Glenella Estates Pty Ltd v Mackay Regional Council
[2010] QPEC 132
•26 November 2010
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Glenella Estates P/L v Mackay Regional Council & Ors [2010] QPEC 132
PARTIES:
GLENELLA ESTATES PTY LTD
ACN 1168 317 669
(appellant)v
MACKAY REGIONAL COUNCIL
(respondent)
and
THE CHIEF EXECUTIVE; DEPARTMENT OF TRANSPORT AND MAIN ROADS
(first co-respondent by election)
and
THE CHIEF EXECUTIVE; DEPARTMENT OF ENVIRONMENT AND RESOURCE MANAGEMENT
(second co-respondent by election)FILE NO/S:
BD 459 and 460 of 2009
DIVISION:
Appellate
PROCEEDING:
Appeals against deemed refusals
ORIGINATING COURT:
Planning and Environment Court at Brisbane
DELIVERED ON:
26 November 2010
DELIVERED AT:
Brisbane
HEARING DATES:
19, 20 (site visit), 21-23 July, 30, 31 August, 13, 14 September, supplementary written submissions dated 8, 11 October, 2010
JUDGE:
Robin QC DCJ
ORDER:
1. Appeals dismissed
CATCHWORDS:
Developer appeals against refusal of preliminary approvals for material change of use of rural zoned land to residential (some of which would be medium density residential) and commercial – whether “need” for more medium density zoned land – whether overriding need for good quality agricultural land to become residential – what other land might represent “comparable land” or “alternative sites” considered – whether potential contribution to satisfying need of other rural lands for which Council had put in train steps to lead to a draft local area plan could be considered – relevance of new future uses of land in planning scheme area contemplated in mapping in priority infrastructure planning exercises (where State authorities ruled out changing land descriptions in that way) relevance of Council’s entertaining notions of other uses for the site than rural – whether approvals would cut across Council’s future planning considered
Sustainable Planning Act 2009, s 819
Integrated Planning Act 1997, s 3.5.5, s 3.5.5A, s 3.5.11, s 3.5.13(2), s 3.5.14, s 3.5.14(2), s 3.5.14(2)(b), s 3.5.14A, s 3.1.6Australian Retirement Homes Ltd v Pine Rivers Shire Council [2008] QPELR 101; [2007] QPEC 085
Australian Capital Holdings P/L v Mackay City Council (2008) QPELR 608; [2008] QCA 157
Australand Holdings Ltd v Gold Coast City Council [2007] QPELR 451
Brisbane Wharves & Wool Dumping Pty Ltd, Conaust Ltd and P&O Australia Ltd v Brisbane City Council and Bretts Wharves and Stevedoring Pty Ltd [1994] QPLR 1
Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117Cut Price Stores Retailers Ltd v Caboolture Shire Council [1984] QPLR 126
Edgarange Pty Ltd v Brisbane City Council [2002] QPELR 183
Elan Capital Corporation Pty Ltd v Brisbane City Council [1990] QPLR 209
Gaven Developments Pty Ltd v Scenic Rim Regional Council [2010] QPEC 51
Good-mix Concrete Pty Ltd v Brisbane City Council (No 3) (1975) 31 LGRA 178
Hammercall Pty Ltd v Council of the City of Gold Coast & Ors [2002] QPELR 397; [2002] QPEC 11
Kotku Education and Welfare Society Inc v Brisbane City Council [2005] QPELR 267
Laver v Council of the Shire of Albert [1997] QPELR 94
Leisure Mark (Aust) Pty Ltd v Noosa Shire Council [1988] QPLR 137
Lewiac Pty Ltd v Gold Coast City Council [1996] 2 Qd R 266; (1992) 83 LGERA 224; [1994] QPLR 318
May v Redland Shire Council [2010] QPELR 225; [2009] QPEC 106
Maher v Hervey BayCity Council (2008) 166 LGERA 274: [2008] QPELR 74; [2008] QPEC 123
Maher v Hervey BayCity Council [2007] QPELR 123; [2006] QPEC 98
McCosker v Council of the Shire of Emerald [1996] QPELR 114
Metroplex Management Pty Ltd v Brisbane City Council [2010] QPELR 270
Northern Beaches Developments Pty Ltd v Mackay City Council [1999] QPELR 389
Park v Warringah Shire Council (1970) 20 LGRA 312
Peter Rommel & Associates Pty Ltd v North Sydney Municipal Council (1971) 23 LGRA 99
Ridgehaven Retirement Village Pty Ltd v Caloundra City Council [2004] QPELR 439; [2004] QPEC 2
Roosterland Pty Ltd v Brisbane City Council [1986] QPLR 515
Security Projects Ltd v Hollingsworth (1975) 62 LGRA 319
SEQ Properties Pty Ltd v Maroochy Shire Council [1999] QPELR 36
Stenders Morris & Partners v Cairns City Council [1989] QPLR 15Yu Feng Pty Ltd v Maroochy Shire Council [2000] 1 Qd R 306; (1996) 92 LGERA 41
COUNSEL:
G Gibson QC with M Williamson for the appellant
A Skoien for the respondentSOLICITORS:
DLA Phillips Fox for the appellant
S.B. Wright & Wright and Condie for the respondent
Crown Law for the first and second co-respondents by election (given leave to withdraw)
Glenella Estates Pty Ltd appeals against deemed refusals by the respondent Council: in 459 of 2009 of a Preliminary Approval (Material Change of Use Overriding the Planning Scheme) for an urban residential development and a development permit (Reconfiguration of a Lot) for Stage 1 subdivision (58 lot subdivision) in respect of land at the corner of Sugarshed Road and Glenella Road, Erakala (Lot 3 on SP 185584, Lot 2 on RP 702669 and Lot 4 on RP 702572) and in 460 of 2009 of a Preliminary Approval (Material Change of Use Overriding the Planning Scheme) for a medium density residential development and local convenience facility proposed for part of Lot 3. The Chief Executives of the Department of Main Roads and the Department of Environment and Resource Management have been inactive parties; a rival developer (Cougar) joined as a party but has withdrawn. Stage 1 is proposed for the north-western corner of the 54.6 hectare site. 58 lots comes from the Notice of Appeal and describes 52 urban residential lots for detached housing averaging in excess of 600 m2 in size, plus parkland lots, two buffer lots and two balance lots. The Sustainable Planning Act 2009 (SPA) in s 819 provides that the appeals proceed as if the SPA had not commenced.
The site occupies the south western corner of the intersection from which Stage 1 is as remote as could be in Sugarshed Road (which runs east-west). The whole site is flat, good quality agricultural land presently used for the growing of sugar cane; it supplies the Farleigh Mill. The development site is being excised from a larger cane farm. It will not include “proposed Lot 1” where a house and structures and other facilities used for farming are located in a protuberance along the irregular southern boundary of the site where the south-western boundary constituted by the main northern railway line and the south-eastern boundary constituted by Fursden Creek intersect. The railway line runs roughly 45 degrees west of north; the creek roughly 65 degrees east of north. The site does not include a narrow strip at the road intersection, apparently in the ownership of the mill operator (which owns all three of the mills remaining in Mackay). Nothing turns on that. The appellant expects to be dedicating strips along its road frontages to facilitate road widening.
Across the site’s western boundary, a triangle constituted by that boundary, the railway and Sugarshed Road is under cane, as is the land to the south across the railway line and across Fursden Creek. Stage 1 will extend rather more than half way along the western boundary. The eastern boundary of the aggregate 54.65 hectare site is Glenella Road. What might otherwise be the frontage is reduced by the Mackay Sugar land and a large area further south along Glenella Road with its own frontage there of 140 metres and a depth of 109.5 metres. This area contains a curious little residential estate. The south-eastern part (41 metres x 57.5 metres) designated Lot 1, RP 733211 accommodates a single house; the balance (Lot 2 SP 185584) appears from recollection of the court inspection and the aerial photograph at p 53 of the Appeal Book (for BD 459 of 2009) to accommodate half a dozen houses, three on each side of a private driveway. Little attention was paid to this interesting feature of the site’s surrounds. More was paid to the fully developed and operating light industrial estate across Glenella Road and to the extension of development of that kind which has spread diagonally across the roundabout at the intersection to the north-western corner. Otherwise, the land there, which rivals the site in size, is presently used for running horses, although it is good quality agricultural land that has been used for growing cane.
The appellant’s proposal is to develop that part of the site with direct frontage to Glenella Road as if in a “Local Convenience Facility Precinct” to provide convenience shopping. The judgment is easily made that so proceeding will shield the proposed residential areas to the west from the eyesore (from the perspective of residential amenity) constituted by existing light industrial development across Glenella Road. Convenience shopping facilities there may well gain some advantage from and constitute an advantage for the substantial working population of and visitors to the industrial area. Convenience shopping facilities, if they eventuate there, can hardly be characterised as convenient for some future residents of the site; the residents of Stage 1, in particular, who will be more than half a kilometre away.
Constraints affecting the site are a 60 metre wide corridor accommodating high voltage power lines (and associated towers) which traverses the site from its south-east corner near the seven dwelling settlement to the midpoint of the Sugarshed Road frontage and a drainage corridor of more modest width crossing the site north-south. This corridor which links to a drainage related area along Fursden Creek forms a neat cross with the power line easement. All of these are designated “linear open space”. The land east or north of the power lines (apparently to contain some “detention basins” – also linear open space) is intended for a “Medium Density Residential Precinct”, as is the triangular area bounded by the power line corridor, the drainage corridor and Fursden Creek. The creek is to gain some protection from a 10 metre “marine vegetation buffer”.
Discussion occurred during the hearing of the appeals concerning whether the development deserved the accolade of being “master planned”, as the appellant asserted. The extent of detail provided falls far short of that encountered for other master planned developments or communities. Even if the description is warranted, it goes no distance at all towards helping the appellant’s case along.
What Mr Schomburgk, the Council’s expert planner, called the primary application (the subject of Appeal 459, lodged under cover of a letter dated 29 June 2007) covered the whole site and sought (see IDAS Form 1, Appeal Book, Page 123 ff) a preliminary approval for material change of use to Urban Residential Development as well as a development permit for the reconfiguration above. The preliminary approval is sought under s 3.1.6 of the Integrated Planning Act 1997 (IPA), the intention being, as Mr Schomburgk put it, “that all future development applications will be regulated as if the land was within the Urban Residential Zone in the Goosepond Creek Precinct of the Mackay Frame Locality, and no overlays apply … the approvals sought include reference to a Concept Plan (Urban Residential Node – PMM Mackay Pty Ltd Plan 1019-08 dated May 2007)”. What is called the secondary application (lodged at the same time) covers the eastern part of the site which is proposed Lot 901 IDAS Form 1 in the Appeal Book for BD 460 of 2009 (p 108 ff); it seeks a preliminary approval for a material change of use from cane farm for “Medium Density Residential/Commercial Development”, also a preliminary approval for a material change of use overriding the planning scheme as allowed under s 3.1.6, the intention being that all “future development applications be regulated as if the land in the application were within the Higher Density Residential Zone in the Goosepond Creek Precinct of the Mackay Frame Locality and that no overlays apply. In this instance, the approvals sought refer to a Concept Plan (“Medium Density/Commercial Node” PMM Plan M 1019-09 dated May 2007). The concept plans are at pages 65-66 of his report.
The development applications contain the consent and signature of the owner of the site, Victor Peter Camilleri – at least in the BD 460 of 2009 application: Appeal Book 109. The appellant’s intention is that future development applications currently envisaged will not require impact assessment, but merely (at the highest) code assessment. Exclusion of the overlays will exclude application of the relevant overlay codes. A small part of the south-eastern corner of the site is within the Coastal Management and Biodiversity Overlay, the Landscape Character Overlay and the Acid Sulfate Soils Overlay. The whole of the site (relevant experts said 99 percent) is within the Good Quality Agricultural Land (GQAL) Overlay. Only this last Overlay has been important in the appeals. State authorities have accepted the 2006 Planning Scheme as appropriately reflecting State Planning Policy 1 of 1992 (Good Quality Agricultural Land) so that the appeals is concerned with Planning Scheme provisions rather than with the State Planning Policy. It may be a question whether, if the Overlay Code is excluded, applicability of the State Planning Policy potentially revives for some purposes. For present purposes, the relevant issue is whether an overriding need for the land to be used for urban residential purposes rather than preserved as GQAL can be shown by the appellant.
The first joint report of the planning experts (18 February 2010) identified the key issues in the appeals generally as being:-
(i) whether the proposal conflicts with Mackay City Council Planning Scheme provisions including:
· Strategic Framework
· Desired Environmental Outcomes (‘DEOs’)
· Mackay Frame Locality
· Overlay Codes (Good Quality Agricultural and Overlay Code);
(ii)whether the proposal is out-of-sequence development;
(iii)whether an overriding need for urban residential purposes exists;
(iv)good quality agricultural land (‘GQAL’);
(v)whether the site is suitable for urban development;
(vi)compatibility of the proposed development with surrounding land uses; and
(vii)whether sufficient grounds exist to justify the approval/s.
Strategic framework
The strategic framework in Division 2 of Part 1 Introduction in the Planning Scheme 1.3(2) provides that it “does not have a role in development assessment”; the Division reflects the DEOs, “summarizes” the scheme’s approach to achieving them and provides a “context for understanding” how “policy” in the scheme was determined. 1.4(2) outlines “spatial and functional relationships between elements of the City; in this way (as one would expect) emphasis is placed on providing high levels of service and amenity, convenience, ecological sustainability and the like. In particular:
“(f) Urban Areas
…
Urban development is ecologically sustainable through the use of land which is not constrained by noise, slope, or natural hazard risk. Attributes of ecologically sustainable development are sound catchment planning and water cycle management practices, efficient solar orientation and proximity to a centre, employment, major community facilities, and efficient public transport.
The preferred sequence for urban residential development is reflected in the scheme and comprises:
(i) ‘in sequence’ areas, representing the forecast urban residential land requirements for the City for the eight (8) year period from 2005 to 2013, is included in the Urban Residential zone, the Urban Expansion zone or the Higher Density Residential zone in the applicable Locality; and
(ii) ‘out of sequence’ areas, are any area that is included in a non-urban zone…
(g) Urban Expansion Areas
The expansion of the urban fabric of the City is orderly and sequential. The ‘Urban Expansion’ zone identifies a land bank. Land included in the Urban Expansion zone generally is physically suitable for urban development. Some areas of land in the Urban Expansion zone will need to be set aside for conservation, open space purposes, infrastructure and other purposes.
The preferred locations for urban expansion are identified at Bucasia, Glenella, Rural View, and limited areas at Ooralea and Walkerston.
Development of land included in the Urban Expansion zone during the life of the Planning Scheme will occur as ‘out of sequence’ development, requiring cost sharing arrangements between the Council and the proponent, and compliance with strict environmental and servicing conditions. An application for urban development of land in this zone will require impact assessment to provide certainty to residents in the area in relation to the type of development that is proposed.
…
(j)Rural Agriculture
Rural agricultural land for sustainable economic purposes has been identified and protected from incompatible land uses.
The preferred use of rural agricultural land is agricultural and ancillary rural activities. Other activities may be established on rural agricultural land only in accordance with the principles and requirements of State Planning Policy 1/92, taking into account the overriding need to maintain sufficient areas of agricultural land to ensure the viability of the sugar industry and the mills in the City.
Rural agricultural land and existing infrastructure supporting agricultural activities is protected from the adverse effects of encroaching or adjacent incompatible land uses. This is achieved by the provision of buffers or screens within farms and within nearby development sites by encouraging non-agricultural activities to be established in locations removed from rural agricultural land, and the effective management of non-agricultural activities to contain and minimise impacts on rural agricultural land. The subdivision of rural agricultural land and the expansion of Rural Residential development within rural areas is not consistent with the scheme’s outcomes.”
Page 1-1 of the scheme records its adoption on 15 March 2006, and taking effect on 24 March 2006, also the Minister’s identification of State Planning Policy (SPP) 1/92 as “appropriately reflected in the planning scheme”.
Other scheme provisions are more pertinent, in light of 1.3(2). The relevant ideas set out in the strategic framework feature prominently elsewhere in the Planning Scheme.
DEOs
The DEOs (“based on ecological sustainability”) are identified as the basis of Planning Scheme measures and “are to be read as a whole. Each … to be achieved to the extent practicable having regard to” the others. 3.1(3) sets out the relevant ones as follows:
“(c) Economic Development
(i) economic resources such as good quality agricultural land, forests, fisheries, extractive materials, water and land resources are protected from the adverse or limiting effects of proximate, incompatible activity for future ongoing use. Good quality agricultural land is made available for urban uses only with a demonstration of overriding community need
…
(xi) Rural Land
(A) is protected from incompatible land uses;
(B) is maintained in agricultural use, where possible, in order to ensure the viability of the sugar industry in the City …
(d) Amenity and Community Well-Being
Community identity is established through the following:
(i) a wide range of affordable and accessible housing is available which is suitable for the climate, meets the needs of the City’s population and is convenient to community facilities, employment and recreation opportunities.
(ii)convenient access is provided to a range of community facilities and services, including health care, education, shopping and business services …
(iii)the City’s population has a high level of mobility through an efficient and viable transport system ...
(v)a wide range of living and lifestyle options are available …
(e) Infrastructure and Urban Growth
(i)the pattern and rate of urban development meets, in a timely manner, the needs of the Mackay community with respect to housing, commercial services, industrial activities, recreation and cultural pursuits, and includes the efficient provision and use of urban infrastructure.
(ii)the sequence of urban growth within the City is based on achieving the most efficient and equitable use of land and making greatest use of the existing network of development, transport and community infrastructure.
(iii)new development in the City is directed and consolidated into areas presently serviced or areas able to be serviced efficiently and economically.
(iv)‘in sequence’ urban growth occurs in the following pattern:
(A)urban consolidation occurs within the existing urban areas, particularly in the McCready’s Creek, Goosepond Creek and Pioneer River (Urban) precincts of the City; and
(B)urban, rural residential and village development occurs in land zoned for urban residential, urban expansion, rural residential or village purposes to which infrastructure and community services can be provided efficiently and effectively.
(v)‘out of sequence’ urban growth occurs only where a need for additional land is demonstrated and the need is balanced against the cost of providing infrastructure, including community facilities and services, and the impacts on the environment. Any such growth must be ecologically sustainable and is limited to areas in the McCready’s Creek, Goosepond Creek and Pioneer River and Southern Streams precincts, which are most easily and economically serviced, providing that the interface with agricultural and other incompatible land uses can be managed appropriately and effectively and the landscape and heritage values of the City are not diminished.
(vi)in addition, urban growth is located to:
(A)reduce travel-to-work demands …
(viii)the interface between urban areas and other areas is managed to avoid land use conflicts and maintain a high level of amenity for the City.”
The site is in the Gooseponds Creek Precinct. The appeals raise the familiar issues where urban growth is proposed for productive rural land. The parties (supported by their expert planners) present contending arguments about the appropriateness of the site which is identified in the Planning Scheme within the Rural Zone and GQAL Overlay being turned over to urban development. In the exercise of balancing the DEOs there has been a strong tendency to consider whether achievement of DEOs is compromised by a development proposal by focussing broadly on the local Government’s area as a whole with a consequence that rejection of a particular development proposal on the basis of compromising achievement of DEOs rarely happens. There are more specific Planning Scheme provisions that have a closer focus on the site. It is in the Mackay Frame Locality, as opposed to other localities: Mackay City Centre, Mackay hinterland and off-shore islands. Like the other localities, it is divided into zones, numbering up to 13, as for this Locality:
(i) Commercial zone;
(ii) Higher Density Residential zone;
(iii) Urban Residential zone;
(iv) Rural Residential zone;
(v) Urban Expansion zone;
(vi) Rural zone;
(vii) Village zone;
(viii) Special Activities (Tourism) zone;
(ix) Industry (High Impact) zone;
(x) Industry (Low Impact) zone;
(xi) Sport and Recreation zone;
(xii) Public Purposes zone; and
(xiii) Open Space zone.
The site is in the Rural Zone.
Another principle of division has the Frame Locality divided into three precincts, Goosepond Creek, Pioneer River (Urban) and McCready’s Creek, the site being within the first mentioned.
Part 5 of the Planning Scheme deals with the Mackay Frame Locality in which Division 6 begins:
“(1) The overall outcomes for the Mackay Frame Locality Code are the purpose of the code.
(2) The overall outcomes for the Mackay Frame Locality are the following:
(a) urban development occurs on land included in an urban zone (e.g. Urban Residential, Urban Expansion, Commercial, Industry (Low Impact) and possibly Public Purposes if in an urban setting) in preference to land included in non-urban zones, and is serviced with the full range of development infrastructure in accordance with a priority infrastructure plan. The preferred sequence for urban residential development consists of:
(i) in sequence areas,[1] land included in the Urban Residential zone, Urban Expansion zone or Higher Density Residential zone; and
[1](The ‘in sequence’ areas represent the forecast urban residential land requirement for the City for the eight (8) year period from 2005 to 2013, being the expected operational life of the Planning Scheme).(ii) out of sequence areas,[2] land included in a non-urban
zone.[2](The ‘out of sequence’ areas are possibly required to respond to growth demands beyond the operational life of the Planning Scheme) land.
(b) out of sequence urban residential growth occurs only when:
(i) there is insufficient comparable land within the City to
meet the needs of the City’s population growth, based
on historical growth rates over the preceding five (5)
years and on forecast growth rates over the next five
(5) years(ii)the land is physically suited for urban residential purposes and can be serviced with development infrastructure economically and efficiently;
(iii)development of out of sequence land will not result in an unsustainable demand for development infrastructure, community facilities and services; and
(iv)development of the land will not diminish the amenity, biodiversity, habitat, landscape or heritage character values of the City.
…
(j) rural residential development only occurs on land located within the Rural Residential zone which includes areas at Farleigh, Habana and limited areas at Nindaroo and Walkerston.”
These provisions require consideration of the acceptability of out of sequence urban residential growth which the appellant says is justified because there is insufficient comparable land to meet the needs of population growth. There are several Codes for the Locality which have or will have general and specific relevance to development of the site, for example providing buffers adjacent to the railway. Division 13 (Outcomes and Probable & Acceptable Solutions for the Urban Expansion Zone) was referred to as an instance in the scheme of reference to a “Master Planned community” which envisages “a plan prepared in accordance with the Master Plan Planning Scheme Policy”. It is common ground in the appeals that conditions could be devised to achieve compliance with those codes to the extent appropriate. Independently, certain of the Overlay Codes apply. They are found in Part 8, which precedes the Development Codes in Part 9.
GQAL Overlay Code
Of greatest significance in these appeals is the following code and its Assessment Criteria (Division 14). Division 14 provides Assessment criteria for the GQAL Overlay Code:
“8.46 Good Quality Agricultural Land Overlay Code
(1) The provisions in this division comprise the code as follows:
(a) Compliance with Good Quality Agricultural Land Overlay Code (Section 8.47).
(b) Overall outcomes for Good Quality Agricultural Land Overlay Code (Section 8.48).
(c) Effects of development on Good Quality Agricultural Land Overlay Code (Section 8.50).
(2) The provisions in this division apply to the whole of the local government area for the City of Mackay and is not confined to those areas featured as GQAL on the Overlay map:
(a) good quality agricultural land is conserved for continued agricultural use;
(b) good quality agricultural land is protected from reconfiguration which fragments otherwise productive rural land;
(c) reconfiguration of lots in the Rural Zone facilitates viable and sustainable rural land use pursuant to State Planning Policy No 1/92, and
(d) Agricultural uses are protected from encroachment by incompatible uses.
8.47 Compliance with Good Quality Agricultural Land Overlay Code
(1) Compliance with the Good Quality Agricultural Land Overlay Code is achieved when assessable development is consistent with the specific outcomes in Section 8.52.
(2) Compliance with the Good Quality Agricultural Land Overlay Code is achieved when self-assessable development is consistent with the acceptable solutions in Section 8.52.
8.48 Overall outcomes for Good Quality Agricultural Land Overlay Code
(1) The overall outcomes are the purpose of the Good Quality Agricultural Land Overlay Code.
(2) The overall outcomes sought for the Good Quality Agricultural Land Overlay Code are to ensure:
(a) good quality agricultural land is conserved for continued agricultural use;
(b) good quality agricultural land is protected from reconfiguration which fragments otherwise productive rural land;
(c) reconfiguration of lots in the Rural Zone facilitates viable and sustainable rural land use pursuant to State Planning Policy No 1/92 and
(d) Agricultural uses are protected from encroachments by incompatible uses.
8.49 Definitions
“Good Quality Agricultural Land” (GQAL) is the area indicated on the Good Quality Agricultural Land Overlay Map as being Good Quality Agricultural Land.
8.50 Effects of Development on Good Quality Agricultural Land
(1) The specific outcomes and probable and acceptable solutions are as follows:
| Specific Outcomes | Acceptable / Probable Solutions |
| Assessable Development | |
| P1 Where the development is on land as shown on the Good Quality Agricultural Land Overlay Map as GQAL and involves the establishment of resident uses or any uses having a residential component: (i) the amenity of residential uses are protected; and | S1 The residential activity areas on the site are separated from the nearby agricultural land as follows: (i) where in proximity to canelands or other horticultural activity: |
| P2 Where it is proposed to establish a residential use or any use having a residential component within those buffer distances shown in S1 above, then the premises incorporates mitigation measures to ensure that: (i) the amenity of residential uses are protected; and | S2 No solution specified. |
| P3 Development on land as shown on the Good Quality Agricultural Land Overlay Map as GQAL does not result in land taken out of agricultural use unless: (i) an overriding community need for the development is demonstrated; and | S3 No solution specified. |
| P4 Reconfiguring a lot on good quality agricultural land occurs only where new lots do not adversely affect the potential to sustain agriculture or the continued use of the land as an agricultural resource by: (i) not limiting the range of crops able to be grown on any of the lots created; or | S4 No solution specified. |
| P5 Where the reconfiguring of a lot is for residential purposes on land adjacent to good quality agricultural land, the lot size and layout accommodates a buffer area such that: (i) the potential to sustain agriculture on the adjoining land is maintained; and | S5 All residential lots abutting good quality agricultural land have the following minimum dimensions: (i) where immediately abutting canelands or other horticultural activity; |
| P6 Where reconfiguring a lot in the Rural zone involves boundary realignments and the primary use of the lot is residential: (i) the lot does not include good quality agricultural land; and | S6 No solution specified. |
| P7 Where the lots are identified for sugar cane production the lots are shaped to facilitate production. | S7 No solution specified. |
| P8 Where development likely to result in the establishment of new activities / uses is proposed within 300 m of land identified on the Good Quality Agricultural Land Overlay Map as GQAL and is used for agriculture, a buffer to the GQAL is included on the subject site. Note: The buffer does not contain GQAL. | S8 No solution specified. |
(footnotes omitted from table)”
Council’s future planning
The Council’s stance in the appeals has been that the site ought to be retained as good quality agricultural land. That stance is at variance with other futures contemplated for the site by the Council. A Regional Precinct Study published in December 2008 (exhibit “FG” 2, Tab 3) produced in a joint exercise with the Department of Infrastructure and Planning to determine a preferred site for a facility for holding major events in Mackay heavily favoured the site over “rivals” in respect of access, water and sewerage services, surrounding land use/amenity issues and loss of GQAL. The site continued to be favoured in a further confidential report published in April 2009 (exhibit “FG” 2, Tab 4: see [91]-[95] of the applicant’s written submissions). Loss of GQAL was seen as supportable given the need for such a facility and the site’s superiority over others in relevant aspects. As paragraph 271 of the appellant’s written submissions puts it, “the Council did not fret at the thought of giving the land over to an urban purpose”. That proposal is no longer being pursued.
Earlier, in December 2007, the Council prepared a draft Priority Infrastructure Plan (PIP). The Area dealt with was identified in Map 3.3. The documents in evidence before the court, like those for the regional events precinct proposal and for exercises that may lead to new Local Area Plans for Ooralea south of the Pioneer River and Richmond in the north were made available under “Fielder Gillespie” orders to protect confidentiality, so that the court ought to be careful how much it reveals about them. It is willing to accept the appellant’s summary that the text and Map 3.3 read together identified future areas to be set aside for additional residential land supply of some 950 ha, that the site was included in Urban Expansion Area 1, Glenella, with a “future predominant land use identified for that locality including residential development.” (Commercial and community purposes are also included.) Although it is said that the draft PIP expressly recognised that the Planning Scheme would need to be amended to include the PIP, what the document asserts is that the Scheme “will be amended” in accordance with IPA processes. The document has never been publicly available nor has an amended version of September 2008. PIA (Priority Infrastructure Area) Map 1 dated 30 September 2008 identifies the site as a New Growth Area within the PIA Area, and specifically as “Glenella (Industry, Low Impact zone)”; other New Growth Areas are designated Future Urban or Industry, High Impact. The zoning contemplated for the site is consistent with that on the other side of Glenella Road and with that on the other side of Sugarshed Road opposite a short section of the site’s northern frontage. The amended draft PIP in s 2.4.4 does acknowledge that the new growth areas are not supported by the current Planning Scheme, rezoning requiring Planning Scheme amendments. “Future Urban” would, indeed, be a new zone requiring its own Code. Amendment of the Industry Code and Industry (Low Impact) Zone Code was expressly envisaged.
The New Growth Areas have gone from the mapping as at 5 February 2010 (exhibit “FG” 5 – exhibit “FG” 4 was its predecessor). The reason for this is not definitively revealed; however, it seems to lie in a view taken in the State Department, which enjoys a lot of control in these respects, that PIPs ought not to be used to effect or indicate changes in land use planning which are more appropriately achieved by amendments to planning schemes proper.
The evidence does not show that the Council is proceeding with the vision it held for the site’s future in September 2008. It does show that its vision for the Future Urban Zone at Ooralea (indeed, an expanded one bringing in more land to the north and to the south) is being pursued with a schedule in mind that could lead to rezoning of quite vast residential areas next year. It is also shown by the evidence that the Council is at least an active and willing participant in moves that may lead to a Future Urban Zone in Richmond. In Richmond, it appears that the driving forces are local owners and developers. There is no need for the court to place any weight on prospects of additional residential land becoming available at Richmond, given the extent of Future Urban Land in prospect at Ooralea, and the circumstance that progress towards amendment of the Planning Scheme to achieve rezoning at Ooralea is further advanced. The evidence was that a draft Local Area Plan (LAP) would be on public display, inviting comments, by the time of writing. This will leave matters still short of commencement of the IPA of SPA processes for amending the planning scheme.
As it happens, all of the new growth areas contemplated (and indeed any urban expansion in Mackay) will be at the expense of GQAL. It is easy to understand the criticism levelled at the Council in view of its preparedness to see the site withdrawn from the dwindling stock of GQAL, but its argument is legitimate, in my view. The draft LAP for Ooralea emerges from an “enquiry by design” workshop held over a couple of days in August 2008. The confidential summary report at pp 8-9 creates uncertainty as to whether it was 12 and 13 August or 13 and 14 August. An impressive list of stakeholders participated in the “EBD”. An “EBD” appears to be the modern version of a Charrette of the kind that provided the context for McNeill v Gold Coast City Council [2002] QDC 029 and that received some recognition in planning documents referred to in Australian Retirement Homes Ltd v Pine Rivers Shire Council [2008] QPELR 101 at [53]. The August 2008 event considered urban growth in Mackay generally. A more focussed Ooralea local area plan EBD took place on 5, 6 and 7 May 2010. The document the court has is a “Draft only” summary report replete with statements calculated to ensure that no one is bound by anything. The draft summary report prepared by consultants emphasises that the information presented “does not necessarily represent the views of Mackay Regional Council”.
By now, there will have gone on public display for public comment draft proposals for Ooralea. One cannot know what opinions members of the public will express, even those members of the public who participated in the EBD process. One cannot know what proposals the Council will transmit for State consideration or what the reaction will be. The probabilities are that a proposal incorporating large areas of new residential land will go forward at Ooralea, given the general demand (for house sites in particular) and the desirability of addressing the historical imbalance which has led to new residential land being opened up overwhelmingly in areas north of the central city.
Difficulties in the way of realisation of whatever planning vision may be settled on should not be understated. Ooralea is traversed by high voltage overhead power lines which it seems will have to go underground, at considerable expense, and by cane tramways which (for the most part at least) will have to be removed. Otherwise development of the area will be significantly constrained. The sugar mill operators and others may oppose the loss of GQAL in vast tracts, certainly large when compared with the appellant’s site. Other issues that will have to be faced (from a list of 16 in a report of the Council’s Strategic Planner supporting the Council’s resolution of 9 September 2009 to commence master planning for Ooralea) include those of infrastructure provision, and impact on and of Queensland Rail’s substantial infrastructure in the area and of the nearby airport.
On the other hand, realisation of an urban/residential future for Ooralea is to an extent being achieved by planning decisions already made by the Council permitting large residential developments within Ooralea.
Whether the appellant ought to be frustrated by reference to planning proposals which have advanced hardly any distance, and still await clear formulation, has been a topic much canvassed in the appeals. The appellant urged the court not to accept the invitation ascribed to the Council “to accept the status quo until its planning catches up” and referred to SEQ Properties Pty Ltd v Maroochy Shire Council [1999] QPELR 36 at 52. Mr Shomburgk, the planner engaged by the Council, presented a point of view that the appellant’s success would prejudice, and severely so, “not only the existing capital funds scheme strategy, but also Council’s proper and timely evaluation of future urban development options across the local government area”. The appellant says there is nothing sufficiently far advanced or definite to be recognised as “future planning”. It was submitted that at least a draft planning instrument was required by reference to the “Coty” cases. As Fitzgerald P said in Yu Feng Pty Ltd v Maroochy Shire Council [2000] 1 Qd R 306 at 328, Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117 “establishes no more than that, when determining whether to approve or refuse a planning application, it is permissible, in appropriate cases, to take account of any provisions affecting the site which are included in a general planning scheme which is in the course of preparation; the weight to be accorded to either consistency or inconsistency between the draft planning scheme and the application will depend on the circumstances, including the stage to which the draft planning scheme has progressed, and usually will be only one of the factors to be considered, although in a particular case it might be decisive.” I think that Mr Gibson QC and Mr Williamson are correct in their submission that the Coty principle has no application here because:
·There is no draft planning scheme (or part thereof) with provisions said to affect the site;
·There is no draft planning scheme in the course of preparation; and
·There is no inconsistency between the proposal and what may potentially occur at Ooralea or Richmond.
Whether there is a restriction to draft plans the subject of a resolution that they be publicly exhibited, if not actually put on exhibition (said to be established by Good-mix Concrete Pty Ltd v Brisbane City Council (No 3) (1975) 31 LGRA 178), is unclear. The appellant referred to Fogg, Land Development Law in Queensland at 165:
“In Ray Donaldson (Holdings) Pty Ltd v Mt Isa City Council [1976] QPLR 109, the authority had undertaken a revision of the existing scheme, and had prepared a proposed new scheme and sent it to the Director of Local Government for preliminary consideration. It had not been exhibited to the public by the date of the appeal hearing. As Byth DCJ said, at this preliminary stage the proposed new scheme, while it is a relevant matter to be considered on an appeal, “does not carry anything like the weight which it would carry if it had been considered b the public, objections to it lodged and considered and the scheme then sent to the Minister.[3]
Clearly, the further advanced a scheme is in the statutory process the more cogent are arguments based upon the non-derogation principle. The cut-off point for the application of a presumption in favour of draft proposals would seem to be the exhibition stage, but this is not an absolute test. Although not specifically cited in the judgment, it would seem that the principle was applied in Schedny v Gladstone Town Council[4] where the scheme was about to be placed on public exhibition. The court held that it would be an inappropriate time to order an application for rezoning unless the circumstances were exceptional. On the other hand, where proposals for change are merely nascent, such as recommendations by planning consultants yet to be adopted, they are simply one among potentially numerous material considerations in an appeal.”[5]
[3][1976] QPLR 109 at 111.
[4][1973] 4 QPLR 32; (1973) 28 LGRA 322.
[5]Robe v Calliope Shire Council (1974) 30 LGRA 1. But compare Peter Rommel and Associates Pty Ltd v North Sydney Municipal Council (1971) 23 LGRA 99.
In Peter Rommel & Associates Pty Ltd v North Sydney Municipal Council (1971) 23 LGRA 99 (referred to in Fogg) one reads at 106 in relation to the Council’s engagement of a planning consultant:
“…the agreement was tendered in evidence and it showed that the consideration payable is substantial; a great deal of statistical and investigatory work was proved to have already been done in pursuance of the agreement and Mr Byrnes expressed the view that the consultants will be able to comply with the requirements by providing a master development control plan by the agreed date.
In these circumstances it was contended that, by analogy to the principle of Coty (England) Pty Ltd v. Sydney City Council (9), the Court should avoid as far as possible, giving a judgment or establishing any principle which would render more difficult the ultimate decision as to the form of any amending scheme which the council might decide to make to give effect to such of the consultants’ recommendations as it may adopt. Mr O’Keefe pointed to many distinctions in the application of this principle and, inter alia, emphasized that whilst the remaining observations of Hardie J. in Coty’s case commended the Court to give interim decisions in accordance with the local scheme, that principle in the present circumstances would require that the existing planning scheme and flat code should be applied and development consent granted.
This question has troubled me considerably and, whether Coty’s case is precisely analogous or not. I am impressed with the fact that if the Court were to allow the appeals and grant the consent sought the inevitable result would be to alter the whole character of the locality and to brand it irrevocably with the mark of a high density or mixed high density and residential flat precinct. There could never be any retreat from that consequence. Restoration of the status quo would be impossible. As I said in the course of Mr O’Keefe’s earnest argument, I doubt if it is the function of the Court to implement such a change. Even if only one of the proposed developments were approved this result would probably ensue though the change could not be so immediate nor so dramatic, but inevitably pressures would develop for the extension in other directions of the limits of high density development which it would be impossible or impracticable for the council to resist cf. Humby v. Woollahra Municipal Council (10). It has been frequently pointed out that this Court is not a planning body although it is equipped by considerable experience, by a close study of planning decisions and problems, and by the investigation of applications which are undertaken by experts who give evidence before it, to resolve doubts and conflicts which such evidence reveals between the claims of developers and landowners on the one hand and those of responsible authorities and objectors on the other. Consistently with this conception of function, and by some – even if not precise – analogy to the principle of Coty’s case, it appears to me proper that the Court should avoid giving any decision which would make more difficult the task of the consultants or that of the council as the body entrusted with planning decisions for this part of the municipality. This can be done, I think, only by rejecting all the applications or deferring them until the consultants’ development control plan has been prepared and dealt with by the council. Since Mr O’Keefe did not press for their deferment, they must be dismissed.”
The appellant’s written submissions at [255] ff recognise a second category of cases in which this court has had to consider whether to approve a development proposal which might be inconsistent with a possible future road or railway. There is no proposal of that kind here, but the decisions are said to “helpfully illustrate” that the circumstances determine what weight should be attributed to the future proposal which (it was submitted) ought to be nil for a proposal lacking certainty. Reference is made to Australian Retirement Homes and the authorities reviewed at [39]-[51] including Laver v Council of the Shire of Albert [1997] QPELR 94. Interestingly, Mr Skoien relied on [56]-[57] in relation to the impact of a proposed East Petrie By-Pass (EPBP) on the site and the conclusion at [67] ff that the developer was not permitted to rely on the Council’s advancing an “uncertain” connection at Dohle’s Rocks Road to submit that the previously proposed connection at Anzac Avenue in the vicinity of Yebri Street had now become uncertain and could be disregarded. Other road/rail cases are Ridgehaven Retirement Village Pty Ltd v Caloundra City Council [2004] QPELR 439 at [36]-[37] in relation to the weight to be given to the Caboolture/Maroochydore Corridor Study (CAMCOS) where a CAMCOS Corridor was acknowledged in a Draft Caloundra City Plan, although not referred to in any gazetted planning scheme and Northern Beaches Developments Pty Ltd v Mackay City Council [1999] QPELR 389. In Hammercall Pty Ltd v Council of the City of Gold Coast & Ors [2002] QPELR 397 at 400 in relation to a condition proposed by the appellant developer that operation of the approval sought by it be suspended for three years, which might see something happen in respect of a proposed Robina to Coolangatta rail extension, the Court said:
“In reality what the Court would be saying to the relevant authorities is:
‘If you don’t acquire this land within three years you are going to be faced with a situation where it has gone into subdivision with all the practical difficulties to which that would give rise’.
[16] In my view what the Court should do in a case of this kind is to assess, on the evidence given, the probabilities of what will occur in respect of the subject land and decide how that should be taken into account in dealing with the application before it. On the evidence given in this appeal, and particularly having regard to the volume of work that has been done and its planning (and public money expended in that respect) it would, in my opinion, be irresponsible to find that the rail extension is anything other than a probability.
[17] Section 5.1(3) of the repealed Act (which must be considered pursuant to s 6.1.30(3) of the Integrated Planning Act) provides that where an application to subdivide land is being examined, there [are] a number of matters which must be considered. Among those matters is:‘(u) Such other matters, having regard to the nature of the application, as are relevant’.
If it is in the community’s interests that part of the land be used for public purposes, (subject of course to legislative provisions governing its acquisition) whether it should be further developed in a manner which would add difficulties to its acquisition is a consideration relevant to a case of this kind. If it is necessary, this proposition is reinforced by the provisions of s 148 of the Transport Infrastructure Act but I emphasise that my decision in this appeal does not rely upon that provision.
[18] I was referred to a number of decided cases where this Court has had to deal with a situation of this kind in the past where there has been a prospect of a requirement of at least part of the subject land for public purposes. It is noted that, in these cases, the applicant was generally found to be in a stronger position where the zoning is in favour of the application rather than when a rezoning was required. However I do not believe that these decisions establish any principle that where the land’s zoning favours an application to subdivide, the prospect of its being used for public purposes must be discounted. Every case depends on its own facts and a more important consideration is the weight of the evidence indicating that a public project is likely to proceed and the extent to which it will affect the subject land.
[19] In this appeal the evidence that the rail extension will proceed is strong as it is in respect of the manner in which the subject land will be affected. I am satisfied that it is a case where the public interest outweighs that of the Appellant. For these reasons I find that the onus of showing that the application is one that should be approved has not been discharged and the appeal will accordingly be dismissed.”
The provision referred to in paragraph [17] in the passage quoted above does not apply in these appeals. However, the appellant’s development applications are impact assessable, that is, not in the favoured category of code assessable applications which “must” be approved if in compliance with applicable codes: s 3.5.13(2) of IPA. For impact assessable proposals, there is no corresponding requirement to approve when the assessment manager decides under s 3.5.11(1) whether to approve in whole or in part, or with conditions, or to refuse. On the contrary, s 3.5.14, by forbidding decisions having the consequences described, effectively mandates refusal in those cases. What the assessment manager must have regard to is listed in s 3.5.5 and s 3.5.5A, commencing in each case with the “common material”. What impacts the court may consider is not the subject of any constraint. One would imagine that there is a common sense restriction to impacts that are reasonably direct.
A Coty-like approach has been taken by reference to the planning future of land other than the site the subject of a development application whose fate is to be determined in the court. Brisbane Wharves & Wool Dumping Pty Ltd, Conaust Ltd & P&O Australia Ltd v Brisbane City Council and Bretts Wharves and Stevedoring Pty Ltd [1994] QPLR 1 is the case principally relied on by Mr Skoien. It concerned a successful proposal for a medium density residential development with some commercial use and residential buildings ranging from two to seven and ten storeys on the Bretts Wharf site of 23,650 square metres on the Brisbane River at Hamilton. The appellant objected to the proposal, fearful of the impact on its own established wharf operations nearby. Judge Quirk, who dismissed the appeal said at pp 2-3:
“…the Port of Brisbane Authority… strategy has in mind that
‘Relocation of the Port’s facilities at Hamilton should be completed by the year 2005…It was argued that the Court was concerned with the determination of what was essentially a planning matter and the express strategies of the Port of Brisbane Authority have never been adopted by the Brisbane City Council and have not been exhibited for objection and public comment as would be required in the case of comparable instruments of the Planning Authority.
… this evidence should not be used as a basis for any conclusion that the Appellants’ activities on this land will cease at any particular time. The evidence indicates a right on the part of the Appellants to occupy the land for approximately another twenty-five years … .
… the attitude of the planning authority … over a number of years, has contemplated in what appears to have been a positive way, redevelopment of this area of the city. The preparation of a “Hamilton Wharves Development Plan” was commenced and although such a plan has not achieved the status of a formal planning document, this together with favourable responses to requests for consideration in principle to redevelopment of the area and the decision to approve this application makes it clear that the planning authority sees the future development of this part of the Hamilton reach being for other than waterfront activity and the introduction of residential development into the area as a probability.
…
The mater which appears to me to be important to the determination of the appeal is whether or not the proposal would probably lead to the Appellants being inhibited in the lawful use of its land in accordance with its zoning. There was some talk of a “reverse impact” situation existing here…”
His Honour’s conclusion was that the appellant’s operations would not be unacceptably affected by the developer’s proposal. It appears that the Brisbane City Council was anticipating a future of residential development in much the same way as the respondent here has been doing in Ooralea.
A case in similar vein (an unsuccessful appeal against Council refusal of a 56 lot residential estate at Wynnum north (within the area of a draft Wynnum/Manly Local Plan)) is Edgarange Pty Ltd v Brisbane City Council [2002] QPELR 183. There were industrial areas some distance north and west of the site. Brabazon QC DCJ said at 186:
“[17] Because of their significance in this appeal, some of the industrial uses need to be mentioned in greater detail. The Caltex oil refinery lies to the north-west of the subject land. It is Crown land. Caltex has exercised an option to remain on the land until 2015.
[18] The industrial lands to the north and west of the subject land is called the Brisbane Gateway Ports Area, or the Australia Trade Coast. It is an area chosen by all levels of government to be the key industrial area for south east Queensland. 1995 saw the Commonwealth, State and local governments (including the Brisbane City Council), enter into a memorandum of agreement contained in the Regional Framework for Growth Management in South East Queensland. That strategy says in part:
“Major industrial areas will be located … at the Gateway Ports Area. These industrial areas will require protection, additional infrastructure and promotion in order to achieve their full potential … areas considered important for the future location of industry and services for the region, or the State, should be identified and protected in order to ensure their most appropriate future use … develop and maintain the major existing and industrial areas for the region at the Brisbane River North and South, including the Gateway Ports … ensures the protection of these major industrial areas through planning schemes and, where appropriate, the designation of high capacity transport corridors to serve them.” (at pp 19, 60 and 61).
[19] The Queensland Government has issued the Brisbane Gateway Ports Area Strategy. An intent is to “optimise development of the Brisbane Gateway Ports Area as a generator of economic growth and as a world class transport hub, while balancing the economic, environmental and social impact of the development” (Exhibit 20, p.1). That document recognises the need to separate residential communities from industrial development (p.9). There are significant strategic sites within the industrial areas north of the subject land. The most significant is the Caltex Refinery, referred to above. There is also a major chemicals precinct, not yet developed. There are plans for a transport depot for chemical storage at Whyte Island, about two kilometres to the north of this land. That has been identified as industry which requires separation from residential development. In that respect, see the Land Use Strategy of the Port of Brisbane Corporation (Exhibit 21). The Assessment Manager is not the Council but rather the CEO of that corporation. Other land to the north and west of the site is also “strategic port land”.
There is, as yet, no clear jurisprudence about how this arguable conflict between the Court’s established role and its particular task under this section is to be resolved but the probable answer, as suggested above, is that the acceptability of the development under the planning scheme (without variations) is the primary focus for the decision maker, and that s 242 should not be used to rewrite planning strategy in any substantial way. That may be able to be done at the initiation of a developer under Chapter 4 using the master planning process, and otherwise should remain a matter for the Council as planning authority under Chapter 3.”
In the present context, it would not seem to matter whether the focus is on s 3.5.5 and s 3.5.14 or s 3.5.5A and 3.5.14A. The important considerations relate to community need for more residential land as proposed and whether the proposal is necessary and apt to contribute to supplying that need.”
Conclusion
To the extent that the appellant has established need for more residential land in Mackay (which it has not shown for medium density), that need is not of such an order for the relevant five year time frame as to justify out of sequence development (which is not otherwise justified in any event), nor such as to override the need for good quality agricultural land (which the site is) to be preserved. In making that judgment, reference has been made to the availability currently of comparable land in Mackay or “alternative sites” as in P3. The case for rejection of the appeals is strengthened by (but does not depend on) the probability that the processes underway for Ooralea will add substantially to the stock of residential land in Mackay. Need considerations do not overcome the identified conflicts with the planning scheme. The appeals should be dismissed.
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