Forrester Residential Developments P/L v Maroochy Shire Council & Anor

[2002] QPEC 24

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Forrester Residential Developments P/L v Maroochy Shire Council & Anor [2002] QPEC 024

PARTIES:

FORRESTER RESIDENTIAL DEVELOPMENTS PTY LTD
ACN 010 422 241
Appellant

-v-

MAROOCHY SHIRE COUNCIL
Respondent

and

STATE OF QUEENSLAND
Co-Respondent

FILE NO/S:

3649 of 2001

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Brisbane

DELIVERED ON:

 7 May 2002

DELIVERED AT:

Brisbane

HEARING DATE:

8-12, 15&16 April 2002

JUDGE:

Quirk DCJ

ORDER:

Appeal allowed

CATCHWORDS:

Integrated Planning Act; ss 3.1.5, 3.1.6, 4.1.52
Elliott v Brisbane City Council (unreported, 5 April 2002)
Chew v Pine Rivers Shire Council (1991) QPLR 90

COUNSEL:

Mr J.Gallagher QC & Mr M. Rackemann for the appellant
Mr C. Hughes SC for the respondent

SOLICITORS:

Hyland Lawyers for the appellant
Maroochy Shire Council for the respondent

1. This appeal is against a deemed refusal of an application for preliminary approval of a reconfiguration of an area of land at Peregian.  The land is part of an estate known as Peregian Springs the early stages of which are already in place.  The total land area is over 300 hectares and the development has been planned as an integrated residential community set about a golf course. 

1. A wealth of material was placed before the court indicating the history of the estate’s planning.  Important features of that history are:

·     In the 1985 Planning Scheme the land was included in the Urban designation;

·     In 1989 rezoning of the land to the Residential A Zone and the Sport and Recreation Zone was approved;

·     In 1996 a Strategic Plan which indicated that portions of the subject land should be conserved for conservation purposes was gazetted;

·     In December of 1997 approval was given for the subdivision of Stages 1 to 4 and the golf course;

·     Following the resolution of appeals in respect of that decision a court order was made confirming a conditional approval.  One of those conditions called for the preparation of a Master Plan in which the manner of future development of the land would occur;

·     In November 1999 a draft Master Plan was lodged.  Negotiations in respect of this Master Plan were ongoing and several revisions were submitted;

·     In June of 2000 Maroochy Plan 2000 commenced.  In it the land was designated “Urban/Conservation; Master Planned Community”;

·     In October 2000 the Council resolved to approve a Master Plan subject to certain conditions which on the evidence given (although the Council was reluctant to concede it) have been respected;

·     This appeal was lodged in July of 2001 in respect of a deemed refusal of this application for a preliminary approval which had been made in February of 2000. 

1. The evidence indicated that the approval of the Master Plan followed nearly a year of detailed and extensive negotiation between the representatives of the appellant and the Council.  Relevant experts were involved and the difficult process of compromising environmental concerns and the appellant’s wishes to develop its estate as it chose clearly received the most careful and close attention. 

1. Noteworthy features of the Master Plan that was the outcome of these negotiations were:

·     A development line adopted was defined generally by the RL 5 metre contour which coincides with the transition from wet heathland to tall eucalyptus forest.  Some development however was shown below that level.

·     A considerably greater area than was indicated in the 1996 Strategic Plan was set aside for conservation purposes.

·     Although not an instrument specifically envisaged by statute, Master Planning of this kind is consistent with the indication in Maroochy Plan 200 (in Objective 3.5.4(2) of the Strategic Plan) of the desirability of negotiations in respect of such matters prior to the lodgment of formal applications.  Furthermore the preparation of the Master Plan was a specific requirement of the court order made by consent. 

1. The Development Plans for which preliminary approval is now sought follow, in a substantial way, the Master Planning as approved although it does increase (to a little under 70 hectares) the land to be set aside for conservation purposes.  To suggest that the Master Plan being the result of protracted negotiation, detailed consideration, and having been approved when Maroochy Plan 2000 was in place, could not give rise to valid and reasonable expectations on the appellant’s part is absurd. 

1. This court has, on numerous occasions, stressed the need for confidence and predicability in the planning system.  Individuals should be able to make important decisions about their interests based on statements of planning strategy current at the time decisions are made.  Erratic or whimsical town planning (depending on which particular consultants have the ear of the elected council at a given time) is contrary to the public interest and undesirable. 

1. What has, in effect, turned this matter on its head, has been the Council’s decision to press ahead with a Draft Local Area Structure Plan (DLASP) which affects the subject land and which appears to have been first adopted prior to the Master Plan’s approval.  Public exhibition of this Draft commenced only two days before the hearing of this appeal began.  The Draft deals specifically with the subject land and adopts a far more conservative approach to environmental protection.  Much wider buffering is called for the result being that the area which it favourably considers for development is reduced substantially to that shown in the approved Master Plan.

1. At this early stage when the eventual fate of the DLASP is as uncertain as it must be, one would be cautious in giving it any great weight.  That however is not a matter upon which it is necessary to dwell as those who were the main contributors to the DLASP (and unsurprisingly were not involved in the consideration of the Master Plan) came before the court to explain their position.  Accordingly the court was able to judge whether any departure from the Master Plan was warranted in the circumstances. 

1. I say at the outset that if the evidence indicated that such a departure is not warranted, no great harm (in the Coty sense) will be done to whatever planning strategies the DLASP might embody. The provisions of the DLASP with which we are concerned deal specifically with the subject land. Furthermore, the draft instrument is not a “law or policy” to which any weight must be given pursuant to s.4.1.52 of the Integrated Planning Act.

1. In cases of this kind every piece of land must be considered in the light of its own attributes and it is against that background that the validity of the measures contained in the DLASP must be assessed.  The Master Planning which has occurred here might be absent in other instances and that would be an important factor.

1. In this case I believe it quite appropriate to test the Council’s argument that the departures from the Master Planning for the site (as suggested by the DLASP) are supportable by an examination of expert evidence on the matters which are said to constitute that support.  If support for those requirements is found to be lacking, it matters little that they have found their way into a draft planning instrument.

1. Leaving aside statements of general application regarding the desirability of environmental protection, there is really nothing in the 1996 Strategic Plan or Maroochy Plan 2000 which would weigh against an approval in this case.  The areas designated in those instruments as being appropriate for retention for conservation purposes (although indicitave and not cadastrally based) have been satisfactorily respected in the Master Plan.  As already noted these instruments were in place when the Council resolved to approve the Master Plan.  Whether the statements of general application are offended depends on findings of fact rather than conflict that arises solely as a matter of legal construction. 

1. Two matters should however be mentioned.  Much was sought to be made of statements in the formal planning documents that the zoning of land in a particular way does not indicate absolutely that all such land is suitable for development in a manner contemplated by that zoning. There is no suggestion that this is the case here.  As indicated a large proportion of the site is to be preserved for conservation purposes notwithstanding its zoning.  The question in this appeal is whether a greater proportion of the site should be so preserved.

1. The second matter is that the respondent stressed that it is recognized in the Master Plan that further development based upon it will be subject to all necessary assessments and approvals required by the Integrated Planning Act and the relevant planning instruments.  Additionally there is a need for compliance with other relevant legislation at a State or Federal level.  This is quite true and is as it should be.  It is not a matter in any way denied by the appellant.  It is quite another thing to say that such provisions justify the setting to one side (in quite a consequential way) the result of the prolonged and careful consideration that led to the resolution to accept the Master Plan.  Such a suggestion lacks both logic and common sense. 

1. It was also argued that the DLASP should respect it because it reflects the “best and latest” view on relevant matters of which the planning authority has the advantage.  That is a matter which the court is in a position to test having regard to the evidence given in this appeal. 

1. Before embarking on a detailed consideration of the evidence, some other matters should be noted.  In cases where environmental protection is the issue, to draw the line between development and conservation of privately owned land is never easy.  In an absolute sense any development will impact upon the environment.  Essentially it is true that the more land that is preserved from development, the better the result is in conservation terms.  However on the opposite side of the scale is the fundamental notion that, in the absence of legally valid constraint, a land owner should be able to use his property for such purposes as he sees fit (see the useful and recent discussion of this matter by Robin QC, DCJ in Elliott v Brisbane City Council (unreported, 5 April 2002). 

1. The statute books are not lacking in general statements about ecological sustainable development and the desirability of environmental protection.  Detail however as to how important judgments in this area should be made is thin.  It inevitably comes down to weighing up competing personal opinions.  This case is no different in that sense and it is now time to turn to its specific features.

1. The approval sought is a Preliminary Approval as described in ss. 3.1.5 and 3.1.6 of the Integrated Planning Act. In this case it must be kept in mind that, as s. 3.1.6 provides that such an approval may override a local planning instrument. Certain criticisms were made about the appellant’s case in that insufficiently detailed investigation or design had been done in respect of aspects of the proposal. Essentially what is needed in cases of this kind is that engineering (or other solutions) are shown to be feasible and that the proponent has the capacity to put these measures in place.

1. The Council’s position is best understood by reference to Exhibit 22 where, in a drawing, the extent to which the development area should be reduced to allow greater environmental protection (as contemplated by the DLASP) is indicated.  Professor Brannock, the planning consultant involved in the preparation of the DLASP, made it clear that the greater level of buffering called for by the draft instrument was based on considered expert opinion in relation to water quality on the one hand and flora and fauna on the other.

Water Quality

1. Although concerns were expressed in relation to erosion, sediment control, acid sulphate soils and reactive aluminium soils, the position that eventually emerged and appeared to be accepted by Mr Sutherland (the expert called by the Council) was that these concerns were capable of being satisfactorily addressed by appropriate engineering practice.  Evidently some difficulty has arisen in the past as a result of careless work by an earlier proprietor.  Dr Johnson (the appellant’s consultant) was well aware of this and since taking control of this project has been instrumental in improved on-site management designed to avoid difficulty in these areas. 

1. The real issue in this context of the case was whether a development as proposed by the preliminary approval would be capable of providing:

·     appropriate treatment of stormwater so that water quality in the heathland is not compromised;

·     appropriate infiltration so that the groundwater is not comprised by urbanisation;

·     a generally  “no worsening” position in respect of flooding external to the site.

1. Dr Johnson’s evidence provides a careful and detailed account of his plans for the capture and treatment of stormwater.  Pre-treatment within the urban area will occur and stormwater will be collected in shallow infiltration basins located at the interface of urban and conservation areas.  Wastewater will be held within those basins for a sufficient time to achieve appropriate quality of the water which will then be allowed to drain away through sandy soils to replace the groundwater. 

1. To allow for higher rainfall events, a general gradient will allow water to flow along the basins to detention storage.  Modelling which he carried out demonstrated favourable comparison to present water quality in the heathland.  While the proposal involved some filling below the Q100 Floodline, Dr Johnson expressed satisfaction that no adverse impact would result.  Any ill effects of greater inundation time (which will be relatively low) and which would be felt in adjoining caneland would, on the evidence of Mr Kingston (an appropriately qualified officer of the Bureau of Sugar Experimentation) be negligible.  I accept this evidence. 

1. Mr Collins, (the respondent’s consultant) whose approach to the achievement of stormwater quality was more fundamental and provided a basis for the 75 metre buffer contemplated by the DLASP, admitted that the “performance measures” set out in the DLASP were capable of being achieved in other ways.  He did not deny that, provided it operated as designed, that Dr Johnson’s system was capable of a satisfactory level of performance. 

1. In expressing his reservations about Dr Johnson’s system Mr Collins appeared to make some rather doubtful suppositions.  In applying the ANZECC 2000 Guidelines in respect of water quality he used the standards relevant to “upland river” water quality to demonstrate non-compliance.  It was pointed out that the Guidelines defined “upland” water quality to be relevant to streams at an altitude greater than 150 metres which is not the case with the subject land.  It was also indicated that Mr Collins had adopted the “lowland river” category in preparing his report in respect of the DLASP and that the water quality results derived by Dr Johnson are not inconsistent with those.  Doubts were also raised concerning his application of the BCC Guidelines for Suspended Solids.

1. In respect of the matter of potentially adverse effects on infiltration following urbanisation, criticism was levelled at Dr Johnson’s failure to properly examine the “base case” (the hydrology regime existing in the wetland over a long period).  However, if his aim of returning 90 per cent of urban runoff to the groundwater is realised, the probabilities of an acceptable result being achieved (whatever the base case) are high. 

1. Inherently in the respondent’s case was a suggestion that the likelihood of Dr Johnson’s hopes being realised had not been demonstrated “beyond doubt”.  That is not the appropriate standard in cases of this kind.  Dr Johnson’s evidence has satisfied me, on the balance of probabilities, that:

·     He has a proper understanding of the difficulties likely to be encountered;

·     He has suggested engineering solutions which are soundly based in scientific terms; and

·     The capacity for their being able to be put into effect exists.

1. I am satisfied that a need to depart from the proposed development (which is consistent with the Master Plan) to provide a greater width of buffer is not supported by any expert evidence in the area of water quality. 

Flora and Fauna

1. In this difficult area to achieve a sensible and just result, a balanced, practical and fair minded approach is essential.  Such an approach was, in my view of the evidence, apparent in the assessments made by Mr Warren (flora), Mr Debus (birds) and Dr White (frogs) consultants engaged by the appellant who were appropriately qualified in their fields.  Realistically they were ready to concede that development will inevitably have some impact on the land’s flora and fauna but, in an even handed way, they explained that the balance struck by this proposal between development expectations and conservation was an acceptable one. 

1. Mr Warren was ready to acknowledge that important vegetation existed on the site but expressed satisfaction with the level of retention of land within which examples of this vegetation could be preserved.  Much ado was made of the discovery on site of examples of the rare plant “allocasuarina emuina” and it is accepted that the species is represented in areas that will be developed.  On the other hand there is no suggestion that this proposal will obliterate the plant from the subject land.  On the contrary Mr Warren was confident that efforts to translocate the species to other areas of the site had reasonable prospects of success. 

1. It is noted that, notwithstanding the asserted importance of “allocasuarina emuina” stands of the plant occur elsewhere in the area (particularly in the nearby National Park).  There is no evidence of any effort being made by an appropriate authority to reinforce this population.  In these respects I can do no better than repeat remarks made in Chew v Pine Rivers Shire Council (1991) QPLR 90 at p. 93, which appear to be equally pertinent to this case:

“Interesting evidence was given concerning flora and fauna to be found in the area.  One must accept that when land moves from an undeveloped state to development there will be, in absolute terms, some impact in these areas.  I have considered all of the evidence carefully but, remembering that we are dealing with that land is privately owned and in a region where substantial areas have been set aside for national and forest park use (the opportunities for which, as have already been discussed, will be augmented as a result of this proposal), I am quite unable to find any valid basis for rejecting the proposal for reasons of flora or fauna conservation”.

1. Mr Debus, a widely respect ornithologist, examined the site and expressed the opinion that the impact on various bird species found on the land, particularly the square-tailed kite, the glossy black cockatoo, the ground parrot and the powerful owl would not be unduly adversely impacted.  I am satisfied that Mr Debus would not express such a view lightly and I accept it.

1. Dr White explained that the areas of the site proposed to be set aside for conservation purposes constitute the majority of the core habitat for the important frog population.  The impact of some habitat in the north-western area of the site of, in part development and in part stormwater detention measures was not, in his view, unacceptable.  I accept his opinion. 

1. The witness for the respondent (Mr Lowe) on the other hand did not adopt what I could reasonably describe as an even handed approach.  Some of his opinions I found emotively based and bordering on the extreme.  Listening to his passionate description of the importance of the site as he saw it, one might be forgiven for hearing it as a description of an area suitable only for total preservation as a National Park rather than a parcel of privately owned land recognised by the planning documents to be, at least in part, suitable for development.

1. His evidence went well beyond seeking to justify the 75 metre buffer advocated by the DLASP.  Without wanting to be unkind to his enthusiasm, I say simply that I prefer what I regard to be the more sensible and practical approach of the appellant’s witnesses.

1. Great emphasis was placed on the desirability of providing corridors for wildlife and this was the justification put forward for precluding from development a strip of land along the south-eastern border of the site.  The value of corridors in appropriate locations is undoubted and, as the case with most matters of conservation interest, “the more corridor the better”.  However in this case I accept the evidence that the need for this particular corridor is certainly not critical and not such as to justify a departure from the Master Planning that has been done. 

1. There were emotive suggestions made that the extended buffer called for by the DLASP was critical to the preservation of the areas environmental quality.  How this escaped the attention of those involved in the lengthy negotiations that led to the Master Plan was not satisfactorily explained.  In any event, no one suggested for a moment that any buffering was unnecessary.  The Master Plan provides for significant buffering between areas developed and conservation areas.  Its adequacy is born out by evidence which I accept.

1. On the whole of the evidence I am satisfied that this preliminary approval, being consistent with the Master Planning which is the result of considerable work and expense is acceptable.  I find that the onus of showing that the application is one which should be approved has been discharged and the appeal will accordingly be allowed.