Garbler v Redland Shire Council

PLANNING AND ENVIRONMENT

COURT OF QUEENSLAND

CITATION: M W & D J Garbler v. Redland Shire Council [2001] QPE
028
PARTIES:
MAXWELL W GARBLER
And

DAWN J GARBLER Appellants

And

REDLAND SHIRE COUNCIL Respondent

FILE NO/S: Appeal 3401 of 1998
DIVISION: Planning and Environment
PROCEEDING: Appeal
ORIGINATING
COURT:
DELIVERED ON: 9 April 2001
DELIVERED AT: Brisbane
HEARING DATE: 26, 27, 28 February, 1, 7, 9 March 2001
JUDGE: Judge Robin Q.C.
ORDER: Appeal dismissed

CATCHWORDS:

Appeal to Planning and Environment Court from local government’s rejection of landowners’ claim for compensation for injurious affection – new Strategic Plan included Rural/Non Urban land in Special Protection designation and Green Space maps - “before” valuation based on a hypothetical development as a retirement village, claimed to be within a “permissible use” of “accommodation unit” – appellants failed to show it was “reasonable to expect” a favourable exercise of discretion to permit the use – proposed development too “urban” in character – further factors were State Planning Policy 1/1997 Conservation of Koalas in the Koala Coast, “heritage” and “wetland” local planning policies, drainage problems affecting the low lying land and restrictions on filling – Local Government (Planning and Environment) Act 1990, s. 1.1A, s. 3.5 generally, s. 3.5(4)(d), (5), (6), (8) and (13), s. 4.13(3A) and (5A) – Integrated Planning Act 1997 s. 6.1.27, s. 6.1.50
COUNSEL: C. Hughes for the appellants
S. Ure for the respondent
SOLICITORS: McCarthy Durie Ryan Neil for the appellants
King & Company for the respondent

Mr and Mrs Garbler have appealed by notice filed 7 August 1998 against the
Council’s rejection of their claim for compensation under s.3.5 of the Local
Government (Planning and Environment) Act 1990 for injurious affection of land
of theirs by the coming into force on gazettal on 27 February 1998 of the Shire’s
new Strategic Plan. The rejected claim, delivered on 22 May 1998, was for
$1,130,000.00 for diminution in value of the land, interest and various costs. The
principal claim, in accordance with valuation evidence, has been amended to
$1.5m. Section 3.5 (13) entitles claimants to appeal to this court pursuant to s.7.1
against the decision of the local government. Although the legislation is now
repealed, s.6.1.27 of the Integrated Planning Act 1997 requires that any such
application for compensation undecided as at the date of the commencement of
relevant IPA provisions must be decided as if there had been no repeal of the
legislation under which it was made. See also s.6.1.50 of the IPA which
specifically deals with the continuation of rights to compensation under s.3.5 of the
repealed Act.
The new Strategic Plan did not change the zoning of the land from that which it had
under the predecessor (1988) Strategic Plan of Rural/Non Urban, but it assigned to
the land a Preferred Dominant Land Use of Special Protection Area. The Notice of
Appeal complains of the new preferred dominant land use designation, likewise the
inclusion of the appellants’ land in the Green Space Habitat designation on the
Green Space Map and of the restrictions set out in s.4 (Preferred Dominant Land
Use Intents) in s.4.4.3 and s.5 (Green Space) in s.5.2.1. It is unnecessary to set out
the detail of those sections which reveal a dominant purpose to “retain (the) natural values” of land and its management “primarily for the maintenance, protection or
enhancement of its environmental values in accordance with the intent”,
respectively. While the Council points to recognition in the Plan “that the land may
be able to be used for purposes which do not significantly impact on the
environmental values”, for practical purposes, the Garblers (who have owned the
land since 1966) are now restricted to using their land, which is contained in two
distinct titles, for two residences. Unless their or their advisers’ ingenuity comes up
with something else, on present appearances, whatever capacity for development
the land had has been largely sterilised.
The ordinary rule in s.3.5(1) is that:
“where a person –

(a)

has an interest in premises within a planning scheme area and the interest is injuriously affected –

(i)

by the coming into force of any provision contained in a planning scheme …
the person is … entitled to obtain from the local government
compensation in respect of the injurious affection … ”

However, sub-section (4) enacts that:
“compensation is not payable –
…

(d)

subject to sub-section (2), where an interest in premises is affected by a planning scheme which by its operation prohibits or restricts the use of land or the erection or use of a building or other structure thereon for a particular purpose, unless the applicant establishes that the applicant had a legal right immediately before the provision in question of the planning scheme came into force to use the land or erect or use a building or other structure thereon for the particular purpose which is so prohibited or restricted.”

(Subsection (2) is not presently relevant.)

It is for the Council to show it is exempted from liability to compensate by the

provision last set out. Sub-section (6) is:
“The onus of proving that compensation is not payable in any case
by virtue of subsection (4) is upon the local government.”

which I take to require the local government to prove the effect of the prohibition or
restriction, thus leaving it for the applicant to establish the exception introduced by
“unless” in (4)(d). The compensation claim in this case has been duly made, so that
sub-section (8) applies:
“Subject to subsections (2A) and (9), the following provisions are to have effect in assessing compensation in respect of a claim made under subsection (1)(a):

(a)

the amount of compensation is (subject to paragraphs (b), (c) and (d) to be an amount equal to the difference between the market value of the interest immediately after the time of the coming into operation of the provision of the planning scheme by virtue of the operation whereof the claim for compensation arose and what would have been the market value of that interest if the provision had not come into operation.”

(There appears to be nothing of relevance in (b), (c) or (d).)

One would think it possible for valuation evidence to be presented of each “market
value” referred to. The cases presented by the parties ranged more widely than that.
I agree with Judge McLauchlan QC in Sparke v Noosa Shire Council (1999)
QPELR 126, 130 that the onus lies upon the appellants to satisfy the court of the
amount which should be awarded by way of compensation. The valuers on both
sides correctly considered the development potential of the land both before and
after 27 February 1998. Other things being equal, it is reasonable to focus on the
“highest and best” use. The uncontested evidence of value immediately subsequent
to 27 February 1998 was $400,000.00 (as against an unimproved value of $190,000.00 assessed by the Department of Natural Resources for rating and land
tax purposes effective 30 June 1998). Where the valuers part company is that Mr
Brett (for the Council) considered there was no diminution in the value because
“The development potential of these two lots is unchanged, or arguably is
enhanced, by adoption of the new Strategic Plan on 27 February 1998”, while Mr
Crane, for the appellants, considered the immediately preceding market value to be
$1,900,00.00. Mr Crane regarded the land as “suitable for the development of a
complex providing a 100-bed nursing home and 104 2-bedroom villas in clusters”
in a retirement village with additional amenities including a community centre. He
thought that some 2 hectares of the land (which contains 5.909 hectares in all)
appeared sufficiently well elevated to allow immediate redevelopment and that a
further area of approximately 2.9 hectares could be similarly utilised “with minor
filling and the installation of a drainage system”.
Factually, this case may be distinguished from Sparke, where the local government
had actually approved construction of a retirement village (but the benefit of the
approval lapsed because of the applicant’s failure to pay over a bond). The issue
between the parties here was whether or not the retirement village proposal, had one
been made immediately before 27 February 1998, would have attracted (or more
likely than not attracted) the requisite consent of the local government (whose
attitude now of course cannot be taken as evidence of what its attitude would have
been before) or of this court. Now the court is in the somewhat peculiar position of
assessing a hypothetical development which is never going to be implemented.
There has been no application, nor any notification or advertising which might
attract objections or submissions. When the appellants lodged their compensation claim, it was on the basis of loss of the opportunity to have the land approved for
Residential ‘A’ development, said to be “a reasonable expectation”.
Expectations become important because of s.3.5(5) which ameliorates what would
otherwise be the effect of sub-section (4)(d), given that it may often be the case that
an applicant for compensation has no “legal right” to use land in a particular way:

“(5)

For the purposes of subsection (4)(d), it is not to be taken that an applicant did not have the legal right referred to in that subsection by reason only that the applicant’s right depended upon an exercise of discretion by the local government in the applicant’s favour if the applicant shows that it is reasonable to expect that the exercise of discretion would have been in the applicant’s favour had it been sought immediately before the relevant provision of the planning scheme came into force.”

In Sparke the word “only” was given its full effect, with the consequence that sub-
section (5) was held inapplicable where a rezoning was required to permit use of
land for a particular purpose on the basis that even if the local government’s
approval was assumed, a further approval or “exercise of discretion” by the
Governor-in-Council was required before there could be a rezoning. In Sparke
(which has been affirmed by the Court of Appeal: Sparke v the Noosa Shire
Council (2001) 1 Queensland Reports 344) rezoning was necessary before there
could be a “retirement village” use. Such is not the case here.

In the 1988 Strategic Plan (as in its successor):

“(d)

Accommodation Unit - means any premises used or intended for use as a boarding house, hostel, boatel, children’s home, guest house, hostel, institution for poor or disadvantaged persons, motel, old people’s home, orphanage, serviced rooms, unlicensed hotel or unlicensed residential club: The term does not include a “camping ground”, “caravan park”, “caretaker’s residence”, “community dwelling”, “dwelling house” or “multiple dwelling’ as herein defined;”

It is hardly surprising that “Accommodation Unit” is not an as of right use in any
zone. In some zones, for example industry zones and drainage problem areas,
such a use is prohibited. Generally speaking, and in the Rural/Non Urban Zone in
particular, accommodation unit fell within Column IV - purposes for which land
may be used only with consent of the Council. Prohibited uses in Column V
included Multiple dwellings, defined to be “any premises used or intended for use
as attached houses, cluster houses, flats, home units or townhouses or other
residential use comprising two (2) or more units of self contained accommodation
on one (1) allotment or a group of adjoining allotments”.
As of right uses requiring no consent were the following:
Agriculture
Animal husbandry
Domestic pets
Dwelling houses –
where erected on a site with an area of four hundred and fifty (450) square metres or more and a frontage of twelve (12) metres or more and not exceeding two (2) storeys in height

Forestry
Goat Farms
Outdoor recreation centres –
private tennis courts provided with floodlighting only and then only if one hundred (100) metres from any existing residential building or location where it is likely that a residential building might be erected

Parks
Relative’s apartments –
except where exceeding forty (40) square metres in
floor area or where detached from dwelling house.”

Such arrangements are consistent with the intent of the rural/non-urban zone
which, after an amendment in the middle of October 1992 became (in sub clause
2(19) of Division 2):
“(19) Rural/Non-Urban Zone – This zone comprises predominantly agricultural land but also includes non- urban areas of the Shire not presently used for, and not necessarily suitable for, agriculture or other rural production. Included in the zone is land which is expected to be required for urban development, following rezoning during the life of the town-planning scheme. Also included is land which is designated for urban development in the Strategic Plan but which is not expected to be required for such purpose during the life of the town planning scheme.
Extractive industries are permissible but it is envisaged that consent will not be forthcoming where there would be any undue detriment to the environment or amenity of rural residences and that, where it is forthcoming, stringent controls will be imposed.
Certain other uses of a non-agricultural nature, in particular those which assist in maintaining the non-urban character of the area may be permitted.”

(By the amendment, “non-urban” replaced “rural.”)

The Strategic Plan formed Appendix 1 to the 1988 Town Planning Scheme. The
introduction in Division 1 confirms that:

“(3)

The preferred development strategy for the Shire is outlined in two documents, the Strategic Plan and Development Control Plan 1 Local Development”.

Division 2 Preferred Dominant Land Uses contains the following:
“9 Special Protection Areas and all rural activities. It also provides for other privately owned land in the Shire where the predominant lot size is greater than approximately 2.0 hectares. The preferred development strategy for these areas designated Rural/Non-Urban but which are not included in Development Control Plan No 1 is detailed in the Strategic Plan.”
Existing and proposed natural environmental areas which
are required to be designed for native conservation
purposes as shown on the Strategic Plan Map in a dark
green colour. These areas include national parks,
environmental parks, fisheries habitats, wetland protection
reserves and significant archaeological sites and the like.
12 Rural Non-Urban

Appendix 2 – Development Control Plan 1–Local Development states (in Division
2 – Elements of the Plan):

“(15)

Rural/Non-Urban – this designation caters for agriculture and animal husbandry and all rural activities. It also provides for privately owned land in the Shire where the predominant lot size is greater than approximately 2(2) hectares.”

This is followed in Division 3 – Statement of Objectives and
Implementation Provisions by:

“15 Rural/Non Urban

(1) Objective – to make provision for agriculture and, in suitable locations, for the poultry industry, extractive industry and certain uses which would provide for the maintenance of the rural character of designated areas.
(2) Implementation –
(a) In the interests of maintaining the viability of rural holdings the minimum area of any proposed allotment that shall be permitted in any proposed subdivision of land situated in the Rural/Non Urban Zone has been set at 20 hectares;

(b)

Preference will be given to the poultry industry in the area designated Rural on map sheet 13 except for such land which gains access via Mt. View Road and which is considered to have a good standard of “rural–residential” amenity and character”;

(c)

Preference will be given to extractive industries in the general locations designated ‘Resource’ on map sheets 2 to 19 subject to stringent requirements in relation to the manner in which the extractive industry is operated and satisfactory restoration of the site as provided for in the Planning Schedule;

(d)

Favourable consideration may be given to the establishment of schools, recreational and tourist orientated uses and the like in areas designated Rural/Non Urban on the development control plan maps provided –

(i)

that the use would not, in the opinion of the Council, have a detrimental effect on the rural character of the area;

(ii)

that the gross floor area of buildings or other structures associated with the use does not exceed one (1) per centum of the area of the site;

(iii)

that the use does not require the provision of sewerage or other services not available to the subject part of the area;

(iv)

that the standard of access to the site on which the use is to be established is satisfactory in the opinion of the Council;

(v)

that the use would not, in the opinion of the Council, give rise to traffic or other problems or in any way prejudice the development of the area.”

(There followed (presently irrelevant) provisions regarding possible
favourable consideration in establishment of certain industries if listed
conditions were satisfied.) As will be seen, the appellants’ hypothetical
development gives rise to issues under (d)(i) and (ii).

Part B of the Strategic Plan/Development Control Plan 1 for the Shire of Redland
approved by the Governor-in-Council on 18 February 1988 – a copy of which
became Exhibit 6 was titled, and provided - “Supporting Information”, relevantly:
“15.17 Rural/Non Urban
Areas designated Rural/Non Urban comprise areas on which agricultural uses are expected to continue during the life of the Scheme, together with areas which are not designated for any other purpose. Included are areas which are likely to be used for urban purposes in the future, but which have not been designated for any urban purpose at this stage, either because they are not proposed to be provided with urban services during the life of the scheme, or because they are not seen to be required for urban development during the life of the scheme…
In the Ormiston and Cleveland district, a major part of the areas lying to the west of Wellington Street, to the south of its junction with Sturgeon Street and to the north of its junction with Russell Street is designated Rural/Non Urban because it will not be sewered for some years. Some of this area will no doubt go to urban development in the future, but it is considered more appropriate to set guidelines at such time that the area can be serviced with water and sewerage… ”
The appellants’ case made much of these provisions. Their land lies in the area
specifically defined and forms the north-east quadrant of the intersection of
Delancey Street and Dundas Street (the latter east of Delancey Street presently
consisting of a wooded road reserve – there is no formed road). A significant
number of parcels of land in that area have gone to residential subdivision, after
rezoning. Understandably the appellants and their advisers take the line there would
be unfairness in a situation precluding their availing themselves of similar
development potential. While that approach may have considerable force from a
moral viewpoint, Sparke indicates that it is irrelevant in a compensation claim. The
appellants’ position may be seen as strengthened because water and sewerage have
become available – a development which had not occurred but which had been the
subject of favourable decision by the Council by 27 February 1998. It seemed to me
the appellants’ case sought to make rather too much of the statement that “some of
this area will no doubt go to urban development in the future", given it seems
implicit that not all properties in the area will be treated that way. One would
expect development applications in respect of particular properties to be considered
on their individual merits, with proper attention to special features of the subject
land, such as its being low lying and its being identified as part of a Major Corridor
under State Planning Policy 1/95: Conservation of Koalas in the Koala Coast and
subsequently as Other Major Habitat under the replacement State Planning Policy
1/97.

In light of Sparke, the appellants deserve no criticism for changing tack to base
their compensation claim on an alternative development potential their land may be
argued to have enjoyed. Taking advantage of the “Accommodation Unit”
possibility, the Garblers have had architects design an “Aged Care Development”.
This is seen as containing a 100-bed nursing home in the north-west corner of the
site and “104 2-bedroom villas in clusters”; there would be other facilities such as a
community centre located centrally on the Dundas Street frontage. Estimates of the
likely population of the facility varied. Mr Crane used 308 as the basis of a
“before” valuation based on a “conservative value of $6,000.00 (per person)”, Mr
Brett interpreted the proposal as allowing for 350 residents.
During the course of the hearing, to accommodate the possibility that the evidence
of their expert on environmental aspects, Mr Delaney, might persuade the court that
no development at the north west of the site should be contemplated, the Appellants
presented an alternative revised proposal reducing the population to 260 or 268 by
abandoning 24 2-bedroom villas or reducing the size of the nursing home to 60
beds; the nursing home facility would be relocated.
Mr Crane prepared an alternative valuation based on the reduced proposal; there
was no other “before” valuation presented to the court, nor any still more modest
retirement village proposal or other kind of “highest and best use”. That leaves the
court in a difficult situation in assessing compensation. Counsel for the appellants
dissuaded the court from embarking on any exercise of evaluating chances and
applying percentages to Mr Crane’s valuations accordingly: cf Malec v J C Hutton
Pty Ltd (1990) 169 CLR 638. See p.438 of the transcript. While, in principle, it
was left open to the court to scale down the hypothetical development for itself, to the point where there could be a reasonable expectation of consent, Mr Ure (for the
Council) objected that. as things worked out, his client had no opportunity to
adduce evidence that, below a certain size, the development would not be viable.
The Council did not dispute the suitability of the general area for retirement village
and like purposes. The evidence (confirmed on inspection) revealed the presence of
a significant number of similar facilities (all, I think, outside the area designated in
the “Supporting Information” - and none, so far as appears, approved in the
rural/non-urban zone). No suggestion was made of a lack of need for such
facilities, in general, but it was not shown that other land could not be found to
accommodate them.
In my opinion, the test of what it “is reasonable to expect” in s.3.5(5) is objective
and has nothing to do with what Mr and Mrs Garbler (as opposed to outside
observers or the court) might reasonably have thought at the time. As to the test
being objective, see Commissioner of Taxation (CTH) v Arklay (1989) 22FCR 298,
quoted in Commissioner of Taxation v McCabe (1990) 26 FCR 431, 435 and The
News Corporation Ltd v National Company and Securities Commission (1984) 5
FCR 88, 95 per Fox J. For purposes of this matter, I would not accept as applicable
the comments of Woodward J at 101-2:
“The argument for the applicants is that the wording of the subsection requires actual prejudice to be expected, not the mere risk or possibility of prejudice.
I think that the words “would or could reasonably be expected to … prejudice” mean more than “would or might prejudice”. A reasonable expectation of an event requires more than a possibility, risk or chance of the event occurring. On the other hand, if the legislature had required a probability of prejudice it could easily have said so. In my view it is reasonable to expect an event to occur if there is about an even chance of its happening and, without attempting to suggest words alternative to those chosen by the draftsman, it is in that general sense that the phrase should be read.”
The context there was an unusual one of an exemption from disclosure under the
Freedom of Information Act 1982 where disclosure “could reasonably be expected
to … prejudice the conduct of an investigation”. The Federal Court sitting on
appeal from the AAT held the issue was concluded by the Tribunal’s “clear finding
that … disclosure of the documents to the applicants could reasonably be expected
to prejudice the investigation because the applicants would be forewarned and
forearmed against questions.”
In McCabe, the context was one requiring consideration whether a person was an
eligible person in relation to a year of income; a negative answer followed if
“during … the year of income circumstances existed by reason of which it was
reasonable to expect” that superannuation benefits would be provided for the person
upon retirement.
At 434 Davies J referred to the primary Tribunal’s statement:
“Section 82AAS(2) speaks of reasonable expectations: a proposition
which I would understand to be a reference to ‘probabilities’.”
and continued:
“Mr Gibb submitted, as did the Commissioner’s representative before the Tribunal, that s.82AAS(2)(a) was satisfied if there was a likelihood or a real possibility which was not remote or fanciful that the taxpayer or the taxpayer’s dependants would receive the specified retirement or superannuation benefits on retirement or death.
I agree with the Tribunal that the approach so contended for on behalf of the Commissioner is wrong. Section 82AAS(2)(a) means what it says. The provision requires there to be an assessment as to the future, as to what it is reasonable to expect will happen. It would not be reasonable to expect that superannuation benefits would be provided on retirement or death if the decision-maker considered it improbable that that would happen. The correct interpretation of the provision is, as the Tribunal said, stated by Sheppard, Wilcox and Hartigan JJ in Commissioner of Taxation (Cth) v Arklay (1989) 22 FCR 298 at 302-303…
The statement makes it clear that the relevant expectation is an expectation as to what will happen in the future and that, while the test is an objective one, any relevant matters concerning the taxpayer personally, including any relevant subjective intentions of the taxpayer, must be taken into account.
Mr Gibb further pointed out that, in Arklay’s case, Sheppard, Wilcox and Hartigan JJ cited with approval from the judgment of Bowen CJ and Beaumont J in Attorney-General’s Department v Cockcroft (1986) 10 FCR 180 where their Honours said (at 190) in relation to the phrase “could reasonably be expected” appearing in s.43 of the Freedom of Information Act 1981 (Cth):
“It is undesirable to attempt any paraphrase of these words. in particular, it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like.”
I agree that a like comment may be made with respect to s.82AAS(2). The words “reasonable to expect” are not ambiguous and it is undesirable to paraphrase them or to use other words. In particular, they are words appropriate to the task of making an assessment as to the future. It is not useful to adopt other words. The adoption of words such as “probability” or “balance of probabilities” tend to introduce a concept or to have a connotation of proof, which may detract from the application of the section by an administrative decision-maker.”
In the present situation, in my opinion, there is no need to avoid – on the contrary, it
seems right to embrace some “connotation of proof” given that the section is one
about proof, placing an onus of proof on the present appellants. Further, it seems to
me necessary for the appellants to create in the court a state of satisfaction that the
probability was that the Council or the court would exercise the relevant discretion
favourably from their point of view. It should not be overlooked that the context is
one in which they make a claim for very substantial compensation which the
Council will have to meet, possibly in full, if they show a favourable exercise of
discretion was “reasonable to expect”. Mr Hughes, for the appellants, submitted, in
fact, that the slightest preponderance of probability was all his clients need to show.
In the end, the appellants’ evidence does not persuade me of any preponderance of
probabilities their way, even a slight one. I proceed to consider the factors pointed
to by the Council which tell against a favourable exercise of discretion. Those vary
in their force in the particular circumstances. Even if none had been decisive on its
own, and while some may be of a slight moment considered on their own, the
cumulative effect creates a situation in which the conclusion cannot be reached that
“it is reasonable to expect … exercise of discretion … in the applicant’s favour had
it been sought immediately before the relevant provision of the planning scheme
came into force.”

[20] Mr Hughes invoked the Pointe Gourde principle as establishing the

impermissibility of looking at any of the steps taken by the Council in the
preparation of the new Strategic Plan, such as exposure for public comment (as
early as August 1996) and adoption by the Council, which was a year or so before
gazettal of the Governor-in-Council’s adoption. The submission was that any
references to the new Strategic Plan before it was formally gazetted are irrelevant,
which may be accepted in relation to the value of the subject land. Mr Hughes went
further, arguing that it was not open to the Council to make any such reference to
explain away what his clients regarded as favoured treatment of other land owners
whose development proposals were favoured because of the way their properties
were treated in the new Strategic Plan before it became law. As to whether Mr
Hughes’ second proposition was correct, which Mr Ure strongly contested, it is
unnecessary to make any decision, because, in my view, there are other points of
distinction which make the appellants’ land different.

The latest of Mr Hughes’ authorities was The Crown v. Murphy (1990) 64 ALJR
593. At 595 is a helpful passage referring to the others which makes it clear that,
without derogating from the Pointe Gourde principle, in a compensation exercise,
relevant attributes which land has may require consideration apart from their
importance in bringing about some change in the legal status of the land for
planning purposes:
“From these matters the inference was drawn by the majority in the Full Court that “[t]he resuming authority … influenced [the Council] not to agree to the rezoning”. It was then said, by reference to Pointe Gourde Quarrying and Transport Co Ltd v Sub-Intendent of Crown Lands [1947] AC 565 at 572, and Housing Commission of NSW v San Sebastian Pty Ltd (1978) 140 CLR 196 at 206, that “restrictions on land use … maintained as a result of consultation with the resuming authority” must be ignored for the purpose of assessing the value of resumed land: see also Rugby Water Board v Shaw-Fox [1973] AC 202 at 241. Thus, in the view of the majority, it was necessary to ask “whether … , quite apart from the resumption and the representations of the National Parks and Wildlife Service, the application for rezoning would have been refused”.
The statement of principle by the majority in the Full Court and the statement of the necessary consequential inquiry are unexceptionable. One purpose of this principle is to ensure that a resuming authority does not employ planning restrictions to destroy the development potential of the land and then assess compensation for its resumption on the basis that the destroyed potential had never existed: Melwood Units Ltd v Main Roads Cmr [1979] AC 426 at 434. The principle applies in cases where there is a direct relationship between the planning restriction and the scheme of which resumption is a feature and extends to cases where there is merely an indirect relationship, provided that the planning restriction can properly be regarded as a step in the process of resumption: Housing Commission of NSW v San Sebastian Pty Ltd, at 206-207.
Of course, a characteristic or attribute of the land which affects its value must be taken into account in the assessment of compensation even if the planning restriction which is a step in the process of resumption is dependent upon or directed to that characteristic or attribute. The Land Appeal Court considered that the existence of the turtle rookery adjacent to the land was an attribute of the land which affected its value to the extent that the existence of the rookery itself militated against the rezoning. Contrary to the view of the majority of the Full Court that there was an “open question” on this point, the Land Appeal Court did consider whether the local authority would have refused the rezoning of the land, quite apart from the resumption and the scheme for the protection of the turtles. So much is clear from that court’s statement that:
‘We cannot fail to look at the position that, had there never been a scheme of positive action of which the resumption was an integral part, the position would have been that the land would already had a Rural zoning and any proposed developer would have been faced with a Council which would have been strongly and reasonably opposed to any rezoning which may have affected the rooker.’
Accordingly, the Land Appeal Court did not fail to consider the prospect of rezoning “free … of the pressures of the National Parks and Wildlife Service on the local authority”.
Mr Crane described the subject land as follows:

“LAND Lot 22 is near square in shape with its western boundary forming its frontage to Delancey Street and southern boundary aligning an unmade part of Dundas Street. Lot 3 is of regular rectangular shape with its southern boundary forming its frontage to the unmade part of Dundas Street and its eastern boundary aligning with Wellington Street, which is a limited access road and from which there is no access to the property. The soil type is a brownish loam over a volcanic substrate, which is typical of the area.
TOPOGRAPHY On inspection it was noted that the land falls gradually from the east and northwest towards a wide shallow area of low elevation towards its centre. This low portion traverses the land from southwest to northeast and forms the natural site drainage of the area. The road has been elevated above the surrounding land and a series of culverts directs upstream drainage on to the land mainly adjacent to the southwest corner. There is a dense growth of grasses and low vegetation in this area which appears to restrict the natural drainage and holds water to a depth of approximately 200 mm in isolated pockets. Partial filling of the land and suitable overland drainage would need to be installed during redevelopment of the land.
Lot 3 has a gradual slope from east to west and is generally sufficiently well elevated to be suitable for redevelopment without the need for fill or extraordinary filling.”

Mr Delancey’s report identifies three distinct plant communities:
q “ Eucalypt Open Forest Remnant. Eucalypt dominated open forest, comprised of forest red gum (E. tereticornis), ironbarks (E. siderophloia), narrow leaved red gum (E. seeana), scribbly gum (E. signata), rusty gum (Angophora leiocarpa), pink bloodwood (Corymbia intermedia) and broad-leaved paperbark (Melaleuca quinquenervia), would have originally been the dominant plant community type to occur on the site. The majority of canopy species occur as relatively immature specimens with stem diameters less than 20 cm. A few large old growth forest red gum and ironbarks, that have stem diameters in excess of 50 cm, occur in the north west corner of the site and on adjoining land to the north, south and west of the site.
Past vegetation clearing and more recent die-back of open forest vegetation have reduced the areal extent of this plant community type to approximately 15% of the site area. Die-back of the site’s open forest vegetation appears to have occurred at some stage within the last 5-10 years and affected areas are characterised by the presence of dead, standing trees that would have once formed a 15-20 metre high forest canopy. The cause of die-back of the site’s open forest vegetation is uncertain but one potential cause is the alterations that have occurred to drainage patterns of the site as a result of the development of land in the site locality.
q Acacia Open Scrub/Tall Shrubland. A significant proportion, approximately 65%, of the site is covered by an Acacia dominated Open Scrub/Tall Shrubland vegetation that has developed in response to past clearing episodes and die-back of the site’s open forest vegetation. This plant community type is comprised of dense stands of shrubs averaging 3-4 metres in height interspersed by more sparsely vegetated areas supporting scattered shrubs and grasses. The dominant species in this community type are acacia (Acacia leiocalyx and A. aulacocarpa), black sheoak (Casuarina littoralis), red ash (Alphitonia excelsa), lantana (Lantana camara) and blady grass (Imperata cylindrica). Within this community there is some regeneration of the original open forest vegetation with the occasional eucalypt sapling, averaging less than 2 metres in height, occurring amongst the Acacia dominated vegetation. Dead trees that would have once formed part of an open forest canopy are a conspicuous feature of this vegetation type.

q

Closed Sedge/Grassland. The drainage depression that traverses the site from the south-western corner to the centre of the northern boundary of the site supports a Closed Sedge/Grassland plant community. This community occupies approximately 20% of the site area and is comprised of native and exotic grass, reed and sedge species of which cumbungi (Typha orientalis) is the dominant species. Scattered paperbarks (Melaleuca quinquenervia), forest red gum (E. tereticornis) and swamp mahogany (Lophostemon suaveolens) occur along the fringes of this plant community. This drainage depression conveys stormwater run-off from properties located to the south and west of the site and eventually discharges into Hilliards Creek at a point approximately 0.5 km to the north of the site. Surface flows through this drainage line are ephemeral in nature and there are no large permanent water bodies located within the drainage line. Past clearing episodes on the site, alterations to drainage patterns associated with the development of adjacent land, and the cessation of livestock grazing are likely to have promoted the expansion of this habitat type beyond its original extent.
The site and adjoining land provide obvious but limited habitat resources for a variety of native vertebrate fauna species including koala… ”

Effectively, the Council has selected the relevant issues by presenting its case that
the retirement village development propounded by the appellants as the basis of
their “before” valuation would have been refused if applied for before the new
Strategic Plan came into effect on the following grounds:

“(i) That the proposal is in conflict with the old Strategic Plan.

(ii)

That the proposal is in conflict with the intent of the Rural Non/Urban zone in which the land is situated.

(iii)

That the proposal is in conflict with the Development Control Plan No. 1 which was current at the relevant time (and remains current).

(iv)

The proposal is in conflict with State Planning Policy No. 1 of 1997 the conservation of koalas in the Koala Coast (Exhibit 10).

(v)

The proposal is in conflict with the respondent’s policy “Waterways Wetlands and Coastal Zone” (Exhibit 25).

(vi)

The proposal is in conflict with the respondent’s Local Planning Policy (Development in Areas having Bushland, Scenic Landscape or Cultural Heritage Value) (Exhibit 26).

(vii)

The proposal is in conflict with Clause 16 of Division 5 of Part IV – Performance Standards – of the Planning Scheme which prohibits fill other than minor fill below the Q100 level on land.”

So far as the old Strategic Plan is concerned (issue (i)), it is difficult to reject the
view of the Council’s planner, Mr Newland:
“The old Strategic Plan provided limited guidance regarding uses of this type in the designated Rural/Non-Urban areas. I consider that at best an Accommodation unit could have fallen into the category of “schools, recreational facilities and the like,” however the old Strategic Plan raised the issues of not detrimentally affecting rural character, and ensuring a site coverage of no more than one (1) percentum. As a consequence I consider the proposed use to conflict with this Objective and its Implementation.
The urban development form is that of attached dwelling units. The scale of the development covers about 47% of the site and is spread across the site. Its population density is at least 60 people/hectare. The proposed use’s attached dwelling units, a gross floor area covering 34% of the subject land, and a population density of at least 60 people/hectare is akin to that of a residential development and I regard this as being incompatible with the intent, objectives and implementation of the Rural/Non Urban designation in the old Strategic Plan.
To summarise, the proposed use:

· Has an urban development form, scale, and intensity that does
not maintain rural character;

·

Has a gross floor area that exceeded one (1) percentum of the area of the site. Gross floor area was estimated as being 34.6%.”

Some assumptions made by Mr Newland ought to be noted:
“Population Density
If the entire proposal is defined as an Accommodation unit then the average population density across the site would be approximately 60 people per hectare. This is based on adding the occupancy of the 100 bed nursing home + 24x1bed villas + 113x2 bed villas = 350 residents. 350 people/5.909 hectare = 59.23 people/hectare. To this might also be added a certain number of resident care staff, however the numbers of resident staff is not stated in the proposal. The potential number of additional resident care staff, is difficult to gauge for such a proposal, so this has not been considered here.”
“Clearing
It is considered reasonable to assume there would have been little existing vegetation retained on the subject land due to the approximately 47% site coverage of the proposed use, construction works and filling required. Additionally, some vegetation in the Dundas Street road reserve would have been cleared to construct that entry/exit.”

The population density may not have to be as high as Mr Newland anticipated.
Further, the appellants contended that the access to the Dundas Street Road Reserve
shown in Exhibit 2, an artist’s representation of the proposed development, was not
required. It is hardly impressive to observe Exhibit 2 being disavowed in this way.
The probabilities in my view are that such an access (the more convenient one of
the two shown in Exhibit 2 for all of the villas depicted) would be required. The
appellant’s planner, Mr Lambert, conceded (transcript to page 62) that the use
proposed was not a use which would promote the maintenance of the non-urban
character which the locality undoubtedly has at the present, in consequence of its
density.
Development Control Plan 1 applies to the site. Repeating his objections to the
proposal assessed against the old Strategic Plan, Mr Newland added that it “does
not represent orderly development”, provision for which was the purpose of DCP
1. His report expanded on the theme:
“The use of the subject land for a proposed use akin to urban development would not in my opinion be orderly development as this was on a site not adjacent to existing development, it had no sewerage services, and at the time there were no statutory planning documents that provided for the orderly development of the subject land as part of the Dundas Street/Delancey Street area.
It is my opinion that the proposed use is in conflict with the Aims, Objective and Implementation of the Development Control Plan for the same reasons as were stated in 6.1 regarding the old Strategic Plan.
To summarise, the proposed use:

· Has an urban development form, scale, and intensity that does
not maintain rural character;
· Has a gross floor area that exceeds one (1) percentum of the area
of the site. Gross floor area is estimated as being 34.6%;
· Does not represent orderly development.”

Even taking into account the imminent availability of sewerage and water as at 27
February 1998, the conclusions appear to be correct.

The same conclusions were expressed, and again they appear correct, in respect of
conflict with the intent of the Rural/Non-Urban Zone. Mr Lambert, in cross-
examination at page 85 of the transcript made reference to s.4.4(5A) (cf s.4.13
(5A)) and, apparently setting up reliance upon it, perhaps by some analogy, to
justify the proposed development, said:
“The local government must refuse to approve the application if there are not sufficient planning grounds to justify or approving the application despite the conflict. My whole point is that there are sufficient town planning grounds to justify – or there were – prior to the new 1998 strategic plan, there were sufficient town planning grounds to justify this development, but even more so it was a – it was a consent use within the zoning.”
He seems impliedly to have conceded conflict with DCP 1 and/or the old Strategic
Plan and correctly so. The grounds he identified for his view that such conflict
ought to be ignored are found in Mr Lambert’s report (Exhibit 16) which expressed
his view that:
“The DCP does not restrict the “Aged Care Development” on the land and the Part B statement strongly supports a higher form of development once the area is sewered.”
He expressed the view that urban development could be justified as “infill”, there
being residences (of the Tyack and McDonald families) on two blocks to the north
fronting Delaney Street and, north of them, typical suburban development along the
south side of Sturgeon Street. Further residential development has occurred or will
occur to the east on the other side of the arterial road and railway line (although the subject land has a frontage to the arterial road, access is not permitted), the
Ormiston Station being located roughly at that point, again without offering
immediate access from the west. To the south-west of the subject land Residential
A development (on “the Pask land”) is imminent and to the south (separated by a
substantially undeveloped area roughly the size of the subject property), there is
already intensive development to the south of O’Brien Street. Mr Lambert’s next
point was:
“The potential for development of the land prior to the 1998 Strategic Plan is also clear from the studies undertaken in preparation of the Strategic Plan. For example, there were a number of Options considered and one, the ‘Strategic Plan Settlement Option – Expansion” (See Draft Planning Study 1996), shows the entire subject land as Residential A (see Appendix C).” These points strongly suggest that the suitability of the land for development has been well established and expected prior to the 1998 Strategic Plan.”
This indicates the possibility of some kind of urban development was considered,
along with other possibilities, but it can hardly give rise to any expectation. A
(perhaps) related point is that the success of others in the immediate area in being
able to develop their land for residential use (by re-zoning Residential A) creates
some imperative that Mr and Mrs Garbler should be treated like them, by the
expedient of the Council (or the court) agreeing to a roughly analogous permissible
use. Mr Lambert correctly pointed to the suitability of the appellant’s land (on its
own merits and considering nearby facilities) for the suggested development, at
least after a certain amount of filling; the existence of “need” for such
developments in the locality was not contentious. There was nothing to suggest
such need was desperate or that other large enough parcels of land could not be
found in the locality to satisfy that need.
The foregoing circumstances fall far short of persuading me (if the section invoked
by Mr Lambert or any counterpart were relevant) of sufficient planning grounds to
overcome the conflict with the planning instruments discussed. Ignoring the
section, I am equally unpersuaded that immediately before 27 February 1998 the
Council or a hypothetical judge of this court would have favoured the proposed
development.
That is probably enough to dispose of this appeal, given that the appellants have
placed all of their eggs in one basket, so to speak, by presenting this single proposal
(in original and cut-down form) as a basis of their “before” valuation.
Some comment is called for on the Council’s other points which, in greater or lesser
measure, all tend to make success of the appellants’ putative application for consent
to their suggested development more unlikely. The first concerns the State Planning
Policy in force at the relevant date, namely the State Planning Policy 1/97-
Conservation of Koalas in the Koala Coast made by the Governor-in-Council
pursuant to section 1A.1(1) of the Act. By s.4.13(3A) which applies to assessment
of a Town Planning Consent Application:
“The local government must have regard to relevant State planning
policies in making its decision on the application”.
“Must have regard to” represents mandatory language, as compared with weaker
expressions such as “may have regard to” or even “having regard to” (considered in
Biggs v. City of Mount Gambier (1981) 49 LGRA 177). The expression indicates to
my mind that some (but not necessarily decisive) weight must be given to the State
planning policy which (perhaps significantly) is honoured as the only policy
requiring to be considered, in contrast with other statutory provisions which may list numerous factors, often topping them off with reference to “any other relevant
circumstance” (as in s.9(2)(p)) in the Penalties and Sentences Act 1992).
In R v. Toohey (ex parte Meneling Station Pty Ltd) (1982) 158 CLR 327, Gibbs CJ.
said at 333:
“When the section directs the Commissioner to “have regard to” the strength or otherwise of the traditional attachment by the claimants to the land claimed (sub-s.3), and to the principles set out in sub-s.4, it requires him to take those matters into account and to give weight to them as a fundamental element in making his recommendations.”
And Mason J. said at 338:
“By requiring the Commissioner to have regard to the strength or otherwise of the traditional attachment sub-s.(3) ensures that this factor will become a central element in the Commissioner’s report. But I do not see that it provides a sound basis for going further so as to impliedly exclude regard for other factors.”
Everything depends on the particular statutory context and, as for any planning
decision, the particular circumstances. I have obtained assistance from authorities
such as Australian Capital Televison Pty Ltd v. The Minister for Transport and
Communications (1989) 120 ALR 119, R v. District Council of Berri, ex parte
Eudunda Farmers’ Co-operative Society Ltd (1984) 51 LGRA 409, Town of
Walkerville v. Adelaide Clinic Holdings Pty Ltd (1985) 55 LGRA 176 and, more
recently In the Marriage D.A. & C.A. Bendeich (1992) 16 FamLR 371, in which
there is a useful passage at 377:
“In considering the provisions of sub 124(2) of the Act, I “must have regard to” a number of factors. In the first place, I interpret the word “must” as being mandatory. The words “have regard to” were considered in the context of judicial review of administrative decisions in R v. Hunt; Ex parte Sean Investments Pty Ltd (1979) 25 ALR 497, a decision of a Full Bench of the High Court of Australia. At 504 Mason J. decided that the words required the relevant Permanent Head of a Government Department”… to take those costs into account and to give weight to them as a fundamental element of making his determination.
The requirements that the Permanent Head (and on review the Minister) shall have regard to the costs necessarily incurred, tends in itself to show that his duty in respect of those costs is limited to having regard to them. He must take them into account and consider them and give due weight to them but he has an ultimate discretion.”
The Policy contains the following:

“4 Conservation Designations
4.1 This Policy establishes three broad designations:

· the Koala Conservation Area,
• Other Major Habitat, and
• the Koala Coast Balance Area.
These designations are delineated on the Policy Map in Appendix 1.
Koala Conservation Area
4.2 Within the Koala Conservation Area, a significant planning objective should be to conserve koalas and their habitat in ways that do not affect existing uses and development rights or remove development commitments. The boundary of the Koala Conservation Area is determined by this Policy.
4.3 The Koala Conservation Area designation comprises a large, integrated and relatively undisturbed area of koala habitat. While koalas are found throughout this area, individual animals generally use large, established home ranges. A conservation area is needed to allow koalas to move and disperse for breeding, social behaviour and feeding purposes. Such movements enable koala sub- populators to interact, which is necessary to maintain genetic diversity and the population’s long-term sustainability.
4.4 The Koala Conservation Area generally comprises areas of intact or partly cleared bushland with intrinsic koala habitat values, together with some areas cleared of habitat. Although the quality of koala habitat varies, the overall area provides a highly favourable habitat for koalas.
4.5 Some existing urban development and areas designated for future urban development are included in the Koala Conservation Area, but only where considered necessary to achieve a cohesive area.
Other Major Habitat
4.6 The characteristics and intent of the Other Major Habitat designation are identical to those for the Koala Conservation Area with two exceptions. First, most of the Other Major Habitat does not form part of a single cohesive area. Second, while the boundaries of the Koala Conservation Area designation are determined by the Policy, the precise alignment of Other Major Habitat designation boundaries can be amended by the local governments, either in their planning schemes or through development assessment, as described in Section 6 of this Policy. Because the Other Major Habitat is generally located in existing or developing urban areas, the boundaries of Other Major Habitat might need adjusting to achieve the best practicable outcome for the conservation of koala habitat values.
Koala Coast Balance Area
4.7 The Koala Coast Balance Area comprises all land in the Koala Coast that is not included in either the Koala conservation Area or Other Major Habitat. The Koala Coast Balance Area includes a variety of existing land uses and will be subject to a wide range of developments and land uses in the future, including accommodation or urban growth. Nevertheless, within the Koala Coast Balance Area, any significant koala habitat should be conserved wherever practicable.
5. Development and Land use in the Koala Coast

5.1 There will be a continuing need for development in the Koala Coast. Parts of the area will accommodate urban growth, while non-urban areas will require some development to meet changing needs and opportunities. Within the Koala Conservation Area and Other Major Habitat, development may occur where development rights and planning scheme are taken up, and where new opportunities are identified as appropriate and consistent with this Policy.
5.2 Development will occur on some sites where there are koala habitat values. Accordingly, the layout and detailed design of development anywhere in the Koala Coast should, as far as practicable, minimise adverse impacts on koala habitat values without reducing development rights or removing development commitments. This requirement does not apply to those developments needing only a building or plumbing/drainage approval, such as the construction of a dwelling on an existing allotment.
Koala Conservation Area and Other Major Habitat
5.3 Unless already provided for in the relevant planning scheme, developments that might have uncertain or detrimental long-term impacts on koalas and their habitat should generally be excluded from the Koala Conservation Area and Other Major Habitat.
5.4 In the Koala Conservation Area and Other Major Habitat, development must be compatible with conserving koala habitat values except where:

· the development is a development commitment; or
· it can be demonstrated that there is an overriding public interest need for the proposed development and no other site is suitable and reasonably available for the proposal.
5.5 Any assessment of a proposed development in the Koala Conservation Area and Other Major Habitat should first establish whether the proposal is a development commitment. If so, that development is accepted under this Policy, provided the proposal is designed to minimise adverse impacts on koala habitat values (see paragraph 5.2 above).

5.6 In other cases, within these areas there is the need to
determine whether:

· the proposed development is compatible with conserving koala
habitat values or;
· there is an overriding need for the proposed development in the public interest and no other wise is suitable and reasonably available for the proposal.
Development proposals that meet either of these two criteria should be designed to minimise adverse impacts on koala habitat values.
Compatible development
5.7 Development proposals would be compatible with conserving koala habitat values if all the following criteria are met:

· little or no clearing of habitat would be required;

·

for sites in the Koala Conservation Area, minimal additional night-time traffic movements would be generated on the road network in the Koala Conservation Area;
· any impedance or threats to the movement of koalas through or
across the site would be minimised;
· there would be no other significant detrimental environmental
impacts on the koala habitat values in the surrounding area; and

·

koala habitat values would be substantially maintained or enhanced.

5.8 The Koala Coast’s proximity to a large urban population and major tourist destinations should provide opportunities for a range of activities that can be designed in ways that are consistent with the above criteria and conserve the environmental qualities of the area. Some examples are small-scale individual manufacturing, distribution or storage enterprises; home-based businesses; and ‘nature-based’ recreation/tourism facilities and activities (including those enabling people to experience koalas in their natural habitat). Intensive poultry farming is an example of agricultural development which, if properly planned and managed, is able to meet these criteria. Similar agri-businesses might also be appropriate.
Overriding need

5.9 Determining overriding need in the public interest will depend on the circumstances of the particular development proposal. The proposal must result in a significant overall net benefit to the community in social or economic terms that outweighs any adverse environmental impacts, and it must be shown that a similar benefit cannot be achieved on other suitable and reasonably available alternative sites. Furthermore, practices and methods employed in any activity approved as an overriding public need must be consistent with paragraph 5.2 and appropriate measures must be taken to protect or restore koala habitat values.

5.10 This Policy does not constrain land in the Koala Coast Balance Area from development. However, development must satisfy the requirements of paragraph 5.2 above to the extent relevant to the particular proposal.”

There is a relevant definition in the glossary:
“Development commitment: Includes any of the following:

· an existing development approval;

·

development that only requires a building or plumbing/drainage approval, including ‘as of right’ development (e.g. on existing allotments in residential and rural zones, a house, house extensions, and ancillary developments such as fences, garages, garden sheds and swimming pools);
· development or use that is clearly consistent with the intent of
the relevant zone in a planning scheme;

·
a designation in a planning scheme (e.g. strategic plan,
development control plan or local area plan) where the
development intent is clear; or

· a subdivision of re-alignment of allotment boundaries consistent with the requirements of the relevant planning scheme and not subject to any environmental criteria that are relevant to koala habitat conservation, other than those relating to detailed design.”

To the extent the appellants’ case may have been intended to set up exemption from
the Policy in reliance on the third and/or fourth “dot-points”, I reject any contention
along those lines. The hypothetical development is urban in nature, inconsistent
with the intent of the relevant zone; the intimation in the information supporting the
DPC that “some” land in a designated area may go to urban (residential A) when services are available has no “clear” application to the subject land, except by way
of indicating a possibility.
The structure of the Policy provisions set out supports Mr Ure’s submission that
Other Major Habitat is not seen as inferior to or less deserving of protection than
Koala Conservation Area. The principal difference, which is potentially important
in this case, lies in the local government’s ability to adjust boundaries. In 4.6 the
indicated purpose is “to achieve the best practicable outcome for the conservation
of koala habitat values.” This indicates to my mind that the main focus is on
conservation of koala habitat. It may well be that “overriding need” under item 5.6
and 5.9 would, in some circumstances, justify elimination or compromise of koala
habitat values; but is not a consideration here because it is not shown that “other
suitable and reasonably available alternative sites” are lacking.
The predecessor of the Policy was considered by Judge Quirk in Norris Clarke &
O’Brien Pty Ltd v. Brisbane City Council (1996) QPELR 262. The former Policy
was broadly similar. His Honour did not in the end have to make a decision based
on the Policy given that the evidence before him revealed “more serious problems”
for the developer’s proposal. He did say at 266:
“In the light of evidence of Dr. Porter (which I accept) regarding the degree of importance of this land as koala habitat and the adequacy of the response to that importance in the design of the proposal, I would have found it very difficult to reject it on environmental grounds.”
The evidence showed that the developer’s land was in an area peripheral to and not
part of the koala habitat “core area” as defined in Dr Pahl’s 1992 study and that the
utility of that land as a corridor was diminished by “the very large… Rochedale
solid waste land fill” adjoining the southern boundary, the Gateway Motorway, close by to the west and a “very busy arterial road” (Mt. Gravatt-Capabala Road)
immediately to the north. The developer’s proposal included “a movement corridor
across the land providing a forested pathway along a drainage line… (with) a
minimum width of about 40 metres and … lagoons which exist”. Evidence
suggesting doubts as to the adequacy of the proposed corridor was rejected, his
Honour announcing himself satisfied there would be “no serious diminution in the
habitat value of these sites.”
At 264, after reference to s.4.4(3A), the following observations were made:
“It is important that the Legislature has chosen to identify these planning instruments as “policies”. Courts of this kind have, for a very long time, recognised the policy as a Town Planning Instrument and have made pertinent observations regarding the manner in which a policy should be applied (Hall v.Vaucluse Municipal Council 1947 16 LGR (NSW) 141; Crusade Construction Co. Pty Ltd v. Sutherland Shire Council1961 6 LGR 372; Fowler v. Brisbane City Council 1969 20 LGRA 323).
Relevant authority indicates that there may be a more flexible approach in the application of a policy than is required in respect of the provisions of a Town Planning Scheme or other Statutory Town Planning provision. It is the substance of a policy rather than its form that is important. That is not to say that there is any room for arbitrary or capricious application of a policy. The planning objectives upon which the policy is founded must always be recognised and, where it is feasible, applied.
While a good deal of wording of this particular policy appears to be imperative and efforts have been made to define relevant circumstances and criteria exhaustively, when the policy is read as a whole it is evident that it is intended to be subordinate to the provisions of the relevant Town Planning Scheme.”
The value of the subject land as habitat is limited. It was never presented as more
than an off-shoot area and adjunct to a considerable Major Habitat running along
Hilliards Creek, a long block away to the west across Delancey Street, which koalas
would have to cross at risk of harm from traffic – and the other major threat to them, dogs. The evidence establishes that koalas do resort to the subject land, this
being confirmed by a sighting during the court’s inspection. Koala numbers may be
greater on the land opposite on the western side of Delancey Street (certainly this
was the case on the day of the inspection). It was not suggested that the Garblers’
land could support even one koala, but the evidence was that it has value as a
corridor or transit stop or as a refuge, for example for young koalas who may be
excluded from the core habitat area at certain times. The number of viable food
trees on the subject land is limited, and has in recent times (which may be after 27
February 1998, though the evidence is not clear) been reduced by deaths of some
trees, apparently due to poisoning. (Mrs Garbler’s denial of having had anything to
do with this has to be accepted.) The evidence shows that the dead trees are still
used by koalas for rest or refuge.
On the koala issues, I accept the evidence of Mr Chenoweth. Although it may not
be useful to make comparisons with the case last cited, impairment of habitat values
by traffic on nearby roadways is relatively slight here and the proposals to preserve
koala habitat (or corridors) here inspire not the slightest confidence that the
developed site would be likely to be used by koalas given the density and layout of
the development proposed. (Construction would be likely to require the complete
clearing of the site.)
Although noting Mr Delaney’s frankness, which led the appellants to present an
alternative development proposal leaving the north-west part of the site untouched,
I think he has under-estimated the koala habitat values of the site generally and
over-estimated those the site would have if developed. As it happens, Mr Delaney
was the author of a report used to secure the exclusion of the Pask land (on the south-western corner of Dundas and Delancey Streets) from the Major Corridor
designation under State planning policy 1/95: Conservation of Koalas in the Koala
Coast. The evidence left it uncertain that a forested strip along the Dundas Street
frontage, which the Council has taken certain steps (criticised by Mr Lambert) to
protect and which might enhance a corridor between the Garblers’ land and
Hilliards Creek, may be treated as Major Corridor. The relegation of the Pask land
to Balance Area in the 1997 map in my opinion says nothing about how the subject
land should be treated. The Pask land, except as noted already, had been almost
completely cleared for farming purposes. There had been limited clearing for such
purposes on the subject land in the past, but re-vegetation has occurred. Mr
Chenoweth acknowledged the degraded condition of the subject land as habitat, but
pointed to the undoubted circumstance that koalas continue to use it. I think the
probabilities are that the Council if called on to assess an application before 27
February 1998 (or the court on appeal) would have accepted Mr Chenoweth’s
approach that:
“In a place like Redland every bit of habitat and corridor connection between them contributes to the viability of the population – it’s the death of a thousand cuts otherwise.” (page 277)
Then 9 pages on he said:
“There certainly are other corridors and habitats. Again, it’s the death of 1,000 cuts. In the Redland area the koala population needs every help that it can get.”
It would be quite inappropriate to treat koala interests as paramount, but here, from
the standpoint of the Policy, there are no countervailing interests. More generally,
of course, the countervailing interest is the Garblers to make the most advantageous
use of their land. I am doubtful this would lead to the Policy being disregarded in
the end to accommodate the only proposal under consideration.
Issues (v) and (vi) raised by the Council refer to two of its local planning policies
made pursuant to s.1A.4 of the Act. The two referred to ante-date the new Strategic
Plan by some years and, to a considerable extent, are inter-related. They are the
Waterways Wetlands and Coastal Zone Policy (Exhibit 25) and the Policy
regarding “Development in Areas having Bushland, Scenic, Landscape or Cultural
Heritage Value” (Exhibit 26). Although acknowledged in the Act, local planning
policies are not the subject of any provision such as s.4.13(3A). The “Bushland,
etc” Policy indicates a development for urban purposes will not be favoured if:
“(e) the land contains a fauna movement corridor which serves as a connection between areas of bushland of ecological interest;
if the land is within the vegetated riparian zone, coastal zone, or wetland area as defined in (the other Policy).”
(f)
It is unnecessary to repeat the above discussion of State planning policy 1/97, much
of which is relevant. The “Wetlands” Policy indicates, inter alia:
“(h) development should not be allowed to cause adverse alteration to existing natural drainage patterns…
(i) development in wetlands or other biologically sensitive areas
should not be allowed unless it can be shown that the development is an
essential water-related activity or an ecologically sustainable use.”
A good deal of attention was devoted to whether the appellant’s land contains any
wetlands, defined as :
“Areas, conceptually between territorial and acquatic environments, that are subject to either fresh-water or salt-water inundation with the capacity to support acquatic macrophytes … . melaleuca spp. and sedges are generally associated with fresh-water wetlands. Wetlands with occasional inundation an be either regular (seasonal) or periodic (ephemeral or temporary) .”
No part of the land has been included in maps prepared to designate wetlands in the
Shire.
There was no evidence identifying any flora (or fauna) of significant value on the
land in the low-lying part (perhaps 25% or more of the property in a band running
from the south-west corner to the middle of the northern boundary). There was
much mention of cumbunji (“(Austral.) bulrush”, according to the Australian
Concise Oxford Dictionary), which is extremely common and likely to spring up
wherever water accumulates in drains or other depressions. The evidence
establishes that melaleuca, which have been removed at some time, would have
grown along the band mentioned, which is a continuation across lower-lying land
from the Pask land. Aerial photographs and other evidence confirm that the “band”
has for decades been part of a drainage depression; such contours as are available
show it to be the lowest lying land in the general area south of Sturgeon Street since
some filling of properties fronting Sturgeon Street – which has necessitated the
Council constructing a suitable concrete lined drain to clear water from south of
Sturgeon Street away to the north. I find nothing in the relevant Policy to indicate
that a protected “wetland” must be natural, although common sense says such a
wetland is going to be regarded, generally, as more valuable than a man-made one.
It seems to me there was a “wetland”, seasonal in nature – by which I do not
suggest it would be wet in every year, and not shown to be of any particular value,
except as part of the natural drainage system of the area. I think that the witness
who referred to a water-course across the property, Mr Keane, was correct, in the
sense of his identifying where run-off would go. But further, it seems that for many
years the escape of water from the appellants’ land has been impeded, resulting in a
certain amount of shallow ponding from time to time.
The probabilities are that the heritage policy would have been applied, particularly
by way of reinforcing the State planning policy. Other things being equal, I could not feel satisfied the Wetlands Policy would have been applied to preclude
development, particularly as the appellants’ case has shown the possibility of
designing a development which would retain the rather undistinguished “wetland”
in the long term.
“Other things” are not “equal”. The Wetland Policy covers drainage issues. The
appellant’s adduced evidence to the effect that over the years, their land had been
“free-draining”, a much used term, whose meaning cannot be said to be clear or
precise. I think there has always been some ponding in the lower-lying parts, but
the evidence shows, for what it is worth, that the situation has deteriorated. From
the east, and probably in connection with the construction of the railway line and/or
the arterial road, there has been collection and concentration of surface water from
the eastern side of the railway line brought across to the west along the Dundas
Street reserve and then onto the property. I find that the relevant catchment has
always included an area east of the railway line; the flow of water was not so
concentrated before the construction of the line. From the south-west the
appellants’ land now receives in a similar way in concentrated form run off from
the Pask land which is collected into a drain running diagonally under the
intersection.
In this court, the Garblers’ objected to the Pask development in Appeal No. 1756 of
1998, in which an order was made by Acting Judge Hinson SC on 29 October 1998,
presumably by consent of the parties. The order (referring to the present appellants
as “the Appellants”) included the following:
“The applicant shall design and construct the cross drainage culverts in the vicinity of the Dundas/Delancey Streets intersection to Council standards generally in accordance with Ross Campbell & Associates Pty Ltd drawing 1903AK03A (annexed hereto).
The design and construction of the cross drainage culverts shall be such that there is no worsening of the existing stormwater problems suffered by down stream properties nor any worsening of environmental values in downstream properties as indicated in Council’s Strategic Plan.
The Appellants acknowledge that the proposed development will result in increased stormwater flows across their lands as shown in the Lawson & Treloar report of October 1996, Exhibit “2” herein, and agree to accept such flows.
The Appellants or the owners for the time being of the lands will grant an easement in favour of Council in Council’s Standard Drainage Easement format over that area of the land to be occupied by the tail drain to be constructed.
… …
However, if the post development discharge of storm water from the subject proposal were to have a worsening effect on the down stream properties, the applicant shall obtain down stream drainage discharge approval and a drainage easement in favour of Council from affected downstream properties prior to council being required to approve engineering designs for the development.
… …
… … .”
The appellants are justifiably aggrieved that the “tail drain”, which was to be
constructed for a limited distance in a north-easterly direction into the heart of their
property from the south-west corner, has not been constructed; instead, there is an
open drain along their southern boundary (but in the road reserve) which then, at
some point well along the southern boundary is cut north into their property. It
seems there has been no drainage easement requested or offered. The Council has
embarked on dealings with the appellants’ neighbours to the north along Delancey
Street and with the next owners further to the north with a view to providing a link
with the concrete drain leading to Sturgeon Street. Nothing has eventuated, there
are no identifiable plans. For purposes of this appeal, I think I should accept the Garblers’ contention that the drainage situation has been worsened by the
developments to the east and to the south already mentioned. Understandably, they
take the view that the Council has been delinquent in not ensuring that condition 22
is implemented. The annexed engineering drawing contains the indication:
“Tail drain to ensure free drainage.”
The drawn drain goes only a certain distance into the appellant’s property.
Assuming for the purposes of argument that it is for the Council rather than the
appellants to see that condition 22 is enforced, presumably at the cost of a third
party, I am unable to see the relevance for present purposes of condition 22. It does
not establish that any land was originally “free draining” or any entitlement (prior
to 27 February 1998) to have it made so, to an extent it was not before. This court
should not hold against the appellants any worsening of the drainage situation that
has occurred after February 1998. It appears there has been some worsening.
Although it may not be clear from the Council’s list of issues, as quoted, Mr
Hughes’ written submissions correctly acknowledge that there are “flooding,
drainage and filling issues” for the court’s consideration. It is not possible to accept
the evidence of witnesses to the effect that the land was “free draining”, that one
could drive or walk all over it in the past but no longer can, because the land is
boggy, as indicating that the land gave rise to no drainage issues as at 27 February
1998. The evidence suggests there is or has been a spring at the south-western
corner. Mr Keane, a neighbour to the south, at page 132, in the course of recording
his observation “over the last 16 years” referred to:
“Oh, a little creek when it rained but the water would seep across. If
you didn’t get much rain for a while it would be dry.
But now of course it seems to be wet more often, does it not? – Well, you’ve got much more water coming down from Gordon Street through this – the pipe under the railway line, it comes down Dundas Street. Quite a good body of water comes down that. It’s all been concentrated down into that area so ---
And of course there’s culverts constructed under the intersection of Delancey Street and Dundas Street?— Well, you’ve got that coming in now as well but that always used to come down there but it used to flow over the western entire portion of Dundas Street to get to a culvert under the road which was only a single pipe I think at that time, and then a good flow onto Garbler’s land and then across, diagonally across, yes. So that now you’ve got a better flow of water coming from those new development, I suppose. You know, from the same catchment area, but it’s been developed so that you’re getting quicker access of water there. It’s flowing off quickly.
Flowing on to the Garbler’s land?— Yeah, quickly because it’s – there’s more hard surface. Before it used to come down and the water would flow through a lot of tea tree country, what we call tea tree country, and that was grassed and the water would lay in – in like little holes there where they might have pushed a bit of timber out at one stage, that had sort of gilguys in it and the water was slower moving. That – it’s still the same amount of water but now you get it quicker.
And of course the Garbler’s land is no longer ---? – Well, it’s still the same as it was, virtually is that there’d be no actual – you know, it – it still has the same impediment to the water with grass but now more so because you’ve got taller varieties of grass and this reed that grows there which slows it up when it comes onto it and spreads it on that – that watercourse that goes through it so you’re getting a proliferation of not only grasses but this actual timber growing there now that wasn’t there before.
Prior to or when you first arrived in the mid 80’s, the Garbler’s land, you’ve already indicated, was dry and you could walk across it and it was mostly grassland. Did it seem to drain more freely? – Oh, it did because you didn’t have the body of grass to – to stop the flow of water.”

In 1984, before Mr Keane moved to the area, D V Yardley, the Council’s
subdivisions engineer, had referred to the appellants’ land as in part “a drainage
problem area”: see memorandum to Shire Engineer of 2 October 1984 in Exhibit 34
and as “low-lying and subject to poor drainage” (memo of 8 August 1984). The
land is not zoned as a drainage problem area. The memoranda referred to are part
of material which was tendered by the Council as a complete file following the appellants’ tender of Exhibit 33; it contained a record of the recommendation for
and subsequent advice of refusal of the Garblers’ application to be permitted to fill
the western one of their two parcels: Exhibit 33 also included the Garblers’
intervening letter of 24 September 1984 (unsuccessfully) requesting
reconsideration.
The provision pointed to in the issue No. (vii) raised by the Council is:

“16 Filling and Drainage

(1)

Notwithstanding any other provisions of the scheme or the by-laws, no person shall, without the written approval of the Council, change or cause to be changed, the natural surface levels of any allotment or any group of allotments except –

(a)

as a condition of approval to subdivide land or open a new road in accordance with the Subdivision of Land By-laws;
(v) as a condition of a building permit;

(w)

pursuant to a consent issued under this scheme for the development or use of the subject land;

(x)

for purposes of landscaping the immediate surrounds of an existing or approved or other structure providing the natural surface or original ground level is not altered by greater than 300 mm and no concentration of stormwater runoff onto adjoining properties will occur.

Provided that an approval pursuant to this subclause to fill an allotment or group of allotments which are subject to flooding at a frequency of more than one (1) in one hundred (100) years shall not be granted except where such filling is of a minor nature.

(2)

(a) Where the consent of the Council is not required under the scheme of the use of land for the erection or use of a building or other structure for any purpose, the owner, before such use is commenced or plans of the proposed building or other structure are submitted for approval of the council, shall ascertain the Council’s requirements, if any, as to drainage or filling or drainage and filling the subject land to render it fit for such use of land or the erection or use of a building or other structure.

(b) The owner shall comply with all such requirements which shall be deemed to be a condition of approval of the building plan if the erection of a building or other structure as aforesaid is proposed.”

Exhibit 34 shows an application received by the Council on 6 July 1984 for consent
of the Council in respect of identified land approximately 4.12 hectares to “raise
level of low-lying part of land using clean fill with the view to making it suitable
for some use sometime in the future”. The technical report generated in the Council
described the subject land as bordering on vacant bushland on all sides – “vacant
low land”. The application had to be advertised and it attracted objections, one
from Mr Meadows, owner of land across Delancey Street for 20 years and resident
there for nine and a half. According to the objection, “we have noticed that the
ground that is going to be filled is continually wet and flooding occurs back into my
property some 20 to 30 feet from the house. The reason for this is that where the
land is to be filled is a natural water catchment area for the decline running North
and South and Delancey Street declining East which causes large amounts of water
to build up in this area… . any filling … . will cause major flooding to my property
and to the roadway… ”
The other objection was from J E and P J Spinaze who were constructing a house
on Lot 12 Delancey Street “which runs beside the area under application”. The
Spinazes expressed concern over lack of detail in the application and concluded in
a way that bears out the technical report:
“Thirdly, the application does not address the question of site drainage. The area surrounding the block is relatively flat and low, therefore, any filling of this block could cause an unacceptable build-up of water on adjacent blocks. Until a well engineered drainage plan is put forward we recommend filling not be allowed to proceed.”
The inspection confirmed that the appellants’ land is probably the lowest lying in
the vicinity, Delancey Street, which on the frontage is built up to a higher level than
the land, rising from that frontage both to the south and to the north. The site is
more elevated in the east, adjacent to the arterial road. The Council’s letter of 7
September 1984 advised rejection of the application on the basis of lack of detail,
the objections received and (in accordance with the Yardley memorandum) that
“the subject land is low lying and subject to poor drainage and would require
extensive drainage in addition to filling.”
The Garblers’ response (exhibit 33), seeking reconsideration, advised the proposal
was for “approximately 2 feet of clean fill”; their letter disclosed an intention to
“retire and build on this land” and made the complaint that “there are no major
draining systems in this area”, notwithstanding that houses were being built next
door; in relation to the Meadows’ objection it was said that:
“the run-off of water from their land does add to our problems – no
drainage along Delancey Street except on to our property”.
The letter also stated:
“We realise residents on the east side of Ormiston Station have many times complained to Council regarding run-off from the school’s side over their land – which eventually ends up on our property”.
The letter then responded to the problem identified by the Council:
“Part of the whole land is low lying. This is why we wish to bring the land in line with the rest of the property – approximately 2 feet of clean fill. A great deal of the drainage problem is man-made being run-off from other properties, including that from Mr Meadows – if this did not occur then rural land would not need as much draining.”
The subdivisions engineer generated a memorandum reiterating the earlier position:
“the part of the land he wishes to fill is a drainage problem area covered in tea-trees and will require drainage as well as filling. The method of filling and supervision thereof would also need to be approved.”
The subsequent formal rejection after reconsideration was advised in the Council’s
letter of 2 November 1984, part of exhibit 33, which may be pointed to as an
indication of Council’s willingness to “consider a fresh application for the consent
to fill the subject property in conjunction with the erection of a dwelling house in
support of which detailed information would be necessary.”
On the appeal, it was clear that some filling below the 100-year line was required.
That could not be described as “minor”, whichever of the contending expert views
as to where the 100-year line should be located is correct. The appellants presented
evidence of a number of cases in which their experts contended that the Council had
permitted filling below that line, some of which were contentious, others of which
were special cases, for example a long established shopping centre and a case in
which it was asserted by the Council that the consent given produced an improved
outcome in a residential subdivision pursuant to a “ancient approval”. Assuming
some precedents have been (and more could be) found for the Council permitting
filling below Q100, that does not, in the circumstances of this land, which was
identified as problematical during the 1984 application, instil any degree of
confidence that filling would be or would have been permitted. One would expect
that, some time in the future, there will be the effective drainage arrangements that
have obviously been desired by landowners and occupiers in the locality for a long
time. It may be anticipated that (again, other things being equal) some appropriate
use and/or development of the appellants’ land, perhaps one involving significant
filling, will be identified. That outcome may have been brought closer by the
apparently unfortunate outcomes so far of the Pask development. But, assessing things, as I must, as of late February 1998, the 1984 position seems still to have
obtained; the site must be assessed as presenting difficult drainage issues. The
appellants and their advisers have gone to considerable lengths to devise drainage
arrangements which may well involve excavation of the established drainage paths
(providing some water storage at times of high run-off) and the construction of
weirs across the path, incorporating drainage pipes. One of the weirs would
provide a roadway from Delancey Street to the proposed villas and community
centre. Given the conflict of expert engineering opinion between Mr Campbell and
Mr Settle as to the adequacy of the solution put up as part of the hypothetical
retirement village development, which was subject to variation during the course of
the appeal, I am unable to find that the appellants have come up with an effective
solution to drainage problems connected with their proposed development.
There has been another chapter in the town planning history of the land. A
company called Cleveland Gardens Pty Ltd lodged with the Council in August 1991
(with the consent of the Garblers as owners) an application for town planning
consent for development of a hostel for the aged on the Delancey Street frontage.
Again Mr Meadows objected:
“due to Dundas Street now being sealed and large volumes of water
drainage that runs into Delancey Street.
As this is a natural water run-off any upgrading on this property would cause major flooding which in turn would flood areas of our property which is situated opposite.”
By Letter of 23 October 1991 to the applicant the Council sought further
information including existing and finished levels, filling plan details, and “the
ability to satisfactorily deal with storm water drainage”. The Council became
somewhat more negative in its letter of 18 November 1991:
“The matter was considered by the Planning and Environment Committee of 12th November, 1991 and while it is considered unlikely that the application will ultimately be successful, I advise that no further action will be taken until such time as the following information is to hand.
1.     A master plan indicating the future development of the balance of the site.
2.    Existing and finished levels. Levels depicted should include building platform levels, spot levels on driveways, retaining walls etc.
3. Filling plan details.
4.    Floor layouts and elevational drawings of proposed buildings with description of building materials including roofing treatment.
5.    Engineering report on the ability to provide reticulated services to the site commensurate to the level of development proposed. Further, the ability to satisfactorily deal with stormwater drainage should be addressed.
6.    Details of site treatment delineating areas of hardstanding pavements, etc. and areas of grass and landscaping, fencing treatment to common boundaries and the like.
7.    A professionally produced Town Planning report supporting this level of development within the Rural Non Urban zone.”
The proposal went no further.
While caution has to be exercised about accepting at face value the claims of
objectors (I note that the development of the Meadows’ property is hardly intensive,
apparently being limited to a family residence), the appellants’ own statements
provide some corroboration. All of this and the Council’s documents from 1984
and 1991 demonstrate that concerns regarding the suitability of the appellants’ land
for development have been held for many years. There is no reason to think the
concerns are other than genuine, uninfluenced by the Council’s harbouring some
improper motive, such as avoiding a liability to pay compensation. I do accept the
force of Mr Hughes’ proposition that the Council’s assertions, as those of a party now potentially liable to pay compensation, should be treated with appropriate
reserve.
While one has a gut reaction that the inclusion of land for the first time within the
designation “Special Protection Area” and its being subjected to the provisions of
s.4.4.3 of the Strategic Plan, likewise inclusion of the land in the Green Space Map,
bringing in the provisions of s.5.2.1, would reduce the market value of the land, on
the evidence before the court of Mr Brett, there has arguably been an enhancement
of value. The appellants staked all on their nomination of a particular form of
development (in original and reduced forms) as supporting a higher “before” value.
They have failed to show that it is or was reasonable to expect that the exercise of
discretion (to authorise the permissible use) would have been in their favour as
required by s.3.5(5). Accordingly, there is no acceptable evidence of a higher
“before” value. The situation might have been different if it were open for the court
to assess chances, which would, in my opinion, come in at well short of 50%. Even
then, account would have to be taken of the substantial expenditures of the kinds
identified by Mr Settle in exhibit 64 which I think the appellants would most likely
have to meet if they were entitled to proceed with the hypothetical development,
with effect upon the market value. It seems inconceivable to me that a reasonable
developer wanting to establish a retirement village in the area would have paid $1.9
million for the appellants’ land in February 1998 given the problems that land
presented.
In the circumstances the appeal is dismissed.

FILE NO/S:	Appeal 3401 of 1998
DIVISION:	Planning and Environment
PROCEEDING:	Appeal
ORIGINATING
COURT:
DELIVERED ON:	9 April 2001
DELIVERED AT:	Brisbane
HEARING DATE:	26, 27, 28 February, 1, 7, 9 March 2001
JUDGE:	Judge Robin Q.C.
ORDER:	Appeal dismissed
CATCHWORDS:	Appeal to Planning and Environment Court from local government’s rejection of landowners’ claim for compensation for injurious affection – new Strategic Plan included Rural/Non Urban land in Special Protection designation and Green Space maps - “before” valuation based on a hypothetical development as a retirement village, claimed to be within a “permissible use” of “accommodation unit” – appellants failed to show it was “reasonable to expect” a favourable exercise of discretion to permit the use – proposed development too “urban” in character – further factors were State Planning Policy 1/1997 Conservation of Koalas in the Koala Coast, “heritage” and “wetland” local planning policies, drainage problems affecting the low lying land and restrictions on filling – Local Government (Planning and Environment) Act 1990, s. 1.1A, s. 3.5 generally, s. 3.5(4)(d), (5), (6), (8) and (13), s. 4.13(3A) and (5A) – Integrated Planning Act 1997 s. 6.1.27, s. 6.1.50
COUNSEL:	C. Hughes for the appellants S. Ure for the respondent
SOLICITORS:	McCarthy Durie Ryan Neil for the appellants King & Company for the respondent

“(i)	That the proposal is in conflict with the old Strategic Plan.
(ii)	That the proposal is in conflict with the intent of the Rural Non/Urban zone in which the land is situated.
(iii)	That the proposal is in conflict with the Development Control Plan No. 1 which was current at the relevant time (and remains current).
(iv)	The proposal is in conflict with State Planning Policy No. 1 of 1997 the conservation of koalas in the Koala Coast (Exhibit 10).
(v)	The proposal is in conflict with the respondent’s policy “Waterways Wetlands and Coastal Zone” (Exhibit 25).
(vi)	The proposal is in conflict with the respondent’s Local Planning Policy (Development in Areas having Bushland, Scenic Landscape or Cultural Heritage Value) (Exhibit 26).
(vii)	The proposal is in conflict with Clause 16 of Division 5 of Part IV – Performance Standards – of the Planning Scheme which prohibits fill other than minor fill below the Q100 level on land.”

·	Has an urban development form, scale, and intensity that does not maintain rural character;
·	Has a gross floor area that exceeded one (1) percentum of the area of the site. Gross floor area was estimated as being 34.6%.”

·	Has an urban development form, scale, and intensity that does not maintain rural character;
·	Has a gross floor area that exceeds one (1) percentum of the area of the site. Gross floor area is estimated as being 34.6%;
·	Does not represent orderly development.”

“4	Conservation Designations
4.1	This Policy establishes three broad designations:
·	the Koala Conservation Area,

·	the development is a development commitment; or
·	it can be demonstrated that there is an overriding public interest need for the proposed development and no other site is suitable and reasonably available for the proposal.

·	the proposed development is compatible with conserving koala habitat values or;
·	there is an overriding need for the proposed development in the public interest and no other wise is suitable and reasonably available for the proposal.

·	little or no clearing of habitat would be required;
·	for sites in the Koala Conservation Area, minimal additional night-time traffic movements would be generated on the road network in the Koala Conservation Area;
·	any impedance or threats to the movement of koalas through or across the site would be minimised;
·	there would be no other significant detrimental environmental impacts on the koala habitat values in the surrounding area; and
·	koala habitat values would be substantially maintained or enhanced.
5.8 The Koala Coast’s proximity to a large urban population and major tourist destinations should provide opportunities for a range of activities that can be designed in ways that are consistent with the above criteria and conserve the environmental qualities of the area. Some examples are small-scale individual manufacturing, distribution or storage enterprises; home-based businesses; and ‘nature-based’ recreation/tourism facilities and activities (including those enabling people to experience koalas in their natural habitat). Intensive poultry farming is an example of agricultural development which, if properly planned and managed, is able to meet these criteria. Similar agri-businesses might also be appropriate.
Overriding need
5.9 Determining overriding need in the public interest will depend on the circumstances of the particular development proposal. The proposal must result in a significant overall net benefit to the community in social or economic terms that outweighs any adverse environmental impacts, and it must be shown that a similar benefit cannot be achieved on other suitable and reasonably available alternative sites. Furthermore, practices and methods employed in any activity approved as an overriding public need must be consistent with paragraph 5.2 and appropriate measures must be taken to protect or restore koala habitat values.
5.10 This Policy does not constrain land in the Koala Coast Balance Area from development. However, development must satisfy the requirements of paragraph 5.2 above to the extent relevant to the particular proposal.”

·	an existing development approval;
·	development that only requires a building or plumbing/drainage approval, including ‘as of right’ development (e.g. on existing allotments in residential and rural zones, a house, house extensions, and ancillary developments such as fences, garages, garden sheds and swimming pools);
·	development or use that is clearly consistent with the intent of the relevant zone in a planning scheme;
·	a designation in a planning scheme (e.g. strategic plan, development control plan or local area plan) where the development intent is clear; or
·	a subdivision of re-alignment of allotment boundaries consistent with the requirements of the relevant planning scheme and not subject to any environmental criteria that are relevant to koala habitat conservation, other than those relating to detailed design.”

[2001] QPEC 28

9/04/2001