Daley v Redland Shire Council
[2005] QPEC 41
•23 May 2005
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Daley v Redland Shire Council & Anor [2005] QPEC 041
PARTIES:
ASHLEY AND GENEVIEVE DALEY
Appellants
v
REDLAND SHIRE COUNCIL
Respondent
And
WOLTER CONSULTING GROUP
Co-RespondentFILE NO/S:
BD 2302 of 2004
DIVISION:
Appellate
PROCEEDING:
Appeal (by Adverse Submitters)
ORIGINATING COURT:
Planning and Environment Court, Brisbane
DELIVERED ON:
23 May 2005
DELIVERED AT:
Brisbane
HEARING DATE:
14, 15, 16 March and 3 May 2005
JUDGE:
Robin QC,DCJ
ORDER:
Appeal allowed, with possibility of application being amended and approved on conditions
CATCHWORDS:
CONFLICT BETWEEN EXISTING AGRICULTURAL USE OF LAND AND PROPOSED USE OF ADJACENT DEVELOPMENT SITE AFTER RECONFIGURATION FOR RESIDENTIAL DEVELOPMENT– RURAL AREA GOING TO RESIDENTIAL – Strategic Plan and Local Area Plan provisions contemplating management of conflict (e.g. by buffering) not applied properly or at all – no planning grounds to justify ignoring the planning conflict – appellants not entitled to complain of diversion of surface runoff from the development site which is higher
Integrated Planning Act 1997 s 4.1.50(2), s 6.1.29(3),
s 6.1.30
Local Government (Planning and Environment) Act 1990
s 4.1(5A), s 5.1(3), s 5.1(6)
Fisheries Act 1994
Water Act 2000 s 20State Planning Policy 1/92
Cases cited:
Ashworth v State of Victoria (2003) 125 LGERA 422
Colless v Brisbane City Council [1984] QPLR 235
Cooroy Golf Club v Noosa Shire Council [2005] QPEC 016
Gartner v Kidman (1962) 108 CLR 12
Mapgate Pty Ltd v Council of the Shire of Caboolture [1997] QPELR 30
Weightman v Gold Coast City Council [2002] QCA 234; 121 LGERA 161COUNSEL:
Mr C L Hughes SC for Appellants
Mr S M Ure for Respondent
Mr W L Cochrane for Co-Respondent
SOLICITORS:
Anderson Lawyers for Appellants
MacDonnells for Respondent
P M M Lawyers for Co-Respondent
The Appellants, Mr and Mrs Daley were adverse submitters in respect of the Co-Respondent’s development application of 30 June 2003 for “Reconfiguring of a Lot (1 into 34 plus open space and new road) and Material Change of Use) Rural to Residential” in respect of Lot 1 on RP 14809 (“the site”), which is situated at 114-122 Thornlands Road, Thornlands, in the Shire of Redland. The only other adverse submitters, who played no part in the appeal, were Dr and Mrs Drew, who purchased a property across Thornlands Road in 1993, where they have continued agricultural uses ever since; they wished for a non-residential buffer, given “the potential for future residents on this development to object to use of agricultural sprays on our property, because of spray drift”; they asserted that, prior to purchase, the Council’s Planning Department advised “that in view of the then recent review recommending that remaining red soil properties in the Redlands remain rural, this area would never be developed.” The Daleys’ concerns range more widely.
The Daleys are the eastern neighbours of the site. They purchased their 14.4 ha farm about 1991. Their land extends to Moreton Bay, where it forms a corner with northern and eastern frontages. The site has a northern frontage to an unnamed inlet. The low lying nature of the foreshore lands and planning policies in relation to them will lead to their being taken over for public enjoyment, development on the private land in the area being confined by a new foreshore road to be provided on that private land. The site contains 4.65 ha, not all of which is suitable for residential development. It is at the eastern phalanx of advancing residential development in Thornlands. It is expected that only the water will stop the advance. The customary designs to show how proposed road works are in harmony with possible future development have for years shown the site and the Daleys’ land subdivided into residential blocks. See the “Concept Master Plan Precinct 4 Local Area Plan” of October 2002 apparently prepared in connection with some early development proposal relating to other land at p 23 of the Appeal Book, Ex 2, consistently with sentiments set out in planning documents reproduced at p 229 ff. What has been approved by the Council is some 36 Residential A type allotments ranging from 560m2 to 726m2.
Under the Town Planning Scheme for the Shire of Redland, originally gazetted 20 February 1988 (Ex 6 is an unofficial version containing amendments to 24 April 1998), the site was in the Rural-Non-Urban Zone, so that the material change of use proposed equates to a rezoning to Residential A prior to the Integrated Planning Act 1997 (IPA). The Appellants accept that development of the site for residential purposes is generally supported by the Shire’s forward planning documents, in particular by the designation of most of it as Urban Residential in the Redland Shire Strategic Plan 1998 and in the Council’s Development Control Plan 5, The East Thornlands Local Area Plan. Sections 6.1.29 and 6.1.30 of the IPA call for the application to be considered by reference to the Local Government (Planning and Environment) Act 1990, now repealed. The developer’s planner, Mr Crawford gave evidence that the Council’s draft planning scheme “reinforces the provisions” that are current. Far from imposing constraints, he said “the draft planning scheme provides for subdivision of land up to 50 lots to be proceeded by way of code assessment.” The Daleys are probably engaging in a quixotic exercise of trying to turn back the tide in their very recent submission that the new plan ought to provide for rural (non-residential) uses for their property and for the site. See Ex 35 para 6.00.
The Appellants’ case is that the way in which the site is proposed to be developed is in clear and obvious conflict with those specific provisions in the forward planning documents inserted to deal with the very issue they say is at stake:
“the protection of existing farming activities from urbanisation, in a manner which minimises potential conflict.”
The Redland Strategic Plan 1998 in its Economic Development Strategy in s 3.4 requires:
“(i) ensuring that, where this plan allows urbanisation of farming and other primary production areas, this occurs in a sensitive manner which respects the right of existing farming operations to continue through:
·ensuring new residential development does not prevent, through its sensitivity to impacts from primary industry activities such as spray drift, noise and dust, the continuation of these activities;
·encouraging the provision of adequate buffers and/or the distribution of land uses within newly urbanising areas, which minimise impacts on existing farming and other primary production operations;
·preparing local area plans for east Thornlands and Redland Bay to provide guidance for the progressive redevelopment of existing farming areas; and
·having a due regard to the principles and recommendations of State Planning Policy 1/92 – Development and Conservation of Agricultural Land and the accompanying Planning Guidelines in managing the transition of farming and primary production areas to urban development.”
a slightly different formula being adopted in the following paragraph:
“(j) protecting the poultry industry by restricting urban encroachment into poultry farming areas in the southern half of the Shire through:…”
The anticipated (now existing) Local Area Plan has its own strategies, providing in s 3.0 Strategies:
“3.5 LAND USE CONFLICT MITIGATION STRATEGY
3.5.1 Intent
The intent of this strategy is to minimise potential conflict between land uses. This will be achieved through the implementation of appropriate management strategies including the provision of appropriately treated buffer areas. Land uses in the Local Area Plan area where potential conflict may arise include:
1. urban residential development and existing agricultural and aquaculture uses;
2. urban residential development and roads;
3. urban residential development and environmental areas harbouring adult mosquitoes and biting midges.
This strategy seeks to ensure that future urbanisation of existing farming areas in the Local Area Plan area occurs in a sensitive manner which respects the right of existing farming and aquaculture operations to continue. With this in mind, future urban development should be staged and where necessary incorporate adequate buffer areas and mitigation treatments to minimise potential conflicts between future urban and existing agricultural and aquaculture land uses resulting from:
agricultural chemical spray drift;
odour;
noise from agricultural and aquaculture activities;
dust; and
sediment and stormwater runoff.
…
3.5.2 Objectives
•To minimise the potential conflict between future urban residential and existing agricultural and aquaculture land uses by staging future urban development and where necessary by providing appropriately treated and adequate buffers. …
3.5.3Implementation Criteria
(a)Development applications shall be accompanied by a report prepared by a suitably qualified person which provides an assessment of the potential conflict between the proposed development and existing farming operations. Management measures to minimise potential conflict shall be based on the provisions of the Planning Guidelines: Separating Agricultural and Residential Land Uses, except where reasonable evidence is provided to support the variation of these requirements. Wherever possible future development applications shall be staged to minimise potential conflicts with existing farming operations. If this information is not provided in association with a subsequent development application it will be requested by Council at the information request stage. …”
It will be noted that the Strategic Plan, as quoted above, pays respect to State Planning Policy 1/92; the Planning Guidelines referred to in s 3.5.3(a) of the Local Area Plan are those created and “to be read in association with” State Planning Policy 1/92. Both Policy and Guidelines are included in Ex 19. Further, s 6.1.29(3) of the IPA lists matters which apply for assessing a development application to the extent the matters are relevant to the application, including” (e) all State Planning Policies.” The Policy and Guidelines seek to conserve “good quality agricultural land” as referred to in Introduction 1.1, which also refers to the expectation that “Local Authority planning provisions should aim to minimise instances of incompatible uses locating adjacent to agricultural operations in a manner that inhibits normal farming practice.” One reads under Purpose:
“1.2The purpose of the planning guidelines is to provide technical advice and guidance on reducing the potential for conflict between farming activities and residential development in accordance with Principle No 8 …
1.4It should be noted that conflict due to intensive animal industries is not specifically covered in these planning guidelines.”
There is nothing in the nature of an intensive animal industry here. Cf Planning Guidelines 2.1, set out in [11] below.
Buffer areas are promoted as “legitimate planning tools” in 1.10, 1.11 and 1.12. Principles set out in 1.13 which should be considered in applying the Guidelines include:
“1.Provided agricultural practices are legally practised according to existing codes of practice, it is unreasonable for new adjacent uses to demand a modification of these practices to an extent which threatens efficient agricultural operations.
2.When preparing planning schemes, local governments should avoid, as far as practicable, locating residential development in close proximity to agricultural land. Where this is not possible, mechanisms such as buffer areas should be used to minimise conflicts.
3.Buffer areas should be determined on the basis of the sustainable agricultural land use with the potential to have the most impact on adjacent land uses and which is reasonably likely to be practised, regardless of current use.
4.Buffer areas should be located within the site being developed for residential purposes, and be provided/funded by the proponent of that development. This principle protects the prior rights of agricultural producers to practice agriculture on rural land.”
So far as Strategic Planning is concerned, the following are noted:
“2.9 Land use strategies in strategic plans and any supporting local area plans should, as far as practicable, aim to isolate good quality agricultural land from uses likely to conflict with certain farming activities.
2.10 Areas of poorer quality agricultural land, when used for purposes that will not cause land use conflicts, may serve to isolate more intensively farmed land from encroaching incompatible uses. Farm forestry and grazing are examples of rural land uses that are compatible with either adjoining areas of intensive agriculture or adjacent residential uses.
2.22 In areas experiencing high levels of urban growth, relatively large areas of land might need to be designated for urban development. Situations will arise where good quality agricultural land is necessarily designated for development, but that development may be some years away. In such cases, consideration should be given to the need for temporary buffers at particular development stages to protect continuing farm operations until that farmland is developed.
2.23 Strategic plans or another part of the planning scheme should identify where the need for such buffer areas should be considered. Normally, the temporary buffer area should be incorporated in the future subdivision design, and planning schemes should include such a requirement. However, as the need for a buffer area is only short term, it need not be designed as a permanent feature, unless that feature has a desired role in the urban area (e.g., public open space or large residential allotments as described in 2.20).”
The following Part deals in detail with Conflict Assessment and Buffer Area Design. The only specific provision regarding width of buffers is:
“3.10 From a planning perspective, it is not considered practical to base buffer area dimensions on individual chemicals or formulations. Based on the available research on chemical spray drift, the planning guidelines have adopted a minimum width of 300 m where open ground conditions apply; and a minimum width of 40 m where a vegetated buffer element can be satisfactorily implemented and maintained. These dimensions may vary according to local topographical or climatic conditions or as further knowledge is obtained.”
No-one suggested that a buffer of such generous proportions was required here by the extent of spraying activities likely.
The Planning Guidelines in 2.1 provide an important definition:
“2.1 Good quality agricultural land is land which is capable of sustainable use for agriculture, with a reasonable level of inputs, and without causing degradation of land or other natural resources. In this context, agricultural land is defined as land used for crop or animal production, but excluding intensive animal uses such as feedlots, piggeries, poultry farms and plant nurseries based on either hydroponics or imported growth media.
2.2 Four classes of agricultural land have been defined for Queensland (Refer Table 1 and Attachment 1). Class A land is all areas is considered to be good quality agricultural land. In some areas, Class B land (where agricultural land is scarce) and better quality Class C land (where pastoral industries predominate), are also considered to be good quality agricultural land.
TABLE 1. AGRICULTURAL LAND CLASSES
CLASS DESCRIPTION Class A Crop land – Land that is suitable for current and potential crops with limitations to production which range from none to moderate levels. Class B Limited crop land – Land that is marginal for current and potential crops due to severe limitations; and suitable for pastures. Engineering and/or agronomic improvements may be required before the land is considered suitable for cropping. Class C Pasture land – Land that is suitable only for improved or native pastures due to limitations which preclude continuous cultivation for crop production; but some areas may tolerate a short period of ground disturbance for pasture establishment. Class D Non-agricultural land – Land not suitable for agricultural uses due to extreme limitations. This may be undisturbed land with significant habitat, conservation and/or catchment values or land that may be unsuitable because of very steep slopes, shallow soils, rock outcrop or poor drainage.”
2.5 provides that the definition of what constitutes “good quality agricultural land within a local government area is a DPI responsibility, although local agricultural industries, local authorities and other relevant groups will be consulted.”
Mr Thompson gave evidence under subpoena. He did much of the work (isolating soil types, and the like) leading to Fig C-16 in the planning study for the East Thornlands Local Area Plan (Ex 9A) which identifies the Good Quality Agricultural Land in the Study Area. Perhaps contrary to popular belief, the area is not uniformly good quality agricultural land. However, more than half of the site and more than half of the Daleys’ land (those parts more remote from Moreton Bay) were assessed A or B, the Daleys having a preponderance of the former, Mr Thompson said that “the only reason for separating A from B in that area is the different slope, 4%-8%.” (p 246).
During the hearing, some time was devoted to considering whether the Daleys’ activities qualified for the protection which the planning provisions quoted purport to offer. For the last 10 years or so, these have been primarily the depasturing of cattle to permit Mr Daley to pursue various projects of an experimental or semi-scientific character. There are various references in the provisions to existing agricultural uses, existing farming areas, existing agricultural land uses, agricultural activities, existing farming operations, and the like. In the Strategic Plan, the reference is to “farming and other primary production” areas or operations, also “primary industry activities”. As is common with planning instruments, terms are not employed with any particular rigour. The State Planning Policy makes it abundantly clear that no distinction is made between agricultural land used for growing conventional crops and that used for supporting animals (intensive operations being specifically excluded, of course). I have concluded that it is not possible to make distinctions between the farmer and the cow man, and that the Daleys’ activities are eligible for the “protection”.
While the Daleys are, in my opinion, protected in the way mentioned, they did not contend that the presence of good agricultural land in the site itself was a factor against the application. The Policy in Pt 2, Planning Schemes envisages that the Policy will be taken into account in formulation of such schemes and the Guidelines in Pt 4 are about “Assessing Planning Applications”. The planning documents under discussion in terms indicate that the Policy and the Guidelines have been taken into account. The planning study provides at p C-100:
“The draft Strategic Plan recognises the future urbanisation of the area. In approving the draft Strategic Plan Council has accepted that farming is no longer an appropriate long term use of the land. This position has been accepted by the Queensland State Government.”
The Guidelines contemplated planning authorities’ taking that approach:
“Land committed for non-rural development or subdivision.
4.2 There will be instances where the subject land is effectively committed for development or subdivision by the Planning Scheme. Such a commitment would comprise the following:
· an unequivocal inclusion of the site in an area depicted for non-rural uses in a Strategic Plan or DCP, where development approval is not contingent upon consideration of the agricultural land quality.”
As Mr Ure for the Council observed, pursuant to the Strategic Plan, the majority of the land is allocated to the Urban Residential Preferred Dominant Land Use designation, the balance being the sensitive areas located towards Moreton Bay and the inlet designated Special Protection Area; generally, the proposed allotments carry the former designation, Open Space Areas the latter. In the Local Area Plan, there is the same arrangement, whereby the land is mostly allocated to the Urban Residential designation, lower areas in the north to the Special Protection Area/Open Space PDLU designation. Similar planning provisions apply to the Daley land, but this, for the moment, imposes no obligation on them to use or develop it accordingly.
The Daleys came under some criticism for allegedly inconsistent stands. They were submitters against the current planning arrangements, in particular the allocation of 75% (according to Mr Daley) of their land to the Special Protection Area/Open Space PDLU designation, on the basis that this inappropriately limited development potential and the value of the land, without adequate recompense. It was suggested the Daleys really intend to develop, and are presently out to obtain advantages at the expense of the Applicant, for example by forcing redesign of its subdivision so that it will provide the Appellants with a free road running along its side of the shared boundary. This would result from one of Mr Feros’ collection of five designs all providing a 20 metre buffer. There is no reason for the court’s not accepting what Mr Daley said about his and his wife’s intentions. That is not undercut by their having made representations or taken other actions to preserve the value of their asset.
The drainage issue
On the site are three dams, identified as dams 1, 2 and 3 for purposes of the appeal. Closer to Moreton Bay and straddling the boundary with the Daley land is dam 4, which is connected with dam 5, located further to the east on the Daley land. Dam 5 is presently dry, an unusual occurrence. A few inches of water remain in dam 4, where about half of the cattle on the property presently water, the steers. Remote from it, the Daleys have another, larger dam, where their herd of heffers water. The Appellants contend that the proposed development ought to be refused (or modified) because it will lead to their being deprived of overland flows of water which replenish dams 4 and 5. At some trouble and expense they could replenish by pumping their own water. They claim that the overflow from dam 1, in particular, gets to their property by a gully which is adjacent. Evidence to the contrary effect was presented against them, likewise evidence that a good deal of the overland flow that the Daleys have been accustomed to expect originated from the “Gobbo” land immediately to the west of the site, and now a developed residential estate. Surface runoff from development of that kind (as will be the case from the developed site) will contain pollutants, about which one might expect the Daleys to be concerned. The proposal will catch such flows, and divert them to the north where, after appropriate “treatment” in swales, wetlands and the like, they will percolate to Moreton Bay. There is no watercourse or anything similar here. It does not matter which side is right about where water has come from and gone in the past. The common law is clear. Subject to the special situation of established watercourses, and the like, a landowner is free to impound and use or dispose of as he or she sees fit water that falls or flows on to land. An adjacent owner of lower land can have no expectation of receiving such water. See Gartner v Kidman (1962) 108 CLR 12; and, more recently, Ashworth v State of Victoria (2003) 125 LGERA 422. The common law has not been changed in any relevant way by the Water Act 2000, which provides in s 20:
“ (4) Despite subsection (6), an owner of land on which there is overland flow water or overland flow water that has been collected into a dam, may take the water -
(a) for stock purposes; or
(b) for domestic purposes.
…
(6) A person may take or interfere with overland flow water and subartesian water for any purpose unless -
(a)there is a moratorium notice or a water resource plan that limits or alters the water that may be taken or interfered with; or
(b) for subartesian water only – a regulation under section 1046 regulates the taking or interfering with the water.”
The usual situation is that the lower owner does not want to receive runoff from higher neighbours, or when it is discharged in concentrated form. Historically, this has been an important issue in subdivisions. See for example Colless v Brisbane City Council [1984] QPLR 235. There is a special provision in s 5.1(3)(f) of the repealed Act (made applicable by s 6.1.29(3)(h) of (ii) of the IPA) which requires consideration to the extent relevant to an application of “the proposed method of disposal of drainage and whether this would have a detrimental effect upon neighbouring lands.” In this statutory context, too, the concern is not about disposal of drainage by means which divert it away from lower land. I think the basis of the provision is that “drainage” is concerned with waste water, rather than water adjoining landowners would wish to receive.
The Appellants relied on Mapgate Pty Ltd v Council of the Shire of Caboolture [1997] QPELR 30 where, especially at 34, Judge McLauchlan QC considered both the quality and quantity of surface runoff. His Honour was not considering any provision like s 5.1(3)(h)(ii), but, rather, planning provisions applicable to protecting the water resources of the Shire, and the situation of Lake Kurwongbah in particular.
A more recent instance of the court considering similar issues is Cooroy Golf Club v Noosa Shire Council [2005] QPEC 016, where there were relevant planning scheme provisions designed to “protect and preserve the existing water supply source contained within the Lake Macdonald catchment.”
On the assumption that runoff will be diverted, as planned, the Appellants are entitled to no success on the issue of overland water flows on to their site.
The Appellants’ use of their land
I accept Mr Daley’s evidence. The Appellants’ land is the smallest of their half dozen properties in the State on which they conduct a substantial cattle enterprise, their herd presently consisting of some 36,000 head of cattle, markedly down because of recent hard seasons. Their son works for them, likewise 30 other employees, and they have other commercial activities, such as piggeries. They acquired the Thornlands property in 1991, and subsequently decided to make it their home. At the time of the purchase, approximately half of the farm was actively cultivated, the balance used for grazing cattle. They saw it as suited to the production of very palatable sub-tropical legumes and grasses, and a suitable place for carrying out evaluation trials. East Thornlands then was given over to agriculture and some grazing, but the real estate agent extolled their land’s “Res A” potential, which the Daleys did not regard as a selling point.
In the first years after the Appellants’ purchase the land was used for farming and grazing, crops of potatoes and sweet potatoes being produced on a share-farming basis with the Goleby family. Mr Goleby was able to give evidence of longstanding cropping activities earlier. Mrs Daley was unhappy about dust generated by farming close to the house, so that the share farming arrangements were terminated, the cropping land being ploughed and planted to improved pasture and fertilised. It took a couple of years for the pasture to establish to the point where “a relatively intensive level of grazing” could be supported. The maximum number of head ever to pasture at Thornlands would be just over 50; the property would support about 40 cattle in an ordinary season, without irrigation. From April 1995 to December 2004 some 132 cattle “have been turned off the property”. Plainly, sales of cattle from the property are a modest level.
Mr Daley’s evidence establishes the genuineness of the “evaluations” and other activities such as an insemination program and investigations into a group of cattle which appear to have tick resistance, and of their value to the Daleys in determining how best to manage their large herd in outback Queensland. The statement of Mr Daley and his evidence attest to the importance of weed control and the measures used, essentially spraying by herbicides. Mr Daley tells of the escape of one of his animals to the site last year and of some troubles emanating from the site which had disturbed his cattle, in particular riding of a motorbike along the boundary fence by a tenant there. It is conceded this may have had an innocent explanation on one recent occasion to do with giving notice of a sick steer (which was dead at the time of the court’s inspection). On other occasions, cattle have been alarmed by the noise of the bike, breaching and wrecking the Daleys’ electronic fencing. Current plans are to sow a yearly crop of winter oats (to replace lucerne and white clover) but the planting of the first such crop may be frustrated by inadequate recent rainfall. There is a proposal to use feed and water troughs from an old piggery as a boar semen collection centre, utilising existing buildings. Mr Daley says that on two separate occasions he has noticed grass dying on his boundary from what he surmised were herbicide sprays used by the then occupant of the site. He is afraid that suburban-type development of the site will increase instances of this kind, and that domestic dogs may harass or frighten his cattle. He is fearful that new suburban neighbours may make complaints about his usual activities, including, for example, complaints regarding noise when calves are weaning. He wants to keep the option open to grow small crops and fruit for niche markets as has been done on a neighbouring property (I took this to be Dr and Mrs Drew’s). He has 3,000 ha on the western Darling Downs which is farmed presently. He is concerned that the potential of the farm to carry out that type of cropping would be lost or reduced if no buffer were provided. He says:
“I am not against development provided that water quality and quantity is assured and a suitable buffer provided to separate residential and rural areas. In my opinion a suitable buffer of 40 metres would be appropriate provided it was vegetated and kept reasonably free of human activity.”
A particular concern of Mr Daley’s, supported by an experienced man in the industry, Mr Teys, and a veterinarian, Dr Blackman relates to the “National Vendor Declaration (Cattle) and Weigh Bill” which has to be completed when cattle are disposed of and moved. He is concerned that he will not be able in good conscience to give appropriate certifications regarding substances ingested by cattle, because he will not know what chemicals might have come across the boundary from the developed site. He begs to differ from his own veterinary expert, Dr Blackman and Dr Webber who agree that the risk of contamination of cattle is from chemicals drifting in from the site is small, to the extent that he thinks a small risk is a real one, and something to be very concerned about:
“A positive residue test could affect not only the reputation of cattle on the Thornlands farm, but also the reputation of our total herd and perhaps, in the worst case, the Australian cattle industry. A change in chemical residue status of the property would result in additional expenses for us to cover testing at meat processing establishments.”
A last-minute witness for the developer was Mr W H Bowden, well known as an experienced property developer in the Pine Rivers Shire. He has successfully run cattle on land separated only by a fence from residential development on his subdivisions. He sells about 1,000 head per annum, and is unconcerned about completing the declaration. He produced a number of photographs of his current operation, where (as would be the case for the Daleys) the residential development is along one boundary only. He accepted that in the Pine Rivers Shire there is no protection for existing primary industry activities of the kind under consideration in this appeal. While there is no reason for not accepting his evidence, I would think that the success of his cattle enterprise is not as vital to him as that of the Daleys would be to them.
Some of the issues raised by the Appellants have gone away, such as traffic issues. Likewise, water issues, in the sense that, in my view, the appeal gains no strength from them. Mr Ure, for the Council, summarised the remaining issues as:
“• potential risk to the cattle as a consequence of the ingestion of fertiliser, pesticides, etc
• whether the cattle operations would be compromised by complaints of residents of the subdivision with respect to noise, cattle management activities, and the risk of drowning of children (in the dam)
• alleged conflict with State Planning Policy 1-92.”
The issues are perhaps a little broader. For example, they extend to impacts on cattle of dogs, noise, etc. Also, as appears elsewhere, I am unpersuaded that the agricultural activities that have to be considered are strictly limited to the current cattle operation. Obviously, the Planning Policy issue is a shorthand way of referring to planning issues overall, including those arising under the Strategic Plan and the Local Area Plan.
As to planning issues, Mr Cochrane’s written submissions, on behalf of the Co-Respondent, sufficiently describe the situation:
“3.11The conclave between the town planners resolved a number of the town planning issues and, in particular, agreement was reached that:
(a)The proposed development is not contrary to the intent of the Rural Non-Urban zone.
(b)The Strategic Plan designates the subject site (and the appellants’ property) for Urban Residential and Special Protection Area.
(c) The proposed development will not create a traffic problem.
(d)The forward planning documents designate the subject site for Urban Residential and Special Protection Area.
(e) There is a demand and need for the proposal.
The court is entitled, it is submitted, to form the opinion that Mr Feros’ approach overstates the potential for conflict with the operation carried on by the Daleys and contemplates a substantially excessive buffer requirement.”
Mr Feros queried whether there was a need for the proposal. It could not be said there is a need in the sense that, without the proposal, people will go homeless, but in South East Queensland, the need for housing generally is clear, and this is a suitable, highly salubrious location, for which there will be plenty of demand in the market. It cannot be said there is no need.
I do not agree with Mr Cochrane that the potential for conflict is overstated by Mr Feros. The 20m buffer recommended by him accords with Dr Blackman’s view. It is correct that people who might come to the residential development on the site would have “every opportunity to apprehend the adjoining rural use carried on by the Daleys”, and that Mr Daley’s somewhat negative views were not shared by others, such as Mr Bowden and Mr Teys.
While, if the Appellants’ points were assessed in isolation, their success might be borderline (the prospects are enhanced to the extent that the Co-Respondent carries the onus of showing that the appeal should be dismissed (IPA s 4.1.50(2)), when all matters are taken into consideration, I think the Appellants’ case is strong.
Even if the proposition that the Daleys’ present activities create a concerning reverse amenity issue may be thought somewhat borderline, I am not prepared to proceed on the basis that no changing or intensification of those activities will (or may lawfully) occur. Over decades (most recently by Mr Goleby as a share farmer and tenant), until about 1995, conventional cropping occurred. There are still pecan and mango trees, not presently exploited commercially. Mr Daley says that if the development proceeds and apprehended difficulties for his grazing activities arise, he may decide to pursue cropping. The Council, by reference to s 1.4.6 of IPA and s 3.1(1) of the repealed Act submits that:
“31. Any lawful use rights with respect to agriculture were lost upon the discontinuance of that activity by Mr Goleby. If Mr Daley wished to undertake agriculture on the subject land it would necessitate an application for the notification of conditions pursuant to Column 111(b) of the Table of Zones for the Rural Non-Urban Zone.
32.This would give the Local Government the opportunity to impose conditions (for example, with respect to the regime to be undertaken for crop spraying).”
Theoretically, it may turn out that it is the Daleys who are required to provide buffering. It may well be that a farmer, agriculturalist or primary producer is allowed a good deal of flexibility about changing what is done or grown on the farm. I agree with Mr Hughes that this is a false issue, which need not be resolved in this appeal. (It has not seemed useful to attempt to resolve issues about whether crops recently sown or proposed by the Daleys to support cattle and or are not ‘field crops’, etc.)
Mr Cochrane is correct that the 40m buffer referred to in the State Planning Policy documents is more appropriate where aerial spraying is contemplated. Also, I think that any spraying activities the Daleys will undertake would be conducted responsibly, in accordance with the approach recommended by his witnesses Mr Bunch and Mr Wagner. It must be accepted that of the relatively numerous complaints the Council has received from residents about agricultural uses (nurseries and poultry enterprises, in particular), none is similar to what is apprehended here. Nevertheless the Co-Respondent does not satisfy the court that the uses of the site and of the Daleys’ land (limiting them, for the sake of argument, to the present use) do not bode to produce conflicts at such a level that the court would be concerned about them, as the Council should have been.
The development application has received extensive consideration, and not only from the Council and its officers. The “Appeal Book”, Exhibit 2, established as much. There was a detailed referral coordination information request from the Department of Local Government and Planning dated 22 August 2003, which the Co-Respondent answered in detail. Separate reports were provided in relation to Greenpeace Assessment, Acid Sulphate Soil Investigation, Site Contamination, etc. The Environmental Protection Agency, on 26 February 2004, advised that its officers considered that the issues raised in the information request had been satisfied. Issues to do with protecting Moreton Bay and the foreshore of Commonwealth and State concern were addressed, including buffering. The DPI were interested, because of the Fisheries Act 1994, in “buffer widths between tidal lands and any proposed works”, among other things. The State Planning Policy regarding koalas (1/97) was identified as relevant by the Co-Respondent but the one of relevance in this appeal was omitted when the Policies conceded to be relevant were listed: see paragraph 8.0 in the Report of June 2003. It should not be thought that the issue of conflicting uses, which I think important, was overlooked by Council officers; the adverse submissions drew attention to it. The Planning Report they prepared was not in Exhibit 2, but became Exhibit 24; and contains the following:
“Public Consultation
Council received two (2) properly made submissions. The grounds for the submissions are outlined below:
Ground 1 – Fencing/Food Safety
The submitters have conventional barbwire boundary fencing and the visual and noise effect of people and domestic animals will restrict their land usage. The erection of retaining walls and fences using different types of chemically treated materials associated with the proposed residential allotments may result in chemical residue contamination which may become a food safety issue.
Officers Comments
Replacement of the existing barbwire boundary fence with a 1.8m high fence constructed of solid materials will reduce the visual appearance of people and will assist in keeping domestic animals within their yards. The construction of any boundary fencing between property owners is subject to the Dividing Fence Act.
The existing Rural Non Urban zoning of he land use permits domestic animals, people, a variety of fencing that may or may not be treated with chemicals and the use of chemicals associated with farming operations. It is considered that the use of chemicals associated with agricultural operations on the subject site will be reduced as a result of the proposed development.
Research into the effects of chemicals within treated timber has determined that the leached chemicals can not be passed on through pastures. The research has determined that in order to be affected the cattle would need to digest the fencing.
For the above reasons it is considered that the visual, noise, fencing/chemical contamination issues raised above will not substantially differ or be increased from the activities that can currently be carried out on the land. Therefore, it is considered that the proposal will not adversely affect the adjoining land uses to the extent that it will threaten efficient agricultural operations.
Ground 2 – Layout
The submitter objects to Map A, however, has no objection to Map B.
Officers Comments
The revised layout, C590-1-B has been approved.
Ground 3 – Water Run Off
There will be a substantial increase in water run off from domestic buildings and this will increase the risk of soil erosion and crop or pasture contamination. Any alteration of water flows to existing stock water storage is unacceptable.
Officers Comments
It is considered that the eastern adjoining allotment will not be adversely affected given that the subject site slopes predominantly to the north. Upon construction, all stormwater from roofed areas will be directed to the street or inter allotment drainage and discharged to the park in the north. Some overland sheet flow may occur, however this should not be an increase or an intensification of the existing flows.
Ground 4 – Road Layout
...
Ground 5 – Roundabout
...
Ground 6 – Use
The submitter has advised that since acquiring their property in 1991 they have conducted Artificial Insemination and cropping programs in conjunction with genetic evaluation trials.
Officers Comments
Council records indicate that the submitter’s site does not have any approvals for any Animal Husbandry or any other use in order to conduct artificial insemination, cropping programs and genetic evaluation trials.
Given that Council’s records indicate that no approval exists for the use on the adjoining site it is considered unjustified that any excessive constraints be imposed on the proposed residential development.
Ground 7 – Buffer
The submitters have advised that the proposed development must provide adequate buffers to avoid the obvious land use conflicts that the proposal will create.
The principles of the State Planning Policy 1/97 “Separating Agricultural and Residential Land Uses” state:
1. Provided agricultural practices are legally practised according to existing codes of practice, it is unreasonable for new adjacent uses to demand a modification of these practices to an extent which threatens efficient agricultural operations.
2. When preparing planning schemes, Local Government should avoid, as far as practicable, locating residential development in close proximity to agricultural land. Where this is not possible, mechanisms such as buffer areas should be used to minimise conflicts…
3. Buffer areas should be located within the site being development for residential purposes, and be provided/funded by the proponent of the development. This protects the prior rights of agricultural producers to practice agriculture on rural land.
These principles must be applied to this proposed change of use from rural to residential given the submitters business is sensitive to such an intensification of the use of the land.
Officers Comments
State Planning Policy 1/92 Guideline Separating Agricultural and Residential Land Uses was addressed through the State Government’s Approval of Redland Shire Council’s Strategic Plan in 1998. During this process Redland Shire Council and the State Government investigated a number of areas within the shire including the area within the East Thornlands Development Control Plan. As part of the State Government’s assessment of the area they looked at a number of issues including land holdings, size of allotments, fragmentation, the viability of such land parcels for long term agricultural uses and the catchments required to support population growth.
After reviewing all the issues and taking into consideration the State Planning Policy 1/92 Development and the Conservation for Agricultural Land and its associated Guidelines, the State Government approved the Redland Shire Council’s Strategic Plan 1998 that designated the subject site and adjoining sites for Urban Residential purposes.
Therefore, the site is deemed suitable for Residential A purposes.
Conclusion
It is considered that the issues raised within the submissions of stormwater, fencing, visual appearance and noise from the proposal, the use of fertilisers and pesticides and the State Planning Policy 1/92 has been taken into consideration and that the proposed development will not impose adverse impacts to the extent that it will threaten efficient agricultural operations of adjoining land parcels.”
The foregoing appears to represent the only gesture, deliberate or otherwise, towards complying with 3.5.3(a) of the LAP, set out at [6] above, which in terms calls for a report. The Council’s planning witness was Mr Veres. His report dismisses the Appellants’ concerns one by one. If I may say so, like all of the planners’ material (Mr Feros’ excepted), it bespeaks an absence of any real concern for the Appellants’ situation, or any attempt to see matters from their point of view, still less to define what the Appellants may have by way of “rights” to be protected. Most of the Appellants’ issues particularised in relation to appeal ground 7(b) are responded to as in 7.2.2 of the report:
“7.2.2 …this is a matter for scientific expert evidence and one which can be appropriately dealt with by conditions both at reconfiguration and operational work stages.” (see also 7.3.9)
7.2.4 says the
“…desirable objective to ensure that these rural activities can continue … can be achieved through appropriate conditioning.”
Concerns about dumping of rubbish and building waste from 36 new residences (of which only the adjoining 13 were considered even potentially concerning) are dismissed by saying that the Council collects rubbish weekly, and thus dumping building waste offends the Environmental Protection Regulation. The Appellants, it was said, will be responsible for ensuring that youthful residents on the site or visitors, do not come to grief in their dams. That there was a parental responsibility as well was noted. Mr Veres thought:
“The assessment and the impact of the residential development has taken due regard of adjoining uses.” (See 7.3.2)
The Local Area Plan was regarded by him as inapplicable because it deals with ‘aquaculture and agriculture, but not animal husbandry’. Further, it is said the Local Area Plan has considered and effectively overtaken State Planning Policy 1/92.
When the Council issued its Development Application Decision Notice of 29 April 2004, the reconfiguration dues not seem to have been examined from the point of view of the appropriateness for minimising conflict between uses. There does not appear to be a single one among the very numerous conditions directed towards dealing with potential conflict, although interests other than the Appellant’ are dealt with in detail; even speculative topics like “aboriginal, archaeological or historic sites” are looked after. It is acknowledged that there are conditions, for example, regarding stormwater runoff, that might be expected to have the effect of ameliorating the Daleys’ situation (they say otherwise), but the appearance of any focussed attention to managing conflict is lacking.
In my opinion, the Council has not given proper, even-handed, consideration to the Strategic Plan and Local Area Plan provisions regarding conflict between uses which have been set out (or to the Planning Policy). In my opinion, for purposes of the relevant provisions of the repealed Act, the application does conflict with those provisions. Further, I do not think there are sufficient planning grounds to justify approving the application despite the conflict. The repealed Act provisions that fall to be applied are s 4.1(5A) and s 5.1(6A), whose terms are identical:
“The local government must refuse to approve the application if-
(a) the application conflicts with any relevant strategic plan or development control plan; and
(b) there are not sufficient planning grounds to justify approving the application despite the conflict.”
I agree with Mr Hughes that, applying Weightman v Gold Coast City Council [2002] QCA 234; 121 LGERA 161, this indicates that the application should be refused, on the face of things. However, I am of the view that it may well be possible (and I think it is in the general interest) to achieve an outcome in this appeal which sees an amended application approved, with suitable conditions.
Mr Cochrane, on behalf of his client, offered the provision along the boundary of a 1.2 high wooden fence (i.e. lower than the Planning Report contemplated) plus a 1m hedge. He also offered that the residential allotments immediately adjacent to that boundary would be kept off the market for a couple of years. The Planning Policy documents contemplate that buffers may be temporary. In this case, the court’s view is that there ought to be 20m buffer. Mr Feros’ suggestions of means whereby that might be provided are, as a group, acceptable, although some are less practical than others. Those that create residential allotments which could be marketed at the appropriate time in the future would, no doubt, be more attractive to the Co-Respondent. I would be disposed to regard any changes to the subdivision design as suggested by Mr Feros as minor changes, which could be made in the appeal, without the necessity for the Co-Respondent to return to the application stage. Mr Daley’s approach is that the fence should be higher (and as I understand him, that he is not interested in the hedge). It would seem obvious that the buffer arrangements ought to be terminated if there is any voluntary reconfiguration of the Daleys’ land, or if agricultural-type uses of it cease. The duration of a temporary buffer arrangement otherwise is still to be worked out. The court is not suggesting that the two year period suggested by Mr Cochrane would suffice. There may be room for some flexibility to permit marketing earlier of lots close to Thornlands Road, with the Daleys left to take over responsibility for providing that part of the buffer at an appropriate time.
There was some contention as to whether the Respondent Council had any policy about buffers, particularly if it had to bear responsibility for them, which might well be costly. The principle that the proponent of new residential development provide (even maintain) a necessary buffer seems sound. Mr Feros identified two nearby examples of buffers separating residential and agricultural uses. One was said to be a private arrangement, not involving the Council; the other involved the transfer of the buffer area to the Council, under a condition set by it. There is no way in which the court can impose on the Council the obligation of taking responsibility for a buffer area without the Council’s agreement.
The parties are invited to consider their positions in light of these reasons, and to approach the court if some consensus as to the disposition of the appeal finally can be arrived at; if necessary, the court can consider further argument, maybe even further evidence, if permitted.