perform the function or exercise the power in a way that advances this Act’s purpose; or
(b)if the entity is an assessment manager other than a local Government – in assessing and deciding a matter under this Act, have regard to this Act’s purpose; or
(c)if the entity is a referral agency other than a local Government (unless the local Government is acting as a referral agency under devolved or delegated powers) – in assessing and deciding a matter under this Act, have regard to this Act’s purpose.

(2)Section (1) does not apply to code assessment under this Act.”

It may be noted that the duty, in subparagraph (1)(a) is to “advance” the purpose which, in turn, is to “seek” to achieve ecological sustainability.

As was submitted on behalf of the appellant:

(a)The obligation imposed by section 1.2.2(1)(a) is not restricted to the exercise of the functions associated with the preparation of a planning scheme. Unlike other sections of the Act[76], there is no qualification that the obligation arises only where relevant principles are not reflected in a planning scheme.
(b)Section 1.2.2(2) specifically excludes the obligation to advance the Act’s purpose from the assessment of code assessable applications. No exclusion exists in respect of other development applications.
(c)It would be surprising if the Act’s purpose were excluded from a consideration of the particular circumstances associated with an impact assessable proposal on a site specific basis.
(d)Although there is little authority to date, in this Court, concerning ecological sustainability, the Court has, in the context of other appeals, referred to the Act’s purpose[77].

[76]e.g. sections 3.5.13(3)(b), 3.5.14(4)(b) and 3.5.14A(2)(c)

[77]See Renard Developments v Caloundra City Council [2001] QPELR 218 at para 31 regarding reuse of an existing building; Close & Swadling v Kilcoy Shire Council [2001] QPELR 346 at 14 in relation to ensuring the decision-making process is accountable, coordinated and efficient Telstra Corporated Limited v Pine Rivers Shire Council [2001] QPELR 350 and CSR v Caboolture Shire Council [2001] QPELR 398, both of which concerned an application of the precautionary principle.

It was also submitted, on behalf of the respondent, that “there is some question whether the obligations in s 1.2.2 of the Act apply specifically to applications made under Transitional Planning Schemes”. A discussion of that question is to be found in “ESD and the Integrated Planning Act 1997 A Question of Balance” by D Nicholls[78].
[78]Vol 7 Local Government Law Journal, p 161 at 164-165

In my view a consideration of ecological sustainability is not necessarily irrelevant to an assessment of an impact assessable application under a Transitional Planning Scheme, at least for the purposes of considering whether there are ‘sufficient planning grounds’ to warrant approval notwithstanding alleged conflict with a strategic plan or development control plan. That is particularly so where, as here, the Strategic Plan in the Transitional Planning Scheme itself makes reference to the concept in the intent of the designation[79] in question.
[79]See s 1.13.1(a)

The conclusion that the proposal is one of substantial overall merit, on a first principles basis, is not however, dependant upon the relevance of the Act’s purpose. The conclusion is one which I would draw in this case even if the Act’s purpose were put to one side.

I was also reminded, by counsel for the respondent, that the Court is not the planning authority and should not usurp its role. That is accepted. I do not consider however, that assessing the merits of an individual proposal, including by reference to whether it advances the purpose of the Act, is tantamount to usurping the role of the planning authority[80]. I do not propose to attempt to re-write or ignore the planning documents, but the legislation requires the application to be assessed on its merits, which includes a consideration of whether there are sufficient planning grounds to warrant approval even where a proposal conflicts with the Strategic Plan.

Planning Documents in Force when the Application was made

[80]See “ESD and the Integrated Planning Act 1997 – A Question of Balance” (supra) at p 165

(i) The Transitional Planning Scheme

The subject land, together with other land in the immediate locality, was included in the Rural Zone under the Transitional Planning Scheme. It was also within the Habitat Protection Area, being within the Leslie Harrison dam catchment and the Koala Coast. It was mapped as included within the Conservation B, preferred dominant land use, under the Strategic Plan and within Precinct 3 of the Daisy Hill/North-East Logan District Conservation Area.

(A) Zoning Provisions

The Rural Zone provisions of the Transitional Planning Scheme are contained within Part 6 of the scheme, which deals with ‘Rural Development Controls’. The respondent contended that the proposal departed from various provisions of that Part.

It was submitted, on behalf of the appellant, that the applicability of those provisions is unclear, having regard to s 6.1.1.1. That section states that the Part applies to land within the Rural designation on the Strategic Plan Map and (which presumably means ‘or’) zoned Rural which fall within other designations and which, in the short and medium term, will continue to be used for rural purposes. It was submitted that neither alternative applied. The irrelevance of the provision was said to be reinforced by s 6.2.1.2, which provides that development in the zone must be limited primarily to rural uses and uses which service and are ancillary to rural uses and are compatible with large lot rural residential subdivision. It was pointed out that there are few, if any, uses in the locality which are truly rural or which service and are ancillary to rural uses. While the provisions could have been better drafted, I do not consider that Part 6, in its entirety, should be regarded as irrelevant to the subject site or such part of the locality as is included in the zone.

The Rural Zone served diverse objectives. As was pointed out in the submissions on behalf of the respondent, the parts of the intent for the Rural Zone most obviously relevant to the subject site are to[81]:

“(a)provide for the conservation of flora and fauna habitat in a Habitat Protection Area or as provided in the relevant District Conservation Strategy; and
(b)preserve the water quality of the Leslie Harrison dam by controlling development and limiting subdivision within the catchment area … and
(d)provide protection and conservation of koalas and their habitat in the Koala Coast in accordance with State Planning Policy 1/95.”

[81]s 6.2.1.1

It was also provided, in s 6.2.1.3, that development in the Koala Coast or Habitat Protection Area would be subject to more stringent controls and, in s 6.2.1.4, that development in the Koala Coast must accord with the provisions of the State Planning Policy.

The table of development for the Rural Zone was contained in s 6.2.2. Development within the Rural Zone was not necessarily limited to a dwelling house. Even where the land was included in the Koala Coast or Habitat Protection Area, both agriculture and animal husbandry were conditional permitted forms of development. Further, there were 26 forms of permissible development, including community care centres which were defined as:

“Premises, not being an institution or hospital, used for:
(a)an orphanage; or
(b)a children’s home; or
(c)a day care centre, respite centre or other social support centre for elderly persons, physically or intellectually handicapped persons, or persons recovering from psychiatric illness; or
(d)a drug rehabilitation centre; or
(e)a halfway house; or
(f)a convent or monastery not associated with an educational establishment; or
(g)a nursing or convalescent home not comprising part of aged care, aged person’s accommodation; or
(h)any similar purpose.”

The status of the proposed use, as a prohibited form of development, is to be taken as an expression of policy that the use is inconsistent with the intent of the zone[82]. It should be observed however that, for the reasons discussed earlier, the subject proposal would nevertheless provide for the conservation of fauna and flora habitat, including the conservation of koalas and their habitat, preserve the water quality of the Leslie Harrison dam, would be subject to stringent controls, imposed by way of condition and be consistent with the State Planning policy applicable to the Koala Coast in force at the time the application was made (and, indeed, with its successors).
[82]Section 6.1.2(3) of the IPA

The respondent’s issues included reference to various development controls applicable to the Rural Zone. It was also pointed out that, in s 6.3.2.2 of the Transitional Planning Scheme, it is said that subdivision controls and general development controls are expressed as prescriptive standards which set out minimum desirable standards with which development must comply. In considering those controls, it must be remembered that this application, while made and processed under the IPA, is tantamount to one for rezoning (under the Repealed Act) from the Rural Zone in which those controls applied. Further, it was said in Vynotas v Brisbane City Council[83] that the provisions of Transitional Planning Schemes are not absolutely binding. The provisions referable to the zone in which the land was included however (which also apply to other land in the locality), remain of relevance[84]. Insofar as those upon which particular reliance was placed by the respondent in its written submissions:
[83][2002] 1 QdR 108 at 113, 114
[84]See Residential Developments Australia Pty Ltd v Brisbane City Council [1990] QPLR 121

(i) Clause 6.4.1.2 provides a minimum lot size of 20 hectares for land within the Koala Coast or the catchment area of the Leslie Harrison dam. In this case however, subdivision would simply be for the purpose of effecting a ‘dedication’ of the forested areas rather than to facilitate additional development which might impact adversely on the dam catchment or the values of the Koala Coast.

(ii) Section 6.5.1.1 limits the number of dwelling houses which may be developed on any particular lot. The control only relates to the density of dwelling houses[85]. Other potential forms of development were contemplated within the zone, but not subject to this provision.
[85]Which are defined at pp 13-11 of the Planning Scheme and expressly exclude an accommodation building or a dwelling unit provided as part of an aged persons’ accommodation or a community centre

(iii) Section 6.5.5.1 provides that each lot must be able to accommodate septic effluent disposal and provide a potable water supply. This takes account of the fact that areas so zoned may be expected generally not have, or be planned to be provided with, urban infrastructure. In this case however, the site is capable of being serviced by the Council’s existing reticulated systems.

(iv) Section 6.6 relates to building scale and character controls. The performance objectives in 6.6.1 are:

“to ensure the scale of buildings and structures in the Rural Zone is complementary to the scale of the existing or preferred built form surrounding the site;
to ensure that buildings and structures in the Rural Zone contribute towards the retention or attainment of a desirable streetscape and character for that locality;
to ensure the appearance of buildings and structures is rural in character.”

The performance criteria states that development in the Rural Zone must:
“include those features which reflect the scale and character of the built form of the surrounding area where that built form has a desirable character; or
otherwise contribute towards the attainment of a desirable character.”

The acceptable solutions refer to the demonstration that the “proposed buildings or structures will be complementary to the rural character”. The proposed built form, considered by itself, is not rural in scale or character and is not similar to the built form on other allotments in the immediate locality (although the existing built form in the locality does not have a particularly desirable character save that it is predominantly low density residential in nature). As has been noted however, the majority of the site, including the forested areas, are proposed for retention and protection and the limited part of the site proposed for development has a very contained visual catchment and will be landscaped in a way which would not only provide screening, but result in the development sitting attractively in its context (including in the streetscape) and enhance the natural landscape character. The proposal is not inconsistent with the attainment of a desirable streetscape and character.

I note that s 6.5.6 relates to habitat protection and enhancement. In that regard, the proposal seeks to retain as much of the existing vegetation as is practicable, provides for additional plantings of native endemic flora (including trees) and locates development and access-ways on the site to minimise the potential impact on environmental values of the land.

(B) The Strategic Plan

The site was mapped as included within the Conservation B Strategic Plan designation, which was intended to implement the Environmental Conservation Area Strategy in support of the environmental management “vision” in the Strategic Plan. That vision was[86]:

“… to achieve a harmonious and balanced natural and built environment within the city and to protect significant environmental resources”.

[86]Section 1.3.5

The Council’s vision in relation to community and social development was to “have the highest quality of life achievable for all residents of the city”[87].
[87]Section 1.3.2

As was pointed out, on behalf of the respondent, the land was not included in a residential area designation.

Although the boundaries of strategic designations on the Strategic Plan map were generally intended to be interpreted in relation to their cadastral base[88], that was not the case with respect to privately owned land in the Conservation A and Conservation B designations and related areas as highlighted on the relevant District Conservation Strategy maps. Insofar as those designations are concerned, the Strategic Plan provided that[89]:

“The Conservation A and Conservation B strategic designations and the related areas as highlighted on the relevant district conservation strategic maps are not intended to be interpreted in relation to the cadastral base as provided by section 1.4.3(b) where the designation and the related areas include land under private ownership. In these circumstances the boundary of the designation and the related area should be regarded as indicative and subject to specific identification in connection with any development application made in respect of the land.”

[88]Clause 1.4.3(b)

That the only purpose for subdivision is to effect a dedication of the forested part of the site for its longer term protection justifies approval notwithstanding conflict with provisions referring to a 20ha minimum lot size for subdivision. That the proposal can make use of the existing infrastructure justifies approval notwithstanding conflict with provisions about on-site septic effluent disposal and potable water supply. As previously noted, it was ultimately conceded that water supply and sewerage issues did not warrant a refusal.

Insofar as conflict arises by reason of the type of development proposal for the cleared part of the site (a retirement village of the scale and density proposed), the strong need (including planning need) and likely community benefit justify approval notwithstanding conflict, given the suitability of the proposal to address that need and provide the community benefit and given the extent to which the proposal, as a whole, respects the values to which the Strategic Plan is largely directed.

Further, and in any event, I am satisfied, that the planning grounds in favour of the application as a whole are sufficient to warrant approval notwithstanding conflict with the Strategic Plan, given the relative strength of the grounds and the nature and extent of the conflict which, while not trivial, is related more to the nature of the proposal than any significant failure to respect the values sought to be protected or any significant adverse impact.

The planning grounds overall include, but are not limited to, the merits of excluding development, including the clearing already approved, within the forested northern sections and subjecting that area to a regime for its long-term protection. The respondent painted the benefit of that as somewhat illusory, given the protection otherwise afforded to that area by the planning documents (and clearing controls).

As has already been noted however, there is an existing approval for clearing in the forested parts of the site which, it was common ground, might be acted upon were this appeal dismissed. It was pointed out, on behalf of the respondent, that the clearing approval is subject to conditions requiring compensatory planting, but I do not accept that the planting of relatively immature trees[105] elsewhere would likely obviate the impacts associated with clearing more mature vegetation[106] in the forested parts of the site. The expert evidence did not support tree clearing in that area and, indeed, recommended against it.
[105]The requirement, in the conditions of the permit, that the applicant must care for and maintain trees to be replanted until they reach a height of 4 metres contemplates relatively immature plantings.
[106]The vegetation for which clearing approval was sought was described in the December 2003 report of Cardno MBK as including scattered eucalypt trees 15-25 metres high

Notwithstanding the restrictions in the planning documents, there is, I consider, merit in the proposal to involve a responsible entity, whose objects are related to conservation, in the future control and management of the important forested part of the site, which represents the greatest part of what is the largest allotment in this part of Dennis Road and which directly adjoins the State Forest. The proposed ‘dedication’[107] would not only guard against any residual possible future development pressure but better provide for the longer term protection and management of that important area in a way which is consistent with the planning intent and the recommendations of the experts[108].
[107]Using the terminology of the appellant’s written submissions
[108]The respondent said the northern part was presently doing well, but I note the evidence of the presence of some lantana on the site and some barer areas, which are proposed for supplementary plantings

I was referred to this Court’s decision in Suddaby & Ors v Johnstone Shire Council & Ors where there was also a proposal to develop the less environmentally sensitive part of a site, the whole of which was in a ‘Conservation’ preferred dominant land use designation and the Rural Conservation zone, and to secure the balance of the site, free from development (in that case by public dedication).

It was pointed out, on behalf of the respondent, that the Strategic Plan, in that case, recognised the merits of such an approach and the Court did not find conflict. As was submitted on behalf of the appellant however, White DCJ said that the merits of securing the balance of the site would have been sufficient to justify approval even had there been conflict.

Each case must, of course, be assessed on its individual merits. That the merits of the proposal to dedicate part of the land in Suddaby were judged sufficient to warrant approval, even in the event of conflict, does not mean that the same conclusion ought to be reached here[109].
[109]E.g. An offer to dedication of land was taken into account in favour of the proposal in Residential Developments Australia Pty Ltd v Brisbane City Council (supra) but was not considered to justify approval in that case

In the present case, the proposal in relation to the future regime for the forested northern part of the site, forms part of the overall merits of the application (discussed more fully earlier), but it is only a part. It is not a case of simply permitting an applicant to do as it pleases with the cleared parts of the site, in return for the offer in relation to the northern part.

The planning grounds in favour of the application also include its advancement of the purpose of the Act, but my conclusion that approval is justified is not dependant on the relevance of that factor to an application under a Transitional Planning Scheme.

New Planning Documents

The 2006 Planning Scheme

Under the 2006 Planning Scheme, the subject site is mapped as falling within the “Non-Urban and Conservation” locality, the “Conservation” zone and “CZ-3” sub-area. The whole of the site bears the above designations, although the cleared part of the site is not mapped as “core areas” or “linkage areas” or “remaining bush land areas”.

The proposed retirement village would be impact assessable, but not one of the nominated “consistent” forms of development in the assessment table. Consequently it is regarded, by the scheme, as inconsistent with the Non-Urban and Conservation locality and zone codes and relevant overlay and district codes.[110] There is a range of development which is ‘consistent development’. That includes a motel, child care centre, educational establishment, indoor entertainment and place of worship.
[110]Clause 3.4.6(b)

The Desired Environmental Outcomes for the planning scheme area as a whole are set out in s 2.1.3. They set out the outcomes which are sought to be achieved in promoting the three limbs of ecological sustainability. The proposal is, I am satisfied, consistent with the outcomes sought in relation to the ecological limb (s 2.1.3(2)).

Insofar as the outcomes sought in respect of the social limb, attention was particularly drawn to outcomes in relation to protection and enhancement of the physical characteristics of a character area[111], protecting and enhancing amenity and character[112], the character of regional landscapes[113] and the natural and rural landscapes between the urban areas of the planing scheme area and the urban areas of Redland Shire Council[114]. The proposal would protect the visually important vegetated areas, including on the ridge. While the smaller modified and cleared area is proposed for a form of urban land use, its limited visual catchment and proposed landscaping will ensure that the visual amenity and character (including landscape character) of the locality will not be prejudiced.
[111]s 2.1.3(1)(a) – the expression ‘character area’ is defined in Schedule 1 to the Scheme as a place, area, land, landscape, building or work which has special physical characteristics that set it apart from its surroundings and contributes to its individuality
[112]s 2.1.3(1)(f)
[113]s 2.1.3(1)(i)
[114]s 2.1.3(1)(h)

The proposal is consistent with some, but not all, of the outcomes sought in order to promote the economic limb. It would, I am satisfied, provide benefit to and satisfy both a community need and an economic need of, the residents of the locality in which it is located[115] (although its catchment extends beyond the immediate locality), is designed and is proposed to be constructed in accordance with best practice environmental management[116], would protect and enhance water and landscape quality[117] and is proposed in a locality where it can be serviced with existing infrastructure[118].
[115]s 2.1.3(3)(e)
[116]s 2.1.3(b)
[117]s 2.1.3(k)
[118]s 2.1.3(3)(h)

Other outcomes to support the economic limb however, seek development which is in accordance with reasonable expectations[119], is consolidated in a locality intended for the development (unless there is both an overwhelming community and economic need and it is located at the edge of the locality which is intended to be developed)[120] and is of a scale, form and intensity intended for the locality (unless there is an overwhelming community and economic need)[121]. “Overwhelming community need” and “overwhelming economic need” are defined for the purposes of the planning scheme[122]. The proposed retirement village would not be an expected form of development on the subject site, is not proposed in a locality intended for that development or on the edge thereof and is not of a scale, form and intensity intended for the locality. While it addresses a strong community and economic need, Mr Norling did not go so far as to say that the need was “overwhelming” at present, although he thought it would reach that level in the 2011 to 2016 period.
[119]s 2.1.3(3)(c)
[120]s 2.1.3(3)(f)
[121]s 2.1.3(3)(g)
[122]See p SI-45 and SI-46

Section 2.2.10 sets out the six local strategies for the Non Urban and Conservation locality. They are:

2.2.10Local strategies for the non urban and conservation locality
(1)The non urban and conservation locality provides for –
(a)the protection of ecosystems including their biodiversity and nature conservation values through conservation areas and non-urban areas as well as limited extractive industry; and
(b)the provision of public recreation areas.

(2)The wellbeing of people and communities in the non urban and conservation locality is protected and enhanced.
(3)The visual amenity and landscape character provided by the non urban and conservation locality is protected and enhanced.
(4)The natural physical processes, ecological processes and natural systems in the non urban and conservation locality are protected and enhanced.
(5)The major flora and fauna habitat areas, the wildlife corridors between them, conservation areas and public recreation areas are protected and enhanced.
(6)The open space network is protected and enhanced.

While the proposed retirement village is an urban form of development, the proposal would not prejudice those strategies.

Table 3.4.10 of the Planning Scheme sets out 21 overall outcomes for the non-urban and conservation locality. The respondent’s submissions drew attention to outcomes relating to the existing and planned ‘bushland amenity and character’ of the area[123], the intended density[124], the protection and enhancement of character areas[125], the development of the locality with consistent development, consolidated in the locality intended for development[126] and of a scale, form and intensity intended in the zone and sub-areas and consistent with reasonable expectations[127]. The issues of character and amenity have already been discussed. The proposed retirement village is not ‘consistent development’ and, as the appellant’s submissions acknowledged, is not of a kind or density intended or reasonably expected within the locality zone or sub-area under the 2006 scheme.
[123]Outcome 2
[124]Outcome 4
[125]Outcome 13
[126]Outcome 18
[127]Outcome 19

Table 3.4.11 sets out 36 specific outcomes and prescribed solutions for the same locality. The respondent’s submissions drew attention to specific outcomes relating to character and amenity[128], the protection and enhancement of parks (the Daisy Hill State Forest) and other character areas in a locality[129], the limitation of development to that which is consistent development[130], the intended intensity of development and building scale form and intensity[131]. The issues raised by these provisions are not significantly different to those previously discussed.
[128]SO 1(c)(d)
[129]SO 11
[130]SO 25
[131]SO 27

Table 3.4.12 sets out seven specific outcomes (and prescribed solutions) for the Conservation zone. The respondent’s submissions alleged non-compliance with the first outcome, which provides for a building envelope not exceeding 4000 m² on each lot within the sub-area and which is located to minimise any adverse impact on the nature conservation values of the premises,. The proposal seeks to develop across an area of considerably more than 4000 m², but the retirement village is proposed to be located to minimise adverse impact.

It was also submitted, on behalf of the respondent, that there was non-compliance with Outcome 3, which is for development to generate minimal additional night-time traffic and minimise the risk of injury or both to fauna, in particular koalas by vehicular traffic. I do not consider that the proposal conflicts with that outcome.

Seven specific outcomes for the CZ-3 sub-areas are set out in table 3.4.15. It was contended in the respondent’s written outline that the proposal did not comply with Outcomes 1, 2, 3 and 5. The first outcome seeks to protect and enhance the amenity and character of the sub-area as a bushland environment where the bushland environment predominates and development predominantly comprises houses and low intensity tourist oriented development and associated commercial uses, within building envelopes on large lots and public recreation. The proposed retirement village is not of the type which is to ‘predominate’ but would not prejudice the predominant bushland environment of the sub-area.

The second outcome also seeks to protect amenity and character by ensuring certain things with respect to specific forms of development, of which the proposed retirement village is not one. Outcome 3 is that development protects large areas of native bushland and fauna habitat, in particular koala habitat. The proposal does that. Outcome 4 seeks protection of the regional wildlife corridor. The proposal does not conflict with that. Outcome 5 is that development is compatible with, amongst other things, the management of Daisy Hill State Forest. The proposal does not conflict with that.

The site also falls within a Vegetation Management Area, within which clearing is controlled. Attention was drawn, in the respondent’s submissions, to the overall outcomes for the relevant vegetation management area, which seeks to protect a part of the environment which is:

(a)land within the Tingalpa Reservoir catchment, the protection of which will protect;-
(i)areas which are of environmental value at a local and regional scale; and
(ii)water quality; and
…
(d)within the Koala Habitat Areas, the protection of which will protect areas that provide koala habitat.

The proposal restricts development to the largely cleared areas of the site and will not adversely affect koala habitat, the environmental values of the site or water quality. It was common ground that there was nothing in the provisions which would prevent such tree removal as was necessary, in the event that approval were granted.

The planning scheme also contains a retirement village code which sets out both overall outcomes (table 5.2.27) and specific outcomes (5.2.28). The code provides that such facilities are to be located either in the Centre’s locality (where the development is “consistent development”) or in the residential locality where the development is “consistent development”, is within easy walking distance of a local or district retail centre or a public transport facility or a public transport route which has access to a local or district centre, or within reasonable walking distance of premises used for public recreation or a local community facility.[132] The site is not within a centres locality or residential locality however, there appears little practical opportunity to develop a retirement village within those localities within the catchment. As noted earlier, Mr Norling and Mr McCracken were in agreement that to locate retirement villages within easy walking distance of shopping centres is difficult to achieve in a practical sense. The suitability of the proposal, including with respect to access to services and facilities, has been discussed earlier and is, I am satisfied, appropriate in the circumstances.
[132]See the first overall outcome at p 5-692 and 01 at – 5-693

It may be accepted, as the appellant acknowledged, that the proposal is of a type and density greater than that provided for the area by the planning scheme, including the overall and specific outcomes for the relevant designation and is not in a location where retirement villages are planned or would be expected, having regard to the scheme’s provisions. The planning scheme does not however, and could not, consistently with the IPA, prohibit development. It may be noted that Outcome 21 of the overall outcomes for the Non-Urban and Conservation locality (in table 3.4.10) sets out outcomes sought for “inconsistent development”. Those provisions contemplate development including that which is “of a nature or a scale not reasonably expected in the zone and sub-area” where sufficient land is dedicated for park (to offset or mitigate the impacts of the proposed development and provided along a waterway, a wetland and a conservation area to function as a buffer).[133]
[133]See (21)(j)

The 2006 Planning Scheme has an infrastructure code. The respondent’s submissions contended that the proposal failed to comply with that code by not being of a scale, form and intensity intended in the zone and sub-area (Table 5.13.17 Outcome 3) and not being consistent with the assumptions upon which infrastructure has been provided for or planned (Table 5.3.18 Outcome 9). The proposal will however, make use of existing infrastructures and is unlikely to prejudice infrastructure planning.

The respondent placed reliance on the level of conflict between the proposal and the 2006 planning scheme. It must be remembered that the subject application was first made some two years prior to the current scheme coming into effect and indeed, prior to the Draft being put on public display (11.12.2004) and is to be assessed and decided under the Transitional Planning Scheme. Section 3.5.14 of the IPA, which requires the decision not to compromise the achievement of the Desired Environmental Outcomes for the planning scheme area or conflict with the Planning Scheme (unless there are sufficient grounds) does not apply to this application. The provisions of the 2006 planning scheme are a matter of weight only.

While, characteristically for an IPA planning scheme, the 2006 planning scheme is a more complex and bulky document than that which it replaced and exhibits areas of difference from its predecessor, it does not represent a fundamental shift in the planning intent for the site or its locality. It was even submitted on behalf of the respondent, that the outcome of the case would not be dependent upon the weight to be given to the draft scheme[134].
[134]Para 60 of the respondent’s written outline

The planning for the site and locality in the 2006 planning scheme is heavily influenced by the desire to maintain environmental and amenity values. While, as with the Transitional Planning Scheme, a level of conflict can be demonstrated between the subject proposal and the 2006 planning scheme, the proposal, if developed and managed as proposed, would not, in my view, prejudice the values sought to be protected. Further, while not in a Residential or Centres locality, the site would also be an appropriate one to meet the needs of those to whom the proposed retirement village would cater. I am also satisfied that the conflict is not such as would compromise the achievement of the desired environmental outcomes more broadly nor cut across the planning scheme to such an extent as would prejudice its future implementation.

I am not prepared to give the provisions of the 2006 planning scheme, or the extent of the proposal’s conflict with it, determinative weight.

State Planning Policy 1/05 and SEQ Regional Plan Interim Guideline: Koalas and Development

State Planning Policy 1/97 was replaced by Policy 1/05 which was, in turn, superseded by the SEQ Regional Plan Interim Guideline: Koalas and Development. Insofar as assessment of development applications is concerned, each document contained outcomes or performance criteria and nominated solutions. In the case of development which is not a development commitment, the specified outcome or performance criteria was, in each, that:

(i) The development protects koala habit and

(ii) the development avoids adverse effects on koalas

The development does exhibit some departure from the designated “solutions” which include, in the case of the interim guideline, that:

“2.1No additional traffic is generated between the hours of 7.00 pm and 5.00 am; and

2.2Development is not for a residential purpose other than a domestic activity[135]”

The designated solutions however are simply “a means of achieving compliance with a criteria”. The interim guideline admits of the prospect of a solution other than that specified. For the reasons earlier discussed, I am satisfied that the proposal is consistent with those outcomes/criteria.

[135]A “domestic activity” is defined by reference to a single dwelling on a lot and associated activities

The SEQ Regional Plan

The site is included within the “Regional Landscape and Rural Production Area” designation under the SEQ regional plan. That designation is intended to identify:

“Lands that have regional landscape, rural production or other non-urban values and protects these values from encroachment by inappropriate development particularly urban or rural residential development”.

The subject site is outside the urban footprint designation. Development of a retirement village outside the urban footprint and within the Rural Production Area would, had the application been made after the release of the draft plan on 27 October 2004, have required the appellant to address the following tests:

“(i)The locational requirements or environmental impacts of the development necessitates location outside the urban footprint;
(ii)there is an overriding need for the development in the public interest.”

In this case however, the application was made prior to 27 October 2004. The power to make the SEQ regional plan is found in s 2.5A.15 of the IPA. It may include regulatory provisions, which in turn, may state transitional arrangements for development applications. The regulatory provisions state that they do not apply to a development application that was properly made before 27 October 2004; though the draft regulatory provisions apply to a development application which was made after 26 October 2004, but before the regulatory provisions came into effect (on 30 June 2005).

As was submitted on behalf of the appellant, the apparent purpose of these provisions is to enable the regulatory provisions to determine the transitional effect of the SEQ regional plan; to ensure that development applications made after the draft plan was released on 27 October 2004 were subject to the draft regulatory provisions; but to ensure that development applications made before that date were generally unaffected, subject to the power of the minister, under s 3.6.7(5) to suspend the IDAS process for an application which is “called in” (until after publication of a notice about the draft regional plan or the regional plan itself).

In this case, the development application was made before 27 October 2004, was not called in and the regulatory provisions do not apply to it. It was submitted, on behalf of the appellant, that the Regional plan was irrelevant.

Even if, as was submitted by the respondent, the Regional plan remains a matter of weight, the proposal while representing a departure from it by locating an urban development within the Regional Landscape and Rural Production area, would not prejudice the values of the locality so designated. It would not cut across the plan in a way which would render it more difficult to implement in the future or require its review. I would not be prepared to give it decisive weight in the circumstances.

Historical Planning Documents

The respondent sought to place some weight on the historical planning documents as confirming the site’s unsuitability for urban development. It may be accepted that, at least since the 1982 scheme[136], the subject land has been included within the Rural Zone. There were, of course, a number of permitted or permissible forms of development within the historical zonings and it was not until 1994 that environmental provisions, of any substance, were included in the scheme documents. Reference to the historical planning documents demonstrates the progression in the planning for the locality leading up to the 1997 Transitional Planning Scheme, pursuant to which the subject application was required to be assessed, but is of little further assistance.
[136]Which is the earliest scheme referred to in the respondent’s submissions.

Conclusion

The proposal is one of substantial merit. It would result in an attractive retirement village being developed at an attractive location on serviceable land, utilizing existing infrastructure, to meet a strong need, to the community benefit, in circumstances where there are, at best, limited practical opportunities to otherwise provide for the need, within the relevant catchment, in accordance with the planning documents[137]. It proposes to address that need while respecting, in some respects enhancing, and protecting the significant environmental and visual values of the site, in its context, to which the planning scheme provisions are, to a large extent, directed. The facility is proposed for the highly modified and cleared part of the site previously used for sporting fields and associated facilities which has the lowest ecological values and most confined visual catchment. It is proposed to be developed, landscaped and managed in a way which recognises the limited environmental values of that part of the site and, to some extent, enhances them. The landscaping will also attractively integrate the development into its bushland setting. Further, the greater part of the site, which is forested, adjoins the State Forest and includes those areas of highest ecological value and of greatest visual significance, will be preserved from development, including clearing which has previously been approved, will have some supplementary planting and be subject to a regime for its longer term protection and management for conservation purposes consistent with the planning intent. The proposal respects its context, particularly its location adjacent to the Daisy Hill Forest and will provide, in effect, an internal “buffer” to edge effects and other risks. It would advance the IPA’s purpose, but my conclusion is not dependant on the relevance of that to an application under a Transitional Planning Scheme.
[137]And no evident practical alternative site, consistent with the planning documents for a comparable facility within catchment.

The proposal to sub-divide the subject site and to develop part of it for a retirement village is not one which is provided for in the location by the transitional or new planning schemes and, indeed, exhibits a degree of conflict with them, including the Strategic Plan under the Transitional Planning Scheme[138].
[138]Assuming the conservation D designation applies to the whole of the subject site

Understandably, the respondent’s case emphasised the extent of conflict, while the appellant’s case emphasised the merit of the proposal. Ultimately the matter comes down to one of judgment as to whether, in the circumstances, approval is justified.

I am satisfied, for the reasons discussed earlier that there are sufficient planning grounds to justify approving the application despite conflict with the Strategic Plan[139] of the Transitional Planning Scheme. I am also satisfied that it is appropriate to approve the application having regard to all the relevant matters, including the other planning documents and provisions which, while not attracting s 4.4(5A) of the Repealed Act for the purposes of this application, are also matters of relevance.
[139]Which includes the District Conservation Strategy

The appellant has discharged the onus. The appeal will in due course be allowed. The further hearing will be adjourned to permit consideration of appropriate conditions.

CITATION:	Chesol Pty Ltd v Logan City Council [2007] QPEC 001
PARTIES:	CHESOL PTY LTD as trustee for the THE CHIOU SEE INVESTMENT TRUST Appellant LOGAN CITY COUNCIL Respondent
FILE NO:	4140 of 2006
DIVISION:	Planning and Environment
PROCEEDING:	Appeal
ORIGINATING COURT:	Brisbane
DELIVERED ON:	30 January 2007
DELIVERED AT:	Brisbane
HEARING DATE:	2, 3, 4, 5, 10, 11 and 12 May and 15 June 2006, with written submissions being received to 25 October 2006
JUDGE:	Rackemann DCJ
ORDER:	The appeal will in due course be allowed. The further hearing will be adjourned to permit consideration of appropriate conditions.
CATCHWORDS:	Material change of use – reconfiguration – Transitional Planning Scheme – subdivision of 16 ha lot in 2 lots and development of a retirement village, development limited to cleared areas with balance to be dedicated for conservation – proposed use prohibited in the zone – bushfire hazard – traffic and transport – engineering infrastructure – ecological impact – visual amenity and character precedent – need and community benefit – overall merit – relevance of ecological sustainability - conflicts with Transitional Planning Scheme and IPA Planning Scheme – approval notwithstanding conflict
COUNSEL:	Mr P J Lyons QC, with him Mr B Job for the Appellant Mr C L Hughes SC, with him Mr J Houston for the Respondent
SOLICITORS:	Anderssen Lawyers for the Appellant Corrs Chambers Westgarth for the Respondent