Fraser Coast Regional Council v. Torquay Heights Pty Ltd
[2008] QPEC 53
•22 July 2008
[2008] QPEC 53
PLANNING AND ENVIRONMENT COURT
JUDGE ROBIN QC
No 937 of 2008
| FRASER COAST REGIONAL COUNCIL | Appellant |
| and | |
| TORQUAY HEIGHTS PTY LTD | Respondent |
BRISBANE
..DATE 22/07/2008
ORDER
CATCHWORDS: Integrated Planning Act 1997 s 4.3.3 and 4.3.25 - enforcement orders made where respondent contravened development conditions in ways increasing susceptibility to flooding of residences in its estate.
HIS HONOUR: The Court makes an order in terms of the initialled draft which provides as follows:
In discharge of its obligations under Conditions 1, 2, 3 and 4 of the Development Permit dated 28 May 2003, issued by the Applicant to the Respondent for a material change of use and reconfiguring a lot (one lot into 22 lots and a balance lot), which is Exhibit "DWB-7" to the affidavit of Darren William Bell filed 16 May 2008 ("Bell's affidavit") and Conditions 1, 2, 3 and 4 of the Development Permit dated 4 November 2003, issued by the Applicant to the Respondent for reconfiguring a lot (one lot into 35 lots), which is Exhibit "DWB-8" to Bell's affidavit, the Respondent shall:
(a)construct the following works on Lot 100 SP179038 generally in accordance with Drawing A3, Sheet 1 of 2 (which is attached hereto and marked "2"), namely
(i)A low flow channel 1.0 metre deep and 5.0 metres wide (base width), with 1 in 6 sides, to connect to the existing Raward Road drainage channel; and
(ii)A flood levy and local drainage channel to the west of the properties of Rosewood Avenue;
(b)otherwise remove the fill material placed on lot 100 on SP179038 to the ground levels identified on Exhibit "DWB-20" to the Affidavit of Mr Bell sworn 22 July 2008 such as to achieve compliance with the amended scenario 6 option referred to in paragraph 4 of the Affidavit of Ms Emily Reid sworn 22 July 2008.
The Respondent complete the works required by paragraphs 1(a) and 1(b) on or before 22 September 2008.
The Respondent provide to the Applicant a certificate of a registered professional engineer ("the certificate") certifying that the works required by paragraphs 1(a) and 1(b) have been completed in accordance with the documents referred to in paragraph 1.
The Respondent is to provide the certificate to the Applicant within 5 business days of completing the works required by paragraph 1.
The originating application otherwise be dismissed.
Each party bears its own costs.
The order made on the application of the Council without any opposition coming from the respondent is made under section 4.3.25 subsection (2) of the Integrated Planning Act 1997. Subsection (1) requires, before the Court may make an enforcement order under subsection (2), that it be satisfied an offence has been committed. Although the Council at earlier stages has contended that there was unlawful filling, being work for which a development approval permit should have been obtained, which wasn't, it's no longer necessary for the Council to press that aspect of its complaints against the respondent. The reference to fill in order 1(b) will be noted.
The respondent's position in relation to filling is that although filling may have occurred between 2002 and 2006 in a drainage reserve in its residential development, that filling was not carried out by it. The Council has also abandoned reliance on asserted non-compliance with development conditions numbered 2 and 3 which were among the conditions for what have been called stage 1 and stage 2 approvals of the respondent's residential estate.
It's sufficient for the Council to rely on conditions 1 and 4, conditions which were in identical terms in approvals for the two stages, contained in the Predecessor - Council's discretion notices of 28 May 2003 and 4 November 2003:
The stormwater drainage shall be designed such that the development will not make material changes to the pre-development location, duration, frequency or concentration of overland stormwater flow at the point of discharge to all downstream properties including road reserves. In the event that a material change to the pre-development stormwater flow will occur, the applicant shall produce evidence to Council's satisfaction of a legal right as to the method for stormwater discharge over the downstream land.
The stormwater drainage shall be designed such that no restriction to existing or developed stormwater flow from upstream properties or ponding of stormwater within upstream properties occurs as a result of the development, as set out in Transitional Planning Scheme Policy 20.
Building Pads shall be provided within each allotment. The building pad shall have the minimum area and flood freeboard defined in the Council's policy. Vehicle access to the nominated building pad is to be provided in accordance with Council's policy. In this regard it may be necessary to provide an accurate contour plan of the site and to submit to Council an engineering flood study of drainage paths traversing and/or adjacent to the site to permit the determination of the relevant flood levels.
The respondent, notwithstanding what's said above, accepts responsibility for breaches of those conditions, which from every point of view have always bound it. To the distress of families who have purchased and built in the part of the estate adjacent the drainage reserve, there have been two flood events, one in September last year, one in February this year. Surface water unable to escape more freely towards the Hervey Bay airport through the drainage reserve has built up, entering properties and in at least one case a residence with the usual sad consequences for families living there. There was photographic and video material available to establish that.
There has been changing of land contours in the area on the evidence before the Court and has had the effect of increasing the anticipated level of floodwaters by between 200 millimetres and 600 millimetres.
The uncontested evidence before the Court indicates that building pads provided within allotments in some cases fell short of what was required by the "Council's policy" which is set by reference to the familiar Q100 levels. The flooding events mentioned above were much more modest, corresponding with what might be expected every second year or in a more severe case, about every fifth year.
The deficiency in height of the building pads in question is roughly within the same 200 millimetres to 600 millimetres parameters identified already.
The Court is satisfied that development offences within
s 4.3.3 by way of contravention of conditions 1 and 4 in each development approval have been committed, enlivening its power to make enforcement orders under s 4.3.25. The Court is grateful to the parties for the work done to identify a solution to this matter. The escape of floodwaters from the area is to be facilitated and, it is to be hoped, restored to 2002 parameters by the construction of a channel identified in the plan attached to the Court's order. Its effect is intended to be reproduction of the 2002 situation.
The condition 4 difficulties are to be met by the construction of a levee running roughly parallel to the channel which is to be constructed, and which will or ought to offer the residents of that part of Rosewood Avenue, whose building pads are deficient in height, the required protection by means of that levee.
Mr Williamson, representing the Council has made it clear that the Court's order today resolves only the relatively narrow issues the application in its ultimately confined form encompasses. The respondent will remain, speaking generally, responsible for compliance with the conditions which apply to its development.
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