Dowley v Redland Shire Council
[2005] QLC 29
•14 June 2005
LAND COURT OF QUEENSLAND
CITATION: Dowley v Redland Shire Council [2005] QLC 0029 PARTIES: Alan James and Colleen Lee Dowley
(applicants)v. Redland Shire Council
(respondent)FILE NO.: VC2004/0076 DIVISION: Land Court of Queensland PROCEEDING: Appeal against categorisation under Local Government Act 1993 DELIVERED ON: 14 June 2005 DELIVERED AT: Brisbane HEARD AT: Brisbane MEMBER Dr NG Divett ORDER: The appeal is upheld and the Category B designation is set aside. The drainage problems confronting development upon the subject land are not insurmountable, and the land should be categorised as Category A land. CATCHWORDS: Categorisation for differential rating – Redland Shire – drainage problem area – Impact of flooding – Insurmountable drainage problems – Local Government Act 1993.
Categorisation for differential rating – whether insurmountable drainage problems – conditions of approval – Reasonableness of conditions – Conditions found to be unreasonable.
Drainage problems – whether insurmountable – Problems in control of developments – Local government accountability – Subsequent development by local government.
High water mark – Definition of high water mark – Reliability of original survey – Judicial Inquiry into surveying – Russell Island surveys.APPEARANCES: Mr BJ Paddison for the appellants
Mr W Cochrane of Counsel for the respondent
Background:
This matter relates to an appeal by Alan James and Colleen Lee Dowley (the appellants), against the categorisation of their land by the Redland Shire Council (the respondent). The subject land is located at 20 Emmerson Street, Russell Island, and is described as Lot 47 on RP 129495, Parish of Russell. The subject land has an area of 857 square metres, and is located on the southern side of Emmerson Street, and has a water frontage backing on to Canaipa Passage of Moreton Bay. The subject land is located towards the eastern end of Russell Island, about 0.8 km west of the Canaipa Point jetty site.
The subject land was categorised at the relevant date for rating purposes pursuant to s.978 of the Local Government Act 1993 (the Act), as Category B land. The relevant period for effect of the categorisation was for the quarter 1 January to 31 March 2004. The respondent Council issued a rating notice for that period on 16 January 2004, and the owners (Dowley) objected against that categorisation on 25 February 2004. The respondent Council advised the owners on 26 March 2004 that the objection had not been upheld, and the subject land was continued to be categorised as Category B land. The appellants then appealed to this Court under s.987 of the Act on 31 March 2004, arguing that the subject land should be Category A land.
Mr Brian J Paddison, a retired civil engineer appeared and gave evidence for the appellants. Mr W Cochrane of Counsel appeared for the respondent, calling evidence from Bruce Trevor Appleton, a registered civil engineer with the Council, and Andrew Vitali, a consulting registered civil engineer. With the agreement of both parties, a joint site inspection was undertaken.
History of the land –
The subject land was part of an original subdivision of that area in 1971. That survey was undertaken by experienced registered surveyors, at a time when Russell Island, and the other offshore Islands in Moreton Bay were not under any local government control. The history of subsequent major problems with flood prone lands on Russell Island was later to become the subject of major judicial inquiry in 1973, as a consequence of which Russell Island then came under the control of the respondent Council. The history of the original development of Emmerson Street and surrounding roadways, predates the responsibility of the respondent Council. However subsequent road and drainage improvements in that area were undertaken by the Council.
The subject land was initially categorised as Category B land by resolution of the Council on 15 June 2001, and has been continued under that category until at least May 2004. Council approved the budget for the period including the categorisation appealed on 27 June 2003. The appellants did not object against the categorisation at that time (Exhibit 9, p.77). Accordingly the objection lodged on 25 February 2004 was legally out of time for objection. However the Council accepted the objection, and subsequently made its determination of 26 March 2004. The respondent does not challenge the legality of the objection.
Subsequent to being placed under the control of the respondent Shire Council in 1972, the subject land came within the Redland Shire Council's town planning scheme in 1988. That scheme became a transitional planning scheme under the Integrated Planning Act 1997 (IPA). Under that 1988 planning scheme, the subject land was designated as Residential A land and continues with that land use classification until the present.
Under the existing transitional planning scheme with IPA, by Executive Council minute of 24 April 1998, any dwelling house being proposed on Russell Island, and the other Bay Islands, may be erected subject to the approval by the respondent Council in accordance with the administrative requirements of the town planning scheme. It is noted that in respect of dwelling houses proposed on Bay Islands, such developments are not subject specifically to the consent of the Council. However under s.11A of the Division 3 of that code, developments on those Bay Islands are proposed for review following the completion and adoption of the Southern Moreton Bay Island Planning Scheme (Exhibit 9, pp.119 – 372). Those criteria are discussed later in paragraph [67]. While both Category A and Category B lands in column 3(b) may not be refused by Council, any application to build may be subject to conditions.
Under the "Southern Moreton Bay Islands Planning and Use Strategy" (1999), the subject land was classified as a drainage problem Category 1 DP1 land. That was one of 327 DP1 parcels on Russell Island (p.160); and is described as:
"Lots which generally have less than 450 square metres of land above Q100 limits of inundation. Category DP1 also includes allotments which cannot be provided with access clear of Q2 inundation" (Exhibit 9 – p.161)"
The actions proposed for DP1 lots includes that "the majority of those lots would be acquired and rezoned Open Space or Conservation.
In the subsequent planning report (1999) the consultants clarified their drainage investigations, which involved extensive hydrological modelling and onsite Lot assessments, and predicted flood inundation for the Q2 and Q100 episodes. The DP1 drainage categories were seen as allotments "unlikely to receive building approval and have been identified for acquisition" (Exhibit 9, p.275).
As a consequence of the rating categorisation policy of the respondent Council, Mr Cochrane argues that the benefits to owners of land shown as Category B is that they obtained the benefit of reduced rates upon their land. He further notes that any lands which are subject to both tidal inundation or extensive overland flooding are unlikely to receive approval, unless it can be demonstrated that drainage and tidal surge problems are not insurmountable. Mr Cochrane argues that the current drainage problems on the subject land are reasonably insurmountable within the broad understanding of what engineering solution might be seen in the circumstances surrounding the subject land.
Mr Paddison disagrees with that conclusion, and he provides an engineering solution to divert the predicted Q100 surface flows towards the existing undeveloped road reserve known as Mangrove Place, adjoining the subject land (Lot 47) to the west. The relevance of Mangrove Place is a key issue in this matter. Mr Cochrane agrees that Mr Paddison's solution could be undertaken from an engineering perspective, but he argues that the prohibitive costs of such a proposal render it unreasonable in the circumstances, and whether there are any resulting beneficiaries other than the appellants.
Mr Paddison advises that the respondent Council has already accepted senior legal counsel's advice that an application for a material change of use on a Residential A parcel cannot be refused, but that it could be approved subject to reasonable and relevant conditions (Exhibit 1, para 12). A preliminary approval to Mr Paddison to that effect was sent by the respondent Council on 14 October 2002. That included the additional requirement to be met prior to the issue of a redevelopment permit:
"The applicant shall demonstrate how a dwelling house can be sited on Lot 47 without the placement of any major filling below the 2.4 metre AHD contour and outside the 100 year ARI flood level without any alteration to the natural ground levels in line with the general principles of the Draft Land Use and Development Strategy report in 1988 and Division 3.11A of the transitional planning scheme" (Exhibit 11, DIP9).
Mr Paddison agrees that an approval would only be forthcoming if it could be demonstrated that any solution could be reasonably executed.
In explaining actions that have subsequently arisen following that preliminary development approval by the respondent Council on 14 October 2002, Mr Paddison explains that an application for a declaration under s.4.1.29 of IPA was lodged with the Planning and Environment Court on 29 July 2003. That application sought to confirm whether a development application "may only be approved or approved with reasonable and relevant conditions" (Exhibit 1, BIP6). That was subsequently further amended to include the following words:
"and a condition of such approval must be a requirement that the portion of the subject land required for the dwelling and the septic/sullage disposal be filled to RL2.4 metres AHD without the requirement of a separate development permit for that filling."
However on the advice of their senior legal counsel, the respondent Council declined to agree to the later additional wording relating to filling upon the land. Mr Paddison advises that appeal is still in abeyance, pending the outcome of the current matter. Mr Paddison agrees however that even if this Court agreed to a change of categorisation to Category A, the appellants would still need to make an application to the respondent Council, and it would still be approved subject to the conditions imposed by the Council,
Nature of the land –
The subject land is a regularly shaped parcel of about 20 metres frontage to Emmerson Street, falling gently towards the rear to Moreton Bay. Both parties accept the detailed survey of spot heights and contours undertaken by Paul Caddy Surveys Pty Ltd, licensed surveyor (Exhibit 4, p.13). That survey plan shows the presence of a rudimentary log retaining wall located about 3 metres inside the original high water mark (HWM). The current HWM is at the foot of the log retaining wall. There is a difference of opinion about the reason for the log retaining wall, as Mr Appleton concludes that its purpose was to hold filling that had been placed upon the subject land. However he concedes that he has taken no soil samples to confirm that speculation.
Mr Paddison by comparison argues that the purpose of that log retaining wall was to prevent further erosions from tidal influences, which have previously eroded the subject land by about 3 metres. He notes that nine parcels along Emmerson Street have built similar log walls to protect their properties. Mr Appleton also agrees that a Lot about four removed to the west of Mangrove Place has a log retaining wall, and also has an erosion embankment. To support the owner's right to place such a log retaining wall, Mr Paddison relies upon the decision of the High Court in Gartner v Kidman (1961) 108 CLR 12, at 48 to 49. In that situation he argues that it was reasonably necessary for the owners to protect their enjoyment of their own land. It is noted that from the contour lines shown on the Caddy plan, the area of the subject land above the 2.4 metres contour line (Q100 storm surge) represents about 325 square metres. The plan also shows the general direction of overland flows as discussed later.
It was also agreed that there exists a spoon drain along both sides of Emmerson Street, as shown on a detailed and contour plan of the locality by Saunders Havill and Associates, licensed surveyors (Exhibit 10). Emmerson Street has a formed gravel carriageway, and there are twin 450 mm. diameter round concrete pipes (RCP) culverts, under the carriageway opposite the western boundary of Lot 47 (the subject land). Those matters are discussed in paragraph [33] later.
Mr Paddison rejects the suggestion that the Caddy survey shows that the adjacent Mangrove Place to the west of the subject land indicates that filling has occurred upon Lot 47 (the subject land). He argues that in fact there has been some earthworks undertaken upon Mangrove Place, in order to push the stormwater flows in heavy rains further away to the east from the property on Lot 46 (Young), which adjoins Mangrove Place to the west. Mr Appleton partly bases his opinion that filling may exist upon the subject land, from the generally level land immediately behind the log retaining wall, which then rises gently towards Emmerson Street. Mr Appleton agrees that some mangroves which grow within the inter-tidal zone currently exist within the land between the old and the current high water mark (Exhibit 5, p.8). He questions whether the original high water mark surveyed by Saunders and Havill might have extended beyond the edge of mangrove growth. However he has no reason to question the original determination of high water mark in 1971, but notes that sometimes high water mark is not necessarily characterised by particular features.
The impact of planning –
Mr Paddison explains that at the time of his objection against the Category B designation, the Council had determined Category A land as lots that could be built upon, and Category B land as those which have insurmountable drainage problems. He agrees that since that time Category A land is now identified as Residential 1, 2 or 3 and Commercial etc and other types; while Category B lands are now designated as Drainage Constrained (DC) lands.
Mr Cochrane directs me to the general planning strategies established by the Council as enshrined in the planning reports by Gutteridge Haskins and Davies (Exhibit 9, p.119 onwards). He notes particularly the definition in s.2.2.4 on p.130, where it defines lands subject to flooding or tidal inundations as:
"2.2.4 Land subject to flooding or tidal inundation
Areas subject to flooding from overland stormwater flows should be precluded from development due to risks associated with potential property damage. Retention of natural overland flow paths provides opportunities for the natural filtering of stormwater runoff and can reduce potential for erosion and sedimentation and the need for expensive stormwater infrastructure.
Development should be precluded from such drainage paths where there is risk to property or where development has the potential to exacerbate upstream flooding."
Mr Cochrane further notes that Drainage Affected lots are further classified into ten drainage problem categories, of which the subject land is defined as one of 327 lots on Russell Island which are designated as Draining Problem category 1 (DP1). The DP1 category identifies lots which were defined previously in paragraphs [8] and [9].
In terms of catchment management the catchment area (R2) including the subject lands, is defined as a poorly flushed sensitive area requiring a medium priority for management by the Council (Exhibit 9, p.153 and 237 (map)). Those areas are seen as catchments requiring additional stormwater management measures to ensure that acceptable nutrient export rates are not exceeded. The area of Canaipa Passage, including the R2 catchment of the subject land, is seen as a "hot spot" catchment requiring special attention (Exhibit 9, p.152).
In those high priority catchments, the Council was advised, among others, to give consideration for:
"possible reduction in achievable development density (Lot acquisitions particularly where significant infrastructure cost savings have the potential to offset acquisition costs)." (p.152)
That clearly draws attention to the balance between future infrastructure (drainage) costs which could offset future acquisition costs. That balance is discussed later in paragraph [88].
Another planning objective for consideration is the recommendation by Gutteridge Haskins and Davies in respect of possible funding options for the acquisition of lands associated with the strategy (Exhibit 9, p.327). It is acknowledged by the planners that any further levy increase upon owners would involve "the equity question", however the use of levies does offer the following advantage:
"it is likely to increase the number of allotments with no or very marginal development potential coming into Council ownership by default as a result of unpaid rates (this appears to have occurred following the introduction of the infrastructure levy);"
In respect of the subject land, it is noted that the Council was prepared to make an offer to the appellants to acquire the subject land at a cost of $5,000. That offer was refused by the appellants on 1 May 1988 (Exhibit 9, pp.97 and 98).
Mr Paddison notes that the subject land was zoned and rated by the Council as Residential A land, from the implementation of the transitional planning scheme in 1988 until the Council's new policy on 15 June 2001, which changed the designation to Category B land.
Impact of flooding –
Mr Paddison explains that as a waterfront parcel the subject land could be subject to two types of inundation. The first could be as a result of a storm surge as the result of a Q100 barometric pressure weather influence, with strong onshore winds causing large rises in tidal influences. The Q100 prediction of 2.4 m. Australian Height Datum (AHD) is based upon an occurrence at the highest astronomical tides, which on Moreton Bay range from 1.48 m. to 1.54 m. AHD. Allowing a storm surge of 0.6 m., plus 0.3 m. of global warming, a peak Q100 flood level is accepted on that modelling at 2.4 m. AHD. Mr Caddy's survey (Exhibit 4, p.13), shows that predicted inundation level.
Mr Paddison argues that an owner could overcome that tidal surge by either constructing a protection wall along the waterfront, or by filling the land to at least 2.4 m. AHD over an area sufficient to accommodate the dwelling and septic trenches for drainage. Mr Paddison seeks legal support in the matter of Rex v Paghan; Sussex Sewers Commissioner (1828) 8 B&C 355) and also ALJ volume 41, 30 April 1968, p.536. Mr Paddison agrees that care would need to ensure that any adjoining owner was not unfairly disadvantaged by any protection walls, which may also need to be erected along part of the side boundaries.
Mr Paddison notes that the second type of inundation that could affect the subject land could be by overland flows from lands higher up in the water catchment area. Mr Paddison argues that the original developer before 1972, provided very little infrastructure, as there was no local government to require such things. He argues that basically all the roads were just tracks. Mr Paddison argues that as a result of drainage modification work since taking over the original developments in 1972, the Council has in effect changed the catchment area now being drained across Emmerson Street into Moreton Bay. While he has some small differences with Mr Vitali in respect of the current developed area of that catchment, Mr Paddison accepts Mr Vitali's estimate of about 7.432 ha (Exhibit 4, p.12). Mr Paddison notes that is to be compared with the natural catchment drainage area of 2.948 ha, and represents an increase of stormwater drainage by a factor of about 3. Mr Paddison argues that the Council has undertaken drainage works upstream in that catchment area, but has not fully considered their effects downstream near Emmerson Street. Mr Paddison admits that as a result of those increased runoff flows, some water will now flow on to Lot 47, hence the need for certain remedial works as he proposes.
While Mr Paddison has determined his stormwater flow rates based upon slightly varying criteria to Mr Vitali, he accepts those minor differences, which in effect calculate the flows based upon a period of concentration of 24 minutes, an intensity of rainfall of 81 mm. per hour (Q2) and 157 mm. per hour (Q100), and runoff coefficients of 0.6 (Q2) and 0.8 (Q100). The predicted flow paths vary slightly. Mr Paddison sees the low point in the flow path as opposite Mangrove Place, due to the earthworks raising the level of Emmerson Street since the natural flow path (Exhibit 3, p.8). Mr Vitali believes that the lowest point of the gully and overland flow path is opposite Lot 47, and under Q100 catchment runoff conditions the water would flow across Lot 47 (Exhibit 4, p.7).
The developed catchment peak flow rates have been estimated at 1.07 cubic metres/per second (Q2), and 3.07 cubic metres/per second (Q100) by Mr Paddison, and 1.1 cubic metres/per second (Q2) and 3.0 cubic metres/per second (Q100) by Mr Vitali. The natural catchment flow rates are estimated at 0.35 cubic metres/per second (Q2) and 0.98 cubic metres/per second by Mr Paddison; and 0.39 cubic metres/per second (Q2) and 1.1 cubic metres/per second (Q100) by Mr Vitali. On those figures there is nothing to suggest that Mr Paddison has made any fundamental technical error in his engineering design proposal.
At this point it is relevant to note that Mr Paddison has spent many years of his working career involved in major subdivision and development design, and supervised a large group of technical experts in development design in New Zealand.
The natural catchment drainage –
There is a difference of professional opinion about the general drainage flows within the natural catchment area. Mr Paddison argues that the natural watercourse flows generally from Canaipa Point Road north of Emmerson Street, towards Mangrove Place as the natural low point of that natural catchment area. To that end he supplies a contour map (Exhibit 3, plan A); and also a statutory declaration to that effect from a long term resident since 1982 (Sneddon) (Exhibit 3, pp.7 and 8). Mr Sneddon lives on Lot 119 on Canaipa Point Drive. That declaration by Mr Sneddon from personal observations also states that the current surface flows were more towards the subject land (Lot 47), following earthworks by the Council in late 1990.
To support that statement that water flows were redirected from the parcel to the west of the pathway (Lot 64 – Jolly), between Canaipa Point Drive and Emmerson Street, Mr Paddison advises that filling was later approved on Lot 64 by the Council drainage plan RC23-9-1 (Exhibit 15). He notes that the Jollys had complained of the overland flows across the south-east corner of Lot 64 since 1996, which Council files will support. Those works were undertaken to alleviate the Jollys problems, after the original drainage flows were undertaken by the Council along the pathway adjoining Lot 64 in late 1990.
As part of that drainage pattern Mr Paddison notes that there was an old drainage pipe across Canaipa Point Drive at the northern end of the pathway. Mr Paddison agrees that old pipe was later replaced with two pipes (0.6 diameter and 0.45 diameter), as shown on his sketch plan on Exhibit 17. He then advises that the water flows down the pathway, and then through the 2 x 450 mm. diameter pipes across Emmerson Street, opposite the common boundary of Mangrove Place and Lot 47. Those pipes and water flows are supported by the Saunders and Havill survey on Exhibit 10.
Mr Paddison agrees that the old pipes across Canaipa Point Drive supports Mr Vitali's conclusion about the location of the natural drainage flow path in Canaipa Point Drive. However he argues that it is not correct to then assume that the natural drainage line turned along the pathway and on to Lot 47. Mr Paddison accepts that there were no drainage structures in place when the development was undertaken in 1972, as there were no overriding controls in place by either State or Local Government at that time. However he argues that common sense would dictate that surface water flows will be directed along the lowest point in the development. He agrees that it is good engineering practice to seek to place drainage systems along pathways and public roads, rather than across private land. However he believes that the pathway near Lot 64 was probably intended more for a pedestrian access to Mangrove Place, rather than as a drainage route for surface waters.
To support his conclusion about the natural flow path, Mr Paddison provides aerial photography in 1973 and 1994 (Exhibit 14). While that high level photography at 1,830 metres (1994) and 4,000 feet (1973) is difficult to identify clear drainage patterns, they do indicate that the natural drainage line was directed more towards Mangrove Place, rather than at right angles to Emmerson Street as suggested by Mr Vitali. However the original spoon drains along the roads in the original development are hard to quantify from any stereoscopic examination of those aerial photographs.
The developed catchment drainage –
Both Mr Vitali and Mr Paddison provide plans showing the drainage flow paths which essentially are in agreement in the upper areas of the catchment area. Both agree that the water flows are now much larger than the original natural drainage, and both agree that waters from Canaipa Point Drive are generally channelled down the pathway near Lot 64, and via two right angle bends across Emmerson Street via the twin 450 mm. diameter pipe into Mangrove Place (Exhibit 3, plan B, and Exhibit 4, figure 4.1). There is also an overland flow through Emmerson Street from the east towards the subject land. Mr Vitali notes that the sag point in the carriageway of Emmerson Street is located adjacent to Lot 47 (p.9); while Mr Paddison argues that the low point is in front of Mangrove Place. Both Mr Paddison's plan 3 and the Caddy survey (Exhibit 4, p.13), confirm Mr Paddison's conclusion that Mangrove Place is the lowest point along Emmerson Street. That is also not inconsistent with the Saunders and Havill survey (Exhibit 10), where the water flows were directed to Moreton Bay along the eastern side of Mangrove Place.
Mr Paddison seeks support for his conclusion that when determining the Q100 flood levels, under clause 11A(1)(a) of the Redland Shire Council's planning scheme, the land must be taken to be in its natural state, and in the findings in this Court of Aitkin v Redland Shire Council (A2002/0845), 23 July 2004, unreported, at paragraph [59]. Mr Paddison notes that the natural state surface must ignore the effects of the existing local road system. Mr Cochrane rejects reliance upon Aitkin v Redland Shire Council (supra), as he notes that matter dealt with the issue of compensation for the highest and best use of the land, and not with whether the subject land is properly categorised as Category B land, which has "insurmountable drainage problems". Mr Paddison argues that the principle to be obtained from Aitkin is that the Court accepted that there were means by which the overland flows could be dealt with, and as a consequence the land could be built upon. He argues that similar principle flows into the current matter.
A possible solution –
Mr Paddison provides an engineering solution to the current drainage problem in Emmerson Street (Exhibit 3, plan D). While he agrees that his solution may not be the perfect solution, he argues that it is a reasonable solution to the problem, which has been seen as an "insurmountable drainage problem". The proposed solution is to replace the 2 x 450 mm. diameter pipes across Emmerson Street, with 3 x 450 mm. pipes, two of which run diagonally across Emmerson Street from the southern end of the pathway to the open drain along the eastern side of Mangrove Place. The third pipe runs diagonally from a drainage pit towards the front of Lot 64 to the junction pit with the other two pipes above. The proposal also involves placing certain filling upon the subject land.
Mr Paddison's design requires a small truncation of the south-eastern corner of Lot 64, and also the south-western corner of Lot 1, which adjoins the pathway to the east. Those two small truncations would be required to provide for a spoon drain and associated batter banks. Mr Paddison notes that the truncation of Lot 1, which is Council owned land, would only be about twice the size of the current intrusion into that parcel by the earthworks of the Council in 1998. He notes that the acquisition from Lot 64 (Jolly) could be justified on the basis that the original drainage line passed through that parcel anyhow. He advises that powers already exist for the Council to execute those acquisitions under the Acquisition of Land Act. Mr Paddison advises that the low batter banks necessary to divert the Q100 flood waters would only be about 0.2 to 0.3 m. high, and in his opinion, not significant safety risks for the public using that pathway or Emmerson Street.
Mr Paddison also proposes a new 50 m. long concrete formed pavement to develop a dip in the carriageway to accommodate any overflows above the three new pipes. Mr Paddison estimates that concrete carriageway at about 250 square metres. In addition there would be a low 0.7 m. block wall along the 20 m. frontage of Lot 47 to redirect any overflow waters towards the discharge point in Mangrove Place, together with about 16.5 m. of block wall along the eastern boundary of Lot 47, adjoining Lot 48, in order to redirect surface waters from the east along Emmerson Street. There is also need for a further block wall 0.7 m. high along the common boundary of Lot 47 and Mangrove Place, in order to retain the flood waters within the open regraded existing channel in Mangrove Place. The regraded existing channel will need a high batter extending about 3 m. behind the block wall. Mr Paddison agrees that there would need to be some concrete in the centre of that drain, but the batter walls could be stabilised with geofabric or ripwrap, without major costs.
Mr Paddison concedes that there will be some scouring of the open drain, but he argues that as there will be the same volume of water, and similar velocities as already exists in the current drainage, then any impacts of scouring would not be an additional cost. While he provides no details of costs of his proposal, he does not disagree with the rough estimates of costs offered by Mr Appleton. Mr Paddison also advises that he had not made specific inquiries of the Environmental Protection Agency (EPA) as to any possible sedimentation traps that could be required in respect of the environment protection nature of Moreton Bay. However he advises that he has allowed for that in his proposal, which would be a factor for consideration in the final detailed design. Mr Paddison has also developed his proposal taking full notes of the Council's performance standards, and design guidelines for engineering works. He believes that while his solution is reasonable, it would be very difficult to meet every one of those standards.
Mr Paddison also argues that his proposal would not cause any additional problems for overland flows for the adjoining Lot 48, but would tend to alleviate the current surface flows that have occurred since the erection of the dwelling upon that parcel. He also agrees that the Council has the legitimate role of developing and sealing the roads in that area, and he agrees that has tended to be in response to local pressures. However he argues that should not result in unnecessary drainage problems for the subject land. He argues that the Council's design drainage has added to the problems for Lot 47, as it has resulted in having to redirect the water flows through two right angle bends before discharging across Emmerson Street.
The evidence of Mr Appleton –
Mr Appleton does not accept that the low drainage banks proposed by Mr Paddison for the southern end of the pathway, would not constitute some risk to public pedestrian safety. He notes that the proposed pipes discharging across Emmerson Street would have head walls and collection pits, which could cause safety concerns. However he does not explain how those head walls would be greater, other than for extra pipe costs, to those already existing for the two old pipes crossing Canaipa Point Drive or crossing Emmerson Street in front of Mangrove Place. Mr Appleton also notes that the substantially deeper channel proposed in Mangrove Place would require the approval of the EPA in respect of stormwater quality, erosion and increased velocities of flow. He also observes that there would appear to be insufficient land in this location on which to undertake stormwater quality management.
In respect of the reasonableness of the proposed works, Mr Appleton offers approximate rough estimates of likely costs that could be involved. He suggests that the pipe works could cost a number of thousands of dollars, plus earthworks costs of between $10,000 to $20,000. To those costs he suggests that the concrete pavement would cost between $30,000 to $50,000. He also suggests that an area resumed of a corner of Lot 64 would be an additional cost to the Council. Mr Appleton was aware of a provision in IPA which could allow the Council to resume land on behalf of a developer or lot owner, where there was a substantial benefit to a development and the community. However he doubts whether that could apply to the proposal by Mr Paddison in respect of any truncation of land from Lot 64. However Mr Appleton agrees that the current drainage is inadequate, and further substantial works need to be undertaken, which also applies to much of the Bay Islands.
In respect of any likely additional requirement that may be required by IPA, which could be associated with the erosion and filtration of the channel through Mangrove Place, Mr Appleton concedes that he is not aware of any existing drainage lines on Russell Island, which meets those possible requirements. Mr Paddison advises that the appellants (Dowley) have agreed to meet any costs of works that are required upon the subject land.
The evidence of Mr Vitali –
Mr Vitali concedes that as Lot 47 is higher than the adjoining Mangrove Place, then there would be some flows across both of those parcels in a Q100 flood event. He also concedes that he has not costed Mr Paddison's proposed solution, but agrees with Mr Appleton that the proposed works would cost several tens of thousands of dollars. Mr Vitali also agrees that Mr Paddison's proposed solution would take the flooding from upstream of Emmerson Street along the boundary of Mangrove Place. So from a hydraulic viewpoint he agrees that the proposal would resolve the problems of Lot 47 from being "insurmountable", but he argues at what cost?
Mr Vitali agrees that from a general subdivisional design perspective, the pathway could have been to provide either, or both, an access for pedestrians or a location for public services. He also agrees that during the Q100 flood event, the anticipated depth of the flow would only be in the order of centimetres. With a depth of flow of that size, he agrees that the flood waters could be redirected away from Lot 47 by a low bank retaining wall along the frontage of the subject land. Mr Paddison advises that such a low boundary wall was part of the owner's proposal, which had been granted preliminary approval by the Council on 14 October 2002 (Exhibit 11 – BIP9).
However Mr Vitali advises that in the event of such a diversion by the block wall, there could be a further concentration of that diverted water flow across the lower lands fronting Mangrove Place and the adjoining Lot 46 to the west. Mr Vitali agrees that it is the Council's responsibility to ensure that the rights of the owners of Lot 46 are not impacted by any solution to overcome flows upon Lot 47.
Mr Vitali advises that there are a number of parcels to the west of Mangrove Place, including Lot 46, which has been built upon, which continue to experience inundation (Exhibit 10. Mr Vitali agrees that the contour lines on Exhibit 10 indicate, by virtue of the "brake lines" shown, that some filling may have occurred along the western edge of Mangrove Place. However without more details of the contouring of Lot 46, he was unable to clarify the extent of any filling in that area.
In respect of Mr Paddison's proposal to place certain filling upon the subject land, in order to raise the building parcel above the Q100 flood level, Mr Vitali disagrees that satisfies the additional requirements of the preliminary approval (Exhibit 18, p.D51). Mr Cochrane explains that an earlier application to the Planning and Environment Court on 29 July 2003 (Exhibit 11, BJP6), following the advice of senior counsel, was seen as in line with the conditional approval previously given by the Council on 14 October 2002. However, Mr Cochrane explains that a later amendment to that earlier application, which now proposes to include a condition that part of the subject l and "be filled to RL 2.4 AHD", will be contested by the Council when that matter finally proceeds to hearing in the Planning and Environment Court at a future time.
Mr Paddison argues that the conditions placed upon the subject land to refuse the matter of additional filling upon the subject land, is inconsistent with an approach for filling upon another site on the Island. Mr Paddison argues that a recent application to the Council in respect of a preliminary approval for a dwelling house on land at 43 Wahine Drive, Russell Island (Lot 22 on RP 124698), was approved on 3 August 2004 (Exhibit 19). He argues that followed guidance in the matter of Redland Shire Council v Jensen and Anor [2003] QPEC 049, 12 September 2003, which is discussed later in paragraph [69].
In summarising his proposal to alleviate drainage problems, Mr Paddison notes that the preliminary approval by the Council for filling on 43 Wahine Drive (Lot 22) had specified that the owner must show how the dwelling and drainage could be constructed "without the placement of any filling or with only minor filling below the 2.4 m. AHD contour and below the 100 year ADI flood level, and without that any alteration or only minor alteration to the natural ground levels". He noted that flexibility to allow "only minor filling" has not been extended to the subject land. Mr Paddison also seeks authority for an owner to protect his property from free-flowing surface water in the decision of the High Court in Gartner v Kidman [1961] 108 CLR 12, at 48 and 49.
Mr Cochrane rejects Gartner v Kidman as he notes that involved a matter of trespass, which would be a matter for another place. Mr Paddison agrees that the later development works by the Council have increased the flooding situation on the subject land. He argues that Gartner v Kidman provides guidance on how an owner so affected could defend his land from increased discharge flows (See also Rex v Pagham (supra) and also (1820) All ER 711, at 713.
Mr Paddison provides evidence that the Council has undertaken drainage works, which could have had the effect of increasing water flows on to the subject land, as he advises that he personally witnessed those works between October and December 1998, during his own personal living upon Russell Island (Transcript 16 - Exhibit 15).
The respondent also distinguishes the decision of this Court in Erola Pty Ltd v Council of the Shire of Redland (A97-46), 2 June 1998, unreported, where the learned Member found that the resuming Council had subsequently filled that site for a boat ramp in Wahine Drive, Russell Island, which was previously seen as not suitable for residential purposes (p.15). The respondent argues that in Erola Pty Ltd the Court was directed to find compensation for the land, where its highest and best use could be used if filling was allowed. But he argues that in the present case what has to be determined is whether filling could be allowed in association with the development of a dwelling (Exhibit 19, Development Consent Committee Minutes, p.6).
Decision:
The legislation –
Before considering the evidence, I turn to the Local Government Act 1993 and note that the Council may establish criteria and categories for the levying of differential rating purposes under s.977(a) and (b). Section 977(2) directs that the rateable lands included in any category may be identified in any way the Local Government considers appropriate. The Council must then issue a notice to so affected owners advising of the rating category applicable to owner's land (s.983(2)). Such notice must inform the owner of his right to object within 30 days of the issue of the notice, or within any further period that the Local Government allows (s.983(3)(c)(i)). It must also inform the owner under s.983(3)(c)(ii) as follows:
"983 Notice to owner of categorisation
(3)(c)(ii) that the sole ground on which the owner may object is that, having regard to criteria decided by the local government by which rateable land is categorised, the land should have been included, as at the date of issue of the rate notice, in another of the rating categories;"
The owner may then object under s.984, and following a decision on the objection by the Council, notice of that decision must be given to the owner within 60 days after the period within which the objection had to be made (s.984(3)), and must include the reasons for the decision. An owner aggrieved by that decision may then appeal to this Court (s.987), and the Court on hearing the matter may then under s.990 set aside the decision, and decide the rating category to which the land should be included, or disallow the appeal.
Mr Appleton provides evidence (Exhibit 9, p.25) of the special meeting of the Council of 15 June 2001, at which it determined a criteria for Category B lands as follows:
"Category B
Rateable land which has insurmountable drainage constraints such that it is unlikely that a development permit or permit for the erection of a dwelling house on the land would be granted."
The land so designated as Category B lands are also delineated on maps of drainage control areas for the purposes of that resolution. The evidence is that the subject land falls as Category B (drainage category 1 DP1) lands on map 7E drainage constraint areas. On that understanding it is clear that the subject lands have been identified as Category B lands for the purposes of this appeal.
In line with those directions Mr Appleton concludes that, as residential use is not an as of right use in the drainage problem zoning, based upon the known problems of the subject lands in respect of flood immunity, the land is seen as having insurmountable drainage constraints so as to make approval of development unlikely.
Now in respect of the current appeal against the categorisation for the subject land, I would agree with Mr Paddison that for the application to succeed it is necessary for the appellant to prove:
(a)that the drainage problem is not insurmountable, and
(b)that it is likely that a development approval for the construction on the subject land of a residential dwelling can and should be granted.
The nature of the land –
There is general agreement that the Caddy survey plan correctly defines the nature and elevation of the subject land. It is noted in paragraph [16] that the current area of the subject land above the RL 2.4 AHD (or the Q100 flood prediction) reflects only about 325 square metres. On that basis it would necessary for the subject land to be filled for about a further distance of 5.2 m. from the Emmerson Street frontage to provide a building envelope of 450 square metres above the Q100 flood line. That filling would equate to an average depth of about 0.07 m., and a filling volume of about 5.2 x 20.117 x 0.07 or about 7.4 cubic metres. There would also need to be some allowance for compaction of the filling. I believe that volume of filling could be interpreted as constituting only "minor filling" upon the subject land. If properly executed, the filling could be seen as associated with the dwelling house construction. However the current question to be addressed in respect of the preliminary approval on the subject land, is whether any filling may be allowed below Q100 flood prediction, and the reasonableness of that condition of approval.
Before considering the above, I turn to the impact of the drainage flows on to the subject land. I note that in explaining the adoption of a Q100 flood limit of 2.4 m. AHD, Mr Paddison outlines the factors built into the predictions, including the storm surge and global warming factor, but he provides no details of the anticipated reliability of the prediction. With a possible filling depth of only 0.07 metres, the level of reliability of the 2.4 m. AHD line could influence the level of filling needed on the subject land.
Another matter for consideration is in respect of the definition of high water mark along the Moreton Bay frontage of the subject land. It is Mr Appleton's concern that perhaps the original Saunders and Havill survey (Exhibit 13), may have had some inconsistency in determining high water mark. Now while there has been some public concern about the reliability of some of the early developments upon Russell Island prior to coming under the control of the Redland Shire Council, a study of the public record of the inquiry into surveying activities on the Island during that period discloses that the majority of survey work was seen as entirely of an ethical standard (Inquiry into the Surveying of Allotments on Russell Island by JF Morgan, Surveyor General for West Australia, 4 May 1979).
Mr Havill surveyed 66 lots on the Island which were shown as "Drainage Problem Areas". Surveyor General Morgan found that at the time of his inquiry (1979) many of those drainage problem lots showed "intervening deterioration", as over the 7 years since survey there had been little or no maintenance (p.30). The inquiry found no evidence of any unprofessional or unethical conduct by Mr Havill or Mr Saunders (p.49). Those findings were then made available to the Parliamentary Commissioner for Administrative Investigations, who accepted the findings as fair and reasonable. On that basis there is no reason to conclude that the Saunders Havill survey (Exhibit 13) did not truly reflect the position of high water mark on the subject land. Any subsequent movement of the high water mark could reasonably be accepted as a result of the normal movement of the tidal influences, which is in itself a feature of high water mark determinations. While there is evidence of a low log retaining wall about 3 m. from the tidal high water mark position, in the absence of any documented evidence on filling upon the subject land, I accept Mr Paddison's advice that the log wall was placed as a means of preventing further erosion of the land.
Impact of planning –
If I look then at the planning restrictions imposed upon the subject land, I find as outlined in paragraph [7], that the restrictions upon "particular development" lands on the Moreton Bay Islands, including Russell Island, were introduced into the Redland Shire planning scheme by amendment 14, which was published in the Government Gazette of 20 February 1988, with effective from 14 February 1997. Those amendments included, among others, the need to restrict building to above the 2.4 m. AHD height, and for any filling to be considered only as "part of a building application, notification of development approval or consent application" (s.11A clause (f)).
If I consider then the development requirements for a parcel of land on Russell Island under clause 11A of the planning scheme, I find that construction shall not be allowed upon land which is below 2.4 m. AHD, and any application to fill any part of the land to raise the level of part of the land must be subject to application to the Council to place the filling. However there is no specific restriction that would prevent the Council from considering the placement of minor filling to raise the surface level of the subject land above 2.4 m. AHD for the minimum building area of 450 square metres, as outlined in paragraph [63]. That the Council has already approved such a conditional filling on the land at 43 Wahine Drive (paragraph [53]) would indicate that flexibility.
In seeking assistance in the matter of Redland Shire Council v Jensen (supra), I note that matter proceeded in respect of a court order to the effect that the filling carried out upon land at 50 Attunga Street, Maclay Island constituted "assessable development" under IPA, and that by starting filling without a development permit, the respondent (Jensen) had committed a development offence under IPA (see paragraph [53]). In his decision McLaughlin DCJ found at paragraph [16]
"When, therefore, Schedule 5 Part 1 refers to "filling or excavation" it is not, in my view, referring to filling and excavation generally, but only to such filling and excavation as is the concern of the Standard Building Regulation, which is to say filling and excavation for the purposes of, or incidental to building activity. The Standard Building Regulation has no concern with and, in my opinion does not purport to make provision in respect of, filling or excavation which has nothing to do with building. The effect of s.4(2) and Schedule 5 Part 1 Item 5, read together with Schedule 8 Part 2 Item 7 IPA, is to make self assessable, some filling or excavation for or incidental to building activities."
The filling work in that matter was not associated with the building development, and was therefore seen as 'assessable' development works. The consequences of that order, read in conjunction with cl.17A subcl.(f) of the Redland Shire planning scheme, means that any filling upon lands on the Moreton Bay Islands which are below the Q100 flood level and which are associated with a building application for development approval, are therefore seen as to be "self assessable" under IPA. Clause 11A subcl.1 provides that no development works on the Moreton Bay Islands can commence without the approval of the Council. But where any subsequent filling is seen as part of building activities, then the proposal is seen as "self assessable". However that does not exclude the Council from providing conditions to that self assessable provisional approval of the works. The question is whether such conditions are seen as reasonable and relevant.
I note also that an application by the Council for estoppel of a preliminary ruling on a development application by Jensen was refused by Quirk DCJ on 20 June 2003. Accordingly with the subject land the initial application for a preliminary ruling by the Planning and Environment Court was lodged on 29 July 2003 (Exhibit 11, BJP6). That was subsequently amended to include a provision that a separate development permit for filling should not be required. The Council resisted that further amendment to the application, and that matter remains open before the Planning and Environment Court. The Council does not resist the first part of that application that a development approval cannot be refused, but may only be approved with reasonable and relevant conditions.
I turn then to Mr Paddison's reliance upon the Council's decision to allow filling of a building area on land at 43 Wahine Drive, Russell Island (see paragraph [53]). I note in that matter that only a small area of that parcel (Lot 22) was above RL 2.4 m. AHD, yet the approval had been provisionally given to fill an area to at least 450 square metres to above the 2.4 m. AHD level. I note also that an application by the appellant (Mr Paddison) for a deemed approval of a development application was refused by Rackemann DCJ.
The Planning and Environment Court also rejected a second part of that application, which had sought for the Court to direct that a development approval be granted, rather than preliminary approval as proposed by the Council with conditions for development BJ Paddison v Redland Shire Council [2004] QPEC 006, 24 March 2004, per Rackemann DCJ). Accordingly the Council has issued the preliminary approval on 3 August 2004. It is also noted that a preliminary approval was also granted by the Council for the adjoining parcel at 45 Wahine Drive, Russell Island, on 3 August 2004 (Exhibit 19). That approval also included special conditions in the preliminary approval concerning the provision of an easement for excess overland flows along the southern boundary, and a 5 m. wide vegetated buffer area at the rear of the parcel adjoining the Bay.
It is also noted that where filling is envisaged as incidental to the construction of the dwelling, being part of the site preparation for the building and adjacent trenches, and is therefore building works within the ambit of the Standard Building Regulation, then under Schedule 5, part 1, Item 5 of the Standard Building Regulation, filling to a depth of 1 metre is self assessable. The Council officers concluded that the legislation covering the Standard Building Regulation "were obviously of the opinion that up to 1 metre in depth was of a minor nature not requiring Council consent" (Exhibit 19 – Development Assessment Committee Minutes 3 August 2004, p.5). The Council accepted that recommendation, and gave provisional approval for the development of 43 Wahine Drive to proceed.
Impact of catchment changes –
An important part of Mr Paddison's argument lies in his assertion that the Council has, over a period of years since becoming responsible for the area, made changes to the upstream drainage lines such that the current catchment area is about three times the original catchment area. Now Mr Paddison accepts that it is an appropriate activity for the Council to seek to improve the storm water drainage for that area, and he agrees that such improvements would be expected by the residents of the area, as a means of ensuring effective surface water discharge.
However he argues that while the Council has so improved and enlarged the drainage lines upstream, the Council has so far not completed the resulting drainage changes in the downstream area into Moreton Bay. He argues that the current drainage impacts upon the subject land are virtually totally the result of the increase runoff of discharge, and resulting increased velocity of water flows caused by the new Council drainage changes.
Mr Paddison draws support as to how some of those drainage changes have required additional earthworks by the Council, from the channelling along a new bund wall from Patterson Street into Stephenson Court and then into Canaipa Point Drive. He argues those increased surface flows caused flooding across Canaipa Point Drive opposite Stephenson Court, requiring extra earthworks by the Council in order to redirect those flows eastward to the piped culvert under Canaipa Point Drive and then into the pathway towards Emmerson Street (see Drainage works Exhibit 15).
A study of the natural catchment drainage, and the site inspection, confirms that the low point for surface drainage in Canaipa Point Drive is where the existing two culvert pipes discharge across the roadway towards the pathway near Lot 64 (Jolly). Both parties agree that is the logical location for those two piped culverts. It was noted that those two pipes have separate inlet pits on the northern side of the road, converging to a single outlet opposite the pathway, similar to the proposal suggested by Mr Paddison for Emmerson Street (Exhibit 15).
I turn then to the original location and reason for the placement of Mangrove Place in the Saunders Havill survey plan (RP 129495). I note from the Morgan inquiry into surveying in 1979, that Mr Havill had undertaken his surveys as a subcontractor for Mr Saunders. I note also that Mr Saunders had personally surveyed a very large number of lots in portions 13 and 36 on the Island (p.49). While the survey plan of the original portion 2 in the subject matter was certified by Mr Saunders, it is possible also that Mr Havill may also have been involved. Whatever the responsibility in 1971, both Saunders Havill in 1997 operated as partners (Exhibit 10).
While there was no direct evidence disclosed about the reasons for leaving Mangrove Place as a public road reserve, a study of the aerial photograph would suggest a possible reason for its location. It is agreed that the developers of that estate could be seen as something less than benevolent public providers. Clearly the history of development on that Island suggest that, without local government scrutiny, the developers were likely to seek to maximise profits wherever possible. The minimal road and drainage works testify to the developers' motives.
To then leave a prime waterfront land as public roadway (Mangrove Place) rather than as a separate waterfront parcel for sale, suggests that area of land was intended to fulfil a key purpose in the development. While it is now maintained by the Council as a public area for recreation, it needs to be remembered that at that time, there was no local government requirement for any developer on those islands to provide the customary 10% of the area for public open space purposes. I believe that it is a logical conclusion that Mangrove Place was seen by the developer as the normal point of discharge for drainage into the Moreton Bay. That would fit with Mr Paddison's conclusion, and I agree with him on that assumption.
I turn then to Mr Paddison's claim that there is a lesson to be learned from this Court's decision in Aitkin v Redland Shire Council (supra) at paragraph [39]. Now it is agreed that Aitkin was a matter dealing with compensation for the loss of land resumed, and as such sought to define the value of that parcel for its highest and best use. However I believe that the assistance that Aitkin can provide in this matter, lies in the closely parallelled natural drainage problems confronting that parcel and the subject land.
In Aitkin, the natural surface drainage passed across vacant parcels on the opposite side of Wahine Drive (Lots 925 and 928), and then via a concrete pipe under the carriageway of Wahine Drive, and across Aitkin's land (Lot 965) (paragraph [38]). Evidence was given in that matter that as the result of earthworks upon Lot 965, surface waters were then redirected along a new drainage channel on the southern boundary of Lot 965, from the piped culvert across Wahine Drive. The pavement of Wahine Drive was also reconstructed and concreted (see paragraph [41] onwards). That shifted the low point in Wahine Drive from a position opposite the northern boundary of Aitkin's land (Lot 965), to a position opposite the centre of that parcel. As a result of those earthworks flooding across the subject was increased.
Mr Paddison had also given evidence in the Aitkin matter, and argued that an earth drain and a new pipe culvert now discharges stormwater through an outlet almost at the centre of Lot 965, whereas the previous outlet was close to the southern boundary (paragraph [43]). Mr Paddison had argued that the Wahine Drive pavement could have been constructed with the low point coincident with the old culvert position opposite the drainage easement in the lot to the west of Wahine Drive, such that all water flows would have then been directed down the drainage channel along the southern boundary of Lot 965 (Aitkin land) (paragraph [45]).
While there was differing professional opinions about the likely outcome of a Q100 flood event in that matter, the learned Member accepted that the evidence indicated that the Council determined the effects of a Q100 event by reference to land in its natural state (paragraph [60]). Mr Paddison had argued in Aitkin that as a result of changes to the drainage patterns by the Council, the surface waters were then channelled away from the natural south-eastern direction to a new position which now causes overflows across Aitkin's land. He argues that the same type of event is now causing flooding problems on the Dowley land. On the evidence supplied I can see that direct analogy.
Now in the Aitkin matter the Council had moved to overcome the resulting drainage problems by resuming the Aitkin property. It is noted that option continues to remain an option for the subject land, as the Council had already had preliminary discussions on the basis of an offer of $5,000 for the Dowley land (paragraph [24]). Now I observe that the respondent Council in Aitkin had seen the value of that parcel as only $10,000 at the date of that resumption in 2002. The Aitkin land was seen as one of the few sections of water front lands on Russell Island that provided deep water access, and therefore is likely to be more valuable than the Dowley land. However the Court awarded compensation in that matter at a figure of $59,500 for the land. Because of possible increases in land prices for water front parcels on the Island in recent years, any escalation in the value of the subject land would be a matter for careful balance by the Council in finding a solution to the current drainage problems in that area. But that is not a matter for my consideration.
A possible solution -
I note that Mr Paddison does not argue that his proposed solution is the best solution, but he argues that at a certain engineering and construction cost the drainage problem can be solved. Mr Appleton concedes that the proposal by Mr Paddison would be effective, but notes that certain additional pipe works would be needed to avoid risk to the public. Mr Appleton also has concern about the likely cost of the proposal, which he estimates could cost to the Council up to $50,000 plus further costs of acquisition from the Jollys (Lot 64). It is noted that the Council is already the owner of Lot 1 to the east of the path. However it is noted in paragraph [88] those costs would need to be seen in the perspective of any alternative solution.
In respect of Mr Appleton's concerns about satisfying any EPA requirements for sedimentation and water quality management, I agree with Mr Paddison that any such costs would be similar for any solution to the current downstream catchment management problems. I also note that any costs associated with retaining walls, or filling upon the subject land, would be costs to be borne by the owner (Dowley). On balance I believe that the likely cost of an alternative solution proposed by Mr Paddison would not be a reason to decide that the drainage problems are insurmountable.
That then leads to the question of whether the conditions attached to the preliminary development approval for the subject land should be specifically constrained so as not to allow "any filling" associated with the building development. Within the intentions of the Standard Building Regulations, a quantity of filling to 7.4 cubic metres would seem reasonable. Even allowing for compaction of filling, which appears to be of a reasonably sandy nature, a volume of about 9 cubic metres would seem to be all that could be required. On that basis I believe that the conditions applied to the subject land are unreasonably restrictive, and should not exclude "minor" filling, associated with building activities for the house pad and associated drainage.
The remaining matters which are to be considered are whether any other matters associated with Mr Paddison's solution could be seen as causing problems to neighbouring properties, particularly to Lot 46 (Young) to the west of Mangrove Place. If I consider first the impact of the proposed three new pipes across Emmerson Street, I find that solution is seen as similar to the Council's solution across Canaipa Point Drive. The fact that the three pipes would replace the existing 2 x 450 ml. diameter pipes (Exhibit 3, plan D), would, in my opinion, tend to reduce the velocity of the water discharging into the outlet pit in front of the north-eastern corner of Mangrove Place. That should reduce scouring of the open drain to Moreton Bay. However the three pipes replacing the two existing pipes could also channel more water during a Q100 flood episode. That could have the effect of reducing overflow of the open drain to the north of Emmerson Street.
Now in respect of any drainage from the east along Emmerson Street, that would not be impacted by any of the proposed drainage solution. However, if the appellants, Dowley, were to maintain their right to protect the subject land from surface waters directed at the land from that easterly direction, by building a low block retaining wall along the front and eastern boundary, the resulting increase of runoff waters towards Mangrove Place would need consideration.
However as noted in Gartner v Kidman (supra), when dealing with surface water flows as distinct from natural water courses such as rivers or streams, there are no riparian rights attached to surface waters. Windeyer J noted when speaking about a "lower proprietor" who is being impacted by the natural unconcentrated flow of water upon his lands, when he said at p.49:
"Although he has no action against the higher proprietor because of the natural unconcentrated flow of water from his land, he is not bound to receive it. He may put up barriers and pen it back, notwithstanding that doing so damages the upper proprietor's land, at all events if he uses reasonable care and skill and does no more than is reasonably necessary to protect his enjoyment of his own land. But he must not act for the purpose of injuring his neighbour. It is not possible to define what is reasonable or unreasonable in the abstract. Each case depends upon its own circumstances."
In Gartner v Kidman Windeyer J also noted that "if surface waters were made to flow in a more concentrated form than it naturally would, and if the flow is impacted by the discernible works of man, and the resulting flow of surface waters is increased at a particular point, then a lower proprietor could have grounds to hold the person causing the concentration to occur liable" (p.48). On a fair reading of those words, the current appellants could have a fair case to require the Council to take steps to avoid the current potential for flooding of the subject land.
I note also in Rex v Paghan (supra) when speaking about the responsibility of a public authority which had inadvertently caused damage to an owner's land by works which were seen to have increased erosion damage to that land, Bayley J noted at 713:
"It seems to me that every land owner exposed to the inroads of the sea has the right to protect himself and is justified in making and erecting such works as are necessary for that purpose; and the Commissioners may erect such defences as are necessary for the land entrusted to their superintendents. If, indeed, they made unnecessary or improper works, not with a view to the protection of the level, but with a malevolent intention, to injure the owner of those lands they would be amenable to punishment by criminal information or indictment, for an abuse of the powers vested in them."
Now while that matter can be distinguished from the current matter, as it dealt with riparian rights and not with surface water concentrations, the implications for public accountability are clear. However there is no evidence of any misguided intentions in this matter, and it is entirely directed at finding the best solution for all parties affected by the flooding predictions.
The matter of surface water flows, and the rights of a downstream owner to seek damages as a result of unlawful interference with his use and enjoyment of his land as a result of a levy bank, was considered in Warne v Nolan [2001] QSC 053, 2 March 2001, unreported. In that matter Muir J considered guidance from Gartner v Kidman at p.22, where he summarised the principles of both the "higher proprietor" and the "lower proprietor". That matter dealt with a matter of legal liability for damages, and emphasised that an owner may not direct waters to the detriment of a third proprietor (paragraph [p86]).
I note also in the minutes of the development assessment committee of 2004 (Exhibit 19), that the matter of Erola Pty Ltd v Council of the Shire of Redland (supra), was also considered by the planning officers of the Council. That matter dealt with compensation for the loss of the land of area 673 square metres fronting Wahine Drive for use as a boat ramp on Russell Island. The land was resumed in September 1995. At the date of resumption there was no issue whether a dwelling could have been built upon the subject land, but only a dispute as to whether approval to fill the land to a level of 2.4 m. AHD could have been expected (p.7). The filling required would have been to a depth of between 0.5 and 0.7 m., and involved about 232 cubic metres of filling to be imported. That filling would also have required the construction of a 52 m. retaining wall along the water front. The claimant argued that such filling was fill "of a minor nature".
In his decision the learned Member considered the meaning of "a minor nature"'; and concluded in the circumstances of that matter that the necessary filling would not have been "of a minor nature" (p.40). The claimant had sought $55,000 for the loss of the land itself, but because of the fact that the approval to fill the land would not have been granted as the filling was not of a minor nature, then the Court awarded compensation for the loss of the land alone at $7,500. The Council had argued for $2,000 for the land itself. However I would agree with the Council's planners in the current matter that Erola Pty Ltd can be distinguished on the basis of the nature of the filling required on that matter.
The remaining question then to be answered is, in the broader sense of being reasonable, whether Mr Paddison's solution meets that test, and whether the Council's conditions placed upon any conditional approval are reasonable. In seeking to understand the meaning of reasonable conditions in respect of the drainage of lands, I turn to the recognised text Land Development Law in Queensland 1987, The Law Book Company Ltd, by Alan Fogg at p.504 onwards. In that matter Fogg notes that the reasonableness of a Council's particular condition may be challenged. However he notes in Peter Kurts (Development) Pty Ltd v Pine Rivers Shire Council (1976-78) 36 LGRA 103, that Byth DCJ found that it was reasonable to impose a special condition requiring the installation of roof water drainage reticulation by the developer. Byth DCJ noted at 105:
"I consider that it is right that the subdivider and the council should plan the subdivisional layout so that residential roof water will be properly disposed of, and not become a source of nuisance, annoyance and complaint later on by being channelled into neighbouring residential allotments."
Clearly the reasonableness of that condition lay in its purpose to avoid future overflow problems upon neighbouring parcels. That is also a key consideration in the current matter. In considering those conditions, the role of the Council was clarified in Old v North Sydney Municipal Council [1950] 18 LGR 1, where Sugarman J said in respect of the flow of waters at 7.
"The matter which the Council was required to consider is widely expressed – 'the drainage of the lands, the drains proposed to be constructed, and whether any land and drains are to be vested in the council'. And so, it seems to me, the Council is required to consider the problem which, looking at the matter as a whole – looking 'at the land' as a whole and before subdivision – the land may be found to present, when it is subdivided, from the point of view of drainage. It has to look at 'the drainage of the land' which no doubt involves a consideration of the existing natural drainage or such artificial drainage as may already exist, and the capacity of that to cope with the problems which subdivision may give rise to; and it has to look at 'the drains proposed to be constructed'."
That principle also was followed in Drysdale and Ridgeway Pty Ltd v Pine Rivers Shire Council (1970) 20 LGRA 152, at 158; and also in McPherson v Landsborough Shire Council (1981) QPLR 12, at 14.
Now in considering reasonable conditions for the drainage that may be required in the current matter, to avoid problems being created by the diversion of the surface waters, it is noted that approval was not granted where the development proposed could lead to higher flood levels upstream, or higher velocities downstream (Willcroft Development Pty Ltd v Brisbane City Council (1984) 13 APA 62). But that can be distinguished in the current matter, in that Mr Paddison's solution was likely to relieve existing upstream problems in the catchment. The only question then resulting would be whether any increase flow velocities could cause a problem as noted in paragraph [92].
While the nature and content of reasonable conditions may vary according to the circumstances of each situation, I note that in the current matter the conditions that should be applied to any solution to that drainage problem should be directed at ensuring that the surface flooding water flows are not impeded, and should not cause problems for other owners. I believe that Mr Paddison's offered suggestion generally meets those criteria.
Summary:
In summarising this matter I am led to the conclusion that the drainage problems confronting further development upon the subject land are not insurmountable. By the application of the suitably engineered drainage solution, I can therefore conclude that a development approval for the construction of a residential dwelling upon the subject land should be approved, subject to such reasonable conditions being applied by the respondent Council that conformed to the normal drainage requirement applicable to similar properties on Russell Island. Those conditions may also include such minor filling as is required to enable building and household drainage works to a minimum level of 2.4 m. AHD over an area of at least 450 square metres of the subject land. But that is a matter for another place. On that basis the subject land should be recategorised as Category A land.
NG DIVETT
MEMBER OF THE LAND COURT
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