Garners Beach Habitat Action Group Inc v Cassowary Coast Regional Council (No 2)
[2010] QPEC 140
•16 December 2010
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Garners Beach Habitat Action Group Inc v Cassowary Coast Regional Council & Ors (No 2) [2010] QPEC 140
PARTIES:
GARNERS BEACH HABITAT ACTION GROUP INC
(Appellant)
v
CASSOWARY COAST REGIONAL COUNCIL
(Respondent)
PAUL WILLIAMS AND LYNDA HANNA
(Co-Respondents)
CHIEF EXECUTIVE DEPARTMENT OF ENVIRONMENT AND RESOURCE MANAGEMENT
(Co-Respondent by Election)FILE NO/S:
74 of 2010
DIVISION:
PROCEEDING:
Appeal
ORIGINATING COURT:
Planning and Environment Court, Cairns
DELIVERED ON:
16 December 2010
DELIVERED AT:
Cairns
HEARING DATE:
1, 2, 3 and 6 December 2010
JUDGE:
Everson DCJ
ORDER:
The appeal is allowed in part
CATCHWORDS:
ENVIRONMENT AND PLANNING – PLANNING SCHEMES – CONSTRUCTION OF PLANNING SCHEMES – conflict with planning scheme or planning scheme policy – grounds
COUNSEL:
Ms T Fantin for the co-respondents
SOLICITORS:
Environmental Defender’s Office of Northern Queensland for the appellant
P&E Law for the respondent
MacDonnells Law for the co-respondent
Introduction
[1] This is a submitter appeal against the decision of the respondent to approve subject to conditions the co-respondents’ development application for a Material Change of Use – Undefined Use (Community Title Residential Subdivision) and Reconfiguration of a Lot (1 into 11 Lots) on land situated at The Esplanade Garners Beach (“the development approval”).
[2] The appellant essentially contends that the development approval represents an overdevelopment of the site.
[3] As a consequence of the orders made by this Court on 10 September 2010, the appellant is confined to agitating the issues set out in the Amended Notice of Appeal filed on 14 September 2010. It is common ground that the applicable Planning Scheme for the purposes of this appeal is the Johnstone Shire Planning Scheme gazetted on 10 June 2005 (“the planning scheme”). In the Amended Notice of Appeal the appellant alleges that the development approval conflicts with s 2(a) of the Planning Scheme Policy 4 (“PSP4”) which is referred to in the planning scheme on the basis that the development application “permits a Material Change of Use resulting in accommodation in excess of 3.1 equivalent persons for each five (5) hectares of habitat protected using a conservation covenant”.
[4] The development application was made under the repealed Integrated Planning Act 1977 (“IPA”) but was not decided before the commencement of the Sustainable Planning Act 2009 (“SPA”), it is therefore an “existing application” and must be dealt with and decided as if SPA had not commenced.[1]
[1]SPA s 802
[5] In this appeal the co-respondents contend as follows:-
(a) There is no basis for refusing the development application as a consequence of conflict with a planning scheme policy which is not part of the planning scheme;
(b) That there is no conflict with PSP4 in any event;
(c) If the court finds there is conflict with PSP4 there are sufficient grounds to approve the development application notwithstanding the conflict.
The proposed development
[6] The site contains an area of approximately 8.5 hectares, is in the Rural zone and is included within the Rural Conservation Precinct pursuant to the planning scheme. In the planning scheme it is not mapped as Good Quality Agricultural Land but is mapped as Critical Habitat. It contains remnant regional ecosystem classified as “Least Concern” and is depicted as Essential Habitat for the southern cassowary.[2]
[2]Ex 3 para 23
[7] The development application is designed to create “Australia’s most sustainable housing development, by implementing state-of-the-art green technologies and environmental design”.[3] To this end the proposed development:-
[3]Affidavit of Mr Williams, para 3
(a) is for an innovative, ecologically sustainable community that is entirely self-sufficient for water, electricity, sewerage treatment and waste water disposal;
(b) creates by way of community title, 11 residential lots ranging in size from 641 m2 to 1500 m2 with a balance lot comprising the common property;
(c) involves no clearing of native vegetation;
(d) seeks to protect by way of statutory covenant all existing native vegetation which comprises approximately 70% of the site;
(e) will revegetate and remediate approximately 36% of the balance area which comprises land that was previously cleared or disturbed;
(f) will protect and rehabilitate approximately 80% of the total site area;
(g) locates all development within existing cleared or disturbed areas;
(h) and includes a Community Management Statement with strict controls which includes a prohibition on the keeping of domestic animals.[4]
[8] The co-respondent by election mapped the extensive remnant vegetation on the site and approved the development application subject to conditions.
[9] To the extent that the approved conditions do not already guarantee ecologically sustainable development in the terms set out above, the co-respondents offered further conditions during the course of the appeal, which would ensure that there was to be no clearing of native vegetation in the covenanted area and which would allow for a Cassowary Environmental Management Plan to satisfactorily address potential impacts of the proposed development on cassowaries.
[4]Ibid para 5 and Ex “PW1”
Mr Williams gave evidence on behalf of the co-respondents. His evidence was that the co-respondents had not been responsible for any of the loss of native vegetation on the site. I accept his evidence in this regard and I find him to be someone genuinely committed to ecologically sustainable development.
The expert evidence
Dr Olsen, a botanist, gave evidence that the increase in lots contemplated by the proposed development “is not considered to provide any substantive impact upon the flora values” of the site.[5] On the contrary he was of the view that the proposed development will offer significantly greater habitat protection than currently exists on the site.
[5]Ex 3 para 44
Dr Ingram, a zoologist expressed the view that with the implementation of the Cassowary Environmental Management Plan he is satisfied that the potential adverse impacts of the proposed development on fauna, especially the few cassowaries which visit the site, will be adequately mitigated. He also noted that the proposed development would result in “an increase of available habitat and connectivity, which is a positive impact for cassowary and fauna generally.[6]
[6]Ex 4 para 39
Three town planners gave evidence, Mr Schomburgk, Mr Horton and Ms Huddy. Mr Schomburgk and Mr Horton were of the view that in the event there was a conflict with the planning scheme there were sufficient grounds to justify a decision to approve the development application. These grounds include that the proposed development:
(a) offers greater long-term protection of the ecological values of the site than currently exists;
(b) involves no clearing of remnant vegetation;
(c) includes revegetation and rehabilitation of currently degraded areas;
(d) through the Community Management Scheme, includes restrictions on the keeping of domestic pets, provisions to ensure improved water quality and erosion control and to reduce the incidence of feral animals; and
(e) will achieve ecological sustainability.[7]
[7]Ex 2 para 4.3.2 and Ex 6 para 36
Ms Huddy was of the opinion that these grounds did not justify approving the development application which “would result in a development density significantly greater than that associated with a Rural scale or density (one lot per 30-60 hectares)”.[8]
[8]Ex 7 para 3.2.7
PSP 4
PSP 4 is in the following terms:-
“1. Higher density of development
This section identifies when Council may favourably consider development applications resulting in a higher density of development than provided for in the planning scheme.Part of the purpose of the rural zone as stated in Part 4, Division 2, 4.2.2 is Protect the ecosystem function of existing habitat by promoting the protection from removal and destruction in the rural conservation precinct.”
Lots within the rural conservation precinct have all or part of the lot containing areas of significant habitat, which the Council wants to protect from removal and destruction.
Council may consider a higher density development than that provided for in the planning scheme in the following circumstances:
(a) The habitat is not already protected from removal or destruction and could be made subject to a more secure level of protection through a conservation covenant.
For example conversion of conservation agreements to conservation covenants, non remnant or land identified a remnant “not of concern’ under the Vegetation Management Act 1999 is protected by a conservation covenant; and
Land subject to an existing conservation covenant, under a provision of this or previous planning schemes, or protected under the Fisheries Act 1994, the Vegetation Management Act 1999, the Nature Conservation Act 1992, the Wet Tropics World Heritage Protection and management Act 1993, etc will not be considered for higher density development under this policy; and
(b) The capacity of the habitat system on the lot affected by the development and adjacent lots is able to withstand the likely impacts of the proposed development and maintain habitat integrity in the long term; and
(c) The proposed development does not alienate good quality agricultural land.
Note that the habitat protected does not need to be on the same lot as the proposed development, though this will only be considered where the development site has a higher level of infrastructure provision or the development will provide a higher standard of infrastructure provision than the site subject to the protected habitat.
2. Appropriate density of development
When determining the appropriate density of development the following is a guide to ensure that the integrity of the habitat to be protected:
(a) For material change of use involving accommodation, accommodation for up to 3.1 equivalent persons is permitted for each five (5) hectares of habitat protected using a conservation covenant up to a maximum of 12.4 equivalent persons or four (4) equivalent tenements.
(b)For reconfigurations, one (1) allotment of one (1) hectare in area is permitted for each five (5) hectares of habitat protected using a conservation covenant up to a maximum of four (4) additional lots.
(c)For habitat that has existing protection and a higher level of protection is proposed, only a part increase in density of development is permitted.
Note that when calculating the maximum proposed density the above criteria is used plus the density of development permitted on the site using the criteria in the planning scheme.
Note that when calculating the habitat to be protected, areas to be revegetated subject to suitable conditions may also be counted in the calculation.
3. Appropriate conditions
To ensure that the habitat values of the habitat are protected, Council may include in a development approval the following conditions:
(a) The habitat area is formally protected under a conservation covenant that prohibits the clearing of the habitat.
(b) The habitat area subject to a conservation covenant is to be protected from adjoining land use practices. This could include but is not limited to the requirement of:
·where possible locating development in existing cleared areas or on the periphery of the area of habitat;
·designated building pad;
·prohibit removal or destruction of vegetation within conservation covenant area excluding building pad;
·fencing with four (4) strand plain unelectrified wire;
·revegetation to land adjoining the conserved habitat area (on the same lot) to provide a buffer;
·exclusions, limitations and/or restrictions on domestic animals;
·buffers between building and effluent disposal areas and the habitat.”
Obviously PSP 4 could have been drafted better. Relevantly the terms “equivalent persons” and “equivalent tenements” are not defined but they have not proved controversial in this appeal. Mr Horton expressed the view that one equivalent tenement “is taken to be the demand ratio for a single residential dwelling”[9] and this appears to be a sensible interpretation. On this basis a strict application of PSP 4 to the site would only permit 1.2 lots and not the 11 lots the subject of the development application.
[9]Ex 6 para 34
Relevant provisions of the planning scheme
In the planning scheme, the Rural Conservation Precinct:
“includes land that has all or part of the lot containing land suitable for conservation. It includes areas of significant conservation value and also includes land that may require revegetation. Council may exercise its discretion to allow for development at a higher density in exchange for permanent protection of habitat.”
One of the purposes of the rural Zone is stated to be to:
“Protect the ecosystem function of existing habitat by promoting the protection from removal and destruction of habitat in the rural conservation precinct.”
After each of the above passages there is a footnote referring to PSP 4. These are the only references to PSP 4 in the planning scheme.
Unlike most planning schemes there is not a table setting out the minimum lot size for a lot in each zone. There are no criteria within the planning scheme itself for determining what is considered to be the appropriate density for development in the Rural Conservation Precinct per se. Any provisions of this type are confined to expressions of appropriate density in the Rural zone to either protect good quality agricultural land or ensure the long term agricultural viability of land[10] which are irrelevant to the development application as the site is not used for agriculture and does not contain good quality agricultural land.
[10]S 4.2, Purpose 1 and s 4.2.2; S 5
Relevant provisions of IPA
Planning scheme policies are treated separately to planning schemes under IPA. Pursuant to s 2.1.1 a planning scheme “is an instrument made by a local government under division 3” whereas a planning scheme policy is defined in s 2.1.16 as an instrument that –
“(a) supports the local dimension of a planning scheme; and
(b) supports local government actions under this Act for IDAS and for making or amending its planning scheme; and
(c) is made by a local government under (division 5).”
Although both a planning scheme and a planning scheme policy fall within the definition of “local planning instrument” pursuant to Schedule 10 of IPA, a planning scheme policy is clearly regarded as separate and subordinate to a planning scheme. A number of restrictions apply to planning scheme policies pursuant to s 2.1.23(4). Relevantly a planning scheme policy may only “include guidelines or advice about satisfying assessment criteria in the planning scheme”. In the absence of it operating in tandem with the planning scheme the limited scope for the operation of a planning scheme policy was confirmed by the Court of Appeal in Lamb v Brisbane City Council.[11]
[11][2007] 2 QdR 538 at 547
Where any part of an application requires impact assessment as was the case here, s 3.5.14 of IPA relevantly provides that the assessment manager’s decision must not, inter alia, “conflict with the planning scheme unless there are sufficient grounds to justify the decision despite the conflict”.[12] There is no similar provision with respect to planning scheme policies.
[12]S 3.5.14(2)(b)
Conclusion
The appellant argues that to the extent the proposed development conflicts with PSP 4, it conflicts with the planning scheme. It is asserted that by footnoting PSP 4 to the passages of the planning scheme referred to above, PSP 4 was incorporated into the planning scheme by reference. The appellant relies upon the decision of Collier v Brisbane City Council[13] in support of this proposition. However in that case, as in the subsequent case of Lamb v Brisbane City Council[14] which affirmed it, the planning scheme policy in question merely gave effect to regulatory provisions within the relevant planning scheme. That is not the situation before me. There are no provisions in the planning scheme which provide for minimum lot sizes in the Rural Conservation Precinct or otherwise seek to regulate the density of development on the site. PSP 4 is not part of the planning scheme and any conflict with it does not afford a basis for refusing the development application.
[13][2007] QPELR 67
[14]op cit
If I am wrong in this regard, I am of the view that the development application does not conflict with PSP 4 in any event. As was stated in Tully Sugar Limited v Cassowary Coast Regional Council:
“It is established law that planning schemes are not drawn with the precision of an Act of Parliament and should be construed broadly and in a way which best achieves their apparent purpose”.[15]
[15][2010] QPEC 41 at [16]
The apparent purpose of PSP 4 is to protect significant habitat from removal and destruction in the Rural Conservation Precinct. Higher density development is permitted in return for “a more secure level of protection through a conservation covenant”. This is precisely what is achieved by the development approval. The fact that a greater density of development is approved than what is stated as “a guide” in s 2 of PSP 4 and in particular s 2(a), does not mean that there is a conflict between PSP 4 and the development application. This Court has previously emphasised the limited effect of this part of PSP 4 and I am in agreement that the mere departure from the guide with respect to the density of the proposed development does not give rise to conflict pursuant to s 3.5.14 of IPA.[16] This is particularly so in light of the evidence of Dr Olsen and Dr Ingram referred to above.
[16]Suddaby & Ors v Johnstone Shire Council [2007] QPELR 94 at [22]
If I am wrong in this regard I am of the view that although the conflict with the density guide in s 2(a) of PSP 4 is significant, the grounds identified by Mr Schomburgk and Mr Horton and noted above are sufficient to justify the decision to approve the development application despite the conflict.[17] In undertaking the exercise of evaluating the conflict against the grounds it is important to note that the purpose of IPA is expressed in terms of seeking to achieve ecological sustainability.[18]
[17]See Regional Land Development Corp No. 1 Pty Ltd v Banana S C & Ors [2009] QCA 140 at [25]
[18]S 1.2.1
It follows that the appeal ought to be allowed in part, to the extent of allowing the additional conditions offered by the co-respondents in the course of the appeal and in particular the Cassowary Environmental Management Plan, to be imposed, but that is all.
Order
The appeal is allowed in part.
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