Coomera Valley Progress Association v Gold Coast City Council

[2001] QPEC 7

IN THE PLANNING & ENVIRONMENT COURT

OF QUEENSLAND

CITATION:	Coomera Valley Progress Association v Gold Coast City Council & Anor. [2001] QPE 007
PARTIES:	COOMERA VALLEY PROGRESS ASSOCATION Appellant
AND
GOLD COAST CITY COUNCIL  Respondent
AND
VERMONT PARK HOLDINGS PTY LTD

Co-Respondent

FILE NO:	293 of 2000
PROCEEDINGS:	APPEAL
COURT:	PLANNING & ENVIRONMENT COURT (SOUTHPORT)
DELIVERED ON:	13 FEBRUARY 2001
HEARING DATES:	30, 31 OCTOBER & 1, 2 & 3 NOVEMBER 2000
JUDGMENT OF:	NEWTON, DCJ
CATHWORDS:	Application for preliminary approval – Future Urban Zone – traffic – flooding – infrastructures Planning Code – open space – need – lack of detailed studies.
COUNSEL:	Mr D Spain (Solicitor) for the appellant Mr C Hughes for the respondent Mr B Cronin for the co-respondent
SOLICITORS:	Spains Solicitors for the appellant McDonald Balanda & Associates for the respondent Mortimore & Associates for the co-respondent

IN THE PLANNING & ENVIRONMENT COURT

HELD AT SOUTHPORT

QUEENSLAND	P & E APPEAL NO 293 of 2000
BETWEEN	COOMERA VALLEY PROGRESS ASSOCIATION INC

Appellant

AND GOLD COAST CITY COUNCIL Respondent

AND VERMONT PARK HOLDINGS PTY LTD Co-Respondent

REASONS FOR JUDGMENT - Newton DCJ

Delivered the 13th day of February 2001

[1]        This is an application for preliminary approval in respect of the development of

land situated at 129 Maudsland Road, Upper Coomera. The land is described as Lot 1 on

RP141481.

[2]        The property is 35.97 hectares in area and is located at the corner of Oxenford

Coomera Gorge Road and Yallaroi Road (also known as Kopps Road), and Maudsland

Road, Oxenford.

[3]        The subject land is currently being used as a horse stud known as “Vermont

Park”. The site contains distinct topographical features which include a moderate ridge

and two natural drainage courses. Vegetation generally follows the natural drainage

courses which flow from south to north, toward the Coomera River. Surrounding land

uses include the Upper Coomera commercial precinct, residential uses, farm and two

quarries.

[4]        The development proposal involves a Material Change of Use for the purposes of

developing residential housing, a local shopping area and open space. The proposed

development concept comprises four major land use precincts:

¨	Precinct A -	local shopping
¨	Precinct B -	residential village
¨	Precinct C -	residential traditional

¨ Active and Passive open space

[5]        Precinct A comprises approximately 0.97 hectares of land which is to be provided

for a local shopping precinct, adding to the existing commercial precinct on Maudsland

Road and Charlies Crossing Road. Development in this precinct is proposed to be in

accordance with the Table of Development for the Local Shopping Zone (Albert Shire

Planning Scheme). The land identified for this purpose is located at close proximity to

the existing commercial facilities and adjacent to the proposed realignment of Maudsland

Road. The future road alignment will, in fact, separate the proposed local shopping area

from the residential precinct. Provision of such an area is identified in the Albert

Corridor Development Control Plan 5 (DCP).

[6]        Precinct B comprises approximately 13.8 hectares of land which is proposed for

Residential Village purposes. This area is generally located in the cleared part of the site

and provides for a net residential density of 15 dwellings per hectare. A Planning Code

has been compiled for this precinct because the Residential Village Concept is not

accurately defined in the Albert Shire Planning Scheme. The code has generally been

developed in accordance with the Albert Shire Planning Scheme, recommendations

presented by AMCORD and the Draft Kopps Road Structure Plan. The Residential

Village Precinct is intended to incorporate a variety of dwelling types and allotment sizes,

allowing for the urban design to integrate with public open space, local services and a

pedestrian and cycle network.

[7]        Precinct C provides for residential development in accordance with the Table of

Development for the Residential A Zone in the Albert Shire Planning Scheme. It is

proposed that approximately 4.42 hectares will be included in this zone, to be developed

at a net density of 10 dwellings per hectare and predominantly contain detached

dwellings. The Residential Traditional Precinct is located adjacent to the eastern

boundary of the subject site.

[8]        It is proposed that approximately 41% of the site be set aside for park and open

space comprising approximately 1.67 hectares for active recreation and 13.32 hectares for

passive recreation purposes. The existing mature vegetation along the site’s watercourses is to be retained. The proposed active open space areas are located on relatively flat land

and are visible from the local shopping precinct across Maudsland Road.

[9]        Two points of access to the site are proposed along Maudsland Road providing

access to the two sections of the Residential Village Precinct. A third point of access is

located on Yallaroi Road and accesses proposed Precinct C. The fourth access point is to

provide for future connectivity to adjacent development to the east.

[10]      Slopes range from flat along the top of ridges and the western part of the site, to

moderate slope adjacent to gullies and at the north-east and south-east corners of the site.

The site generally comprises slopes less than 5%, however a portion of the site is over

20% gradient. The latter area is located in the north-east corner and adjacent to the

eastern drainage corridor.

[11]      Vegetation on site generally follows the natural drainage courses except for the

north-east corner of the property which is more densely timbered. The remainder of the

site has scattered vegetation, comprising some regrowth from earlier clearing for farming

purposes.

[12]      Land use surrounding the subject site is mixed and is generally of semi-rural

nature. The site is one of a limited number of large parcels of land which has been

designated for future urban development. It is adjacent to the Upper Coomera

commercial precinct and smaller residential allotments that surround this precinct. The local CWA Hall is located on a small allotment adjacent to the north-western part of the

site. A recent residential subdivision is located to the north-west of the site and park,

residential and rural allotments are located to the east. Quarrying activities are conducted

on land to the north-east of the site as well as further to the south.

THE PLANNING DOCUMENTS

[13]      The subject land is contained within the Future Urban Zone of the Planning

Scheme for the former Albert Shire. The planning scheme is a transitional planning

scheme under section 6.1.3 of the Integrated Planning Act. The intent of the Future

Urban Zone is to set aside areas planned for urban development until all services and all

urban facilities can be provided. Rezoning to other zones is to be determined in

accordance with the provisions of the Strategic Plan and relevant Development Control

Plans.

[14]      Under the Strategic Plan the subject land is contained within the Urban

Residential preferred dominant land use designation. Urban Residential areas include

existing and future areas of urban housing. It is intended that this housing will be mainly

detached, but with limited areas of other higher density housing. The overall urban

residential density is intended to be within the range of 10-15 dwellings per hectare.

While residential land use dominates, Urban Residential areas also include non-

residential land uses which serve or complement housing areas. Such uses include local

and district level shopping centres, educational facilities, parks and open space,

kindergartens and churches.

[15]      The subject land falls within the Albert Corridor Development Control Plan 5.

One of the purposes of the plan is to provide a basis for more detailed planning so that

development can proceed in a controlled, consistent manner, in accordance with the

principles established in the DCP. The site is designated Urban Residential in the DCP

with a small section to the north-east falling within the Rural designation, with cross-

hatching overlay indicating “Landscape Protection”.

[16]      The landscape protection designation forms an overlay to other designations and

includes areas for reasons of their high visibility or environmental value. The designation

is intended to implement a further level of control over the underlying preferred dominant

land use. The designation seeks to ensure that any development occurs in a manner

which maintains or enhances the visual and/or environmental characteristics of a site.

[17]      The Draft Kopps Road Structure Plan forms part of the local authority’s draft new

planning scheme which is currently on informal public exhibition. This document, while

having no formal status, provides an indication of the respondent Council’s current policy

intentions for the development of the Kopps Road area which includes the subject site.

The draft Structure Plan map indicates the preferred distribution of land use in the area

which will accommodate approximately 10,700 persons. The site contains a number of

preferred land use designations under the Structure Plan. The existing waterways

through the site are shown as Proposed Open Space corridors. This designation also

applies to the south-eastern portion of the site and to a strip along the eastern boundary of the site. Land to the west of the eastern waterway is predominantly designated Special

Development Area – Urban Village, but also includes a small area designated Local

Convenience – Retail and Activity Centre between the existing and proposed new

alignments of Maudsland Road and a Possible Active Recreation designation adjacent to

Maudsland Road and the western waterway. An area of Urban Residential designation is

located in the north-eastern portion of the site between the previously described Proposed

Open Space designations.

THE ISSUES

[18]      This appeal has been the subject of unusually broad pleadings and particulars.

The appellant has raised concerns in relation to the following matters:

(a)	traffic on and at the intersection of Yallaroi Road;
(b)	the relationship between the Coomera/Oxenford Gorge Road and the

commercial precinct;

(c)	flooding;
(d)	the absence of bike ways and other infrastructure;
(e)	the eastern tributary which runs into the eastern open space corridor;
(f)	the Planning Code forming part of the condition of approval;
(g)	the location of the commercial precinct;
(h)	open space along Yallaroi Road;

(i)         Precinct C;

(j)	need;
(k)	Western open space corridor.

YALLAROI ROAD TRAFFIC

[19]     At the present time Yallaroi Road is a two lane rural road. At the eastern end it

joins Kopps Road (north and south). Kopps Road south has recently been connected to

Binstead Way, a development road constructed as part of the Pacific Pines housing estate.

Yallaroi Road is controlled by the respondent council.

[20]      Evidence from the respondent’s Transport Planner, Mr Pearson, was that the

maximum likely traffic generation from the proposed development will be approximately

3,310 vehicle movements per day. This estimate is based upon a conservative traffic

generation rate of 10 vehicle movements per day per residential allotment. In reality the

daily generation rates may well be lower than this estimate. Furthermore, the maximum

daily generation rate would not be reached until the site has been fully developed, which

may take some years. Mr Pearson’s opinion was that Yallaroi Road has sufficient

capacity to cope with the estimated 3,310 vehicle movements per day generated by the

proposal.

[21]      Mr Pearson points out that the amount of background traffic using Yallaroi Road

at the 10 year design horizon will be in the order of 2,200 vehicles per day derived from

traffic count data obtained by the Department of Main Roads in February 2000, together

with a forward projection adopting an annual growth rate of 4%. Accordingly, at the 10

year design horizon, with the background traffic levels of 2,200 vehicles per day and the development generation of 3,310 vehicles per day, the total traffic generation will be

approximately 5,510 vehicles per day. Mr Pearson has assessed the capacity of Yallaroi

Road at 5,500 vehicles per day based on the AUSTROADS Guideline “Guide to Traffic

Engineering Practice Roadway Capacity”.

[22]      Mr Pearson’s views in this regard are generally supported by Mr Kleimeyer, a

traffic engineer called by the co-respondent. Mr Kleimeyer states that the capacity of

Yallaroi Road to accommodate the development traffic plus the projected future through

traffic is determined by the existing horizontal and vertical geometry lane and shoulder

widths and the presence of heavy vehicles and gradients. Currently the vertical and

horizontal geometry between the two creek crossings is below acceptable standard for

60km/hour design speed. Several remedial measures have been identified in the short

term including recommendations on pavement widening and realignment between and

including the two creek crossings to achieve a 60km/hour design speed which is

commensurate with the remainder of Yallaroi Road. Mr Kelimeyer calculates the

maximum total traffic volume along Yallaroi Road at 5,400 vehicles per day from the

addition of the traffic generated from the development and the projected growth of the

base year through traffic. The calculation has been based on a development horizon of 10

years and a background traffic growth at 9% per annum over that period. He concluded

that the capacity of the upgraded Yallaroi Road to service the development is adequate.

[23] I note that the respondent council will, within the 10 year design horizon, be considering the upgrading of Yallaroi Road which is to form part of the Gaven Arterial Road Extension from the Pacific Pines development. The respondent’s City Transport

Plan lists the upgrading and duplication of Yallaroi Road for consideration by council in

2004-2006. The present intention of the respondent is that Yallaroi Road will, regardless

of the proposed development, be progressively upgraded as residential development

occurs in the area. In these circumstances I accept that there is no substance in the

suggestion that Yallaroi Road as part of the existing road network, will be unable to cope

with likely traffic generation from the proposed development.

[24]      The respondent’s conditions for design of roads and intersections can be expected

to be imposed at the “Reconfiguring of Lot” stage. The application for a Material

Change of Use does not required detailed design. Any construction of intersections onto

Yallaroi Road will have to be designed in accordance with Council’s Land Development

Guidelines. These require that the horizontal alignment and intersection design comply

generally with Main Roads Design Manuals and the AUSTROAD publications.

Accordingly, the applicant will be required to design and construct such intersections to

provide appropriate “entering sight distance”. The form of the intersections will also be

required to comply with the AUSTROAD guidelines with respect to the satisfactory

accommodation of likely traffic turning movements.

[25]      There is nothing in the evidence before me to suggest that any technical reason

exists to prevent the applicant being able to comply with the relevant guidelines. I accept

the view of Mr Pearson that construction of the intersections onto Yallaroi Road from the

proposed development will involve standard engineering design and construction techniques. Should the respondent council not undertake the upgrading of Yallaroi Road

prior to the development, the applicant will be required to improve the road progressively

in accordance with the needs of the proposal. I am satisfied that the approval of the

proposed development will not create traffic problems along Yallaroi Road or

detrimentally affect the efficiency of the existing road network.

[26]      Accordingly, with respect to Condition 2 contained within the respondent’s

Decision Notice dated 14 February 2000, the following words should be added at the

commencement:

“Subject to the re-location of the access to Yallaroi Road to the satisfaction of the Council’s Chief Executive Officer so as to address the Council’s proposal to upgrade that road… ”.

[27]      So far as the Coomera/Oxenford Gorge Road is concerned, the evidence of Mr

Nind indicates that part of the work on that road would be carried out imminently in

exchange for land dedication. This would enable the completion of the access onto

Coomera/Oxenford Gorge Road. I accept that the amended condition proposed by the

respondent requiring that access only be onto the existing Maudsland Road is sensible. I

note that the co-respondent does not oppose the suggested amendment.

[28]      Accordingly, the following changes should be made to Condition 9, third dot

point:

(a)	the addition of the word “residential” between the words “Direct” and “allotment” in the first line; and
(b)	the addition of the following sentence: “To consolidate the existing village area of Upper Coomera, land in the Commercial Precinct shall have access only to the existing alignment of Oxenford/Coomera Gorge Road (Maudsland Road), subject to the reasonable requirements of the Department.”.

[29]      I am satisfied that there is no issue with respect to the Coomera/Oxenford Gorge

Road that warrants refusal or further conditioning of the approval other than the amended

condition proposed by the respondent.

FLOODING

[30]      The appellant has criticised the absence of Coomera River Flood Studies. Mr

Dover, a civil engineer with Burchill Partners Pty Ltd, has, on behalf of the co-

respondent, given evidence that the respondent council and developers have undertaken

flood studies for the Coomera River with the respondent’s study commencing at the

Broadwater and extending to the Muntz Causeway at Tamborine/Oxenford Road. This

study has been extended by that of the developers of “Otmoor” from the causeway

upstream beyond the boundary of the development. These studies have so far not been

adopted into council policy, although they are used by the respondent for assessment of

development levels.

[31]      The Otmoor Report provides a Q100 flood level of approximately RL 10.19 AHD

at the downstream outlet for the existing gully which traverses through Vermont Park and

Barrs Field. This level will be used for a local flood study for Vermont Park gully at the

time of reconfiguration, when a proper analysis can be undertaken. Mr Dover’s opinion,

which was not contradicted by evidence to the contrary, was that the affects on Vermont Park from flooding of the Coomera River would be localised flooding of the two gullies

which traverse the site. These are proposed to be retained as parkland. Furthermore, Mr

Dover expects that the proposed development would have no impact on upstream

properties. The proposal would, therefore, comply with the respondent’s guidelines that

the development have no impact on downstream or upstream properties.

[32]      Condition 9, fourth dot point provides that:

“The appellant shall submit to Queensland Department of Main Roads a stormwater drainage analysis for storm events of up to ARI 50 years. The analysis shall determine the impact of the proposed development on the existing and future State-controlled road networks.

If it is determined that an adverse impact will be caused by the development on the road networks, the applicant shall compensate the Department by:

- undertaking necessary works, or;

- making monetary contribution to the equivalent work value.”

[33]      Condition 17 provides that:

“A Stormwater Management Plan for the land, prepared by a suitably qualified professional, shall be submitted to Council and approved by the Chief Executive Officer prior to the issue of a development permit for reconfiguring a lot or prior to works commencing on site, whichever occurs first. Such plan shall be prepared by a suitably qualified professional at the applicants cost and shall:-

- delineate catchment boundaries and inundation lines for Q2, Q5, Q10, Q50 and Q100 storm events as well as provide supporting calculations to demonstrate that flows from the aforementioned storm events remain within the open space corridors designated on the approved plan referred to in Condition 1. Amendment of the width of the open space corridors shall be undertaken as required by the foregoing analysis;

- sediment basins serving drainage paths running through designated open space areas are to be designed and located to accommodate the flow of contributing catchments and without unduly limiting the function of such areas – calculations demonstrating thus, are to be provided in accordance with IE Aust (Qld) ESC Guidelines (1966);

- quantify the changes in quality of stormwater generated on site during
the construction and the operational phase of the development;

- develop strategies for the protection, treatment, storage and disposal
of all stormwater on site;

- measures to treat pollutants (including gross pollutants);

- indicate the direction of runoff, discharge points and treatment of
drainage lines and outlets to prevent scouring;

- include a sediment and erosion control plan for the construction

phase;

- nominate performance indicators to ensure that the proposed system
is operating effectively;

- develop a contingency plan to be initiated if the system or particular structures do not meet the performance criteria that the indicators have been based on;

- include monitoring schedules (including water quality sampling)
during the operational and construction phases of the development to

ensure that the system is achieving the performance requirements set;

- include a periodic review and audit process to provide an avenue for
re-assessment of the stormwater management plan.”

[34]      Condition 18 provides that:

“The applicant shall ensure that overland flow paths on the site are not altered in any way which inhibits or alters the characteristics of existing overland flows on other properties in terms of water quality and quantity.”

[35]      From the evidence before me I am satisfied that the effects on flood levels caused

by the proposed development will be minimal and that Conditions 9 (where relevant), 17

and 18 are appropriate. In my view there is no issue with respect to flooding that would

warrant refusal of the application.

BIKEWAYS

[36]      A Council Bikeway Plan exists for the area (see Exhibit 32). However, bikeways

would be required as a condition of reconfiguration. They have little relevance at the

present stage. Condition 23 of the conditions of approval requires the provision of

cycleways within the development. It requires that:

“Plans and details demonstrating the provision of pedestrian pathways and cycleways within the development which link the proposed residential areas to the open space network and local shopping facilities, are to be submitted to Council for the approval of the Chief Executive Officer prior to the issue of a development permit for reconfiguring a lot application or prior to works commencing on site, whichever occurs first.”

[37]      It seems clear that the co-respondent is reliant upon the respondent progressing

the cycleways outside the development as envisaged in Exhibit 32, which depicts the

strategic cycle network for this area as part of the respondent’s strategy review of the

overall bicycle network.

EASTERN ROADS

[38]      Mr Dover conceded during cross-examination that some parts of the slopes in the

proposed traditional residential precinct could be between 15 to 20%. He further stated

that to his knowledge no appropriate soil tests had yet been conducted, nor had a detailed

terrain model been prepared. The latter would normally be expected to be done at the

reconfiguration of lot stage. The options available to the co-respondent in these

circumstances would include some cutting and filling, designing the road in such a way

as to have it meander rather than follow a straight line as presently depicted or requesting that the respondent exercise its discretion to relax its grade requirements. Where areas

may exceed 20% these could be used as buffer areas or further dedicated as park land.

[39]      Mr Kleimeyer, a civil engineer who testified on behalf of the co-respondent,

confirmed that the respondent’s Land Development Guidelines, 1999 edition, provide for

a maximum absolute grading of 16% for residential, rural residential and commercial

streets. Small lengths (up to 20 metres) at 20% are acceptable in special circumstances

where lesser grades result in excessive excavation of the natural terrain. A check on the

vertical gradient of the proposed entry roads to the east of the site, based on the contours

shown on the layout plan, indicates that a 16% gradient is achievable. Ultimately, the

entry roads to the east are proposed to join to a new north/south road constructed along

the ridge as an extension of Kopps Road, opposite the existing intersection at Kopps

Road and Yallaroi Road. The limited survey data available for the adjoining land from

the site’s eastern boundary to the Kopps Road extension, shows natural gradients in

excess of 20%. Mr Kleimeyer considers that maintaining a maximum gradient of 16% is

achievable by aligning the road at a skew angle to the contours and designing the future

intersections to achieve the sight distances. However, it should be noted that higher

volumes of excavation will be required to achieve this design criteria.

[40]      The issue of road gradients cannot, at this stage, be properly evaluated in the

absence of detailed contour data. The issue then, is more properly to be considered at the

reconfiguration application when the appropriate design is to be approved. Obviously,

the design will be required to take into account the contours of the land. I am prepared to

accept that this is not an issue which, having regard to the relatively small area involved, warrants the refusal of the application. For present purposes Condition 12 is, in my

opinion, appropriate. It states that:

“No development shall be permitted in any area where the land has a general gradient exceeding 20% for stable soils and 15% for unstable soils as determined by a detailed survey and slope stability assessment carried out by suitably qualified professionals. In the event that allotments contain gradients in excess of those mentioned, the applicant shall provide, with a reconfiguring lot application, a plan indicating appropriate building envelopes and access arrangements for approval of the Chief Executive Officer.”

RESIDENTIAL VILLAGE PRECINCT PLANNING CODE

[41]      Development pertaining to the Residential Village Precinct is required by

Condition 3 of the Decision Notice to be in accordance with the submitted “Residential

Village Precinct Planning Code” annexed to the approval. Mr Nind explained that the

code was required because the Albert Corridor Development Control Plan refers to

residential areas and a need for the village concept to be integrated into residential areas.

However, there is no zone within the Albert Shire Planning Scheme that controls a

residential development in a village-type concept, so the purpose of the code is to further

define broad planning principles by which the urban design of the area can meet an

appropriate style that differs from surrounding developments.

[42]      The code identifies a number of planning objectives and contains a table of

development which refers to exempt, code assessable and impact assessable

development. It also sets a maximum allowable residential density for the Residential

Village Precinct of 15 dwellings per hectare over the total area of the precinct. A maximum allowable building height is set at two storeys (or 7.5 metres above ground

level to the uppermost ceiling level). The code further requires that the detailed urban

design of the Residential Village Precinct shall comply with the development

requirements for Residential Zones in the Albert Planning Scheme and the relevant

provisions of sections 12.4 and 12.5 of the Albert Planning Scheme which contain

development requirements for housing and accommodation premises and retirement

communities.

[43]      The code has been criticised by the appellant as failing to provide for an

ecologically sustainable concept which includes rainwater tanks, grey water treatment,

pervious pavers rather than asphalt roads and similar features. The appellant’s criticisms

must, in my opinion, be considered against the background of compliance by the code

with the Kopps Road Structure Plan which is the proposed planning scheme. I accept the

submission of the co-respondent that it is clearly inappropriate for the appellant to

attempt to redraw the code into something which it envisages as being more appropriate

for the area. The respondent council retains responsibility for planning in the region, and

not the appellant nor indeed, this Court.

[44]      The appellant itself commissioned the preparation of a planning document

(Exhibit 23) to examine the potential development of the subject land. In most

significant respects the proposed development generally accords with this community

based proposal. There are, however, several design aspects contained within Exhibit 23 which are not embraced, nor are likely to be embraced by the development. These

include:

(a) the construction of shallow bed, kerbless roads;
(b) the construction of buildings on stumps;

(c) the use of landscaped ditches for overland flow;

(c) the use of rainwater tanks and re-cycling of grey water for domestic use;

(d) local treatment of sewerage and grey water;

(e) use of composting toilets;

(f) use of vegetation to filter water before it flows into creeks and rivers; and

(g) the establishing of a local strategy to control cats and dogs.

[45]      These and other suggestions of the appellant, no matter how well-intentioned and

desirable, ignore the proposition that it is the elected local government which undertakes

the ongoing day to day role of supervising the development process and which ultimately

assumes responsibility for roads, parks and open spaces.

[46]      The appellant contends for a less intensive residential development in proposed

Precinct C, partly to secure the preservation of vegetation in that precinct. However, the

environmental expert evidence does not, on balance, support this contention, nor does the

contention appear reasonable when one has regard to the intention of the co-respondent to

dedicate 41% of the land contained within the subject site for public purposes.

OPEN SPACE ALONG YALLAROI ROAD

[47]      The appellant suggested during the hearing of this appeal that a vegetated corridor

be provided along the northern alignment of Yallaroi Road. The suggestion, although not

generally supported by Mr Leggett (a natural history consultant) or by Mr Sergeant (an environmental planner), at first seemed desirable. However, ultimately the contention

faded significantly when it became clear that the realignment of Yallaroi Road with the

Gaven Arterial will provide a much wider road reserve. This will be available for

landscaping purposes at that time. I accept that as this land is under the respondent’s

control, opportunity will be taken to landscape the area in an appropriate way. Condition

19 of the Decision Notice provides for mounding and landscaping in association with

acoustic fencing.

[48]      The appellant’s suggestion in this regard finds some support in the evidence of Mr

Jinks (a horticulturist) who located vulnerable and rare species of flora in both the

Eastern and Western corridors. Mr Jinks expressed concern that such species, if not

protected through the vegetation corridors, are likely to be lost as a result of the

continuing modification of the site. Balanced against this concern, however, is the

previously mentioned dedication of the 41% open space which can reasonably be

expected to contribute substantially to the protection of rare and vulnerable species of

flora located by Mr Jinks. The implementation of the Vegetation Management Plan and

the Open Space Management Plan will further contribute to the identification, evaluation

and protection of such species.

NEED

[49]      Extensive evidence in relation to need was given by Mr Murphy of Herron Todd

White on behalf of the co-respondent. Mr Murphy testified that englobo land for

residential development is in short supply in the Gold Coast region and the proposed development was expected to satisfy an existing demand for such land. The village-style

residential estate in the Oxenford locality was particularly likely to satisfy market

demand. Mr Murphy further expected that the completed development and other existing

and proposed residential estates in the surrounding area would support a small shopping

centre.

[50]      Mr Murphy perceived a number of community benefits flowing from the

proposed development. They include:

(a)	provision of a good quality parcel of land to accommodate the future growth of the Gold Coast’s resident population;
(b)	provision of a range of lot sizes and housing types which are increasingly in demand and meeting consumer and community needs;
(c)	usage of the recently developed service and transport infrastructure in the north and north-west growth corridors provided by the Queensland Government and the Gold Coast City Council at considerable expense to taxpayers;
(d)	provision of future local shopping facilities in a recognised urban growth corridor;
(e)	the further development of a commercial precinct which has been identified in the Council’s planning documents as an important neighbourhood centre; and
(f)	provision of significant open space and buffer areas which will benefit the wider community as well as residents of the proposed estate.

[51]      Mr Brown, a town planning consultant who testified on behalf of the respondent,

stated that the present high rates of population growth within Gold Coast City are

reflected in the high levels of land development and construction of dwellings at

Oxenford and Studio Village. The western periphery of this urban growth area is only

about 1 kilometre east of the subject site. The intervening land is largely developed for

rural residential purposes, which makes it difficult to redevelop for urban residential purposes. Mr Brown expects that the subject site and other land in the vicinity will be the

next urban growth front in this part of the Gold Coast.

[52]      Mr Brown could identify no issue associated with the need for the proposed

development that would warrant refusal of the application.

[53]      In the light of this evidence I am unable to accept the appellant’s contention that

there is no need for the proposed development. The respondent’s clear intentions involve

the use of the subject land to accommodate future urban growth. The report Population

Projections for Queensland (1998 edition) prepared by the State Department of

Communication and Information, Local Government, Planning and Sport notes at page

vi, “of all the Local Government areas in Queensland, Gold Coast City is forecast to

experience the largest population growth in absolute terms. The … population … is

projected to grow by more than 200,000 persons between 1996 and 2016 … ”.

[54]      I am satisfied that need has been established in terms of a need for further

residential land. Furthermore, I accept that, in a community sense, need is also

established by the benefit to the community of the open space dedications, the

commercial precinct and the village concept, all of which are envisaged by this proposal.

It is well accepted that “need” does not mean pressing or critical need or widespread

desire. If the physical well-being of the community is improved, taking all things into

account, then need is established. (See Cut Price Stores Retailers & Ors v Caboolture

Shire Council (1984) QPCR 126 at 131). A use would be needed if it would, on balance, improve the services and facilities available in a locality. (See Roosterland Pty Ltd v

Brisbane City Council (1986) 23 APAD 58 at 60).

WESTERN AND EASTERN TRIBUTARIES

[55] In his report Mr Brown, a town planning consultant, proposed that the

westernmost waterway corridor not end at the “Proposed New Road” corridor as depicted

in the approved Plan of Major Land Use Precincts. It was suggested by Mr Brown that

the proposed waterway corridor should continue to follow the waterway to the northern

boundary of the site, passing through Precinct A (Commercial) as indicated in the draft

Structure Plan map. However, this suggestion was retracted in the light of the evidence

from the environmental and fauna experts that the western corridor forms a dead end, and

that if any fauna migrating in a northerly direction were to successfully cross the new

alignment of the road, they would have nowhere to go other than the commercial village

area and residential areas to the north. I note the retraction by Mr Brown and agree that

such a corridor might well provide nothing more than a trap.

[56]      In similar vein, Mr Brown originally supported the provision of an open space

corridor adjacent to the small tributary to the eastern waterway (within Precinct C)

generally as indicated on the draft Structure Plan. However, this suggestion was retracted

in the light of evidence from Mr Leggett that it would require a lot of maintenance and up

to 20 years for Precinct C to be reformed as a valuable habitat. Again, I consider the

retraction to be entirely proper in the circumstances.
THE EVIDENCE OF MR WHITE

[57]      The appellant called evidence from Mr White, a community planning consultant.

Mr White concluded that the case for a Material Change of Use application should only

be supported once the relevant studies on traffic, flooding, soil stability, traffic noise and

volume have been completed and addressed and the relevant government agencies

consulted to ensure they can provide the necessary infrastructure at the appropriate times.

Although the weight of the expert town planning evidence does not generally support Mr

White’s contention that the infrastructure provision is out of sequence in contravention of

all the planning controls for the area, it cannot be denied that key studies are

conspicuously absent, particularly in relation to contours, flooding, soil stability and bus

transport. It may well be the case, as Mr White suggests, that some State Departments

have failed to anticipate that preliminary approvals would be applied for under the

Integrated Planning Act. Mr White observes that much of the intent of the legislation to

coordinate and provide infrastructure is being ignored if key studies to assess it have not

been undertaken. I agree with Mr White that the Albert Shire Planning Scheme as well

as the draft Gold Coast Planning Scheme and Kopps Road Structure Plan require

background studies to determine needs.

CONCLUSION

[58]      In the event, I am satisfied that the appeal should be dismissed and the proposed

preliminary approval approved, subject to those conditions set out in the respondent’s

Decision Notice dated 14 February 2000, with those amendments indicated previously

herein and the deletion of Condition 3 and its replacement with the proposed Condition 3

set out in the letter of the respondent to the other parties dated 16 October 2000 (Exhibit

18).

[59]      With respect to Condition 22, the words “Local Shopping” should be replaced

with the word “Commercial” in the first line and the following words added:

“and any individual shop or tenancy within the commercial land use precinct shall
not exceed a maximum gross floor area of 1,700m2”.