Frizzo v Caloundra City Council
[2003] QPEC 70
•19th December 2003
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Frizzo v Caloundra City Council & Anor [2003] QPEC 070
PARTIES:
A.M Artis, I.B Frizzo and S.J Frizzo trading as Frizzo Enterprises Appellant
against
Caloundra City Council Respondent
and
State of Queensland Co-Respondent
FILE NO/S:
25 of 2003
DIVISION:
Planning and Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
District Court
DELIVERED ON:
19th December 2003
DELIVERED AT:
Maroochydore
HEARING DATE:
18th – 25th November 2003
JUDGE:
K.S Dodds DCJ
ORDER:
Appeal adjourned for parties to consider Courts reasons
CATCHWORDS:
ENVIRONMENT & PLANNING – ENVIRONMENTAL PLANNING – RECONFIGURATION APPLICATION – APPEAL –code assessable reconfiguration application for Park Residential land – where part only approved, part refused and preliminary approval for balance – wh proposed reconfiguration adequately reflected strategic plan development control plan and local planning policies
COUNSEL:
Mr C.L Hughes SC for the Appellant
Mr M.D Hinson SC for RespondentSOLICITORS:
P & E Law for the Appellant
Corrs Chambers Westgarth for the Respondent
This is an appeal against the decision of Caloundra City Council (Caloundra) made 20th March 2003, about a development application by the appellants (Frizzo) for a code assessable reconfiguration of land (the site) located at Frizzo Road, Palmview. The site is lot 102 on SP 13910 and contains 144.8 hectares.
The application was for a development permit for reconfiguration of the site into 334 lots (now 331). Caloundra approved part of the application, being 180 lots in the central part of the site (the approved area), refused part of the application stages 8 and 9 in the north-west area (the refused area), and granted preliminary approval for other parts of the site instead of a development permit (the northern preliminary approval area and the southern preliminary approval area). It subjected the approvals to a number of conditions.
The appeal is against:
· The refusal of part of the application;
· The grant of preliminary approval instead of a development permit;
· Against some of the conditions imposed. It also seeks the currency period of the development be greater than the four year period under IPA s3.5.21 (6) (a).
The decision notice is exhibit 3. It is dated 25th March 2003. Attached to it is the then proposed reconfiguration layout plan showing the refused area and the preliminary approval areas. That plan has been overtaken by an amended plan which became exhibit 4 on the appeal, referred to as plan H. The changes may be regarded as minor for the purposes of section 4.1.52(2) (b) of the Integrated Planning Act 1957 (IPA). Moreover they involved a reduction in the intensity of the use.
Substituting exhibit 4 for the plan which accompanied the decision notice, the refused area was lots 240 to 249 inclusive, 290 – 331 inclusive, roads N, O, and P, part of road I servicing the lots and lots 1 and 37. Regarding this large refused area which comprises the north west corner of the site the notice said “this area shall remain as a single parcel in the park residential zone.”
The reasons advanced for the refusal of this large area were:
· that lots 240-249 and 290-333 were considered to represent an extreme bushfire hazard area and thus did not meet the requirements of local planning policy PDLPP5.7/01-Bushfire Prone Areas;
· The applicant had not demonstrated that lots 240 – 248 inclusive, lots 310 and 311 and lots 321-325 inclusive were capable of being developed without significant disturbance to the existing landform in accordance with local planning policy PDLPP2.4/04-Park Residential Development;
· the areas of lots 240-249 inclusive and 290-333 inclusive was a habitat for species scheduled in the Queensland Nature Conservation Act (Regulations) and the Commonwealth Environment Protection and Biodiversity Conservation Act including Powerful Owl, Red Goshawk, Grey Goshawk, Koala and Elf Skink;
· the area contained an abundance of thirty metre to fifty metre core habitat trees (old growth trees). It was considered that the lot sizes in this area were too small to ensure protection of these species in accordance with local planning policy PDLPP5.0/03 Significant Vegetation Areas.
Lots 1 and 37 have been resolved between the parties and may be approved subject to agreed conditions.
Bushfire, as a reason for refusal can be put to one side. Persons with expertise in the area of bushfire prevention/management, Mr Hawkes, for Frizzo, and Ms Lywood for Caloundra have agreed on conditions which will contain and manage bushfire hazard. The appellant and the respondent accept those conditions.
The southern preliminary approval area included lots 69 -92 inclusive and road B and lots 133-143 inclusive and road F. This was stages 1 and 7 of the proposed reconfiguration
The northern preliminary approval area included lots 210-239 inclusive, 265-289 inclusive, roads L, M and the northern section of road I. This was stage 11 of the proposed reconfiguration.
Conditions attaching to the preliminary approval areas required:
· an amended package of design guidelines for the development of the lots including a site development plan for each lot containing slopes steeper than 1:6 and/or vegetation protection zones. The content of site development plans was specified;
· no clearing, cutting down, poisoning, lopping, pruning, grazing, soil/spoil dumping (and/or compacting) of native vegetation indigenous to the land;
· any subsequent development application for reconfiguring a lot in these areas to be accompanied by a reconfiguration proposal plan which addressed (amongst other things) the enlargement of lot sizes to allow for vegetation management and protection on individual lots….and to ensure that development on steep slopes does not cause significant disturbance to the existing land form.
The site is located on the western side of the Bruce Highway immediately to the west of the development around the Ettamogah Pub (now the Aussie World theme park area). It is accessed from Frizzo Road, a service road running generally parallel to the Bruce Highway which also provides access to the Aussie World development. It also has frontage to Martin Road a short road off Frizzo Road, at its north eastern corner.
The site is relatively flat in its southern area rising towards the centre where there is a ridge running generally east-west and then falling away to the north. There are a series of ridges and gullies radiating to the south and to the north from this higher land. In roughly the centre of the site there is a partly cleared area where some past cultivation has apparently occurred. Otherwise the site is covered with vegetation. The north western boundary of the site represents a boundary between Caloundra City and Maroochy Shire. In Maroochy 2000 the adjoining land is within the General Rural Lands Precinct Class and has a Rural or Valued Habitat designation in the strategic plan.
Land in the vicinity of the site has a number of uses. Immediately to the east is the Aussie World Development incorporating theme park, tavern, local shops and services. There had been approval for another theme park to the north but it seems that has lapsed. Further to the east across the Bruce Highway is the Palmview Conservation Park. There is rural residential development to the south and north west, agricultural uses to the west and agricultural and urban uses east across the highway.
The site was originally part of a larger area of rural land owned by Frizzo, lot 5 on CG803424. In 1993 discussion commenced with Caloundra regarding subdivision. Rezoning was necessary if that were to occur. At the request of Caloundra various investigations regarding waste disposal, water quality management, geotechnical investigation, possible road networks were undertaken. At that stage, about 550 lots were in contemplation. Discussion and investigations continued into 1995. In February 1995 Frizzo was advised of a pending development control plan (DCP) covering the area of the site. An application for rezoning was delayed pending the outcome of the DCP process. By November 1996 the DCP was in place. In the DCP the site was included in the park residential designated area. Further discussion took place. There were meetings with Caloundra’s subdivision planning officers in April 1997 and in May 1997 a detailed inspection of the land was carried out with Caloundra’s environment parks officer to confirm and discuss environment protection areas and proposed park areas. In June 1997 an application to rezone the land from the rural zone to the park residential zone and environment protection zone was lodged. In September 1998 the application was approved with conditions. An appeal was lodged against some of the conditions. In 2001 after more inspections, negotiations and discussions the appeal was settled by consent order.
Pursuant to the order the application to rezone was approved subject to conditions. I set out some of them:
“1. (a) The area to be rezoned to park residential shall be the proposed lot 102 and the area to be rezoned Environment Protection shall be proposed lots 100 and 101 on the Survey plan…
(b) The Applicant shall transfer in freehold title to the Respondent proposed lot 101 on the survey plan… in accordance with the agreement entered into between the Appellant and Respondent dated 6th March 2001
(c) The Applicant shall dedicate as park contribution the proposed lot 100 on the Survey Plan…”
As part of the settlement of the appeal against the rezoning conditions and another appeal against Caloundra’s refusal of Frizzo’s claim for compensation for injurious affection by virtue of part of Frizzo’s land being designated ‘conservation’ in the DCP, Frizzo and Caloundra entered into an infrastructure agreement. Pursuant to the infrastructure agreement and the consent order lots 100, 101 and 102 were created out of lot 5 on CG 803424. Caloundra purchased lot 101 containing 20 hectares for environment protection for $500 000 and lot 100 containing 34.34 hectares was dedicated by Frizzo as environmental reserve. Lot 101 is to the west of portion of the site. Lot 100 is at the south of the site. Lot 102 was rezoned to Park Residential. The agreement contained a term that upon settlement of the purchase of lot 101 by Caloundra “the council shall not require from the Applicant the provision for park purposes of any further part of the land other than proposed lot 100 on the plan of subdivision…”
The planning scheme for the application is the Caloundra City Planning Scheme gazetted on 2nd August 1996. It is a transitional planning scheme under the Integrated Planning Act 1997 (IPA) – section 6.1.3.
Section 6.1.28 (3) of IPA requires that the application in question (and the appeal) be processed as if it were a development application requiring code assessment. Section 6.1.29 (3) requires relevantly the application be assessed, against the common material, the transitional planning scheme, the transitional planning scheme policies, any planning scheme policy made after March 1998, all state planning policies, the matters stated in section 5.1 (3) of the Local Government (Planning and Environment) Act 1990 (the P & E Act) and any other matter to which regard would have been given if the application had been made under the P & E Act.
Relevant matters under section 5.1 (3) of the P & E Act include whether any of the proposed allotments would be unsuitable for use because of existing or possible erosion, the size shape and utility of each of the proposed allotments, the impact of the proposal on the environment, the provisions of the planning scheme which regulate the subdivision of land and such other matters having regard to the nature of the application as are relevant.
Section 6.1.30(3) of IPA requires the application be decided under section 5.1(6) and 6(A) of the P & E Act. Section 5.1(6) requires that the application be approved, approved subject to conditions or refused. Section 5.1.6(A) provides that the local government must refuse to approve the application if
“(a) the application conflicts with any relevant strategic plan or development control plan; and
(b) there are not sufficient planning grounds to justify approving the application despite the conflict”.
By virtue of the rezoning the site is in the park residential zone. The intent of the zone is “to provide for estate development of larger residential allotments subject to the environmental capabilities of the area”.
The subdivision of land provisions of the planning scheme provide that for the park residential zone the minimum allotment requirement is an area of 1500m² with a minimum rectangle to be contained therein of 30 metres by 40 metre and with a minimum road frontage of 30 metres. Section 6.1 thereof provides that
“a person must not subdivide land unless:
(a) the development complies with:
(i) the intent and objectives of the strategic plan,
(ii) the requirements of any (DCP) in the planning scheme,
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(v) the requirements of relevant State Planning Policies and Local Planning Policies.”
In the strategic plan the site is within the Sippy Downs DCP area, the Mt Sippy Foothills precinct, and is designated partly park residential and partly conservation. The designation is not cadastrally based. The strategic plan refers the reader to that DCP for detail with respect to the preferred dominant land uses.
Reference to the DCP reveals that the park residential designation indicates an area intended to accommodate larger residential allotments than are found in urban areas but which still provide access to urban facilities. It advises that for land in the park residential designation consideration needs to be given to ensuring the residential development which is permitted is of a density and design which ensures ecological sustainability including the protection of significant habitats.
The intent of the Mt Sippy Foothills precinct is to become an enclave of low density park residential development making the transition between the urban growth on the coastal plan and the ecologically and aesthetically significant land associated with Mt Sippy and other steeper and more elevated areas and the ecological values of the adjoining Palmview Conservation Park and Environs Precinct. Uses
“should be exclusively residential and of very low density and designed in such a way as to ensure ecological sustainability including the retention and protection of significant habitats… Given the biophysical constraints of the site allotment sizes shall range in size from 1500m² to over several hectares. A variety of allotment sizes shall be provided with optimal allotment size being determined by consideration of slope, soil and geology, ecological and aesthetic values. This means that while 1500m² is the minimum size required most sites will be much larger. An allotment size in the vicinity of 4000m² is anticipated for most lots.” Ecological and aesthetic features include “appropriate plans of layout and forms of development are ones which acknowledge and preserve the essential ecological and aesthetic qualities of the environment. The principal ridgelines, steeper slopes and gullies will be preserved in a natural state… an adequate buffer of not less than 10 metres from the top of the bank should be retained in its natural state along each side of watercourses”.
Significant aspects of townscape, built form and landscape include:
· encouraging protection of remnant vegetation
· the use of the colour, texture and building materials “which are earth or forest colours will be encouraged. In particular the use of non reflective roofing materials will be encouraged”.
Caloundra has a number of local planning policies which were in force when the rezoning appeal was resolved. Two remain relevant to this appeal – Policy 2.4/04 Park Residential Development and Policy 5.0/03 Significant Vegetation Areas.
Caloundra’s policy PDLPP5.0/03 Significant Vegetation Areas is based upon a 1993 report of a botanist Dr Olsen entitled ‘The Vegetation Mosaic of Lands within the Boundaries of Caloundra City Council’. It is concerned with the maintenance of biological diversity within the local authority area through protection and rehabilitation of vegetation communities and important linkages. Objectives of the policy include ensuring that areas of significant remnant vegetation and vegetation corridors are protected and, identifying priority 1 and priority 2 areas which should be retained in their natural state as far as possible. Priority 1 and 2 areas are identified in the policy as:
· Priority 1 – areas of remnant vegetation worthy of conservation because of their State, regional and/or local significance.
· Priority 2 – areas of remnant vegetation which are worthy of maintenance as natural resource communities
Vegetated corridors are identified as those linking the most significant coastal and hinterland vegetation remnants and are included as either priority 1 or priority 2 significant vegetation areas. The policy provides that in assessing any application for rezoning … and/or subdivision in relation to land including and/or adjacent to an area of significant vegetation both the potential impact of the proposed development on existing significant vegetation and the management and retention measures proposed to minimise potential impacts will be taken into account.
Caloundra’s Policy 2.4/04 Park Residential Development provides that it is
“to ensure that rezoning and subdivision applications for park residential are approved only after consideration of topography, vegetation, agricultural land, aesthetics and infrastructure”.
It provides that in assessing any application for rezoning and/or subdivision in relation to Park Residential Development
“the character of the area, environmental considerations, land suitability and physical and human service infrastructure will be taken into account. Areas containing significant vegetation which needed to be retained may have an impact on achievable lot sizes and layout depending on the extent and nature of the vegetation”.
Matters affecting a site’s suitability include slope and flooding. As to slope land with slopes in excess of 1:3 is considered unsuitable for development and land with slopes between 1:3 and 1:6 requires individual site assessment based on soil type, topography and vegetation. A report will be required from a suitably qualified person demonstrating that the land was capable of development without significant disturbance to the existing landform.
Caloundra is in the process of introducing a new IPA planning scheme (the draft scheme). It has been advertised and public submissions are being reviewed.
Section 4.1.52 of IPA requires that this appeal be decided based upon the laws and policies applying when the application was made, but provides that weight may be given to any new laws and policies the court considers appropriate.
In the draft scheme the site is in the Mooloolah Valley Planning Area and within a Rural Residential Settlement Precinct. This precinct in the draft scheme is an amalgam of rural residential and park residential in the present scheme. The site is identified as an area containing steep slopes with bush fire issues and habitat and biodiversity issues. Lot size requirements in the area of the site are one hectare minimum average lot size with a 3000m² minimum lot size. The site is also identified within a significant ecological linkage between the coastal low lands and sub-coastal uplands. See maps 7.3, 7.4 and 7.5 in the draft plan.
The draft scheme contains a number of codes. Each contains outcomes.
There is a Habitat and Biodiversity Code. It recites that Caloundra city contains large areas of significant remnant vegetation and habitat for fauna populations. Overall outcomes under the code include the maintenance, enhancement and restoration of Caloundra city’s ecosystems and ecological processes, their biological diversity and potential for continuing evolutionary adaptation; protecting, linking and managing protected areas, significant ecosystems, habitat for fauna and flora species and other valued natural areas within Caloundra city; rehabilitating degraded ecosystems and restoring endangered species habitat and ecosystems. Specific outcomes include the protection of significant vegetation to ensure its survival and ongoing contribution to Caloundra city’s biological diversity; that works associated with development avoid fragmentation of significant vegetation or habitat areas for significant flora and fauna species and other wild life and creating barriers to faunal movement.
There is a Steep Slope/Stability Code. Overall outcomes include avoidance or minimisation of potential for erosion and land slippage; minimisation or avoidance the undesirable effects of development on this sort of land such as cut and fill retaining walls and steep driveways. Specific outcomes include that the siting and the design of development of steeply sloping land minimise impact on the natural landform and landscape character.
There is a Reconfiguring a Lot Code. Overall outcomes include attention to lot size and dimensions including consistency with overall outcomes and specific outcomes for the planning area, safe and appropriate access, that lot layout have due regard to the geographical constraints and environmental management issues applicable to a subject site. Specific outcomes include that lot size and dimensions protect the site attributes such as significant vegetation and views and take account of and are responsive to site constraints and risks such as steep slope.
It can be seen that the draft scheme restates Caloundra’s commitment to issues which are alive in this appeal. These issues remain important and appear to be evolving in their relevance to development applications.
I do not think it is correct to conclude that the proposed reconfiguration conflicts with the strategic plan or the DCP. Views however may, and in this case plainly do, differ about compliance with the intent and objectives of the strategic plan and/or the requirements of the DCP. Likewise the provisions of the local planning policies set out above.
Counsel referred me to the decision of Robertson DCJ in Cornerstone Properties Limited v Caloundra City Council 2003 QPELR 42. It was submitted that when there was a conflict between the zoning of a site and the planning objectives and designation in a forward planning document (such as a strategic plan or DCP) it is the zoning that ought to prevail, as it is the zone (in a scheme that controls development by zoning) which determines development rights.
The subdivision of land provisions of Caloundra’s planning scheme subjects any reconfiguration to compliance with the intent and objectives of the strategic plan and the requirements of any DCP and local planning policies. Reference to these instruments reveals no direct conflict with the zoning of the site. Rather they explain what is expected in addressing the “environmental capabilities of the area”. Provision of a minimum area of 1500 m² in the Park Residential zone does not confer an entitlement to reconfigure into lots with that area. Application of the provisions of the DCP and policies does not amount to a de facto denial of development of the site as park residential zoned land.
It is a relevant matter that when the rezoning occurred Caloundra and Frizzo had agreed upon the provision of part of the original area of land to go to conservation with the rest (the site) to be rezoned to Park Residential. The conditions of the consent order Exhibit C refer to a plan attached to the orders (see condition 2 of the order) which had in contemplation 390 lots. The rezoning to Park Residential was “a strong indication of the lands suitability for development consistent with that zoning” -Prodap Services Pty Ltd v Gold Coast City Council 2000 QPELR 176 at 180 per Quirk DCJ, subject to the provisions of the planning scheme.
Prior to the hearing of the appeal and throughout the hearing discussion continued between Frizzo and Caloundra and persons with relevant expertise retained by each. A number of matters that had been in contention or potentially in contention were resolved.
THE SOUTHERN PRELIMINARY APPROVAL AREA
This area is immediately to the north of lot 100 which Frizzo dedicated to Caloundra for environmental purposes. Proposed road B and proposed road F lie between lot 100 and the lots in the southern preliminary approval area. What is in issue is the shifting of roads B and F northwards to preserve flora. This would result in reducing the lot size and/or the lot yield. Land to the south of roads B and F would be left vacant adjoining lot 100.
Dr Olsen, gave evidence for Caloundra. Regarding this area he said there were large old growth relict canopy trees and regional ecosystem 12.3.2 vegetation present on the lower inundation prone slopes in this area. Thus there were priority 1 areas. The reference to regional ecosystem 12.3.2 vegetation is a reference to flooded gum (Eucalyptus Grandis) and associated taxa in the canopy. Exhibit 24 is a plan of the proposed development upon which is superimposed areas of regional ecosystem 12.3.1 and 12.3.2 vegetation.
Under the Vegetation Management Act 1999 regional ecosystem 12.3.1 vegetation is ‘endangered’ and 12.3.2 vegetation ‘is not of concern’. A publication by Sattler and Williams 1999 published through the Environmental Protection Agency defines regional ecosystems in the State. Under their study vegetation communities on the site include regional ecosystem 12.3.1 and 12.3.2 and 12.9.10-14. Regional ecosystem 12.3.1 is a reference to parts of ecotonal forest on lot 100 and the gully vegetation on the site. The gully vegetation is sought to be protected as part of the proposed development. In their publication regional ecosystem 12.3.2 is not of concern.
Dr Carter, an environmental consultant specialising in flora and fauna gave evidence in Frizzo’s case. He did not disagree that the type of trees described by Dr Olsen existed in this southern area of the site. The difference in their evidence was in the emphasis the presence of these trees should have in all the circumstances of this reconfiguration application.
Dr Olsen said the relocation of road B northwards would preserve the community of flooded gum and alleviate public risk. Evidently flooded gums can drop large limbs. A map of the proposed reconfiguration with the relocation of boundaries in this area superimposed was produced – exhibit 26.
Dr Carter acknowledged that in ‘conservation utopia’ all remaining regional ecosystems would be protected and managed to preserve their inherent values. However he considered the ideal must be tempered by community needs and community resources and a balance struck. He also said that flooded gum is a part of an ecotonal forest community, is disturbance dependent and left to its natural ecological progression and without a cycle of disturbance would become dominated and ultimately replaced by rainforest.
Dr Carter undertook a count and location of flooded gum in the southern most lots (see exhibit 9A). He counted the flooded gum within 25 metres north of the centre line of proposed roads B and F and estimated the number of flooded gum between 25 and 50 metres north of that centre line. It is apparent from his count that the majority of the flooded gum are in the first 260 metres from the eastern most point of road B, that is, to approximately the western boundary of lot 76 where 8 are located within 25 metres north of road B.
Dr Agnew, a consultant ecologist, gave evidence for Caloundra. He was primarily concerned with fauna. His investigations revealed that the northern and southern preliminary approval areas and the north western refusal area supported a diverse fauna and species of conservation significance. He considered the protection of old growth relict trees and habitat trees for koala near the southern preliminary approval area was important. He supported the northward relocation of roads B and F for a distance sufficient to retain areas supporting flooded gum dominated habitats.
Mr Warren, an environmental consultant who gave evidence for Frizzo was concerned with the impact of the proposed development on fauna. He did not disagree with Mr Agnew that the site generally supported a diverse fauna and species of conservation significance. His evidence did not deal separately with particular preliminary approval areas or the north west refusal area. He accepted that development potentially contemplated by a park residential zoning inevitably would have some impact on the fauna values of the land. Overall however he considered that the proposed development, as refined by the time of hearing the appeal, achieved an acceptable balance between development and conservation for fauna.
Mr Tucker, a civil engineer specialising in geotechnical engineering from Golder Associates gave evidence for Frizzo. Considerable geotechnical work has been done over the site since as long ago as 1994. In his opinion lots of 1500m² would be adequate for the disposal of effluent. Mr Fanton, an engineer employed by Caloundra and a team leader of Caloundra’s engineering and environment team considered a minimum lot size of 2000m² was required unless an individual detailed assessment for a lot showed that a lesser area was suitable. The relevance of lot sizes has to do with a relocation of road B and/or F to the north reducing the size of lots presently proposed.
It seems that at the rezoning stage, Caloundra’s staff and Dr Olsen walked through the southern part of the site to determine the location of the boundary between lot 100 and lot 102. The flooded gum community must have been evident then. Although apparently Dr Olsen supported the flooded gum community under discussion being included in the, to be created, lot 100, the boundary was located leaving the flooded gum in the area to be rezoned to park residential.
On balance regarding this area of the site I conclude that the appeal should be allowed. Since the parties will be conferring following these reasons I make the following comments:
· The number of lots shown on exhibit 4 should remain the same and should achieve a minimum area of 2000m²;
· Road F should not be relocated northwards;
· Referring to exhibit 4 it appears it may be possible to relocate road B about 25 metres northwards in proposed lots 73,74 and 75 and by doing so achieve a number of the flooded gum community being outside the allotment boundaries. Using exhibit 4 it appears this may be achievable if the departure point of road B from road A remain the same and the southern boundary proceed in a straight line to the south western corner of proposed lot 77. It is not possible however to be sure given the scale of exhibit 4, that lots would achieve a minimum size of 2000m².
THE NORTHERN PRELIMINARY APPROVAL AREA
What remained in issue regarding this area was the lot and road layout in the proposed reconfiguration and the impact on flora and fauna values.
This area contained a number of gullies, some wet. These gullies were shown on a site vegetation map by Mr O’Keefe (see attachment 6 to exhibit 18 – Dr Olsen’s report). In one, at least, of the wet gullies, that adjacent to proposed road M, the rare plant Alyxia magnifolia regional ecosystem 12.3.1 is known to exist. Other parts of this area contain old growth relict trees regional ecosystem 12.3.2.
At an experts conclave for flora and fauna the expert advisors to the parties agreed that vegetation within and around all gullies on the site should be retained. Dr Olsen’s concern was that apart from the gully adjacent to proposed road M and another to the east of the junction of proposed roads I and L the gullies identified by Mr O’Keefe and further identified in a recent survey by a surveyor Mr Street, were not represented by proposed drainage/vegetation easements/covenants on exhibit 4. Exhibit 25 showed the gullies identified by Mr O’Keefe overlaid with the gullies from the recent survey by Mr Street. This was a concern also of Mr Fanton’s. Dr Agnew was concerned that the proposed reconfiguration layout exhibit 4 did not demonstrate adequate protection of gully habitat and food trees for koala and the vulnerable glossy black cockatoo. He supported reconfiguration of roads I, M and L and associated allotments to provide adequate protection of gully habitat and food trees.
There was some criticism of Mr Street’s recent survey based upon apparent errors of scale in overlaying roads M and L onto his surveyed contours. However I do not consider that detracts from his delineation of gullies which generally mirrors, but in greater detail, Mr O’Keefe’s identification of gullies.
Using, exhibit 4 and exhibit 25, what is evident is that proposed lots 223, 224, 225 and 226 are all intruded upon by a gully system and road L crosses another part of that system longitudinally. In exhibit 4 road M has been relocated eastwards to an extent sufficient to provide a 20 metre buffer to the edge of the gully system adjacent to it. So long as that is achieved the treatment of road M and the proposed allotments with access from it is acceptable. However I think some adjustment is required around the gully system at road L. Some redesign is required including to road L to remove it from the gully as it appears in exhibit 25. Inevitably there will probably be some allotment loss to achieve this. Road L must be relocated east or west to avoid the gully system except if it cross it, it cross it at close to a right angle. There will probably need to be some enlargement of lots to achieve this. I do not intend to be prescriptive at this stage. The area presently occupied by proposed lots 224, 225 and 226 needs to ensure an adequate area clear of the gully system. These lots on exhibit 4 presently have areas between 2000m² and 2500m². The gully areas I have referred to need to be protected by drainage/vegetation easements or covenants and relevant conditions applied. The gully further to the east also needs to be protected by drainage/vegetation easement or covenant and relevant conditions.
THE NORTHWESTERN REFUSAL AREA
Much of this area contains priority one vegetation (regional ecosystem 12.3.2) in Caloundra’s planning scheme - see exhibit 24.
The proposed reconfiguration layout plan exhibit 4 reveals that in the area containing the priority one vegetation the majority of the proposed lot sizes range between 2250m² and 3000m². In the opinion of Dr Olsen clearing for building envelopes and as required for safety reasons would effectively destroy the intrinsic value of this priority one vegetation. Dr Olsen advocated larger allotments each with a defined building envelop to minimise fracturing of the normal forest function.
The fauna studies carried out found evidence that species of conservation significance used this area of the site. These included glossy black cockatoo, elf skink, grey gosshawk and koala. There are also numerous old growth trees which are an uncommon to rare resource in the Caloundra local authority area and provide important habitat. Dr Agnew considered the whole area, lots 100, 101 and 102 had high strategic conservation value because of its location in the significant ecological linkage between the coastal low lands and the sub coastal uplands. He expressed the opinion that the scale of the proposed development in this area paid insufficient attention to habitat for significant species of fauna.
Mr Warren undertook a count of hollow bearing old growth trees in this area of the site. The result appears in exhibit 27. It shows a significant number of these trees in this area of the site. A number of these would inevitably be lost were the proposed reconfiguration to proceed.
There are steep slopes in this area of the site. Provisions in Policy 2.4/04 Park Residential Development about slope are applicable to some of the proposed lots on exhibit 4. Those most severely affected according to exhibit 32 map C are lots 243 to 246 inclusive and 320 to 323 inclusive. The policy provides that land with slopes in excess of 1:3 is considered unsuitable for development and is to be excluded from development. Part of proposed road I appears to be on land with a slope greater than 1:3. See exhibit 32 map D1 inset adjacent to lot 244. The policy also provides that land with slopes between 1:3 and 1:6 requires individual site assessment based on soil type, topography and vegetation.
Mr Tucker said that Golder’s investigations on the site had shown that the land was stable with respect to land slip. On hillsides it was however important to minimise cut to fill earthworks, to provide adequate surface drainage, to minimise surface water flow and maintain and encourage vegetation. He expressed the opinion that there was no geotechnical justification for denying development on land of greater slope than 1:3. There was geotechnical justification for minimal interference with land form on slopes between 1:6 and 1:3 and steeper than 1:3 and with lands with slopes of this order there should be a geotechnical investigation of individual allotments at an appropriate time, that is, when they are designed and being constructed.
Mr Covey, the subdivisional engineer for Frizzo, said while some of the proposed allotments have slopes in excess of 1:3 it was not proposed to build on such slopes. He considered the proposed allotments had sufficient area with slope less than 1:3 for a dwelling. Mr Fanton was concerned with development on the steep slope areas. Inevitability, of course, any development will cause some disturbance to the land form. He was concerned with scarring of the landscape by cut and fill operations for road ways, access driveways and dwelling construction, effluent disposal and ongoing erosion resulting from the inevitable clearing of the natural vegetation. He considered the reconfiguration layout in exhibit 4 should provide for a smaller number of larger allotments with each lot having a less steep area in close proximity to road frontage so that dwelling construction and associated works could be undertaken without encroaching on or disturbing areas of steep slopes.
In cross examination, Mr Fanton confirmed his concern regarding some of the proposed lots on exhibit 4. Lots 323 to 320 inclusive raised concern about land form disturbance because of their slope particularly adjacent to the proposed road I. Lot 316 raised a potential concern about there being sufficient land clear of the gully for a building envelope. Lots 305 and 306 raised concern about there being sufficient land clear of the gully and of slope less than 1:3 for a building envelope to be provided.
After considering the material and evidence regarding this area of the site I am not persuaded that Caloundra was wrong in refusing to approve the proposed reconfiguration layout accompanying the application. Moreover I do not think exhibit 4 adequately addresses the issues of concern in this area of the site. Caloundra was however wrong to state that this area was to remain as a single allotment in the park residential zone.
A reconfiguration of this area of the site that appropriately addresses the issues of flora and fauna, slope and disturbance to land form and has appropriate conditions should be approved. That may be achieved by, at least, a reduction in lot numbers and increasing allotment size to about 4000m² or greater. Road I should be located on the ridge line where it passes through the area to minimise cut in road construction. In locating boundaries and cleared building envelopes attention must be paid within the limits of safety for occupiers, to maximising preservation of old growth trees and priority one vegetation.
It will be appropriate I think, given the history of this site and its journey to reconfiguration, to adjourn this appeal before finally disposing of it. The parties may consider these reasons and undertake any further steps they think fit.
It will be apparent from what I have written that, with respect to the northern preliminary approval area and the northwest refusal area, it is not appropriate to approve the present proposed reconfiguration, with adjustments to it to address the areas of concern left to operational works stage. I entirely endorse what Robin DCJ said in Terton Corporation Pty Ltd v Gold Coast City Council 13th November 2003 at paragraph 12 as applicable to these areas of the site.
Regarding conditions counsel suggested that for the most part they may able to be resolved once the appeal was decided. However it appeared that some remained contentious and it is desirable that I express a view about some of them.
Section 3.5.30 of IPA provides
“(1) A condition must –
(a) be relevant to, but not an unreasonable imposition on the development or use of premises as a consequence of the development; or
(b) be reasonably required in respect of development or use of premises as a consequence of the development.”
Frizzo proposed the conditions to be attached to the development be those in exhibit 31. Exhibit 31 omitted some conditions contained in Caloundra’s decision notice exhibit 3 and altered others.
Dealing with the conditions in exhibit 3 which have been omitted numbers 8,32,35,37, 47, and 49;
· Condition 8 should apply to any reconfiguration. Design guidelines should be included in conditions of approval regarding this site and should be complied with.
· Condition 32 should not apply. The condition applies Caloundra’s policy PDLPP5.0/04 Mosquito Control Contributions. It provides that a contribution for mosquito control activities will be required for developments within the identified mosquito affected area. The site is outside the primary zone of 15 kilometres of salt mash mosquito breeding sites. The policy, however, also applies to other areas of Caloundra where large or nuisance number of mosquitos originate from localised breeding areas. As a matter of common sense mosquitos could be expected at times in the vicinity of wet areas on the site. However the only evidence touching on mosquitos was in Frizzo’s case and was to the effect that mosquitos were not a problem on the site. In those circumstances condition 32 should not be imposed.
· Condition 35, 37, 47 and 49 should apply. On the evidence Frizzo has not shown the conditions are not relevant to the development or use of premises as a consequence of the development or are unreasonable.
Dealing with some of the other conditions in exhibit 31:
· Condition 7 in exhibit 31 is the same as condition 9 in exhibit 3 except the last sentence is omitted. This sentence was probably included because of refusal of the north west refusal area. As this area of the site will be reconfigured there appears to be no sensible reason to include this sentence. It should be deleted.
· Conditions 26 and 29 in Exhibit 31should be amended by the addition of the word ‘vegetation’ between the words “drainage” and “easement”.
· Condition 38 in exhibit 31 refers to the clearing of the She Oak trees and will have the effect that She Oaks under 6 metres in height may be cleared without prior approval from Caloundra being required. There was no such limitation in condition 40 in exhibit 3. Frizzo has not shown that Caloundra’s condition absent the 6 metre height trigger is not relevant to the development or the use of premises as a consequence of the development or is unreasonable. Condition 40 in Exhibit 3 should apply.
· Condition 39 in Exhibit 31 seeks to except the preservation of the endangered plant Alyxia magnifolia to necessary road works or other development infrastructure. There is no evidence to justify this exception.
· Condition 49 in Exhibit 31 deals with flora which must not be planted on the site. Dr Olsen and Dr Agnew, the two expert witnesses on flora, agreed that the list of prohibited flora should be the list produced by Dr Olsen (see exhibit 18 – pages 11 and 12)
· Condition 53 in Exhibit 31 provides for a currency period of 10 years. In Exhibit 3 it was 4 years. An extension of a currency period may be sought; section 3.5.22 IPA, and an unfavourable decision is appealable; section 4.1.30 (1) (a) IPA. Given the size of the site and the number of allotments after redesign the currency period is unreasonably short. A currency period of 8 years is appropriate.
· Condition 27 in Exhibit 31 seeks to achieve connection of the reconfigured lots to Caloundra’s reticulated water supply system. From the outset Caloundra has been unwilling to provide access to its system. It cannot be compelled to do so nor to accept works constructed by others which will become part of its reticulated water system. This was conceded by counsel for Frizzo. The reconfigured lots can be supplied with water via a rain water tank system. Other conditions of the decision notice relate to such a system.
· Condition 34 in Exhibit 31 is drafted to allow cut and fill of up to 1.5 metres vertical height to occur with no input from Caloundra. It also deals with the building envelope on each lot with its location to be decided in accordance with clause 4 of an attached environmental management plan. The proposed condition contradicts condition 6 of Caloundra’s decision notice which for lots with a slope greater than 1:6 and/or for vegetation protection zones requires a site development plan as part of the design guidelines which are to be provided prior to the endorsement of the plan of subdivision. Frizzo has not shown that Caloundra’s condition 6 is not relevant to the development or the use of premises as a consequence of the development or unreasonable.
· Condition 44 in Exhibit 31 in so far as it relates to cats contradicts Caloundra’s condition 46 which prohibited the keeping of domestic cats and the feeding of semiferal cats on site. Condition 44 provides that cats could only be kept if permanently restrained within an enclosure approved by Caloundra. Mr Warren, a fauna expert in Frizzo’s case, preferred that cats be prohibited on the reconfigured site. Dr Agnew was of the same view. Many people regard domestic cats as desirable pets and so they can be. They are however, much harder to contain then dogs, being agile climbers. Their capacity for hunting and killing smaller wildlife is well known. It is difficult to imagine an effective way to permanently restrain a domestic cat within an enclosure unless kept in a roofed cage, which I would think would somewhat inhibit an owners enjoyment of the animal. On balance, given the ecological sensitivity of the site, I am not persuaded that the condition imposed by Caloundra is not relevant to the development or use of premises as a consequence of the development or is unreasonable. Condition 44 should be amended to remove reference to keeping of cats.
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