Harris v Scenic Rim Regional Council - [2014] QPEC 16

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Harris v Scenic Rim Regional Council [2014] QPEC 16

PARTIES:

BRIAN HARRIS and WENDY HARRIS T/A SCENIC RIM ADVENTURE PARK
(appellants)

v

SCENIC RIM REGIONAL COUNCIL
(respondent)

and

ANTHONY ROBERT HALPIN
(first co-respondent by election)

and

DAVID PETER BARBAGALLO
(second co-respondent by election)

FILE NO/S:

2292 of 2013

DIVISION:

Planning and Environment Court

PROCEEDING:

Appeal

ORIGINATING COURT:

Brisbane

DELIVERED ON:

11 April 2014

DELIVERED AT:

Brisbane

HEARING DATE:

31 March 2014, 1-4 April 2014

JUDGE:

Preston A/DCJ

ORDER:

Adjourn the hearing of the appeal to 10.00am on 29 April 2014.1.

Direct the parties to file agreed conditions of approval or, failing agreement, to file their competing versions of the conditions of approval, by 24 April 2014.2.

CATCHWORDS:

PLANNING AND ENVIRONMENT – Applicant appeal against refusal of development application for development permit – material change of use – use for outdoor sports, recreation and entertainment and use for camping ground – traffic generated by uses – proposed limits on customer vehicle numbers – access by single lane rural road with creek crossings – proposed works to upgrade road at crossings and improve signage – whether adverse impacts by traffic on road safety and amenity of neighbours – intersection of access road and State controlled highway – whether adverse impacts on road safety by right turn from highway to access road – finality, certainty and enforceability of conditions of approval – whether decision to approve would conflict with planning scheme – whether sufficient grounds to justify a decision to approve despite the conflict

Environmental Protection Act 1994 (Qld) s 115

Sustainable Planning Act2009 (Qld) ss 10, 260, 261, 267(2), 272, 285, 287, 291, 292, 314, 324, 326, 335, 342(3), 345, 346, 347, 350, 395(2)(b), 461, 464, 481(1), 482, 485(4), 493, 495, 496, 578, 582, 588, 590, 760, Ch 6, Pt 4, Div 2, Dictionary Sch 3

Transport Infrastructure Act1994 (Qld)
Beaudesert Shire Planning Scheme 2007

Acland Pastoral Co Pty Ltd v Rosalie Shire Council [2008] QPELR 324
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Crane v Brisbane City Council [2004] QPELR 1
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Winn v Director-General of National Parks and Wildlife (2001) 130 LGERA 508
Woolworths Ltd v Maryborough City Council (No 2) [2006] 1 Qd R 273

COUNSEL:

M Batty for appellants
S M Ure and N Loos for respondent

SOLICITORS:

OMB Solicitors for appellants
Corrs Chambers Westgarth for respondent
Mr A R Halpin (self-represented) for first co-respondent by election
Mr D P Barbagallo (self-represented) for second co-respondent by election

Nature of appeal and outcome

Mr and Mrs Harris (“Harris”) have appealed against the decision of the Scenic Rim Regional Council (“the Council”) refusing Harris’ development application for a development permit for a material change of use for outdoor sports, recreation and entertainment (adventure and four wheel drive park) and camping ground of land at Innisplain, about 33 kilometres south of Beaudesert.

Prior to the hearing of the appeal, Harris changed the development application on which the Council’s decision was made, to reduce the intensity and scale of the proposed use. That change was only a minor change.

Harris bore the onus of establishing that the appeal should be upheld.

For most of the hearing of the appeal, the Council continued to defend its refusal, notwithstanding the ameliorative change to the development application. The Council contended the changed application should be refused on traffic engineering and town planning grounds. The Council contended that the changed application was still in conflict with certain provisions of the relevant planning scheme and that the grounds advanced by Harris were not sufficient grounds to justify a decision to grant a development permit despite the conflict. However, near the end of the hearing, Harris and the Council agreed on further changes to the operation of the proposed development, including a reduction in the number of vehicles visiting the land. Thereafter, the Council no longer contended that the changed application should be refused or was in conflict with the relevant planning scheme.

Two persons who made a properly made submission about Harris’ development application, Mr Halpin and Mr Barbagallo, elected to be joined as co-respondents to the appeal. They also contended that the appeal should be dismissed, primarily on traffic engineering and town planning grounds. After Harris and the Council agreed on the changes to the operation of the proposed development, Mr Barbagallo also changed his position to no longer oppose the grant of approval to the changed application. Mr Halpin, however, continued to contend that the changed application should be refused and was in conflict with the relevant planning scheme.

I have determined that Harris has discharged the onus and the Council’s decision to refuse the development application should be set aside and instead a decision approving the development application on conditions should be made.

The application for a material change of use

Mr and Mrs Harris own land at 636 Tamrookum Creek Road, Innisplain, which is formally described as Lot 41 W311658 and Lot 101 WD602 (“the land”). They wish to be able to use lawfully the land for an adventure and four wheel drive park and camping ground. After purchasing the land on 12 June 2012, Harris commenced using the land as the Scenic Rim Adventure Park.

The Council considered Harris’ use of the land was unlawful. The land is situated in the Rural Zone, Countryside Precinct under the Beaudesert Shire Planning Scheme 2007 (“the planning scheme”). The Assessment Table for the Rural Zone in the planning scheme declares a material change of use involving outdoor sports, recreation and entertainment or camping ground to be impact-assessable development. The Council considered that Harris’ use for the Scenic Rim Adventure Park was for outdoor sports, recreation and entertainment purposes and camping ground purposes. As assessable development, it required a development permit under the Sustainable Planning Act 2009 (“SPA”) authorising it to take place, but no development permit had been issued. The use of the land for those purposes was, therefore, unlawful and constituted an offence against ss 578 or 582 of SPA.

On 26 July 2012, the Council issued a show cause notice under s 588 of SPA so alleging, and inviting Harris to show cause why an enforcement notice should not be given.

Harris, upon receiving the show cause notice, accepted that the use they wished to conduct on the land would involve a material change of use of the land and hence required a development permit authorising the use. However, Harris’ reason differed from the Council’s reason. The Council considered that, in using the land for the proposed Scenic Rim Adventure Park, Harris would be starting a new use of the land (see paragraph (a) of the definition of “material change of use” in s 10 of SPA).

Harris considered that the proposed use would be a material increase in the intensity or scale of the use of the land (see paragraph (c) of the definition of “material change of use” in s 10 of SPA). Harris considered that the previous owners had lawfully used at least part of the land for camping, educational or recreational purposes under the name “Meebunn-bia” since 1974 and that as a consequence existing lawful use rights attached to the land. However, Harris conceded that the proposed use for the Scenic Rim Adventure Park would involve a material increase in the intensity or scale of the use from that of the existing use, and hence a development permit was required to make the proposed use of the whole of the land a lawful use.

The difference in reason is relevant to the appeal because the court must assess Harris’ development application, under s 314(3)(b) of SPA, having regard to “any lawful use of premises the subject of the application or adjacent premises”.

Accordingly, on 30 August 2012, Harris lodged a development application under s 260 of SPA seeking a development permit for a material change of use of the land for “outdoor sports, recreation and entertainment (adventure and four wheel drive park) and camping ground”. In summary terms, the proposed uses included: short term camping; use of existing cabins for short term camping accommodation; four wheel drive (4WD) training and education courses; 4WD competitions, including monthly 4WD competitions and an annual “King of the Rim” event; outdoor adventure uses, including four wheel driving, bushwalking, abseiling, flying fox and rope courses; and use of 4WD vehicles associated with the above uses.

The Council accepted Harris’ development application as a properly made application under s 261 of SPA and proceeded to assess it.

Harris, as the applicant, gave public notice of the development application, in accordance with the provisions of Ch 6, Pt 4, Div 2 of SPA, by publishing a notice on 23 January 2013 in the Beaudesert Times, a newspaper circulating generally in the locality of the land, placing a notice on the land advertising the application between 22 January to 9 March 2013, giving notice to the owners of all land adjoining the land on 21 January 2013, and giving the Council written notice on 12 March 2013 of compliance with the public notification requirements.

According to the Council’s decision notice for Harris’ development application dated 28 May 2013, during the notification period, 132 submissions about the application were received by the Council comprising:

(a) 97 supporting the development application (40 submissions were not properly made);

(b) four petitions supporting the development application (comprising 788 individuals); and

(c) 35 submissions opposing the development application (three submissions were not properly made).

According to the Council’s acknowledgement notice (amended) dated 24 October 2012, given under s 267(2) of SPA, the referral agencies for the development application were:

(a) the Department of Transport and Main Roads (“DTMR”) (as concurrence agency);

(b) the Department of Natural Resources and Mines (“DNRM”) (as advice agency); and

(c) the Department of State Development, Infrastructure and Planning (“DSDIP”) (as advice agency).

Harris duly gave each referral agency the referral agency material required by s 272 of SPA.

On 12 October 2012, DTMR, as a concurrence agency, gave its response, under s 285(1)(a) and (2) and s 287(1)(a) of SPA, telling the Council to attach one concurrence agency condition to any development approval. This was that:

“1.Development must be carried out generally in accordance with the following plan, except as modified by these concurrence agency conditions:
· Drawing No SCENIC_RIM_ENTIRE SITE Sheet S1, Rev A, entitled OVERALL PLAN SHOWING EXISTING TRACKS, STRUCTURES AND NEW ACTIVITIES ON LOT 41 ON PLAN W311658 AND LOT 101 ON PLAN WD602, prepared by Scenic Rim Adventure Park, dated 36/08/2012 [sic].”

The condition timing was stated to be “Prior to the commencement of use and to be maintained at all times”.

DTMR also offered advice to the Council about the application, under s 287(6) of SPA. The advice included that there were requirements under the Transport Infrastructure Act 1994 for approvals from DTMR to carry out various works on a State-controlled road. The Mt Lindesay Highway is a State-controlled road.

On 25 October 2012, DTMR issued an amended concurrence agency response in identical terms to its original response except for the correction of the date of the drawing referred to in the revised condition to “26/08/2012”.

It is to be noted that DTMR did not tell the Council in either its original or amended response to refuse the application under s 287(2)(b) of SPA, as it was entitled to do as a concurrence agency, because of any unacceptable traffic impacts on the Mt Lindesay Highway or the intersection of Tamrookum Creek Road and the Mt Lindesay Highway.

On 3 October 2012, DSDIP, as an advice agency, gave its response, under s 291(1) and (2) and s 292(1)(a) of SPA, recommending to the Council that “a condition be placed on any approval granted limiting the number of persons to be accommodated on the site to a maximum of 300 persons”.

On 6 January 2012, DNRM, as an advice agency, gave its response, under s 291(1) and (2) and s 292(1)(a) of SPA, recommending to the Council that the following conditions should attach to any development approval:

“a.The material change of use (MCU) must be in accordance with the submitted plan entitled ‘Overall Plan showing existing tracks, structures and new activities on Lot 41 on Plan W311658 and Lot 101 on Plan WD602’, except where inconsistent with condition 2 below.
b.The extent and configuration of vehicular tracks in the area identified as ‘Year 2 New Tracks Valley View 1-5’ and associated ‘Year 1 New Track’ on submitted plan entitled ‘Overall Plan showing existing tracks, structures and new activities on Lot 41 on Plan W311658 and Lot 101 on Plan WD602’ must be reduced and modified as follows:
i.vehicular tracks identified as ‘Valley View’ and ‘Valley View 1, 2, 3, 4 and 5’ in the area identified as ‘Year 2 New Tracks Valley View 1-5’ on the submitted plan is not permitted as a result of the material change of use (MCU) unless assessed and approved under the Vegetation Management Act 1999, and must be removed from the current plan of development; or
ii.the applicant may submit to DNRM for review an amended plan of development that demonstrates an alternative reduction and modification of the extent and configuration of the vehicular tracks in the subject area.

c.Clearing of native vegetation is not permitted as a result of the material change of use, including for soil erosion, sediment and drainage control measure (MCU), unless:
i.the clearing is undertaken in accordance with a permit issued pursuant to the Vegetation Management Act 1999; or
ii.the clearing is exempt under Schedule 24 Sustainable Planning Regulation 2009 (SPR) prior to the MCU approval taking effect.

d.Prior to any land disturbing activities within areas of mapped remnant vegetation, a vegetation management plan (VMP) must be prepared by a Qualified Arborist (AQF Level 5 or above). The VMP must be prepared in accordance with the standards and specifications of the Australia Standard for the Protection of Trees on Development Sites (AS4970-2009), and must include the following:
i.identification of vegetation likely to be impacted by any development works or access to the site, including adjacent vegetation, and respective tree protection zones (TPZ);
ii.identification of mitigation methods to be used to ensure the TPZ of assessable vegetation is not impacted upon by the development.

e.Land disturbing activities within areas of mapped remnant vegetation must not occur until a site-specific erosion, sediment and drainage control plan (ESDCP) are prepared in accordance with the following:
i.‘Best Practice Erosion and Sediment Control, International Erosion Control Association (Australasia) November 2008’.
ii.The ESDCP must contain the following information:
Þ Identification of site-specific erosion, sedimentation and drainage risks and measures to be used to mitigate any impacts.
Þ Engineering specifications in cross-sections.
Þ Measures used to manage matters such as, but not limited to, stockpiles and hazardous material, pollutants and monitoring of water quality.
Þ Details of rehabilitation or revegetation plans envisaged as part of the mitigation of the impact of the development.
Þ The ESDCP must encompass both the construction and operational phase of the development.
Þ If the above-required information is distributed across several documents, these must be clearly referenced and included in the ESDCP.
iiii.The applicant must document a specific list of personnel that details the ‘chain of command’ in relation to the implementation, modification, and maintenance of the ESDCP measures. This document will, as a minimum, detail the ESDCP-related responsibilities and accountabilities of personnel, and must be updated to reflect any changes in staffing arrangements.
iv.All erosion, sediment and drainage controls must be installed and working effectively during the construction and operational phase of development.

f.Vehicular activities must not occur on tracks during or immediately after periods of prolonged or heavy rain.
g.Vehicles that are highly modified, outlawed or have tyres over 33 inches are not permitted to use vehicular tracks located within mapped remnant vegetation.
h.Habitat features, such as large fallen trees and hollow logs, must be retained and relocated within adjacent vegetated areas.
i.Vehicles must be washed down before they enter the Scenic Rim Adventure Park to prevent the spread of both weeds and plant diseases.
Definitions

Clear/ed/ing – means, in part, remove, cut down, ringbark, push over, poison or destroy in any way including by burning, flooding or draining.
Land disturbing activities – includes, but is not limited to, establishing vehicular, bike and pedestrian tracks, creating campsites and implementing erosion, sediment and drainage control measures.
Remnant – means remnant vegetation as defined under the Vegetation Management Act 1999 and as amended from time to time.
Vegetation – means vegetation as defined under the Vegetation Management Act 1999 and as amended from time to time, and includes trees, shrubs and seedlings of such.”

In addition, DNRM suggested that the Council consider the following, when placing conditions on any approval issued for the material change of use, to minimise impacts on the black-breasted button quail, brush-tailed rock wallaby and koala:

“a. Vehicular driving at night should not be permitted;
b.Vehicular activities in the area identified as ‘Year 2 New Tracks Valley View 1-5’ and associated ‘Year 1 New Track’ on the current submitted plan entitled ‘Overall Plan showing existing tracks, structures and new activities on Lot 41 on Plan W311658 and Lot 101 on Plan WD602” should be either reduced or not permitted during the breeding season of the black-breasted button quail, which generally occurs between September and May.
c.In areas of the park that contain rocky escarpments or boulders, land-disturbing activities should be minimised and vehicle activities should not be permitted to ensure brush-tailed rock wallabies and their habitat are not adversely impacted.
d.Dogs should not be permitted in the park however if they are they must be kept on a lead at all times.”

Neither of the advice agencies told the Council, under s 292(3) of SPA, to treat their response as a properly made submission, and hence did not secure for itself a right of appeal under s 464 of SPA or a right of election to become a co‑respondent for the appeal by the applicant under s 485(4) of SPA.

In the meantime, on 16 November 2012, the Council had issued an enforcement notice, under s 590 of SPA, making the same allegations as the Council had made in the show cause notice and requiring Harris, amongst other things, to cease the outdoor sports, recreation and entertainment use until further notice.

The refusal of the application

On 28 May 2013, under s 324(1)(c) of SPA, the Council refused Harris’ development application. The Council gave 18 reasons in its decision notice, given under s 335(1)(f)(ii) of SPA. The decision notice was received by Harris on 3 June 2013.

The appeal to the court

On 26 June 2013, Harris appealed to this court, under s 461(1)(a) of SPA, against the Council’s refusal of the development application. The written notice of appeal was lodged by Harris with the court on 26 June 2013 as required by s 481(1) of SPA. This was within the appeal period of 20 business days after the decision notice was given to Harris (see s 461(2) of SPA).

Written notice of the appeal was duly given on 1 and 2 July 2013, under s 482 of SPA, to the Council, the concurrence agency, the advice agencies, and submitters. Two of the submitters, Mr Halpin and Mr Barbagallo, who own land near to the land of Harris, elected under s 485(4) of SPA to each become a co-respondent to the appeal, on 12 and 15 July 2013 respectively.

The Council identified as its issues on the appeal each of its reasons for refusal given in its decision notice dated 28 May 2013, as well as 18 additional issues. The second co-respondent by election, Mr Barbagallo, identified on 20 August 2013, seven issues.

During the period of preparation for the hearing of the appeal, the issues in the appeal were reduced. The Council and the co-respondents by election withdrew many issues, including those concerning geotechnical issues and vegetation, flora and fauna issues, as well as the contention that the land was good quality agricultural land.

The remaining issues encompassed a number of expert disciplines: traffic engineering; town planning; bushfire; flooding; water quality; and acoustic and air quality. Harris and the Council nominated experts in each of these expert disciplines. The process of joint conferencing and reporting by the experts resulted in a further narrowing of the differences between the parties. With respect to bushfire, water quality and acoustic and air quality, the experts were able to agree that stringent conditions of approval could ameliorate the impacts of the changed development application. The evidence of Harris’ expert on flooding was not contested by the other parties.

However, differences between the experts remained in relation to traffic engineering and town planning. By letter dated 21 March 2014, the Council notified Harris that those were the only two expert disciplines which the Council continued to contend were reasons for refusing the changed development application.

On 26 March 2014, the Council articulated the grounds on which it contended the changed development should be refused and the respects in which a decision to approve the changed development application would conflict with the planning scheme:

“1.The proposed development conflicts with DEO2 - Economic Development in that the proposed development does not provide for the efficient use and safe operation of existing and planned future infrastructure – the transport network.
2.The proposed development affronts the following Broad Strategies for the Shire:
a.Strategy 7 – Development is located, designed and managed so as to limit adverse impacts on the Shire’s existing or planned road and rail transport network.

3.The proposal does not comply with Specific Outcome No. 2 of the Rural Zone Code in that the development fails to protect and enhance the rural amenity, rural character and a pleasant and safe living and work environment through an increase and concentration in traffic movements along Tamrookum Creek Road.
4.The proposal does not comply with Specific Outcome No. 32 of the Rural Zone Code in that the development fails to protect and enhance the amenity and character of the area by avoiding or mitigating the adverse emission of noise (in relation to access along Tamrookum Creek Road only).
5.The proposal does not comply with Specific Outcomes No. 43 and No. 44 of the Rural Zone Code in that the development fails to protect existing road transport infrastructure through the detrimental impact on Tamrookum Creek Road. The impact on Tamrookum Creek Road is inappropriate in the following manner:
(a)The right turn from the Mt Lindesay Highway to Tamrookum Creek Road does not, and cannot easily be upgraded to provide the most basic of right turn treatments (BAR);
(b)Much of the length of Tamrookum Creek Road between the Mt Lindesay Highway and the site access driveway has shoulders which are inadequate in width without properly formed table drains;
(c)The road is unfenced;
(d)The creek crossings have widths, approach alignments and sight distances which do not comply with normal Austroads rural road design guidelines;
(e)The proposed development would substantially increase the proportion [of] road users unfamiliar with the circumstances of Tamrookum Creek Road; and
(f)The proposed development would substantially increase the proportion of combination vehicles (larger vehicles towing trailers).

6.The proposal does not comply with Specific Outcome No. 45 of the Rural Zone Code in that the development will have a detrimental effect on local roads. The access road to the site will be detrimentally affected by the increase in traffic volumes to and from the site to the point where the road will no longer meet the needs of the local rural community.
7.The proposal does not comply with Specific Outcome No. 5 of the Caravan/Relocatable Home Park/Camping Ground Code in that the traffic generated on Tamrookum Creek Road will give rise to an increased risk to people’s safety.
8.The proposal does not comply with Specific Outcome No. 14 of the Caravan/Relocatable Home Park/Camping Ground Code in that the proposed development will have a detrimental effect on the amenity and character of the surrounding area through increase[d] traffic to and from the site. The impacts of the traffic on the access road and surrounding roads and the noise associated with the proposed use (limited to access along Tamrookum Creek Road) will detract from the rural character and amenity of the locality.
9.The proposed development is in conflict with DEO 1(a) - Environment in that existing lawful uses are not protected, i.e. existing rural properties are unfenced along Tamrookum Creek Road and stock are at risk of collision with increased traffic accessing the development site.
10.The proposed development is in conflict with DEO2(g) -Economic Development in that it promotes tourism that does not protect the natural values and character of the local area.
11.The proposed development is in conflict with DEO2(l) -Economic Development in that it is not of a form or intensity that is appropriate for the locality.
12.The proposed development does not achieve Overall Outcome OO3 of the Rural Zone Code in that nuisance to people and property has not been minimised, given that significant numbers of vehicles will be traversing the site for extended periods.
13.The proposed development does not achieve Overall Outcome OO6 of the Rural Zone Code in that it does not enhance the rural character or promote a distinctive rural identity.
14.The proposed development does not achieve Overall Outcome OO22 of the Rural Zone Code in that existing lawful rural activities are not protected from the potential for damage from conflict between stock and increased numbers of motor vehicles.
15.The proposal does not comply with Specific Outcome SO22 [of the Rural Zone Code] in that the proposed use is not compatible with the adjoining rural uses through the introduction of a level of risk to components of those uses from increased traffic.
16.The proposed development does not achieve Overall Outcome (b) of the Sports, Recreation and Entertainment Code in that it does not minimise its impacts on the surrounding area and is not designed to be compatible with the surrounding area.
17.The proposed development does not achieve Overall Outcome 1 of the Rural Zone Code in that the development will not provide for the creation and maintenance of a pleasant and safe living and working environment.
18.The proposed development does not achieve Overall Outcome 51 of the Rural Zone Code in that the development is not at a scale, form and intensity which is intended for development in the Zone and is not consistent with the reasonable expectations of residents of the Zone.
19.The proposed development does not achieve Specific Outcome 47 of the Rural Zone Code in that the development is not consistent with a scale, form and intensity of development in the Zone.
20.There are not sufficient grounds to justify approval of the development application (as modified) despite the conflict/s with the Beaudesert Shire Planning Scheme 2007 as set out in this document.”

The issues raised originally by Mr Barbagallo on 20 August 2013 were:

“1.Road safety – the suitability of the road to take the projected increased traffic and the accuracy of the data used to calculate traffic volumes.

2.Dust nuisance – impact of increased traffic on properties adjacent to the road and on native fauna, flora and Tamrookum Creek.

3.Noise nuisance – impact of increased traffic and increased use of the property itself, including the impact on our amenity (our residence is close to the western boundary where the applicants propose to add a camping area to the ‘Endeavour Maze’).

4.Impact on native flora and fauna – dust nuisance and increased risk of vehicle impact.
5.Impact on livestock – increased interference with free movement of stock, the predominant pre-existing use of most properties along Tamrookum Creek Road.
6.Impact on road and bridges – the projected increased traffic movements would require significant investment to upgrade and maintain the road and its numerous creek crossings.
7.No need for the use to be on the site given the approved 4WD operations lawfully operating at Bromelton.”

During the course of the hearing of the appeal, on 3 April 2014, Harris and the Council reached agreement as to amendments to the draft conditions on which Harris proposed the development would operate. The amended conditions were tendered on 4 April 2014. Importantly, these amended conditions further limited the number of customer vehicles that could access and be on the land on any day to 20, thereby reducing the traffic generated by the proposed development and its concomitant adverse impacts on the road system and the amenity and rural character of the surrounding area. The amended conditions also required the agreed works to creek and gully crossings and signage on Tamrookum Creek Road to be completed with 12 months of approval being granted. As a consequence of these agreed changes, the Council altered its position from opposing to supporting the grant of a development permit for Harris’ proposed development (as modified) subject to appropriate conditions of approval. The Council withdrew the contentions in its grounds of refusal dated 26 March 2014 that the development application should be refused and that a decision to approve the development would conflict with the planning scheme.

Mr Barbagallo, after considering the amendments to the conditions agreed between Harris and the Council, also changed his position. Mr Barbagallo advised by letter to the Court dated “Thursday 4 [sic, 3] April 2014”, that he did not wish to contest the amended conditions and, if they were applied together with the draft conditions proposed by Harris in the changed development application, he would not oppose the grant of approval to the material change of use application.

The amendments to the conditions did not, however, cause Mr Halpin to change his position. He continued to contend that Harris’ changed development application should be refused. He maintained that the traffic generated by the proposed development (as modified) would still have unacceptable impacts on the road system, its users and surrounding land uses, including his own property. He adopted in effect the Council’s contentions in its grounds for refusal of 26 March 2014 as his own and also contended that the proposed conditions of approval were uncertain and unenforceable.

The court’s task on appeal

The appeal by Harris is under s 461(1)(a) of SPA. As the applicant for the development application, Harris has the onus of establishing that the appeal should be upheld (s 493(1) of SPA).

The appeal is by way of hearing anew (s 495(1) of SPA). However, the court must decide the appeal based on the laws and policies applying when the development application was made, although the court may give weight to any new laws and policies the court considers appropriate (s 495(2)(a) of SPA). In this case, the relevant laws and policies have not changed from the time Harris’ development application was made to the time of the hearing of the appeal. The court is also not to consider a change to the development application on which the Council’s decision being appealed was made, unless the change is only a minor change (s 495(2)(b) of SPA). As I find below, Harris’ change to the development application in this case was only a minor change within the meaning of that term in s 350(1) of SPA.

As a hearing anew, the court must assess the development application against the matters or things in s 314(2) of SPA of relevance to the development proposed by Harris. In this case, these include the South East Queensland Regional Plan 2009-2031 and the planning scheme.

In addition to the matters or things against which the court must assess the application under s 314(2), the court is to assess the application having regard to the common material (which in this case includes the concurrence agency requirements (of DTMR), advice agency recommendations (of DSDIP and DNRM) and the contents of the submissions accepted by the Council); any development approval for, and any lawful use of, premises the subject of the application or adjacent premises (which in this case includes any existing lawful use of part of the land); and any referral agency’s response for the application (which in this case includes the concurrence agency’s and advice agencies’ responses referred to above) (see s 314(3) of SPA).

The court, in making its decision, must apply the decision rules in ss 324 and 326 of SPA. These include that the court’s decision must be based on its assessment under s 314 of SPA (see s 324(2) of SPA) and that it must not be inconsistent with a State planning regulatory provision (which in this case does not arise) (s 342(3) of SPA). Another is that the court’s decision must not conflict with a relevant instrument, which in this case is the planning scheme, unless one of the decision rules in s 326(1) of SPA is satisfied, being:

(a) the conflict is necessary to ensure the decision complies with a State planning regulatory provision (not applicable in this case);

(b) there are sufficient grounds to justify the decision, despite the conflict (which is applicable in this case); or

(c) the conflict arises because of a conflict between:

(i) two or more relevant instruments of the same type (such as two State planning policies), and the decision best achieves the purposes of the instruments (which is not applicable in this case); or

(ii) two or more aspects of any one relevant instrument (such as between two codes in a planning scheme), and the decision best achieves the purposes of the instrument (which is also not applicable in this case).

The decision rule in s 326(1) that is applicable in this case is, to the extent that a decision to approve Harris’ development application would conflict with the planning scheme, whether Harris has established sufficient grounds to justify such a decision to approve the application, despite the conflict. This involves identifying the nature and extent of any conflict with the planning scheme, the relevant grounds that may justify the conflict, and the sufficiency of those grounds to justify approval despite the conflict: see Weightman v Gold Coast City Council [2003] 2 Qd R 441; Woolworths Ltd v Maryborough City Council (No 2) [2006] 1 Qd R 273; Lockyer Valley Regional Council v Westlink Pty Ltd (2011) 185 LGERA 63; Lockyer Valley Regional Council v Westlink Pty Ltd (No 3) [2013] 2 Qd R 302; (2012) 191 LGERA 452. The application of this decision rule will be elaborated on later in the judgment.

In deciding the appeal, the court may confirm the decision appealed against, change the decision appealed against, or set aside the decision appealed against and make a decision replacing the decision set aside, and also make such other orders as it considers appropriate (s 496(1) and (2) of SPA). In this case, the decision appealed against is the Council’s decision to refuse Harris’ development application.

The court must decide whether to approve or refuse the development application. If the court were to decide to refuse the application, the court would confirm the Council’s decision and dismiss Harris’ appeal.

If the court were to decide to approve the application, it would need to set aside the Council’s decision and replace it with a decision to approve the application and uphold Harris’ appeal. If the court decides to approve the application, it can approve all or part of the application, without or subject to conditions (see s 324(1) of SPA). Any conditions of an approval must satisfy the requirements of ss 345, 346 and 347 of SPA.

Section 346 states some of the matters conditions may do or require. One is that a condition may state that a development may not start until other development permits or compliance permits, for development on the same premises, have been given or other development on the same premises, including development not covered by the development application, has been substantially started or completed (s 346(1)(b)).

Section 347 states conditions that cannot be imposed. None of these prohibited conditions are of relevance in this case.

Of central relevance in this case are the limbs of s 345(1) that a condition must:

“(a)be relevant to, but not an unreasonable imposition on, the development or use of premises as a consequence of the development; or
(b)be reasonably required in relation to the development or use of premises as a consequence of the development.”

These limbs are separate and in the alternative: a condition need only satisfy one of these tests in order to be valid: Proctor v Brisbane City Council (1993) 81 LGERA 398 at 403-404.

In relation to the second limb, there needs to be a nexus between the likely, impacts of the proposed development and the condition imposed: Cardwell Shire Council v King Ranch Australia Pty Ltd (1984) 58 ALJR 386 at 388; (1984) 54 LGRA 110 at 113; Planning Commission (WA) v Temwood Holdings Pty Ltd (2004) 221 CLR 30; (2004) 137 LGERA 232 at [57]. Hence, a proposed, traffic-generating development that is likely to produce increased use of a road, creek crossing or bridge might reasonably require the imposition of a condition that works be undertaken to upgrade the road, crossing or bridge to a standard that can cope satisfactorily with the increased traffic: Cardwell Shire Council v King Ranch Australia Pty Ltd at 388; 113.

However, even if such a condition is not reasonably required by the proposed development, it may nevertheless be lawful under the first limb if it is relevant and is not an unreasonable imposition on the development: Proctor v Brisbane City Council at 403-404.

Within this framework of assessment and decision-making, I turn to assess and decide Harris’ application and appeal.

I will first address the land proposed to be used and surrounding land uses. Secondly, I will discuss the material change of use proposed in the original development application and the changed application. I will give my reasons for finding that the changes to the development application constitute only a minor change. Thirdly, I will summarise the planning framework including, most importantly, the planning scheme.

Fourthly, I will address the issues raised by the parties. I will start with those where the experts have reached agreement that adverse impacts of the development can be satisfactorily addressed by conditions, namely bushfire, flooding, water quality, and acoustic and air quality. I will then deal with the two contentious issues, traffic and town planning, which concern the adverse impacts of the traffic generated by the development on the roads accessing the land and on the amenity of the surrounding area.

Fifthly, I will address the question whether a decision to approve the proposed development on conditions that will satisfactorily address the various adverse impacts will conflict with the planning scheme and, if so, whether there are sufficient grounds to justify such a decision, despite the conflict.

Finally, I will conclude the judgment and make the appropriate orders.

The location of the land and access

The land is located in the locality of Innisplain, about 33 kilometres south of Beaudesert. The land comprises two lots (Lot 41 on W311658 and Lot 101 of WD602) and has a total site area of about 281.4 hectares. The southern lot, Lot 41, has frontage to Tamrookum Creek Road. This provides the principal access to the land. The northern lot, Lot 101, also has access from the north western part of the lot to a small rural road. This secondary road access is only proposed to be used by emergency vehicles or by patrons during times of emergency evacuation.

The land is accessed via the Mt Lindesay Highway and Tamrookum Creek Road. Tamrookum Creek Road is a single lane, rural access road that follows Tamrookum Creek up the valley. The distance between the intersection of Mt Lindesay Highway and Tamrookum Creek Road and the access to the land is approximately 6.4 km. Tamrookum Creek Road terminates a few kilometres past the land.

Tamrookum Creek Road has a single sealed cross-section (3.5 m to 4 m wide) for approximately 2.7 km from the Mt Lindesay Highway with two other short single lane sealed sections totalling approximately 0.5 km in length. The remaining sections (approximately 3.2 km) have a gravel surface which varies in width from approximately 3.5 m to 5.5 m.

Tamrookum Creek Road involves a number of crossings of Tamrookum Creek, via culverts and concrete fords.

The land

The lowest part of the land is at the southern access from Tamrookum Creek Road. The area around the entrance to the land is generally flat and has been cleared. A Queenslander house, office, machinery shed and other outbuildings are located in this area. The main house is located up a rise from this lower area.

The remaining property is hilly and heavily forested. The land is highest in the west and north of the property. About where the north to south centre line of the property lies, there are steep cliffs facing east. A number of camping huts on a camping ground are located at the base of these cliffs. An ephemeral creek lined with rainforest vegetation is situated at the base of the east facing escarpment.

The east facing escarpment forms a physical barrier which separates the numerous tracks and the various activities on the land into two areas, the higher western area and the lower eastern area.

The previous use of the land has left many tracks, structures and activity areas. On the existing trail from the entrance area to the higher western part of the property, as one moves northwards, are a children’s play gym, a remote control car track, a mountain bike track and a BMX area. Turning east from the BMX area, a trail leads to a lookout and to camping areas. Moving north-west from the BMX area along the western trail is a man-made maze structure called the Endeavour Maze. Continuing north to about midway along the western trail is another mountain bike area. Moving further north, but towards the eastern facing escarpment, are high ropes and abseiling activities. Northwards again is a flying fox with a camping area. In the far north-western corner of the land is a lookout and a camping area.

Along the eastern side, as one moves northwards, there is a camping area not too far away from the main house, then about midway along the eastern trail, are the camping huts at the base of the steep cliffs and about six camping areas. Various walking trails are sited in this area. Continuing to the north and east is another camping area, followed by a mountain bike area, a couple of man-made spider web structures, and walking trails and lookouts. In the far north-eastern corner of the land is an old cottage and a camping area.

There are five existing dams on the land, two larger ones in the south-west, two in the centre near the camping huts, and a small one in the north-east near the old cottage.

The surrounding land uses

The surrounding land predominantly comprises large rural holdings, established with low intensity rural uses or for grazing purposes, or simply for rural living only.

Three houses lie to the west of the land. Mr Barbagallo’s property (Lot 104 Tamrookum Creek Road) is located immediately to the west of the land and his residence is the nearest dwelling to any noise source on the land, being the Endeavour Maze (within 200 m). His land is heavily timbered and steeply sloping. The house was constructed in 2008 and is used as a weekender. Mr White’s property (753 Tamrookum Creek Road) lies also to the west of the land, approximately 1 km past the entrance to the land. However, the distance from Mr White’s house to the nearest noise source on the land (being tracks on the western side) is about 500 metres as the crow flies.

Three houses are located to the east of the land, at varying distances from any noise source on the land of over 250 m up to a kilometre. Ms Manderson is a part owner with her father Mr Ferrar of 544 Tamrookum Creek Road. Their house is about 475 m from the nearest potential noise source on the land (being a track near the eastern boundary), however it is sited close to Tamrookum Creek Road. Mr Ferrar resides there and Ms Manderson resides in Beaudesert. Their land has been extensively cleared for grazing.

Mr Halpin’s property (428 Tamrookum Creek Road) is located further away, over a kilometre from the closest potential noise source on the land (being tracks on the eastern side of the land). Mr Halpin’s property consists of a residence and a Quarter horse stud. The residence is set back more than 300 m from Tamrookum Creek Road. The horses are confined to the property, which is extensively fenced.

Three houses are located across Tamrookum Creek Road to the south, but are located further away from noise sources on the land. Mr Clode’s property (Lot 2 Tamrookum Creek Road) is the closest, being sited up the hill to the south across from the entrance to the land. His property straddles both sides of Tamrookum Creek Road. It is mostly timbered but the low areas either side of the road are cleared for grazing.

The material change of use proposed in the original application

Prior to Harris purchasing the land in 2012, the land was used for 38 years as an outdoor recreation and camping facility known as “Meebunn-bia”, predominantly for schoolchildren. In 2011, around 4,000 students visited the land. Meebunn-bia employed 16 staff at around this time to run the outdoor recreation and camping facility.

The prior use of the land involved not only camping but also outdoor activities including an adventure maze, abseiling, flying foxes and rope courses. Considerable improvements have been made to the land by the Meebunn-bia organisation, including:

(a) numerous tracks which are able to be traversed by four wheel drive vehicles;

(b) a Queenslander timber house;

(c) huts and cabins;

(d) toilet facilities;

(e) sheds;

(f) office facilities;

(g) recreational structures and activities (such as the Endeavour maze and rope courses); and

(h) the main brick house.

Under the superseded Beaudesert Shire Town Planning Scheme 1985 (“the superseded planning scheme”), a triangular portion of land in the north-eastern corner of Lot 41 W311658 was zoned as Private Open Space. The remainder of Lot 41 and the whole of Lot 101 WD602 was zoned Rural.

In the Private Open Space zone, the use of land for the purposes of “sports and recreation (not including firearms sports or motor vehicle sports)” could be conducted without the Council’s consent. The use of “sport and recreation”, was defined as:

“Any premises used or intended for use for any activity which is:
(a) included in Appendix XV hereto; or
(b)in the opinion of the Council, consistent with the activities so listed:- …”

The list of activities in Appendix XV, within the definition of “sport and recreation”, included “sport and recreation centre (including national fitness centre and holiday camp)”.

The use of “camping grounds”, however, was prohibited in the Private Open Space zone. “Camping ground” was defined to be:

“Any premises used or intended for use for holiday and recreational purposes which involves primarily the setting up and use of tents for temporary accommodation. The term includes any land together with any amenity building erected thereon which is used in conjunction with such land. The term does not include a caravan park as defined herein.”

In the Rural zone, under the superseded planning scheme, use of the land for the purposes of “sport and recreation” and “camping ground” were not referred to in either Column III (uses permissible without consent or when appropriate conditions have been complied with) or Column V (prohibited uses), and hence required the consent of the Council.

The Council granted a camping licence to Meebunn-bia in relation to Lot 41. The last camping licence had effect from 1 October 2011 to 30 September 2012. No approvals were ever granted to Meebunn-bia in relation to Lot 101.

As a consequence of the above provisions of the superseded planning scheme, the only use which was allowed to be conducted without the consent of the Council was a sport and recreation centre (including a holiday camp) within the triangular portion of Lot 41 in the Private Open Space zone. Such a use could not include use for the purposes of camping ground, as that use required the consent of the Council.

The activities conducted in the triangular portion of Lot 41 by Meebunn-bia included use of the vehicle tracks accessing the area, walking tracks, camping huts and camping sites, stargazing, abseiling, and high ropes courses. The use of the triangular portion of Lot 41 for these sport and recreation activities fell within the use of “sport and recreation”, but the use of the camping huts and camping sites did not but instead involved use of “camping ground”. For this reason, the town planner called by the Council, Mr Ovenden, expressed the opinion that:

“(a)Existing lawful use rights only apply to the triangular portion of land within Lot 41, for use as a ‘holiday camp’, subject to the demonstration of the continuity of that use since the commencement of the Beaudesert Shire Planning Scheme 2007;
(b)Existing lawful use rights do not extend to the use of the Land as Camping Ground or Caravan Park, as those uses were either prohibited or uses for which the consent of Council was required under the Superseded Planning Scheme. Such uses of the Land would have required a development permit for material change of use to be granted; and
(c)Existing lawful use rights do not extend to the use of the remainder of Lot 41 (which excluded the triangular portion of land) or Lot 101 (which were both in the Rural zone under the Superseded Planning Scheme) as a ‘holiday camp’, since that was a use for which the consent of Council was required under the Superseded Planning Scheme. Such use would have required a development permit for material change of use to be granted.”

The prior existing use of the land by the Meebunn-bia organisation continued up to the sale of the land to Harris in 2012. Harris thereupon continued the use until restrained by court order late in 2013. Harris continues to have the intention to use the triangular portion of Lot 41 as well as the remainder of Lot 41 and the whole of Lot 101. In these circumstances, continuity of the existing use of the triangular portion of Lot 41 for a sport and recreation centre (including a holiday camp) may have been demonstrated.

However, it is not necessary for the court finally to determine the existence or extent of any existing lawful use rights (including any lawful non-conforming use rights) or the continuity of any existing lawful use. In closing address, Harris expressly requested that the court not do so. It is sufficient to record the argument concerning existing lawful use rights to explain the motivation for and basis of Harris’ development application.

If the position regarding the existing lawful use of the land is as I have recorded above, in order to carry out the proposed development over the whole of the land, Harris required a development permit for a material change of use to start the new uses for outdoor sports, recreation and entertainment and for camping ground on Lot 101 and on the remainder of Lot 41 (which excludes the triangular portion of Lot 41), and to start the new use of camping ground on the triangular portion of Lot 41. As the development is now proposed, it may be that there would not be a material increase in the intensity or scale of the use of the triangular portion of Lot 41 for outdoor sports, recreation and entertainment and hence there may not be a material change of use in this regard on this portion of the land.

Harris’ development application lodged on 30 August 2012 sought a development permit for a material change of use of the whole of the land for outdoor sports, recreation and entertainment (adventure and four wheel drive park) and camping ground. The application stated that the core business of the park will offer “four wheel driving, bushwalking tracks, children’s playground and camping grounds, monthly 4WD competitions, 4WD guided tours and 4WD awareness training courses” as well as other activities on site of “abseiling, flying fox, rope course, dam water activities, mountain bike riding, and bed and breakfast/lodge.”

The development application proposed to use existing buildings and structures on the land as follows:

· The main house will be retained as the residence of the owners/operators.

· The Queenslander house will be renovated and used by patrons as an alternative to tent camping (such as lodging/bed and breakfast).

· The old cottage in the north-east of the land will be renovated and used as alternative accommodation.

· The 11 camping huts at the base of the steep cliff will be repaired. Five will be relocated and used as ensuite bathrooms for patrons and six will be rearranged in the camping areas as alternative accommodation.

· The composting toilet near the camping huts will be upgraded and used by campers. A shower facility will be established nearby. Three other toilets and showers (relocatable) will be established behind the Queenslander house, the main house, and near the Endeavour Maze.

· The camp kitchen and dining area will be refitted.

· The office near the entrance will be the park office and first aid area.

· The larger open air shed will be used for equipment storage and the smaller, cupboard storage area will be upgraded and used as a wet weather covered area and a social gathering place.

· The Endeavour Maze will become an under 12 year old children’s play area and BBQ area.

The application only sought a development permit for the material change of use of these buildings and structures on the land for these purposes. Harris accepted that application will need to be made in the future for approval to carry out the works required to alter and refit these buildings and structures.

The development application proposed 27 camping areas throughout the land, with each ground catering for 8 to 15 people (depending on the size of the area), with the exception of the two front campgrounds located near the entrance to the land, which were to cater for the overflow of visitors from main events. This would have involved establishing in the future around 13 more campsites in addition to the existing 14 campsites.

The application proposed a network of 100 4WD tracks, by retaining the existing tracks and creating additional tracks at the rate of five tracks each year.

The changes to the original application

The proposed development was later changed on a number of occasions. Of importance, however, were the changes sought in the application in these pending proceedings filed on 10 March 2014 as this resulted in the material change of use for which a development permit was sought. Harris sought a determination of the court that the changes to the development application proposed demonstrated only a minor change within the meaning of s 350(1) of SPA and hence that the court could consider the changes to the application on the appeal (under s 495(2)(b) of SPA).

The changed development application substituted new plans for those in the original development application. The new plans for which approval was sought were Figures 1 to 4, Drawing No. 13-099-1 to No. 13-099-4, dated 28 February 2014. Figure 4, Drawing No. 13-099-4, dated 28 February 2014 was an aerial photograph depicting the existing main tracks, campsites numbered 1-14, tracks excluded from public access, emergency exits, surrounding residences and 16 activities numbered A to P.

The operation of the proposed development was also changed. Harris proposed conditions of approval which included: restricting the number of customer vehicles, the types of customer vehicles, the hours and procedures for visitation of the land, and the hours and manner of use of the land; requiring the preparation, approval and implementation of a suite of management plans; and requiring the carrying out of works to upgrade and improve signage on Tamrookum Creek Road. Harris amended the proposed conditions of approval on 4 April 2014 to reduce further the number of customer vehicles per day on the land at any one time to 20 and require the undertaking of the road works and signage within 12 months of approval being granted.

The key differences between the original development application and the changed development application were that the changed development application:

(a) proposed only the following uses:

· short-term camping;

· use of existing cabins for short-term camping accommodation;

· four wheel drive training and education courses;

· outdoor adventure uses, including four wheel driving, bushwalking, abseiling, flying fox and rope courses; and

· use of road registered 4WD vehicles associated with the above uses;

(b) no longer proposed to hold monthly 4WD competitions or the “King of the Rim” event;

(c) proposed to reduce the total number of 4WD tracks on the land by not constructing any new tracks and by restricting use of part of the track closest to the eastern and southern boundary to be an emergency exit only and parts of the tracks closest to the western boundary to be an emergency exit or emergency egress only (the tracks being shown on Figure 4, drawing no. 13-099-4, dated 28 February 2014);

(d) proposed to reduce the total number of campsites on the land by not constructing any new campsites and utilising only the 14 existing campsites, although the location of some campsites are to be adjusted to be above the Q100 flood level (the campsites being shown on Figure 4, drawing no. 13-099-4, dated 28 February 2014);

(e) proposed to reduce the number of patrons visiting and staying on the land and vehicles accessing the land (to a maximum of 20 customer vehicle bookings per day and 20 customer vehicles per day on the land at any one time, and visitation of the land is to be by booking only);

(f) proposed to restrict the hours of customer check-in and check-out (7 am to 6 pm each day) and customer driving on site (6 am to 7 pm each day);

(g) restricted customer vehicles to be road registered vehicles only and prohibited trail bike use on the land and use of unmuffled 4WD vehicles on the land;

(h) proposed to undertake, within 12 months of the approval, works with respect to the creek and gully crossings along Tamrookum Creek Road, including widening of the shoulder on the approach or departure side of crossings and installation of signage at the crossings and elsewhere along the road (the works being shown on Upgrade Plan 1 and Upgrade Plan 2); and

(i) proposed detailed conditions of approval to avoid, mitigate and compensate for adverse impacts of the uses.

The changes constitute a minor change to the application

I held on 4 April 2014 that these changes to the proposed development were a minor change within the meaning of s 350 of SPA and ordered that the proceeding be heard and determined on the basis of the amended plans. I now give my reasons for doing so.

In determining the question of whether a change to a development application is a “minor change”, it is important to apply only the tests stipulated by the statute: Simmons v Esk Shire Council [2006] QPELR 570 at 571[2]; Macquarie Leisure Operations Limited v Gold Coast City Council [2007] QPELR 418 at 422 [24].

Section 350(1) of SPA defines a “minor change” in relation to a development application only to be one of the types of changes to an application set out in paragraphs (a) to (d) of s 350(1). The first three types of changes are not relevant to this case, being concerned with correction of or changes to the name or address of the applicant or owner of the land or the address or property details of the land, or correction of a spelling or grammatical error. The fourth type of change is the relevant one for this case. It is:

“(d) a change that –
(i)does not result in a substantially different development; and
(ii)does not require the application to be referred to any additional referral agencies; and
(iii)does not change the type of development approval sought; and
(iv)does not require impact assessment for any part of the changed application, if the original application did not involve impact assessment; and
(v)if the application is taken under the Environmental Protection Act, section 115 to also be an application for an environmental authority – does not change the type of application made under the Environmental Protection Act.”

In deciding whether a change is a minor change under paragraph (d), the planning instruments or law in force at the time the change was made apply (s 350(2) of SPA). In this case, there has been no change in the applicable law, as the planning scheme still applies.

The tests in paragraph (d) of s 350(1) are cumulative – each test, if applicable to the application concerned, needs to be met in order for the change to the application to be a minor change.

In the case of the changes to Harris’ development application:

(a) the changes did not require the application to be referred to any additional referral agencies (sub-para (ii) is met);

(b) the changes did not change the type of development approval sought – it remains a development permit for a material change of use (sub-para (iii) is met);

(c) the changes did not change the type of assessment of the application – both the original application and the changed application involved impact assessment (sub-para (iv)) is met; and

(d) the original application was not taken under s 115 of the Environmental Protection Act 1994 to be an application for an environmental authority and hence the changes could not effect any change to the type of application made under that Act (sub-para (v) is met).

The critical test, therefore, is that in sub-para (i) that the changes do not result in a substantially different development. The test calls for a comparison of the development proposed in the original application with the development proposed in the changed application and an evaluation whether the latter is substantially different to the former.

The word “substantially”, when used in the phrase “substantially different development”, means essentially or materially. The result of the comparison must be a factual finding that the changed development is not essentially or materially different to the original development. The comparative task involves an evaluation, both quantitative and qualitative, of the developments being compared. Matters of scale and degree are involved and the particular context and circumstances of a case will be important: see Grant v Pine Rivers Shire Council [2006] QPELR 112 at 116 [20]; Macquarie Leisure Operations Limited v Gold Coast City Council at 422 [24]; Parcel One Pty Ltd v Ipswich City Council [2007] QPELR 474 at 476 [14]; Gaven Developments Pty Ltd v Scenic Rim Regional Council [2010] QPELR 385 at 387 [9].

Changes that add some new element to a development proposal, such as add a new use or add to the built form or floor space, or involve new, additional or increased impacts, rather than changes which reduce the size or scope of the development and the associated offsite impacts, are more likely to alter the nature and character of the development in a way that justifies a conclusion that the changed development is substantially different from the original development: Heritage Properties Commercial Pty Ltd v Maroochy Shire Council [1999] QPELR 108 at 114; Heilbronn and Partners v Gold Coast City Council [2005] QPELR 386 at 396 [41].

However, changes which have beneficial or ameliorative effects can still cause the development to be a substantially different development – it depends upon the degree and scale of the changes involved and the individual circumstances of the case: Heilbronn and Partners v Gold Coast City Council at 396 [42]; Studio Tekton Pty Ltd v Redland Shire Council [2007] QPELR 174 at 177 [17]; and Macquarie Leisure Operations Ltd v Gold Coast City Council at 422 [27].

In determining whether a development constitutes a substantially different form of development, guidance can be gained from the Statutory Guidelines 06/09 “Substantially different development when changing applications and approvals”, 11 December 2009, made by the Chief Executive under s 760 of SPA: see Heritage Properties Pty Ltd v Redland City Council [2010] QPELR 510 at 511-512. These guidelines provide, so far as is relevant:

“A change may result in a substantially different development if the proposed change:
·involves a new use with different or additional impacts;
·results in the application applying to a new parcel of land;
·dramatically changes the built form in terms of scale, bulk and appearance;
·changes the ability of the proposal to operate as intended. For example, reducing the size of a retail complex may reduce the capacity of the complex to service the intended catchment;
·removes a component that is integral to the operation of the development;
·significantly impacts on traffic flow and the transport network, such as increasing traffic to the site;
·introduces new impacts or increases the severity of known impacts;
·removes an incentive or offset component that would have balanced a negative impact of the development; or
·impacts on infrastructure provision, location or demand.” (pp 3-4).

The changes to Harris’ original application did not result in a substantially different development. Applying the matters in Statutory Guidelines 06/09, so far as are relevant, the changes:

· did not involve any new uses with different or additional impacts;

· did not result in the application applying to any new parcels of land;

· did not involve any change to the built form (the buildings and structures on the land) to that proposed in the original application;

· did not change the ability of the development to operate as intended: the changed proposal would still function and operate in the same way as the earlier proposal;

· did not remove any components of the development that were integral to the operation of the development;

· did not result in new impacts or increase the severity of known impacts but rather reduced the severity of known impacts;

· did reduce the impacts on traffic flow and the transport network, by reducing traffic volumes to the land (which would be beneficial).

· did not remove any incentive or offset components; and

· did not have any significant impact upon infrastructure.

In summary, the changes to Harris’ development application met each of the applicable tests in s 350(1)(d) of SPA and accordingly constituted “only a minor change” that the court could consider on the appeal (under s 495(2)(b) of SPA).

The planning framework

Under the South East Queensland Regional Plan 2009-2031, the land is allocated to “Regional Landscape and Rural Production Area”. This area identifies land with regional landscape, rural production or other non-urban values. It protects land located in this area from inappropriate development, particularly urban or rural residential development (p 15). The regulatory provisions support diversification of rural economies by allowing a range of developments, including small to medium scale tourist activities and sport and recreation facilities. (p 15). Approval of Harris’ proposed development would not conflict with the South East Queensland Regional Plan.

The planning scheme was made under the repealed Integrated Planning Act 1997 but is taken to continue to have effect under SPA. The planning scheme identifies:

(a) the Desired Environmental Outcomes for the Shire of Beaudesert (now part of the larger Scenic Rim Regional Council local government area);

(b) a Strategic Framework, which demonstrates how the planning scheme measures co-ordinate and integrate the matters dealt with by the planning scheme;

(c) the Planning Scheme measures, which comprise the Planning Scheme Maps (the Zone Maps and Overlay Maps) and the Planning Scheme provisions (the Assessment Tables, Consistent Development Tables, and Codes); and

(d) a statement of the State Planning Policies that are reflected in the planning scheme (see 1.2.1).

The Desired Environmental Outcomes are stated to be, amongst other things, “an expression of the Strategic Framework upon which the Planning Scheme is based” and “the basis for the Planning Scheme measures” (see 1.2.2 and 2.1.1). The Desired Environmental Outcomes address the three pillars of ecological sustainability – environment, economic and social (see 2.1.3).

The Desired Environmental Outcomes with which the Council had contended in its grounds for refusal dated 26 March 2014, and now Mr Halpin contends, Harris’ proposed development was in conflict were:

“●DEO (1) – Environment: The environment is conserved such that –
(a)lawful uses (which are not lawful non-conforming uses) are protected and an efficient land use pattern, that promotes integrated communities (which enjoy enhanced liveability, effective growth management, sustained economic growth, good urban design and ecological sustainability) is created and maintained;
●DEO (2) – Economic: Development –
(g)promotes tourism in a manner that encourages the efficient use of infrastructure and protects the natural values and character of the local area; and
(h)provides for an efficient, safe, well located and legible transport network that is an integral part of the Shire’s land use pattern and which supports the social and economic needs of the community; and
(l)is of a scale, form and intensity appropriate for the locality and is only developed at a greater scale, form or intensity where it can be demonstrated that there is both an overwhelming community need and an overwhelming economic need for the development.”

The conflict was said to arise from the increased traffic generated by Harris’ proposed development on Tamrookum Creek Road and its intersection with the Mt Lindesay Highway.

Part 2 (Strategic Framework) of the planning scheme provides an explanation of the Strategic Framework, which is the vision for the local government area (2.2.1). However, Part 2 (Strategic Framework) states that it does not have a direct role in the assessment of development under the planning scheme (2.2.2). This was of relevance because of the Council’s original contention, and now Mr Halpin’s contention, that approval of the proposed development would conflict with one of the broad strategies for the Shire identified in Part 2 (Strategic Framework), namely:

“(7)Development is located, designed and managed so as to limit adverse impacts on the Shire’s existing or planned road and rail transport network.” (2.2.5(7))

Harris’ proposed development was said to conflict with this broad strategy because of the adverse impacts traffic generated by the development are likely to have on Tamrookum Creek Road and its intersection with the Mt Lindesay Highway.

Harris responded that if the provisions of Part 2 (Strategic Framework) have no direct role in the assessment of Harris’ proposed development under the planning scheme, the issue of whether a decision to approve the proposed development would conflict with one of those provisions did not arise.

The planning scheme divides the Shire into zones (one of which is the Rural Zone) and divides each zone into precincts (one of which is the Countryside Precinct) (1.2.5 and Table 1.2.5). The Zone Maps identify the zones and precincts within the Shire. The land is identified as being within the Rural Zone and the Countryside Precinct within the Rural Zone.

The planning scheme provides Assessment Tables, Consistent Development Tables and Codes.

The Assessment Table for a Material Change of Use in the Rural Zone and the Countryside Precinct is Table 3.3.4 (1.2.8). Table 3.3.4 identifies the development for a material change of use in column 1 which is subject to the level of assessment in column 2 in respect of the assessment criteria in column 3 (3.3.4). However, if a development specified in column 1 of the Assessment Table does not meet the specified circumstances in column 2, it is impact-assessable, unless otherwise provided in the Assessment Table (3.3.3(b)).

Use of camping ground is specified in Table 3.3.4 as being code-assessable if located in the Countryside Precinct and the capacity of the development does not exceed 50 persons. As Harris’ proposed development has a capacity exceeding 50 persons, it would be impact-assessable, not code-assessable. The assessment criteria for use of camping ground include those in the Rural Zone Code and the Caravan/Relocatable Home Park/Camping Ground Code.

Use of outdoor sports, recreation and entertainment is specified in Table 3.3.4 as being exempt in certain limited circumstances and code-assessable if not exempt and located in the Active Recreation Precinct. As Harris’ proposed development is not exempt, and is located in the Countryside Precinct and not the Active Recreation Precinct, it is impact-assessable, not code-assessable. The assessment criteria specified for use of outdoor sports, recreation and entertainment include the provisions of the Rural Zone Code and the Sports, Recreation and Entertainment Code.

The Consistent Development Table identifies development which is either potentially consistent or is inconsistent with the Rural Zone Code and the relevant Overlay Codes. Section 3.3.6 provides:

“Development identified as Self-assessable development and assessable development in the Assessment Tables for the Rural Zone or the Overlays, is –
(a)potentially consistent with the Rural Zone Code and the relevant Overlay Codes if the development is identified as a Consistent Development in section 3.3.7 (Consistent Development Table); and

(b)inconsistent with the Rural Zone Code and the relevant Overlay Codes if the development is not identified as a Consistent Development in section 3.3.7 (Consistent Development Table).”

As noted above, use of camping ground and use of outdoor sports, recreation and entertainment are identified as assessable development in Assessment Table 3.3.4 for material change of use in the Rural Zone.

Table 3.3.7 (Consistent Development in the Rural Zone) identifies the development in column 1 which is Consistent Development in column 2. The developments of “Camping Ground” and of “Outdoor Sports, Recreation and Entertainment” are each identified in Table 3.3.7 as Consistent Development in the Countryside Precinct.

As stated earlier, Assessment Table 3.3.4 identifies the Assessment Criteria for the developments of camping ground and outdoor sports, recreation and entertainment. The first of these is the Rural Zone Code.

Sixthly, the proposed conditions of approval include requirements for notification of customers with respect to use of Tamrookum Creek Road. Visitation of the land is to be by booking only. At the time of booking, customers are to be advised of the requirement to arrive and depart during the hours of 7 am and 6 pm each day, the requirement to provide the names and contact details of all persons staying with the vehicle, the requirement to provide a legible photocopy of the driver’s licence and vehicle registration number, the fact that irresponsible driving behaviour on site or on nearby roads will result in that person being asked to leave the land and may result in future entry being refused, and the provision of a map of the land and surrounds, including how to access the land from the Mt Lindesay Highway. A complaints register is to be established and maintained. These conditions of approval increase the likelihood that customers will drive along Tamrookum Creek Road in accordance with the road rules and road signage, and in a safe and responsible manner.

I find, therefore, that the proposed development, if the number of vehicles visiting the land per day is capped at 20, the proposed roadworks and signage along Tamrookum Creek Road are undertaken, and the other traffic management measures required by the proposed conditions of approval are implemented, will not cause unacceptable impacts on the performance or safety of Tamrookum Creek Road or on the use by current users of Tamrookum Creek Road.

The town planning issues

Harris and the Council called experts on town planning, Mr Buckley and Mr Ovenden respectively. The town planning experts conferred and produced two joint expert reports. The first joint expert report dated 3 December 2013 addressed the development as originally proposed in the development application while the second joint expert report dated 19 March 2014 addressed the changed development application. Mr Ovenden also prepared an individual trial report dated 28 March 2014. Both town planning experts also gave oral evidence at the hearing.

In the second joint expert report, the town planning experts agreed that the changes to the application were meaningful and addressed the issues raised by Mr Ovenden in the first joint expert report regarding character, amenity and impacts. Mr Buckley said that the changes to the application only further aligned the proposed development, or strengthened its compliance, with the planning scheme provisions.

Mr Ovenden said that the changed application had substantially reduced the original development’s widespread impacts to rural lifestyle, character and amenity by removing the monthly competition events and the annual King of the Rim four wheel driving competition and by proposing limits to the nature of vehicles accessing the land and the number of vehicles permitted on the land. Mr Ovenden considered that, if the various experts on other issues reached agreement through their joint expert reports (which they did), the impacts associated with the changed development were within acceptable limits and could be addressed through the implementation of management plans and conditions of approval. Mr Buckley agreed.

As a consequence, after Harris changed the proposed development, the only town planning issue that remained was whether the traffic generated by the proposed development (as modified) would have unacceptable amenity impacts.

Mr Ovenden explained, in the second joint expert report and his individual trial report, the town planning dimension to the issue of traffic along Tamrookum Creek Road:

“The single lane access road, shared by the existing rural lifestyle and rural production uses, intensifies the contrast and potential conflict in uses (existing and that proposed in this application) by focussing one of the main points of contact between the uses. Consequently, it is a repeated theme in virtually all of the objecting submissions and further reflected in the statements to the Court by local residents, including that of Mr Barbagallo (18 March 2014), in which they detail their numerous and varied encounters and traffic conflicts on the road during the period of the proposal’s unlawful operation. The site is one of the last properties on Tamrookum Creek Road, which means that impacts associated with the road use affect each resident and use along the length of the road. Therefore, the proposed location maximises the distribution of impacts.”

However, Mr Ovenden acknowledged in the second joint expert report that his concerns about the adverse amenity impacts and conflicts with the planning scheme provisions would largely fall away if the traffic engineers reached agreement on an appropriate level of upgrading of Tamrookum Creek Road and measures to address safety for customers of the proposed development using that road in conjunction with existing rural users.

Mr Buckley agreed that the opinions of the traffic engineers would be material but he observed that the residents’ objections were to a more intense proposal. The scale of the current amended development was one where any on-site impacts can be adequately contained, and access to and from the land, also at a reduced scale, should be capable of not interfering with the broad hectare farming in the locality, albeit with upgrading of the road at various places along the corridor.

As earlier noted, at the hearing, Harris and the Council reached agreement that the number of vehicles visiting the land per day should be further reduced to 20, thereby reducing the potential impacts of traffic on the amenity of the surrounding area and existing road users, and that the agreed roadworks and signage along Tamrookum Creek Road should be undertaken within 12 months of the date of approval. The traffic engineers reached agreement that, with that reduced number of vehicles and the undertaking of the roadworks and signage proposed, there would not be unacceptable traffic or safety impacts from the proposed development (as modified).

The town planning experts then agreed that, in these circumstances, there would be no unacceptable amenity impacts. Mr Ovenden expressly stated in oral evidence that the proposed development amended in the terms agreed allayed any town planning concerns he had with respect to approval of the changed application, and that he supported the grant of approval to the proposed development in its current amended form.

The acceptability of the amenity impacts of the likely increased traffic from the proposed development along Tamrookum Creek Road is supported by other factors.

First, the amenity of a locality and the reasonable expectations of its inhabitants are informed by the applicable planning instruments and the uses permitted under the current planning controls.

The concept of “amenity” is defined in the planning scheme (in Sch 1, Pt 3, s 1.3) to mean “the physical, social and aesthetic elements of the environment that increases the desirability of the relevant part of the Shire to its community or the marketability of the relevant part of the Shire to the public.” The planning scheme uses this concept of amenity in its various Desired Environmental Outcomes; Overall Outcomes and Specific Outcomes for the Rural Zone in the Rural Zone Code; and Overall Outcomes for a Camping Ground in the Camping Ground Use Code.

The concept of the amenity of a neighbourhood is wide and flexible. Some aspects of amenity are practical and tangible. Examples include traffic generation, noise, nuisance, appearance, and the way of life in the neighbourhood. Other aspects of amenity are intangible and subjective. They include the standard or class of the neighbourhood and the reasonable expectations of a neighbourhood: Broad v Brisbane City Council (1986) 2 Qd R 317 at 320. Amenity may embrace the effect of a place on the senses and the resident’s perception of the neighbourhood. Knowing the use to which a particular site is, or may be, put may affect a resident’s perception of amenity: Broad v Brisbane City Council at 326; Novak v WoodvilleCity Corporation (1990) 70 LGRA 233 at 236; Telstra Corp Ltd v Hornsby Shire Council (2006) 67 NSWLR 256; (2006) 146 LGERA 10 at [190].

The reasonable expectations of residents of the neighbourhood are informed by the current planning controls in the planning scheme: Gorman v Brisbane City Council [2004] QPELR 29 at 32 [18]; Acland Pastoral Co Pty Ltd v Rosalie Shire Council [2008] QPELR 324 at 348-349 [40]; Gillion Pty Ltd v Scenic Rim Regional Council [2013] QPEC 15 at [159], [160]. Residents must be taken to expect that land in the locality will be put to one of the uses to which that land may be put as of right and may be put to one of the uses permitted with the consent of the local authority under the planning scheme: Bell v Noosa Shire Council [1983] QPLR 311 at 313; Crane v Brisbane City Council [2004] QPELR 1 at 7 [48].

In this case, the relevant part of the Shire is the Countryside Precinct in the Rural Zone under the planning scheme. The land proposed to be developed, and the land surrounding that land and along Tamrookum Creek Road, fall within this zone and precinct. The uses proposed by Harris of camping ground and outdoor sports, recreation and entertainment are specified as Consistent Development in the Countryside Precinct of the Rural Zone. Residents along Tamrookum Creek Road, the community of the relevant part of the Shire, are to be taken to have a reasonable expectation that uses that are Consistent Development in the Countryside Precinct may be permitted with consent under the planning scheme and that the carrying out of those permitted uses may adversely affect them. This knowledge affects the residents’ reasonable expectations of the amenity of the neighbourhood, and hence what would be reasonable impacts on that amenity.

In the case of Harris’ proposed development (as modified), the residents must be taken to have reasonably expected that land along Tamrookum Creek Road, including Harris’ land, may be approved for the Consistent Development of camping ground and outdoor sports, recreation and entertainment, as well as that the carrying out of those uses (if approved) would generate traffic on Tamrookum Creek Road that would cause amenity impacts.

Secondly, whilst the community responses to the proposed development as set out in the submissions can be taken into account, there needs to be an evaluation of the reasonableness of the claimed perceptions of adverse effect on the amenity of the neighbourhood. An evaluation of reasonableness involves the identification of evidence that can be objectively assessed to ascertain whether it supports a factual finding of an adverse effect on the amenity of the neighbourhood. A resident’s view, “where it appears to be purely subjectively based, with no suggested justification in objective, observable likely consequences of the establishment of the proposed use”, is not necessarily to be disregarded, but it may be accorded “little weight”. Ordinarily, preference would be given to “views from residents which find justification in specific, concrete, likely effects of the proposed development”: Broad v Brisbane City Council at 325. A fear or concern without rational or justified foundation is not a matter which, by itself, can be considered as an amenity or social impact: Telstra Corp Ltd v Hornsby Shire Council at [193]–[195].

In this case, the residents have expressed, in their submissions made with respect to the original development application and in their lay statements tendered at the hearing, concerns as to the likely impacts of the traffic that might be generated by the proposed development. Mr Halpin expressed these concerns in his submission on the development application, his witness statement to the court and his oral evidence at the hearing.

However, these views suffered in two respects. First, they were based on the traffic generated by the previous use of the land by the Scenic Rim Adventure Park (without approval) and on the uses that were proposed in the original development application. Both of these uses were of a much larger scale, were more intensive, and generated much greater traffic volumes, than the changed development which capped the number of vehicles visiting the land to 20 and required the undertaking of roadworks and signage along Tamrookum Creek Road to improve the functioning and safety of the road. Secondly, the residents’ views were not supported by the expert evidence of the traffic engineers or by the views of the responsible road authorities (DTMR and the Council), and lacked justification in specific, concrete, likely effects of the proposed development (as modified).

I find, therefore, that the proposed development, with the number of vehicles capped at 20, the undertaking of the roadworks and installation of the signage along Tamrookum Creek Road, and the implementation of the other traffic management measures proposed in the conditions of approval, will not have an unacceptable impact on the amenity of the neighbourhood or its residents.

Finality, certainty and enforceability of conditions

One of the co-respondents by election, Mr Barbagallo, raised in his opening submissions the issue of whether the proposed conditions of approval were uncertain and enforceable. Subsequently, on 3 April 2014, after the draft conditions were further amended to reduce the vehicle numbers and to set a 12 month time frame within which the roadworks and signage were to be undertaken, Mr Barbagallo changed his position to no longer oppose the grant of approval to the changed development subject to the proposed conditions. However, the other co-respondent by election, Mr Halpin, adopted this issue and contended that the amended conditions of approval still lacked finality, certainty and enforceability.

At the outset, it should be noted that there is no common law principle that an exercise of statutory power, such as the grant of an approval on conditions, must be final and certain in order to be valid: see King Gee Clothing Company Pty Ltd v Commonwealth (1945) 71 CLR 184 at 194-195; Cann’s Pty Ltd v The Commonwealth (1946) 71 CLR 210 at 227-228; Qiu v Minister for Immigration and Ethnic Affairs (1994) 55 FCR 439 at 447; and Winn v Director-General of National Parks and Wildlife (2001) 130 LGERA 508 at [12].

Rather, a condition of approval will only be invalid, by lacking finality or certainty, if it falls outside the class of conditions which the statute expressly or impliedly permits: Winn v Director-General of National Parks and Wildlife at [12]–[15], [34]–[36]; Warehouse Group (Australia) Pty Ltd v Woolworths Ltd (2005) 141 LGERA 376 at [89]; Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277 at [55], [57]; GPT Re Ltd v Wollongong City Council (2006) 151 LGERA 116 at [90] (appeal dismissed sub nom Belmorgan Property Development Pty Ltd v GPT Re Ltd (2007) 153 LGERA 450); Hurstville City Council v Renaldo Plus 3 Pty Ltd [2006] NSWCA 248 at [89]–[90]; Ulan Coal Mines Ltd v Minister for Planning (2008) 160 LGERA 20 at [50]; and Botany Bay City Council v Saab Corp Pty Ltd (2011) 183 LGERA 228 at [82]-[84]. Where a condition of approval does fall outside what the statute permits, the proposed approval is not an approval under the statute at all (assuming the condition is not severable).

Sections 345 to 347 of SPA specify expressly the conditions that may be imposed and the conditions that cannot be imposed. However, conditions need also to meet criteria inherent or implied in the statutory provisions by which the power to impose conditions is created: Television Corporation Ltd v The Commonwealth of Australia (1963) 109 CLR 59 at 71, 75, 80 and 83. Depending on the statute, these may include criteria of finality and certainty. Conditions may need to meet these inherent criteria in order to be a proper exercise of the power to approve an application subject to conditions.

The exercise of the power under s 324(1) of SPA is an act of law that represents the final disposition of the development application: the application (in whole or part) must be approved unconditionally, or approved conditionally, or refused. The grant of approval subject to a condition which lacks finality or certainty may cause the approval not to be a final disposition of the development application, and, assuming the condition is not severable, not an approval under the statute at all: Corporation of the City of Unley v Claude Neon Ltd (1983) 32 SASR 329 at 332; Mison v Randwick Municipal Council (1991) 23 NSWLR 734 at 739; Caloundra City Council v Pelican Links Pty Ltd [2004] QPEC 52 at [47]–[51].

A condition will lack finality if it leaves open the possibility that development carried out in accordance with the approval and the condition would be significantly different from the development for which the application was made (Mison v Randwick Municipal Council at 737; Scott v Wollongong City Council (1992) 75 LGRA 112 at 118), or it leaves for later decision an important aspect of the development and the decision on that aspect in the future could alter the development in a fundamental way (McBain v Clifton Shire Council [1996] 2 Qd R 493 at 496-497, 503; Caloundra City Council v Pelican Links Pty Ltd at [51]). An approval subject to such a condition lacking finality is not a final disposition of the application and hence is not a proper exercise of the power under s 324(1)(b) of SPA to approve the application subject to conditions.

Mere ambiguity or uncertainty in the meaning of words in a condition of approval does not necessarily lead to invalidity of the condition. Whether or not uncertainty will give rise to invalidity depends on the different question of whether the condition of approval alleged to be uncertain complies with the statutory limits imposed on the power of the approval authority: Hurstville City Council v Renaldo Plus 3 Pty Ltd at [89].

Courts try to avoid uncertainty by adopting a construction which gives statutory instruments and statutory approvals and conditions of approval, practical effect: see, for example, Westfield Management Ltd v Perpetual Trustee Company Ltd [2006] NSWCA 245 at [36] – [40] (special leave to appeal was refused but with a qualification on the proper approach to construction of conditions: Westfield Management Ltd v Perpetual Trustee Company Ltd [2007] HCA Trans 367 (1 August 2007), at 23); Anderson v Minister for Infrastructure Planning and Natural Resources (2006) 151 LGERA 229 at [82]; and Ulan Coal Mines Ltd v Minister for Planning at [66]. However, if the meaning of a condition of approval is unascertainable, according to the usual rules of construction and the principles of interpretation, it falls outside the statutory limits imposed upon the power of the decision-maker: Cann’s Pty Ltd v The Commonwealth (1946) 71 CLR 210 at 227; Ulan Coal Mines Ltd v Minister for Planning at [50]; and Botany Bay City Council v Saab Corp Pty Ltd at [75], [82]-[84]. Such an uncertain condition is not a condition able to be imposed under the statute.

Questions of degree are always involved in determining whether a condition is sufficiently lacking in finality or certainty so as to be outside power: Transport Action Group Against Motorways Inc v Roads & Traffic Authority (1999) 46 NSWLR 598; (1999) 104 LGERA 133 at [117].

Retention of practicable flexibility, leaving matters of detail for later determination, and delegation of supervision of some stage or aspect of the development, may all be desirable and be in accordance with the statutory scheme and within the statutory limits of the power being exercised: see Scott v Wollongong City Council at 118; Transport Action Group Against Motorways Inc v Roads & Traffic Authority at [117]–[122]; Kindimindi Investments Pty Ltd v Lane Cove Council at [55]; Hurstville City Council v Renaldo Plus 3 Pty Ltd at [89]; and Ulan Coal Mines Ltd v Minister for Planning at [78].

Difficulty in the enforceability of a condition of approval does not necessarily lead to the invalidity of the condition. A condition that is extremely difficult to enforce may nevertheless be one falling within the class of conditions that the statute expressly or impliedly permits to be imposed on an approval. However, although a condition that is extremely difficult to enforce may be within power, it may be undesirable to grant an approval subject to such a condition: Larsen v Green & Caboolture Shire Council [1980] QPLR 64 at 71 and see also Gillott v Hornsby Shire Council (1965) 10 LGRA 285 at 290.

In the present case, none of the proposed conditions of approval fall outside the class of conditions which SPA expressly or impliedly permits to be imposed on a development permit. The proposed conditions meet the express statutory tests in ss 345 to 347 of SPA. They also do not offend principles of finality or certainty that may be inherent or implied in the statutory provisions by which the power to impose conditions is created.

The conditions do not lack finality, either by leaving open the possibility that the development as approved will be a significantly different development from that in respect of which application was made or by postponing a decision about any important aspect of the development, which decision on that aspect could alter the development in a fundamental way.

The conditions requiring the preparation and the submission to and approval by the Council of various management plans, and the carrying out of the development in accordance with the approved management plans, do not cause the approval to lack finality. None of the conditions requiring management plans are capable of resulting in any change to the core purpose of the development or offend the principle of finality. Courts have recognised that the principle of finality is not contravened merely because an approval condition requires a management plan to address some issue: see Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31 at 68-69, 94-96; Transport Action Group Against Motorways Inc v Roads & Traffic Authority at [117]–[122].

Conditions requiring management plans to address various issues implement an adaptive management approach. An adaptive management approach is a proper approach to deal with uncertainty as to potential impacts: Telstra Corp Ltd v Hornsby Shire Council at [162]-[165]; Ulan Coal Mines Ltd v Minister for Planning at [99]; Rivers SOS Inc v Minister for Planning (2009) 178 LGERA 347 at [131]; Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council & Stoneco Pty Ltd [2010] NSWLEC 48 at [181]–[185].

None of the proposed conditions of approval in this case are so uncertain as to be unintelligible and hence outside power. They are stated in clear and certain language that may be readily understood by those on whom they will operate.

Finally, I do not accept that the proposed conditions of approval would be impossible or extremely difficult to enforce. The cap on the number of customer vehicles per day able to be on the land at any one time will be able to be enforced. The conditions of approval are mutually reinforcing. Visitation of the land is to be by booking only. A record will therefore be kept of the number of customer vehicles booked. This record is able to be checked by the Council. The applicant is also required to pay to the Council $3.00 for each customer vehicle accessing the land, paid on a quarterly basis. The levy is to be used by the Council for the purposes of maintaining Tamrookum Creek Road. This condition is another means by which a record will be kept of the number of customer vehicles accessing the land. The Council will be able to monitor the number of customer vehicles per day through the levies paid. Customers are required to check-in on arrival and check-out on departure, allowing correlation between customer bookings and customer visitation.

The proposed conditions will improve the likelihood of safe and responsible driving by customers along Tamrookum Creek Road, and driving in accordance with the road rules and signage. The condition that visitation of the land for the approved use is to be by booking only enables customers to be advised about how to access the land from the Mount Lindesay Highway and the road conditions of Tamrookum Creek Road, the restriction on the hours of arrival and departure, the requirement to provide the names and contact details of all persons staying with a vehicle as well as a photocopy of the driver’s licence and vehicle registration number, and the fact that irresponsible driving behaviour on nearby roads, including Tamrookum Creek Road, will result in the person being asked to leave the land and may result in future entry being refused. Customers will, therefore, be given information to enable safe and responsible driving but also will be warned of the consequences of unsafe and irresponsible driving.

The establishment and maintenance of a complaints register empowers other road users to lodge a complaint about unsafe or irresponsible driving by customers. Recording of customers’ vehicle registration numbers and drivers’ licences, as well as names and contact details of persons in the cars, permits tracing of complaints to the persons involved and the taking of appropriate action. The complaints register can be inspected by the Council.

Together, the conditions establish an appropriate and enforceable regime for regulating customer vehicle use of Tamrookum Creek Road.

Finally, it is not reasonable to assume that Harris will not comply with these conditions of approval: Seabridge Pty Ltd t/as Clutha Creek Sands v Council of the Shire of Beaudesert [2001] QPELR 191 at 195 [18].

A decision to approve on conditions

For the foregoing reasons, the development proposed in the changed development application, if carried out in accordance with the proposed conditions of approval, will not have unacceptable impacts in terms of bushfire, flooding, water quality, acoustic and air quality, traffic or town planning including amenity. It is, therefore, appropriate for the court to set aside the Council’s decision refusing the application and replace it with a decision to approve all of the application subject to conditions.

The conditions should include the proposed conditions of approval (as agreed by Harris and the Council on 4 April 2014), amended as recommended by the experts (as recorded earlier in the judgment), together with the conditions required by the concurrence agency and recommended by the advice agencies insofar as, and in a form that, is applicable to the development as proposed in the changed development application.

Decision to approve not in conflict with planning scheme

Section 326(1)(b) of SPA requires that a decision determining a development application not be in conflict with a relevant instrument, such as the planning scheme. A determination of whether there is a breach of this requirement involves the identification of the decision, the identification of some part or parts of a planning scheme with which the decision might be said to be in conflict, and a decision whether the former conflicts with the latter. Only if such a determination has been made is it necessary to consider whether there are sufficient grounds to justify the decision: Woolworths Ltd v Maryborough City Council (No 2) at 286 [23]; Lockyer Valley Regional Council v Westlink Pty Ltd (2011) at 72 [16].

In the present case, the relevant decision is a decision to approve all of the changed application subject to the conditions I have identified. The next step is to identify the parts of the planning scheme with which that decision might conflict. The Council had originally identified, in its grounds for refusal dated 26 March 2014, the provisions of the planning scheme with which the Council contended that a decision to approve the development as then proposed would conflict. I have referred to these provisions earlier in the judgment. After Harris and the Council reached agreement on amendment of the proposed conditions to reduce the number of customer vehicles per day able to be on the land at any one time, amongst other matters, the Council no longer contended that a decision to approve the changed application on those amended conditions would conflict with any of the identified provisions of the planning scheme. Nevertheless, Mr Halpin still maintained that there would be a conflict with those provisions. Mr Halpin did not identify any other provisions of the planning scheme with which a decision to approve the changed application on the agreed conditions would conflict.

I find that a decision to approve the changed application on the conditions I have identified would not, in fact, conflict with any of those previously identified provisions of the planning scheme. The conflict was originally said to arise by reason of the unacceptable impacts the traffic generated by the proposed development would have on Tamrookum Creek Road and its intersection with the Mt Lindesay Highway, and on the amenity of the surrounding area.

For the reasons I have given earlier in the judgment, I find that the changed development, if the number of customer vehicles visiting the land per day is capped at 20, the proposed roadworks and signage along Tamrookum Creek Road are undertaken within 12 months of approval being granted, and the traffic management and other measures in the proposed conditions of approval are implemented:

· is of a scale, form and intensity appropriate for the locality;

· is consistent with the reasonable expectations of residents in the rural zone;

· is compatible with existing and adjoining rural uses;

· will not have any unacceptable adverse impacts (including impacts on efficiency and safety) on Tamrookum Creek Road, the intersection of Mt Lindesay Highway and Tamrookum Creek Road, or the road transport network generally;

· will minimise risk, nuisance and impacts to people and property in the surrounding area; and

· will not have any unacceptable adverse impacts on the existing rural character, sense of place, or amenity of the surrounding area.

In these circumstances, I find that a decision to approve the development on the conditions I have identified will not conflict with:

(a) the Desired Environmental Outcomes DEO(1)(a) – Environment or DEO(2)(g), (h) and (l) – Economic;

(b) Strategy 7 of the Strategic Framework;

(c) Overall Outcomes of the Rural Zone Code OO1, OO3, OO6, OO22 or OO51;

(d) Specific Outcomes of the Rural Zone Code SO2, SO22, SO32, SO43, SO44, SO45 or SO47;

(e) Specific Outcomes of the Camping Ground Use Code SO5 or SO14; and

(f) Overall Outcome (b) for Sports Recreation and Entertainment of the Recreation Use Code.

In circumstances where there is no conflict with the planning scheme, it is not necessary to consider whether there are sufficient grounds to justify the decision despite the conflict. I record, however, that Harris called evidence from Mr Duane, an economist, who concluded in a report dated 20 March 2014 that “there is a clear and overwhelming level of economic and community need” for the proposed development. In addition to this need, Harris submitted that the grounds justifying a decision to approve the development, if there were to have been a conflict with the planning scheme, included:

· the proposed development would provide recreational choice for the region and for particular groups;

· the proposed development would facilitate driver safety training;

· the proposed development would stimulate economic development through tourism and employment;

· the proposed development would cause improvement to the existing on-site vegetation;

· the proposed development would result in improvements to local road infrastructure;

· bushfire protection measures will be implemented which, in combination, will provide a safer outcome than currently exists or has been maintained under previous ownership;

· the proposed development would result in better outcomes than presently exists in respect of weed management, thereby resulting in a lower bushfire risk for the locality;

· the proposed development would have an absence of unacceptable amenity impacts; and

· the proposed development would proactively encourage safe four wheel driving activities outside of national and State parks.

As I have found that there is no conflict with the planning scheme, it is unnecessary to determine whether these grounds are matters of public interest (within the definition of “grounds” in the Dictionary in Sch 3 of SPA) or would be sufficient to justify a decision to approve the changed development on the conditions identified.

Conclusion and orders

I have determined that Harris has discharged the onus of establishing that the appeal should be upheld and that the court should set aside the Council’s decision appealed against and replace it with a decision to approve Harris’ changed application subject to the conditions I have identified. It is appropriate to adjourn the hearing to allow the parties to discuss and endeavour to agree on the conditions package.

I therefore make the following orders:

1. Adjourn the hearing of the appeal to 10.00am on 29 April 2014.

2. Direct the parties to file agreed conditions of approval or, failing agreement, to file their competing versions of the conditions of approval, by 24 April 2014.

CITATION:	Harris v Scenic Rim Regional Council [2014] QPEC 16
PARTIES:	BRIAN HARRIS and WENDY HARRIS T/A SCENIC RIM ADVENTURE PARK (appellants) v SCENIC RIM REGIONAL COUNCIL (respondent) and ANTHONY ROBERT HALPIN (first co-respondent by election) and DAVID PETER BARBAGALLO (second co-respondent by election)
FILE NO/S:	2292 of 2013
DIVISION:	Planning and Environment Court
PROCEEDING:	Appeal
ORIGINATING COURT:	Brisbane
DELIVERED ON:	11 April 2014
DELIVERED AT:	Brisbane
HEARING DATE:	31 March 2014, 1-4 April 2014
JUDGE:	Preston A/DCJ
ORDER:	Adjourn the hearing of the appeal to 10.00am on 29 April 2014.1. Direct the parties to file agreed conditions of approval or, failing agreement, to file their competing versions of the conditions of approval, by 24 April 2014.2.
CATCHWORDS:	PLANNING AND ENVIRONMENT – Applicant appeal against refusal of development application for development permit – material change of use – use for outdoor sports, recreation and entertainment and use for camping ground – traffic generated by uses – proposed limits on customer vehicle numbers – access by single lane rural road with creek crossings – proposed works to upgrade road at crossings and improve signage – whether adverse impacts by traffic on road safety and amenity of neighbours – intersection of access road and State controlled highway – whether adverse impacts on road safety by right turn from highway to access road – finality, certainty and enforceability of conditions of approval – whether decision to approve would conflict with planning scheme – whether sufficient grounds to justify a decision to approve despite the conflict Environmental Protection Act 1994 (Qld) s 115 Sustainable Planning Act2009 (Qld) ss 10, 260, 261, 267(2), 272, 285, 287, 291, 292, 314, 324, 326, 335, 342(3), 345, 346, 347, 350, 395(2)(b), 461, 464, 481(1), 482, 485(4), 493, 495, 496, 578, 582, 588, 590, 760, Ch 6, Pt 4, Div 2, Dictionary Sch 3 Transport Infrastructure Act1994 (Qld) Beaudesert Shire Planning Scheme 2007 Acland Pastoral Co Pty Ltd v Rosalie Shire Council [2008] QPELR 324 Anderson v Minister for Infrastructure Planning and Natural Resources (2006) 151 LGERA 229 Bell v Noosa Shire Council [1983] QPLR 311 Belmorgan Property Development Pty Ltd v GPT Re Ltd (2007) 153 LGERA 450 Botany Bay City Council v Saab Corp Pty Ltd (2011) 183 LGERA 228 Broad v Brisbane City Council (1986) 2 Qd R 317 Caloundra City Council v Pelican Links Pty Ltd [2004] QPEC 52 Cann’s Pty Ltd v The Commonwealth (1946) 71 CLR 210 Cardwell Shire Council v King Ranch Australia Pty Ltd (1984) 58 ALJR 386; (1984) 54 LGRA 110 Corporation of the City of Unley v Claude Neon Ltd (1983) 32 SASR 329 Crane v Brisbane City Council [2004] QPELR 1 Gaven Developments Pty Ltd v Scenic Rim Regional Council [2010] QPELR 385 Genkem Pty Ltd v Environment Protection Authority (1994) 35 NSWLR 33 Gillion Pty Ltd v Scenic Rim Regional Council [2013] QPEC 15 Gillott v Hornsby Shire Council (1965) 10 LGRA 285 Gorman v Brisbane City Council [2004] QPELR 29 GPT Re Ltd v Wollongong City Council (2006) 151 LGERA 116 Grant v Pine Rivers Shire Council [2006] QPELR 112 Heilbronn and Partners v Gold Coast City Council [2005] QPELR 386 Heritage Properties Commercial Pty Ltd v Maroochy Shire Council [1999] QPELR 108 Heritage Properties Pty Ltd v Redland City Council [2010] QPELR 510 Hurstville City Council v Renaldo Plus 3 Pty Ltd [2006] NSWCA 248 Kindimindi Investments Pty Ltd v Lane Cove Council (2006) 143 LGERA 277 King Gee Clothing Company Pty Ltd v Commonwealth (1945) 71 CLR 184 Larsen v Green & Caboolture Shire Council [1980] QPLR 64 Lockyer Valley Regional Council v Westlink Pty Ltd (2011) 185 LGERA 63 Lockyer Valley Regional Council v Westlink Pty Ltd (No 3) [2013] 2 Qd R 302; (2012) 191 LGERA 452 Macquarie Leisure Operations Limited v Gold Coast City Council [2007] QPELR 418 McBain v Clifton Shire Council [1996] 2 Qd R 493 Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (1996) 91 LGERA 31 Mison v Randwick Municipal Council (1991) 23 NSWLR 734 Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council & Stoneco Pty Ltd [2010] NSWLEC 48 Novak v Woodville City Corporation (1990) 70 LGRA 233 Parcel One Pty Ltd v Ipswich City Council [2007] QPELR 474 Petroleum Design and Management Pty Ltd v Mackay City Council [2004] QPELR 593 Planning Commission (WA) v Temwood Holdings Pty Ltd (2004) 221 CLR 30; (2004) 137 LGERA 232 Proctor v Brisbane City Council (1993) 81 LGERA 398 Qiu v Minister for Immigration and Ethnic Affairs (1994) 55 FCR 439 Rivers SOS Inc v Minister for Planning (2009) 178 LGERA 347 Scott v Wollongong City Council (1992) 75 LGRA 112 Seabridge Pty Ltd t/as Clutha Creek Sands v Council of the Shire of Beaudesert [2001] QPELR 191 Simmons v Esk Shire Council [2006] QPELR 570 Studio Tekton Pty Ltd v Redland Shire Council [2007] QPELR 174 Television Corporation Ltd v The Commonwealth of Australia (1963) 109 CLR 59 Telstra Corp Ltd v Hornsby Shire Council (2006) 67 NSWLR 256; (2006) 146 LGERA 10 Transport Action Group Against Motorways Inc v Roads & Traffic Authority (1999) 46 NSWLR 598; (1999) 104 LGERA 133 Ulan Coal Mines Ltd v Minister for Planning (2008) 160 LGERA 20 Warehouse Group (Australia) Pty Ltd v Woolworths Ltd (2005) 141 LGERA 376 Weightman v Gold Coast City Council [2003] 2 Qd R 441 Westfield Management Ltd v Perpetual Trustee Company Ltd [2006] NSWCA 245 Westfield Management Ltd v Perpetual Trustee Company Ltd [2007] HCA Trans 367 (1 August 2007) Winn v Director-General of National Parks and Wildlife (2001) 130 LGERA 508 Woolworths Ltd v Maryborough City Council (No 2) [2006] 1 Qd R 273
COUNSEL:	M Batty for appellants S M Ure and N Loos for respondent
SOLICITORS:	OMB Solicitors for appellants Corrs Chambers Westgarth for respondent Mr A R Halpin (self-represented) for first co-respondent by election Mr D P Barbagallo (self-represented) for second co-respondent by election