Greenhill Developments Partnership v Isaac Regional Council

[2010] QPEC 93

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Greenhill Developments Partnership v Isaac Regional Council & Ors [2010] QPEC 93

PARTIES:

GREENHILL DEVELOPMENTS PARTNERSHIP
(Appellants)

AND

ISAAC REGIONAL COUNCIL
(Respondent)

AND

CHIEF EXECUTIVE DEPARTMENT OF TRANSPORT AND MAIN ROADS
(First Co-Respondent By Election)

AND

CHIEF EXECUTIVE DEPARTMENT OF ENVIRONMENT AND RESOURCE MANAGEMENT
(Second Co-Respondent By Election)

FILE NO/S:

57/2009

DIVISION:

Planning and Environment

PROCEEDING:

Hearing of an appeal

ORIGINATING COURT:

Planning and Environment Court of Queensland, Brisbane

DELIVERED ON:

21 September 2010

DELIVERED AT:

Brisbane

HEARING DATE:

18 and 19 August 2010

JUDGE:

R Jones DCJ

ORDER:

Appeal dismissed.

CATCHWORDS:

PLANNING LAW – Proposed Residential Subdivision at Coastal Village South of Mackay – refusal by council – conflicts with town plan – need – inconsistent land use – out of sequence development

Integrated Planning Act 1997

Cases considered or referred to:

Aria Property Group Ltd v Maroochy Shire Council [2008] QCA 169

Arpedco Pty Ltd v Beaudesert Shire Council (1980) Qd R 88

Brown v Brisbane City Council [2005] QPEC 26, (2005) QPELR

Grosser & Ors v Council of the City of Gold Coast [2001] QCA 423

Isgro v Gold City Council [2003] QPEC 002 (2003) QPELR 414 at 418

Maher v Hervey Bay City Council (2008) QPEC 123

Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1979) 145 CLR 485

Tadpoles Early Learning centre v Noosa Shire Council [2008] QPEC 9, (2008) QPELR 487.

Watts & Hughes Properties Pty Ltd v Brisbane City Council (1998) QPELR 273

Westfield Management Ltd v Pine Rivers Shire Council [2004] QPEC 14; (2004) QPELR 337

COUNSEL:

Mr J. Haydon of Counsel for the appellant

Mr S. Ure of Counsel for the respondent

No appearance for co-respondents

SOLICITORS:

Macrossan Amiet Lawyers for the appellant

King & Co Solicitors for the respondent

The co-respondents were not represented

1. This is an appeal against the decision of the respondent to refuse an amended development application lodged by the appellant.  The first and second co‑respondents by election have been excused from this part of the appeal.  As the relevant application was made during the currency of the Integrated Planning Act 1997 (IPA) and the appeal was commenced during the currency of that Act, pursuant to the transitional provisions of the Sustainable Planning Act 2009 (SPA), the appeal is to proceed as though the SPA had not commenced.  Pursuant to s 4.1.50(1) of IPA, the appellant carries the onus of establishing that the appeal should be upheld.

Background

1. The subject land, described as Lot 101 on Survey Plan 126375, occupies an area of about 65 hectares and is approximately a one and a quarter hour drive south of Mackay. It abuts on its southern boundary a coastal village located within a part of the respondent’s local government area known as Greenhill.  At all relevant times the land was subject to the town-planning scheme for the Broadsound Shire Council (the Scheme), notwithstanding that that council has since been amalgamated into and forms part of the Isaac Regional Council.

1. Under the Scheme the preferred use of the subject land is rural.[1]  Pursuant to s 4.4 of the Scheme, a number of uses are said to be “consistent” uses in the rural preferred use area.  Broadly speaking, the consistant uses identified include primary and secondary industry and public utility uses.  In s 4.4(2) of the Scheme, it is said that uses other than those identified as being consistent uses are inconsistent uses.

   [1]Exhibit 11 – Use Area Map 19.

1. On 7 June 2007 the appellant lodged a development application with the respondent seeking approval for a material change of use and reconfiguration of a lot over the south-eastern corner of the subject land.  By reference to the report accompanying the application,[2] the proposal was said to be for stage 1 of a larger residential subdivision with approximately 65 residential lots being planned.  Stage 1 was to comprise of 14 residential lots and a balance area.

   [2]Exhibit 6 – Tab 2 at page 3.

1. On 20 July 2007 an amended development application was lodged to include an application for the preliminary approval of a residential development and a caravan park.[3]  For reasons it is not necessary to go into, this appeal was initially only concerned with the application for a material change of use of the land and the reconfiguration of the subject land into 15 lots:  fourteen residential lots plus a balance area.  Pursuant to orders made by Judge Rackemann on 9 June 2010 the particulars of the proposal are now:

“12 lots with a balance area and 12 houses … (with development permits for reconfiguration for the lots and material change of use for the houses).”[4]

The two elements of the application as it now stands are code assessable under the Scheme.

[3]Exhibit 6 – Tab 4.

[4]Exhibit 5 at p 7.

1. The areas of the proposed residential lots range from 1000 m2 to 1315 m2 and would lie on the western side of Seaview Drive.  Seaview Drive runs in a north-north-westerly direction generally parallel to the Esplanade.[5]  It is presently not sealed but is trafficable.

   [5]See Exhibit 16.

Issues in the appeal

1. In the decision notice[6] issued by the respondent dated 1 June 2009, the reasons for refusal were:

   [6]Exhibit 5 at p 17.

1.          The proposal is an inconsistent use in rural preferred use area.

2.          The proposal conflicts with and/or compromises the achievement of desired environmental outcomes 2.1(e), (h), (j), (k), (n), and (p) of the Broadsound Planning Scheme.

3.          The proposal conflicts with various overall and numerous specific outcomes of the Broadsound Development Code.

4.          The proposal constitutes “out of sequence” development and no satisfactory arrangements have been proposed to address essential infrastructure servicing requirements.

5.          There has been no overriding need demonstrated by the applicant of the proposed residential development in the rural preferred use area to warrant the approval of this proposal.

1. Following particularisation of the disputed issues in the appeal and the meetings of the relevant experts, the real issues in the appeal were identified as:[7]

   [7]Report of Mr Perkins (Exhibit 13) and at T2-24.

(i)        concerns about satisfactory water supply and effluent disposal;

(ii)         the proposal is in conflict with the Scheme and, in particular:

(a)       the rural preferred land use designation;[8]

[8]Exhibit 11, s 4.4, p 26.

(b)       the proposal is inconsistent with s 4.12 of the Scheme concerning “community needs” and/ or would compromise Desired Environmental Outcome (DEO) 2.1(j).[9]

(iii)      the proposal would otherwise be an out of sequence/ piecemeal proposal;

(iv)      there is no town planning ground, including need, which would justify the proposal notwithstanding the conflict of the plan.

[9]Ibid at p 39 and p 8.

1. On behalf of the appellant, it is submitted that when read in context, the Scheme is a performance-based planning document and, as the proposal is neither expressly nor by necessary implication prohibited under the Scheme, there is in fact no genuine conflict.  In this regard, town planning documents must be construed as a whole and in a broad, practical and common sense way that best achieves the apparent purposes and objectives of the Scheme.[10]

   [10]Westfield Management Ltd v Pine Rivers Shire Council (2004) QPELR 337 at 342; Arpedco Pty Ltd v Beaudesert Shire Council (1980) Qd R 88 at 94; Maher v Hervey Bay City Council (2008) QPEC 123 at para [20].

1. An alternative argument was advanced to the effect that if any conflict did exist, it was of a minor character and there were sound town planning reasons for approving the proposal.  In this context particular emphasis was placed on the fact that the land was suitable for residential development and was a logical extension to the existing village at Greenhill.  It was also submitted that there were good indication of community demand.  It was emphasised that having regard to the location and character of the existing village, it would be wrong to place too much emphasis on the requirement for the availability of the usually expected town services and amenities.

Water supply and effluent disposal

1. There would be no justification for refusing the proposal on the basis of there being concerns about water supply and/or effluent disposal.  The relevant experts[11] agreed that appropriate conditions could be imposed by the respondent to deal with, among other things, these issues.  However, it was noted that while onsite treatment and disposal would be acceptable for the subdivision as proposed, it would be unlikely that that system would be acceptable if the whole of the subject land were to be developed for residential purposes.  That of course is not the proposal before the court.

   [11]Mr Sutherland, Dr Johnson and Mr Xavier:  Exhibit 2.

Section 4.4 of the Scheme

1. Section 4.4 of the Scheme is concerned with consistent and inconsistent uses within preferred use areas.  A “preferred use area” is defined to mean “… the primary layer for organising the provisions of the planning scheme based on land use allocations such that all parts of the planning scheme area are included in a preferred use area”.[12]

   [12]Exhibit 11, p.55.

1. As identified above, the subject land lies within an area designated as rural preferred use.  The proposal would be an inconsistent use within that preferred use area.

1. Broadly speaking, the intent of the Scheme is to encourage “consistent” uses within the rural area.  That is an identified specific outcome under s 4.4 of the Scheme.  In s 1.16 of the Scheme dealing with specific outcomes for all codes, it is stated:

“(1)Specific outcomes are statements of desired outcomes that contribute to the achievement of the overall outcomes of a code.  Development that is consistent with the specific outcomes in s 4.4 to 4.17 complies with the Broadsound Development Code.

(2)Specific outcomes focus on specific effects or consequences from development, such as particular effects from use, works or reconfiguration. …

(3)The assessment manager’s decision may conflict with an applicable code if there are sufficient grounds to justify the decision, having regard to the purpose of the code (see IPA s 3.5.13).”

1. Among other things, the intention to limit residential development within the rural area is to ensure as far as practicable that de facto urban communities are not created in circumstances where there would be inefficient use of infrastructure and/or the communities would be remote from social and community infrastructure, amenities and employment opportunities.[13]

   [13]Exhibit 11 Overall Outcome 4.3(2)(q).

1. While it is acknowledged that the proposal is located immediately to the north of the Greenhill Village, it nonetheless would be in conflict with that readily identified intention of the Scheme.  It is well recognised that this court is not the planning authority and its function is not to substitute planning strategies which it might find more appealing on the evidence before it, for those of the relevant planning authority.  In Grosser v Council of the City of Gold Coast[14] White J (with Thomas and Williams JJA agreeing) said:

   [14](2001) QCA 423 at para [38].

“The proper approach of the Planning and Environment Court and of its predecessor, the Local Government Court, to matters of planning policy has long been recognised as one of restraint.  Most recently this court affirmed the desirability of a self-limiting approach, at least when considering town planning matters ... .  The court quoted with apparent approval … the following passage from the judgment of Quirk DCJ in Élan Capital Corporation Pty Ltd v Brisbane City Council (1990) QPLR 209 at 211:

‘It should not be necessary to repeat it but his [sic] court is not the planning authority for the City of Brisbane.  It is not this court’s function to substitute planning strategies (which on evidence given in a particular appeal might seem more appealing) for those which a planning authority in a careful and proper has to adopt [sic] ... .  As was observed by Carter J in Sheezel & Anor v Noosa Shire Council (1980) QPLR 130 (when he then constituted this court), it would be quite inappropriate for this court to deal with an individual application for rezoning in a way which might be construed as determinative of some wider question. Adopting the phraseology of those cases which deal with the non-derogation principle, I feel that to allow this appeal would be to “cut across” in a quite unacceptable manner, a planning strategy which has been adopted by the planning authority and publicly exhibited for community comment.’

This stated a proposition which the court said was ‘common sense … for which no authority was required …’.”

1. In the joint report of the experts dealing with planning need,[15] the village of Greenhill is, in my respectful view, accurately described in the following way:

“18.Greenhill provides coastal village and retirement living, holiday residential … and fishing sheds.  It provides very few services.  There is a waste transfer facility, a rural fire brigade, a seafood retailer (operating from the side of the road), a painting contractor, a telephone box and a bus shelter. …

19.The town’s main claim to fame appears to be the road leading onto Greenhill Beach, allowing people to launch boats directly off the beach.  A drive through the town reveals a very high ownership of boats and tractors … .  The town presents as a small fishing/creational tourism based holiday village, with a smattering of permanent residents (retirees).”

[15]Exhibit 3 at p 5.

1. Notwithstanding evidence of previous interest in developing land in the vicinity of Greenhill village,[16] there is nothing in the current Scheme to indicate any intention on the part of the respondent to encourage growth of the Greenhill village.  The content of the Scheme is to contrary effect.

   [16]Statement of Mr Rasmussen – Exhibit 10 and Exhibit 4 at para 6(1)(ii) – joint report of town planners.

1. During the course of the appeal, reference was made to the Whitsunday Hinterland and Mackay Regional Plan (WHAM).[17]  This document was created at or about June 2006 by the then Department of Local Government, Planning, Sport and Recreation.  The document has no statutory force and accordingly, notwithstanding its level of detail and strategy, it must give way to the Scheme.  Mr Gregor, one of the town planners relied on by the appellant, relied in part on this document in support of the application because at page 53 the area of Greenhill is apparently identified as being a tourist node.  It appears to me though that Mr Gregor’s conclusions about this are probably incorrect.  The map at page 53 of the document is of a very small scale.  When regard is had to the larger scale map at page 101 of the document, the tourist node is located to the north of the village of Greenhill (which is also specifically identified on the plan as a town) in an area of land identified as being State forest.  Some modest tourist facilities are provided for in the forest area.  As at the date of the hearing of this appeal, a caravan park is being constructed on the outskirts of the village of Greenhill, but there is no evidence that at the time this document was being prepared the caravan park was within public knowledge.

   [17]Exhibit 12.

1. The appellant also referred to a number of other parts of the WHAM document in support of the proposal.[18]  That such statements might be inconsistent with the strategy and intent of the Scheme (and not all of them are) is largely irrelevant.  The Scheme is the primary document.

   [18]At pages 21, 22, 42, 44, 49, 62, 63 and 70.

Desired Environmental Outcome 2.1(j) and Section 4.12 of the Scheme

1. DEO 2.1(j) provides:

“Towns and villages provide strong social and economic focal points for their respective communities, where residents have access to urban and community services, infrastructure and employment opportunities.”

1. Specific Outcome 4.12(a) provides for similar intentions or objectives:

“Uses are established and new lots are created where engineering infrastructure can be provided efficiently and social and community infrastructure including public health facilities and employment opportunity is available.”

The probable solution prescribed is:

“Lots within the rural preferred use area are not reconfigured for uses that are residential such as house or for ‘lifestyle’ blocks where persons live, permanently or occasionally, without necessarily engaging in primary production.”

1. Non-compliance with an acceptable or probable solution does not necessarily create conflict with a planning scheme.[19]  The engineering evidence is that appropriate infrastructure can be provided in an efficient way.  The reference to the desirability of there being social and community infrastructure, including public health facilities and employment opportunities, has to be seen in context. The existing village at Greenhill does not enjoy any such facilities.  The only public service facilities immediately available at Greenhill are a rural fire service, a bus stop and a phone booth.  There is no community centre or other such facility.  Basic shopping requirements are available about one kilometre to the west and more extensive shopping and other services are available at Sarina, about a half hour drive from Greenhill.

   [19]Aria Property Group Ltd v Maroochy Shire Council [2008] QCA 169 at para [63].

1. That no such facilities exist is not entirely surprising given that the focus of the village is towards the ocean.  That is, most of the residents would appear to be more concerned with fishing and other recreational aquatic activities.  Also, having regard to the limited nature of the proposal, I do not consider the reference to employment in s 4.12 of the Scheme to be particularly relevant.  The vast majority of likely purchasers would be retirees or people purchasing weekend and holiday accommodation.

1. In the circumstances, I do not consider that the proposal would compromise DEO 2.1(j).  It would not constitute a threat so serious that no regard to ameliorating planning grounds can be had.[20] However, it is in conflict with the intent of the scheme to limit (not expand) more intensive residential development in areas where the usual urban services and amenities are more readily available.

   [20]Brown v Brisbane City Council (2005) QPELR 629 at para [9] per Skoien SJDC.

The piecemeal issue

1. As Mr Haydon pointed out, it was technically incorrect to characterise this application as a piecemeal application.  That description being more appropriately used in regard to applications that are not whole in the sense of not dealing with the entirety of the proposed use.[21]  It would probably be more accurate to describe the respondent’s concerns as being about out-of-sequence development creating an undesirable precedent.

   [21]Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1979) 145 CLR 485 at 500 at 504.

1. Regardless of the correct characterisation of this issue, during the conduct of this appeal it became tolerably clear that it was a major issue counting against approval as far as the respondent was concerned.  On more than one occasion Mr Perkins, the town planner relied on by the respondent, expressed a view to the effect that the approval of this proposal might constitute a precedent, making it difficult for the respondent to refuse in the future further applications for residential development over the subject land.[22]  As a stand alone issue, I do not consider it would justify refusing the proposal.  As Mr Haydon pointed out (and accepted by Mr Perkins), any future application would have to be treated on its own merits, including the adequacy of water supply and effluent disposal.

   [22]See eg T2-24 ll 40-60; T2-29 ll 35-60; and T2-30 ll 1-32.

1. That said, however, the issue is not an irrelevant one in the context of this appeal.  To approve the application would create a precedent.  Departure from the apparent intent of a town planning scheme might be a relevant consideration regarding any future applications.[23]  As was recognised in Pioneer Concrete (supra) by Stephens J,[24] the approval of this application might place pressure on the respondent, when dealing with any future applications, to avoid conflicting outcomes.

   [23]Grosser & Ors v Council of the City of Gold Coast [2001] QCA 423 at para [44].

   [24]At 504.

1. While this issue on its own would probably not justify refusal of the proposal it is still a relevant and legitimate town planning concern.

1. For the reasons expressed the proposal is in conflict with the Scheme but not to the extent of compromising a desired environmental outcome.

Need

1. As s 1.16 (3) of the Scheme recognises, development in conflict with the Scheme might nonetheless be justified.  Section 3.5.13 of IPA is expressly referred to.  That section relevantly provides:

“(1)This section applies to any part of the application requiring code assessment.

(2)The assessment manager must approve the application if the assessment manager is satisfied the application complies with all applicable codes whether or not conditions are required for the development to comply with the codes.

(3)Subject to subsection (2), the assessment manager’s decision may conflict with an applicable code only if there are sufficient grounds to justify the decision despite the conflict, having regard to—

(a)       the purpose of the code; and

(b)if they are not identified in the planning scheme as being appropriately reflected in the planning scheme …  (emphasis added)

(4)However, if the decision is made under subsection (3)(a) and the assessment is against a code in a planning scheme – the assessment manager’s decision must not compromise the achievement of the desired environmental outcomes for the planning scheme area.”

1. “Grounds” for the purpose of IPA are defined in Schedule 10 of the Act in the following terms:

“Grounds for ss 3.5.13 and 3.5.14—

1.        Grounds means matters of public interest.

2.Grounds does not include the personal circumstances of an applicant, or interested party.”

1. On the evidence before me, the only ground open which might justify the proposal despite its conflict with the Scheme is that of there being sufficient need.  Need, insofar as it relates to matters of public interest, can constitute a sufficient ground for approval.  Notwithstanding some initial contentions on behalf of the respondent to the contrary, need in the context of this appeal does not have to be an overriding need but a need which would constitute sufficient grounds to justify approval.  In Isgro v Gold City Council[25] Wilson SC DCJ cited with approval what was said by this court in Watts & Hughes Properties Pty Ltd v Brisbane City Council,[26] to the effect that need in a town planning sense does not mean a pressing or critical or urgent need or even a widespread desire.  Need in this context relates to the wellbeing of the community.  A use would be needed if it would on balance improve community wellbeing.

   [25](2003) QPELR 414 at 418, para [20].

   [26](1998) QPELR 273 at 275.

1. According to Mr Gooch, there is limited or no potential to create additional lots within the land currently “zoned” for village/holiday residential purposes at the villages of Greenhill or Clareview, and that the need for the proposal “appears to be modest to considerable”.[27]  According to Mr Norling, there is a minor to modest level of planning need for the proposal.[28]  Evidence of a degree of underlying need is to some extent demonstrated by various expressions of interest.  During his evidence, Mr Norling conceded that the expressions of interest did provide evidence of there being a degree of latent unsatisfied demand.[29]  He also acknowledged that if the proposal proceeded, the allotments would sell in a reasonable period of time.[30]

   [27]Exhibit 7 at para 34(d).

   [28]Exhibit 7 para 35(h).

   [29]T2-18 l 55.

   [30]T2-19 l 1.

1. On balance, I have reached the conclusion that while Mr Norling may have tended to underestimate the level of demand for allotments in the Greenhill area, Mr Gooch has, to a more material extent, tended to overestimate the level of demand.  In my view, Mr Gooch failed to have sufficient regard to the capacity of other beachside communities in the vicinity of Sarina to satisfy future demand, particularly that flowing from the mining areas to the west.  Those coastal areas near Sarina have much more ready access to the usual urban services and amenities.  I do not accept Mr Gooch’s evidence that prospective purchasers might buy at Greenhill as opposed to the Sarina Beach areas because of some form of local government regional pride.[31]

   [31]T2-8 l 55.

1. This is not a case where there is evidence of a significant level of need which might justify overriding inconsistencies with the Scheme.[32]  At its highest, the level of demand could only be described as modest. It is not sufficient to make good or offset the conflicts with the Scheme.

   [32]Eg. Tadpoles Early Learning centre v Noosa Shire Council (2009) QPELR 487 paras [36] to [38].

1. In circumstances where these are not sufficient grounds to justify the proposal despite the conflict with the Scheme, the appeal must be dismissed.

Order

1.          The appeal is dismissed.