Heilbronn & Partners v Gold Coast City Council - [2004] QPEC 80

No judgment structure available for this case.

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Heilbronn & Partners Pty Ltd & Ors v Gold Coast City Council [2004] QPEC 080

PARTIES:

HEILBRONN & PARTNERS PTY LTD, BAYMILL INVESTMENTS PTY LTD, PETER REGINALD COOPER FIRTH and JEANETTE LILLIAN FIRTH (Appellants)

v

GOLD COAST CITY COUNCIL
(Respondent)

FILE NO/S:

1131 of 2001

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court Southport

DELIVERED ON:

3 December 2004

DELIVERED AT:

Brisbane

HEARING DATE:

2,3,4,5,6,10,11,12,19,24 August, 1 December 2004

JUDGE:

Rackemann DCJ

ORDER:

Appeal dismissed

CATCHWORDS:

SUBDIVISION – APPLICATION UNDER LOCAL GOVERNMENT (PLANNING AND ENVIRONMENT) ACT to create Management Lots – whether change of proposal a minor modification – s 4.15 of P&E Act - whether change ought be allowed as matter of discretion – should merits be considered if leave to amend refused – whether land proposed to form part of waterway system could or should be dedicated to public ownership contrary to wishes of the local government - whether impact on visual amenity and landscape character acceptable having regard to planning instruments.

Local Government (Planning and Environment) Act 1999 (P&E Act)
Integrated Planning Act 1997 (IPA), s.6.1.25
Land Title Act s.51(3)
Land Act 1994

Cases cited:

Addicoat v Fox (1978) 37 LGERA 411
Arksmead Pty Ltd v Council of the City of the Gold Coast (2000) 187 LGERA 60
Barakat Properties Pty Ltd v Pine Rivers Shire Council (1994) 85 LGERA 99
Begley v Pine Rivers Shire Council[1995]QPELR 77
Heritage Properties Commercial Pty Ltd v Maroochydore Council [1999] QPELR 108
Ecovale Pty Ltd v Gold Coast City Council [1999] 2 Qd R 35
Hancock Development Corporation Pty Ltd v City of
Tee Tree Gully & Ors (1995) 55 LGRA 146

Jeteld Pty Ltd v Toowoomba City Council [1995] QPLR 285 at 287J

Kidd v Brisbane City Council [1984] QPELR 34
McBain v Clifton Shire Council [1995] QPLR 363
Pacific Seven Pty Ltd v City of Sandringham [1982] VR 163, 164
R v Shanahan ex parte Northern Territory Planning Authority (1984) 54 LGERA 255
Rubyway Pty Ltd v Noosa Shire Council [1998] QPLR 241, 243
Roy Sommerville Surveys Pty Ltd v Brisbane City Council [1992] QPELR 114
Stavrianos Superannuation Funds 1 & 2 v Ipswich City Council [1999] QPELR 64
Texbeam v Brisbane City Council [1995] QPELR 108
Transport Action Groupagainst Motorways Inc v Roads & Traffic Authority (1999) 104 LGERA 133

Westfield Limited v Gold Coast City Council [2000] QPELR 121

Westfield Management Limited v Pine Rivers Shire Council [2004] QPELR 337

COUNSEL:

Mr PJ Lyons QC with Mr R Needham and Mr B Job for the appellants
Mr J Gallagher QC with Mr R Litster for the respondent

SOLICITORS:

Corrs Chambers Westgarth for the appellants
Minter Ellison Gold Coast for the respondents

TABLE OF CONTENTS

Introduction............................................................................................................. 3

The Issues................................................................................................................. 6

The Change of Proposal Issues............................................................................... 7

(i) Invalidity of Final Notified Proposal................................................................ 7

(ii) General Principles re modification.................................................................. 8

(iii) s 4.15............................................................................................................ 10

(iv) Ameliorative Changes.................................................................................. 17

(v) Is the Change a “modification”..................................................................... 18

(vi) Minor Nature................................................................................................ 27

(vii) Discretion to allow amendment................................................................... 29

Should the merits be considered.......................................................................... 30

Merit Issues....................................................................................................... 31

(i) Engineering issues.......................................................................................... 31

(ii) Visual Amenity, Landscape Character and Town Planning......................... 36

Conclusion.............................................................................................................. 56

Introduction

[1] The appellant’s appeal against the respondent’s refusal of an application to sub-divide a site comprising some 73.07 hectares, located between the Pacific Highway and its service road (Highfield Drive) to the south-west and the Brisbane/Robina Rail Line to the north-east at Merrimac, for the purposes of creating management lots for the development of, amongst other things, development platforms and waterbodies.

[2] The site, which is irregular in shape, is adjoined to the north by parkland (separated by a waterway referred to as Wilson’s Drain), and the playing fields of the All Saints Anglican School, to the southwest by an area of existing residential development and to the south by the Glades Golf Course (which includes some residential development).

[3] The site is located within the Merrimac/Carrara Flood Plain and is, as one might expect, predominantly low and flat. It is affected by flooding during regional events from Mudgeeraba Creek and the Nerang River, and local events from Worongary Creek and Broken Gully. Most of the site is cleared of mature vegetation and has been used for grazing for many years.

[4] The site includes a small knoll, known as “Snake Hill” in the north, close to the boundary of the All Saints School.

[5] The site lies within a broader locality which is developed for a range of urban uses, and is in relatively close proximity to the Robina Town Centre. While most urban uses in the broader locality are located on the higher land, development for residential/tourist/recreation purposes exists within the flood plain.

[6] Given the site’s location and topography, the achievement of development necessarily involves a consideration, amongst other things, of how appropriate development areas can be achieved without undue adverse effect upon the flood plain.

[7] The subject application did not seek all of the approvals which would be required in order to achieve ultimate development of the site. The application was for subdivision for the creation of large allotments for the development of platforms, the conveyance of water and for parks or open space. The application was described, in the submissions on behalf of the appellant, as:

“… an intermediate step in the process by which the ultimate development of the appellant’s land will be carried out. Further applications, for subdivision and building work, are envisaged. The appellant’s application is a long way short of an application for the approval of an ultimate form of development of the land.”

[8] The lodgement of the application, the Council’s decision to refuse it and the institution of the appeal to this court all happened an exceptionally long time ago.

[9] The application was originally lodged in October 1993, although it was common ground that it did not become “duly made” until January 1997 when an environmental impact statement (EIS) was lodged. The respondent refused the development application in December 2000 and the appeal to this court was instituted in January 2001. Many events have occurred in the interim, including significant amendments to the 1995 Planning Scheme and its eventual replacement with the current Gold Coast City Council Planning Scheme, which took effect on 18 August 2003. Further, in 1998, the Local Government (Planning and Environment) Act 1999 (P&E Act) under which the subject application was made, was repealed and the Integrated Planning Act 1997 (IPA) commenced.

[10] Notwithstanding the repeal of the P&E Act, the processing of the subject application and all matters incidental thereto, including this appeal, are required to proceed as if the P&E Act had not been repealed[1]. It is unlikely that there are many outstanding appeals which would still be required to be determined on that basis.

[1] See s.6.1.25 of IPA.

[11] Since the evidence was concluded there have been further amendments to the IPA[2] and the draft South East Queensland Regional Plan has been published. It was common ground however, that neither has an effect on the determination of the appeal, and I am satisfied that is so.

[2] the Integrated Planning and Other Legislation Amendment Act 2003 commenced on 4 October 2004 and the Integrated Planning and Other Legislation Amendment Act 2004 commenced on 5 October.

The Issues

The respondent’s decision notice stated four reasons for refusal, which related to conflict with Albert Shire Planning Scheme Strategic Plan, conflict with Council’s Parkland Dedication Guidelines, the failure of the proposal to provide for an ecologically sustainable development in terms of stormwater and water quality management and the inadequacy of hydraulic modelling.

[12] The appellants did not seek, in the appeal, to support the proposal to which those reasons related. Rather, the court’s approval was sought for a proposal formulated this year and referred to as the Final Notified Proposal (FNP). The differences between the FNP and the proposal to which the EIS related (the EIS proposal) included the number and layout of proposed allotments and the number, size and configuration of proposed development platforms and the nature of water bodies proposed.

[13] Reference was also made to the so called Notified Proposal (NP) which the appellant notified to the respondent at an earlier time in 2004, but which was subsequently overtaken by the FNP.

[14] While the Statements of Issues in dispute in the appeal were lengthy, the questions for determination are:

1. Does the court have jurisdiction to consider the FNP?

2. If so, as a matter of discretion, should the court permit the appellant to change its application by adoption of the FNP?

3. If so, should the FNP, as a matter of merit, be approved or refused?

[15] The issues relating to the adoption of a new proposal were initially raised following the publication of the NP. Those issues were to be determined by way of a separate hearing in advance of any hearing in relation to the merits. That separate hearing was, however abandoned and the parties were content for the change of proposal issues to be heard and determined with the merit issues.

The Change of Proposal Issues

(i) Invalidity of Final Notified Proposal

[16] It was contended on behalf of the respondent that the FNP could not be considered, since the appellants had not applied for terms of reference nor sought a waiver under s.8.2 of the P&E Act in relation to the FNP. The relevant requirements of s.8.2 refer to that which must be done at the application stage. No further EIS procedure was required with respect to applications to modify and, to the extent that the court had a power to consider a changed proposal, its power to do so was not conditional upon the applicant undertaking the s 8.2 process with respect to the changed proposal[3].

[3]Compare Transport Action Group v RTA (1999) 104 LGERA 133 at 151.

[17] Even if, in the circumstances, there was a degree of non-compliance with the requirements of s.8.2 of the P&E Act then I would have, if necessary, been prepared to exercise the excusal powers under s.7.1A(3)D. In the circumstances, there can be no suggestion of any non-compliance adversely affecting the public. While the changes brought about by the FNP were of such significance that the EIS could no longer be sensibly read as referring to the current proposal and, although the referral agencies might not have been given an opportunity to make fresh comments on the FNP[4], matters of environmental significance in relation to the FNP were the subject of the closest degree of scrutiny in the context of the appeal.

(ii) General Principles re: modification

[4] Something for which the parties blamed each other. The appellant pointed to the fact that the respondent referred the matter to the Department of Local Government and Planning (Ex 12 Vol 11 p 3292) but only for the limited purpose of seeking support on the minor change issue, while the respondent suggested the appellant did nothing to consult the relevant agencies about the new proposal.

[18] It has long been recognised that, within limits, an application may ultimately result in an approval which permits or requires development to occur in a modified form, particularly where, as here, the decision maker at first instance and the appellate body have the power to approve subject to conditions. In another context it has been said[5]:

“In my opinion, a power to grant a permit subject to conditions authorises the responsible authority to grant a permit for a use or development which differs from the use or development the subject of the application for a permit, provided that the difference is not so radical as to enable it to be said, viewing the matter broadly and fairly that to grant a permit on the supposed conditions would not be to grant the permit applied for with modifications, but to grant a different permit.”

[5]Addicoat v Fox (1978) 37 LGERA 411 at 429.

[19] The particular statutory context is relevant to the power. In the case of the P&E Act, there was express provision, in s.4.15, for a local government to permit a modification of an application. The limits of the court’s power to permit changes were, under the P&E Act, derived by implication or analogy from that provision.

[20] In the case of applications for subdivision, the application was required to be accompanied by a proposal plan (s.5.1(2)(c)) and s 5.1(4) permitted the local government, after considering the matters in s.5.1(3), to request the submission of an “amended proposal plan to supersede the plan which accompanied the application”. In this case, however, the appellants request to modify the proposal. It is not a case of the Council (or the court) requesting an amended proposal plan.

[21] The power to modify is beneficial. The nature of town planning and, more specifically, the application assessment process (including the appellate process) requires flexibility to respond to facts, circumstances and issues as they emerge and the discovery of new or better ways to implement a proposal. It is through the flexibility to modify proposals that a great many planning disputes are resolved in ways which are not only satisfactory to the parties but result in better development for the benefit of the wider community. While the power to modify has been criticised, by some, as an incentive to applicants to hold back information or to make ambit claims, it affords flexibility which, within limits, is desirable.

[22] It is attractive to adopt a generous interpretation of the limits within which an application may be changed. Courts charged with responsibility for determining planning matters have long recognised the need for flexibility and the desirability of making every endeavour to deal with the substance of the matter with the maximum of expedition and fairness[6].

[6] See Pacific Seven Pty Ltd v City of Sandringham [1982] VR 163, 164

[23] The attraction of passing over jurisdictional concerns is particularly strong in circumstances, such as the present, where:

• the application is not of a type which attracted public notice requirements or third party objection or appeal rights;

• the FNP is, on any view, significantly better;

• the Council has examined the FNP in great detail, with the benefit of advice from a range of competent experts and formulated its attitude on the merits; and

• the parties, which were very ably represented, have comprehensively argued the merits of the FNP.

[24] As Senior Counsel for the respondent acknowledged, there are “intensely persuasive pragmatic arguments” for passing over the jurisdictional concerns. The court is, however, a creature of statute and must respect its jurisdictional limits. The matter comes before this court by way of an appeal and the court must not deprive the proceedings of that character[7] by usurping the function of decision maker at first instance. A self limiting approach is required.

[7]R v. Shanahan ex parte Northern Territory Planning Authority (1984) 54 LGERA 255 at 263

[25] (iii) s 4.15

The modification of applications made to a local government was subject to s 4.15 of the P&E Act which provided, in part, as follows:
“4.15(1) An application may be made to a local government seeking the modification of –

(a) an application to which this section applies

…

1(A) This section applies to any application made under –

…

(e) s.5.1 (application for subdivision etc);

…

(2) A local government is not to approve an application to modify made under subsection (1) where –

(a) in its opinion the modification is not of a minor nature;

(b) in its opinion the modification would adversely affect any person to a degree which would, if the circumstances allowed, cause that person to make an objection;

…

(3) For the purposes of subsection (2), a proposed modification is of a minor nature if;

(a) the proposed use to be made of the land the subject of the modification is not varied by the addition of different uses;

(b) the gross floor area of buildings or proposed buildings on the site is to be increased by less than 5%;

(c) the number of storeys above ground level to be contained in any building or proposed building or part thereof on the site is not to be increased;

(d) the locations of the proposed ingress to or egress from the site are not to be substantially altered;

(e) any altered ingress to or egress from the site is to be to or from the roads –

(i) approved by the local government in dealing with the relevant application; or

(ii) specified in the relevant application;

(f) the amenity or the likely future amenity of the locality would not, in the opinion of the local government, be adversely affected by the proposed modification.

…

(7) In deciding an application to modify made to it pursuant to this section a local government is to –

(a) approve the application; or

(b) approve the application, subject to conditions; or

(c) refuse to approve the application.”

[26] A number of observations may be made about those provisions.

[27] Firstly, the provisions applied to applications made to a local government, but not expressly to modifications sought during the appeal process. Indeed, the P&E Act contained no express power of modification at the appellate stage, but did provide that the court’s power, in determining an appeal, included the power to approve subject to conditions[8]. For some time the court considered applications to proceed with changed proposals by reference to judicially formulated tests[9]. Those were sometimes formulated by reference to whether further advertisement or public notification was required, although, more accurately, the question related to whether the proposal could be assessed within the parameters of the existing application or whether it could only proceed by way of a fresh application, with any attendant public notification requirements.

[8] See s.7.1A(3) for the power to approve subject to conditions in the case of an appeal against a refusal.

[9] See eg Kidd v Brisbane City Council [1984] QPELR 34; Roy Sommerville Surveys Pty Ltd v Brisbane City Council [1992] QPELR 114; and Begley v Pine Rivers Shire Council [1995] QPELR 77.

[28] The basis upon which the court, under the P&E Act, could consider a changed proposal was considered in Ecovale Pty Ltd v Gold Coast City Council [1999] 2 Qd R 35 where Pincus JA said at pp 42-43 as follows:

“There is nothing in the Act which expressly empowers the Planning and Environment Court to approve a rezoning application differing from that which was considered by the local authority.
…
If the Planning and Environment Court has a power, on an appeal relating to a rezoning approval, to order that the approval be varied in the way which is in issue, that must be found in the statute. Section 7.1A(3) of the Act empowers the court to allow an appeal against a refusal or condition of approval absolutely or subject to conditions; under subs. 3B of the same section the court may vary a condition imposed by the local authority. Under subs. 3E the court may in determining an appeal "give such orders and directions as it considers appropriate", but this is in my view confined to procedural orders and directions.
It will be seen that the only explicit power to change the terms of the approval the subject of the appeal is by way of imposition or variation of conditions. Although the contrary was suggested, what is in issue here is not imposition or variation of a condition, but a change in the plan, that being not a condition of approval but part of what is approved. As has been pointed out, the scheme contemplates that there will be a plan submitted for approval and when the rezoning is effected, development substantially in accordance with that plan becomes an "as of right" use.
It is noteworthy that the power of a local authority to modify an application for rezoning and certain other applications is elaborately prescribed by s. 4.15 of the Act, whereas the Act contains nothing to say directly whether the court may do the same; so far as the express terms of the Act are concerned, the only power in the Planning and Environment Court to modify an approval the subject of an appeal, otherwise than by imposing or varying conditions, on an application for review of a decision of the local authority is under s. 4.15: see subss. 10-15. One tends to be reluctant to hold that the Planning and Environment Court has no power to vary an approval the subject of an appeal to it, otherwise than with respect to conditions, if only because for some time the Planning and Environment Court and its predecessor have purported to exercise that power. And this has been done, not by the device of treating a change in what is proposed as a variation or imposition of a condition, but rather on the assumption that the Court has a general power to treat the application as amended. Examples include Mt Isa Mines Ltd v. Brisbane City Council (1971) 25 L.G.R.A. 123 at 127; Matus v. Council of the City of Cairns (1981) 3 Q.P.L.R. 106 at 108; Kidd v. Brisbane City Council [1984] Q.P.L.R. 34 at 36; Roy Somerville Surveys Pty Ltd v. Brisbane City Council [1992] Q.P.L.R. 114 at 115; Texbeam v. Brisbane City Council [1995] Q.P.L.R. 108 at 110; and Woolhouse v. Brisbane City Council [1995] Q.P.L.R. 187 at 189. The assumption that the Court may act as did the primary judge in the present case has been made for many years and has survived substantial changes in the relevant statutory provisions - none of which, so far as I have been able to ascertain, have ever given the court hearing appeals from local authority decisions on rezoning express power to consider and approve a modified proposal.
Although the position is and remains unclear, it appears to me that one should read s. 7.1A(4) of the Act as implying a power in the Planning and Environment Court to change the proposed rezoning. The statute does not express any limits to that power, but it appears to me that, since implications are necessary to achieve what one might infer was the legislative purpose, it should be implied that the limits of the Court’s power of modification are to be found in s. 4.15 (2) and (3) of the Act. It appears from the decisions in Texbeam and in Woolhouse to which I have referred that this accords with the present practice of the Court. …”

[29] In Arksmead Pty Ltd v Council of the City of the Gold Coast (2000) 187 LGERA 60, the Court of Appeal said, at p 70:

“The Local Government (Planning and Environment) Act did not expressly confer on the Planning and Environment Court power to approve a proposed development which was different from that which accompanied the initial application to the local authority. This court held, however, in Ecovale Pty Ltd v. Gold Coast City Council [1999] 2 Qd.R. 35, that the Planning and Environment Court had a limited power to do so, and the limits of that power were to be derived by implication, or analogy, from s.4.15 of the Local Government (Planning and Environment) Act.”

[30] Accordingly s4.15, by implication or analogy, set the limits within which the court could, under the P&E Act, consider a proposal different from that which was the subject of the application. It was submitted on behalf of the appellant that, contrary to what was said in those cases, the jurisdiction of the court to permit an amendment was broader than the limits indicated by the application of s.4.15 by implication or analogy. This court is however, bound by the decisions in Ecovale and Arksmead.

[31] Secondly, the section dealt with the “modification” of, amongst other things, an application. Subsection (2) prohibited the approval of an application to “modify” where, amongst other things, the modification was not of a “minor nature”. Subsection (3) provided that, in certain circumstances, a proposed “modification” was of a “minor nature”. The section however, did not deal with changes which could not be said to be a “modification” whether of a “minor nature” or not. Hence, it was said in Westfield Limited v Gold Coast City Council [2000] QPELR 121 at 127:

“… The statutory requirement that a modification be of a minor nature before it can be approved is satisfied only if changes to a proposal:

(a) are a modification rather than a different proposal altogether; and

(b) are minor rather than major.

Accordingly, changes to a proposal may be characterised as constituting a different proposal rather than a modification, or as being a major modification, or as being a minor modification.”

[32] The correctness of that approach was not contested and it was conceded by Senior Counsel for the appellants, that it must first be established that the proposed change is a modification[10]. It is only if the change is a modification that the issue of “minor nature” becomes relevant.

[10]T855 ll 31-40.

[33] Thirdly, the section related both to applications which were and which were not required to be publicly notified. Subsection (1A) provided that the section applied to subdivision applications, even though such applications were not required to be publicly notified under the P&E Act.

[34] Fourthly, where a change was properly categorised as a modification, subsection (2) required that it not be approved where any of the stated sub-paragraphs applied. The only two sub-paragraphs of relevance to an application to modify an application (as opposed to an approval or a condition) were sub-paras (a) and (b). Of those, sub-para (b) is irrelevant in the current circumstances, as subdivision applications were not subject to public notification or objection rights under the P&E Act[11]. The remaining sub-paragraph, (a) prevented the approval of an application to modify where in the opinion of the local government[12] that modification was not of a “minor nature”.

[11]Jeteld Pty Ltd v Toowoomba City Council [1995] QPLR 285 at 287J.

[12]and, by implication of analogy, the court in an appeal.

[35] Fifthly, subsection (3) specified circumstances in which a proposed modification is of a minor nature. That subsection however has been described as neither conclusive nor exhaustive[13]. Where it applied, it deemed the change to be minor. So, for example, if the relevant change was to increase the gross floor area of buildings or proposed buildings by less than 5%, it was of a minor nature (s 4.15(3)(b)). A change could, however, be assessed to be minor in the circumstances even where it was not deemed to be minor by reference to subsection (3)[14].

[13] Heritage Properties Commercial Pty Ltd v Maroochy Shire Council [1999] QPELR 108 at 112F, Westfield Ltd v Gold Coast City Council (supra) at 138 F-6, Rubyway v Noosa Shire Council [1982] QPELR 241 at 243 F-G. In the earlier decision of Barakat Properties Pty Ltd v Pine Rivers Shire Council (1994) 85 LGERA 99 it was said at 102 that “section 4.15 indicates what is a material difference”, however I do not regard that statement as going so far as to suggest that subsection (3) of s 4.15 is conclusive or exhaustive on the ‘modification’ issue or the ‘minor nature’ issue.

[14] Stavrianos Superannuation Funds 1 & 2 v Ipswich City Council [1999] QPELR 64 at 66A-B, Westfield Limited v Gold Coast City Council (supra) at 127J.

[36] On the other hand, there will be many ways in which an application might be changed, perhaps in a most substantial way, which are irrelevant to the matters specified in subsection (3). It has been said however, that the subsection was not to be taken to be exhaustive. In Rubyway Pty Ltd v Noosa Shire Council [1998] QPELR 241 it was said at 243:

“In section 4.15(3) there are specified a number of circumstances in which a proposed modification is to be taken as being of a minor nature. None of these circumstances appear to relate directly to this matter, but I do not see them as being an exhaustive identification of matters which are relevant to a consideration of whether a proposed modification is minor or otherwise. That decision can only be made by reference to the facts of any given case”.

[37] It has also been said that, in the absence of an exhaustive identification of matters which are relevant to a consideration of whether a proposed modification is minor or otherwise, the categories of cases in which there are material differences cannot be regarded as closed[15].

[15] Westfield Limited v Gold Coast City Council (supra) at 138F-G, see also Texbeam v Brisbane City Council [1995] QPLR 108 at 110C.

[38] It was submitted on behalf of the appellant that Rubyway Pty Ltd v Noosa Shire Council ought not be followed so that, subject to the FNP being found to be a modification, it should be taken to be minor if it ‘passes’ the sub paragraphs of sub-section (3)[16]. That question will not fall for determination unless the proposed change is held to be a modification, so as to raise the “minor nature” issue.

[16]T855 l 35-40.

[39] Finally it should be noted that the power to approve an application to modify included, in subsection (7), a power to approve conditionally. An application to modify did not have to be considered in isolation to the conditions which were entitled to be applied[17].

(iv) Ameliorative Changes

[17] See Transport Action Group -ats- Motorways Inc v Roads & Traffic Authority (1999) 104 LGERA 133 at 152. While, in an appeal before the court, conditions might not ordinarily be placed on the granting of leave to modify, the court has, as has been noted, the power to impose conditions on any approval of the modified plan.

[40] It was submitted on behalf of the appellants, that changes to a proposal which are ameliorative, would result in a reduction in size or scope of a proposal, which reduce off-site effects and have no significant adverse off-site effects, generally indicate that the application is not materially different. This, it was contended, is consistent with the general tenor of s 4.15(3) of the P&E Act.

[41] I accept, as Hinson ADCJ said in Heritage Properties Commercial Pty Ltd v Maroochy Shire Council (supra) at 114, that:

“… an alteration by way of addition or relocation may more easily be characterised as substantial, as the example given by Mr Gore in the course of argument demonstrates. That is because the addition of some new element to a development proposal is inherently more likely to alter the nature and character of that development in a way which justifies the conclusion that the modified proposal is markedly different from the original proposal rather than being materially the same proposal. Paragraphs (a), (b) and (c) of section 4.15(3) reflects this to some extent, by providing that a modification is of a minor nature if it does not involve the addition of different uses or storeys above ground level, or if it involves a limited addition of gross floor area. The deletion of some existing element is generally less likely to have that result. Everything depends, of course, on the particular circumstances of the case, including the size and nature and extent of the add element or the deleted element.”

[42] As Stavrianos Superannuation Funds 1 & 2 v Brisbane City Council (supra) demonstrates however, a proposed change may be held to be more than a minor modification even where the impacts of the change are negligible or non-existent. As Hinson ADCJ said in the above passage from Heritage Properties “everything depends, of course, on the particular circumstances of the case”.

(v) Is the Change a “modification”

[43] The first question is whether the proposal is properly characterised as a “modification”. There is no statutory definition of that term.

[44] In Heritage Properties Commercial Pty Ltd v Maroochy Shire Council (supra), Hinson ADCJ said at 113:

“… apart from the case law, the ordinary meanings of “modify” and “modification”, being “to alter without radical transformation” and “the action of making changes in an object without altering its essential nature” respectively, suggest that what may be approved under section 4.15 are alterations or changes to an application which are not so extensive as to result in a materially different or markedly different application”.

[45] There are many cases in which expressions such as “materially different” or “markedly different” or “substantially different” or other similar formulations have been used in assessing the degree of change to a proposal.[18]

[18] See eg Barakat Properties Pty Ltd v Pine Rivers Shire Council (1994) 85 LGERA 99 at 102, Matus v Cairns City Council (1981) 3 APA 224 at 228, McBain v Clifton Shire Council [1995] QPLR 363 at 367 and Stavrianos (supra) at 66H.

[46] Counsel for the appellant drew attention to the decision in Transport Action Group v RTA (1999) 104 LGERA 133 in which the relevant issue was whether a changed motorway proposal represented a modification of the original proposal. Mason P (with whom Sheller JA agreed) recorded that it was common ground that “modify” was aptly defined as “to alter without radical transformation”. His conclusion in relation to the various changes (which were described in his reasons) was that:

“viewed singularly and cumulatively, the admitted changes summarised above did not involve the radical transformation of the original activity. They represented altered means of carrying out the same proposal, being that of providing a four lane motorway between the same two points in covering for the vast proportion of its lengthy identical area. Historically, the changes were linked with the original activity in that they arose out of the public responses to the exhibiting of the 1996 supplement. The changes were matters of relative detail in the context of the activity taken as a whole. They did not radically transform it. Whether or not they could be characterised as “substantial” (as the appellant submitted) is beside the point.

[47] Sheller JA said, of the modification issue at 171:

“For the reasons the President has given, I agree that the changes to the original proposed activity were, within the meaning of section 112 (4)(b)(i) of the EPA Act, modifications. I think it is correct to say that what there was meant by “modify” was a change which might add to or subtract from the proposed activity, the substance of which continued, and which was less than its wholesale rejection and replacement: See generally Legg v Inter London Education Authority (1972) 1 WLR 1245 at 1256: Qantas Airways v Aravco Limited (1995) 185 CLR 4361: North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 at 474; 97 LGERA 433 at 439-440.”

[48] The changes to the proposal in that case were substantial, particularly when viewed in isolation. I respectfully agree that changes which are substantial rather than minor, may nevertheless be modifications depending upon the context[19]. That is consistent with the analysis of Newton DCJ in Westfield, that a proposal might be seen as being a different proposal or a major modification or a minor modification. Much will depend upon the context. That which results in a materially different proposal in one context might be less significant in another[20].

[19]See also Addicoat v Fox (supra) at 429.

[20]See Texbeam v Brisbane City Council [1995] QPELR 108 at 110C.

[49] It was common ground that matters must be looked at “broadly and fairly” and that matters of fact and degree are involved.

[50] It was also common ground that the proposal with which the FNP should be compared is the EIS proposal rather than the earlier proposal which was the subject of the application as lodged. That is because it was common ground that the application was not duly made until lodgement of the EIS.

[51] The EIS, lodged under cover of a letter dated 13 January 1997, described the development concept by reference to a development concept plan (Figure 5) and a plan of the management lot subdivision (Figure 6). Figure 6 proposed the subdivision of the land to form 10 management lots. The development concept plan showed development areas adjoining the existing developed stages as well as two new substantial development pads within proposed Lot 5 (containing 11.64 hectares and featuring two “fingers”) and proposed Lot 8 (being an elongated development pad comprising 7.09 hectares) respectively. Snake Hill was to be removed by excavation.

[52] In November 1999 the appellant lodged “Supplementary Information” which included an amended layout which included an 11^th management lot and extended management Lot 7[21]. It was the 11 lot plan to which reference was made in the hearing.

[21] The differences between that plan and Fig 6 of the original EIS are not significant insofar as the determination of the issues in this appeal.

[53] The EIS described the “focus of the proposal” as “the development of navigable lakes and waterways, within an overall residential environment”. The concept plan showed what the EIS referred to as “over 3 km of canal style waterways” through the site adjoining the proposed development areas which, together with proposed dredging of Mudgeeraba Creek, would allow boat access through the site. The Environmental Management Plan section of the EIS described the primary functions of the lakes in terms of providing a pleasing feature, boat access to the residential areas as well as a storage and attenuation facility for local site stormwater runoff. The development concept also contained other elements, including wetland areas towards the periphery of the site and active open space areas in particular locations.

[54] The FNP is markedly different both with respect to the management lot subdivision and the development concept.

[55] The FNP proposes to subdivide the site into four parcels, comprising what are referred to as two management lots together with two others intended to be “dedicated to Council” for public open space[22]. The number, size and shape of the proposed lots is quite different from that which was shown in Figure 6 in the EIS.

[22]The FNP also indicates a “Bridge to be incorporated in stratum to proposed lot 3 across public open space”

[56] While the development concept still includes the provision of development platforms within the flood plain, the number, shape, area and distribution of the development platforms is different in the FNP. It is now proposed to develop five new building platforms (building platforms 3 to 7 inclusive), two of which adjoin the existing stages of residential development and three of which are located more towards the central and eastern parts of the site. In addition it is now proposed to retain the visually significant Snake Hill (including the majority of its trees), carry out supplementary landscaping and designate it as a development area.

[57] While there are areas of overlap between the building platforms presently proposed and those proposed in the EIS, there are also obvious differences. Further, the currently proposed Development Area 8, being Snake Hill, was previously to be excavated and incorporated into the proposed canal style lakes.

[58] The waterway and wetland system elements of the FNP are markedly different. The system of canal style navigable lakes and waterways, which was a feature of the EIS proposal, has been abandoned and replaced with a system of on-stream and off-stream open waterways and vegetated shallow wetlands separated from the development platforms by areas of dry open space through the site. The total area given over to water bodies is reduced. With the FNP, it is not now proposed to provide boat access to the development areas.

[59] Both the functioning and the visual presentation of the FNP’s waterway and wetland system would be markedly different to the canal-like waterways previously comprising the “broad lakes” concept.

[60] The change to the FNP was not done for its own sake, but in an endeavour to arrive at an acceptable proposal. The changes are however, more than incremental. They are also, as one might expect, of significance in relation to the disciplines of the various experts.

[61] The retention, rather than destruction, of Snake Hill and its partial development and treatment with supplementary planting as proposed in the FNP is obviously a very material difference, insofar as visual and landscape assessment is concerned. This is particularly so since, as each of the relevant experts agreed, Snake Hill is an important visual element. The waterway and wetland system proposed in the FNP will also present quite differently from the canal style lakes previously proposed and the number, area and configuration of the development areas has changed. The changes are, as Mr Chenoweth described, “fundamental changes in character and appearance”. These differences are of relevance to a consideration of the town planning instruments which, amongst other things, recognise the visual values of Snake Hill and the importance of the character of the floodplain.

[62] The change in ‘flood free’ and ‘permanent waterway’ footprints and the adoption of the waterway and wetland system in the FNP, with its other differences, changes the flow of water through the site and offsite as Dr Connor attested. As Mr Bristow’s evidence demonstrated, the change from the lake system also represented a fundamental change in the achievement of water quality and stormwater objectives.

[63] The FNP also is different in ways which are of relevance from an engineering perspective. With the FNP, Snake Hill is no longer available as a source of structural fill or an acid sulphate soil disposal area. Building platforms have been reduced in area and there is a greater separation between filled development platforms (which contain acid sulphate soils) and water bodies (which need protection from acid sulphate soils). Revetment walls will not now be required, since the platforms do not adjoin canal style lakes. The platform edge profile changes and stability is improved.

[64] I have not catalogued the detail of everything that was said about the differences between the two proposals and the significance of each to the various expert disciplines. Even putting areas of dispute to one side, the joint reports of the various experts detail numerous agreed points of difference[23]. While it is not every difference which might, viewed individually, evidence a materially different proposal, regard can be had to the totality of the differences.

[23] Although whether the differences amount to more than a modification is ultimately for the court rather than the experts.

[65] Generally speaking, the respondent and the witnesses it called stressed the degree of difference between the proposals, whereas the appellants, and those they called, stressed that the changes were ameliorative, responsive to issues which confronted the earlier proposal and did not have adverse offsite effects.

[66] It was submitted for the appellants that the FNP was not materially different from the earlier proposal if looked at broadly and fairly. It was contended that the FNP evolved through an “iterative” process of changes to address particular concerns and issues, but it remained an application to subdivide the same land to create management lots to provide development platforms from fill taken from excavation areas which are to be used to accommodate the passage of flood waters. Both proposals contain water bodies and areas of wet and dry open space. The differences relied upon by the appellant were said to be matters of detail. I am not convinced that is the case.

[67] While there are aspects of similarity between the two proposals at a generic level, that is not sufficient to render one a “modification” of the other. It has been said that even where an amended proposal involves the same generic use as the original proposal, it does not necessarily thereby qualify as a minor modification (Westfield Limited v Gold Coast City Council (supra) 128C). In Hancock Development Corporation Pty Ltd v City of Tee Tree Gully & Ors (1995) 55 LGRA 146, Jacobs J said at 149:

“… it is not disputed that the Tribunal’s initial approach was correct when it said that ‘any changes must be amendments (or variations), and must not pass the point whereby a new proposal is produced. The question as to when that point is reached must be one of degree having regard to all the facts of each particular case … but it is said that the Tribunal overlooked certain guiding principles. It is said in the first place that the changes were not quite fundamental’, in that the proposal disclosed by the A16 plans was for the same generic use of the subject land, i.e. as a supermarket and associated shops and offices; that the changes ought properly be regarded as having evolved from the original plans; and that the Tribunal failed to give due weight to the beneficial changes proposed. I am not persuaded that any of these matters invalidate the determination of the Tribunal. On the contrary, I am satisfied that the determination was entirely correct. The fact of the matter is that the appellant abandoned the A2 plans, and conceded that they could not merit planning approval. It did not put before the Tribunal the A2 plans with some amendments and modifications. It put before the Board a new set of plans which had been before the respondent Council and which it asked the Tribunal to consider for the first time. It was a substantially different plan. The proposed shopping centre had been reduced in size by about one-third, it was differently located on the subject land, it provided different points of access from abutting roads, different arrangements for car parking, and for landscaping. No doubt the new proposal was a better proposal, and one which the Tribunal itself acknowledged might well have merited planning approval, had it been before the Council in the first place. But such beneficial changes cannot avail the appellant unless the changes can be brought within the scope of an amendment to the original plans …”

[68] The court is required to assess whether or not the FNP will result in a materially different proposal[24] rather than a modification of the EIS proposal. In this case the EIS proposal was not just for any subdivision having the common elements referred to by the appellant. Rather it related to a particular management lot subdivision plan and development concept plan, albeit that those plans did not show the ultimate development intended for the site. Those plans have been abandoned and the FNP, while exhibiting some similarities at a generic level, is a materially different proposal. The differences go beyond matters of mere detail. As Professor Brannock said, when one looks at the two proposals ‘its basically looking at two different developments”.

[24]Westfield Limited v Gold Coast City Council (supra) at 128A.

[69] While I accept that the FNP was the result of diligent work to address issues which confronted the EIS proposal, the response is one which passed the point whereby a new proposal was produced. Indeed, that point was probably passed with the NP, although that is not something which need be determined. The FNP does not constitute an altered means of carrying out the EIS proposal. It is a radical departure from that proposal. It is not, as a matter of fact and degree, a modification of the EIS proposal.

[70] It follows that the appeal cannot be allowed on the basis of the FNP and, since the appellant has abandoned any reliance upon the EIS proposal, the appeal must be dismissed.

(v) Minor Nature

[71] Had I concluded differently with respect to the modification issue then, for the same reasons, I would have concluded that the modification was, as a matter of fact and degree, of a major rather than minor nature, subject to legal argument as to the operation of s 4.15(3).

[72] The construction of subsection (3) for which the appellants contended was that a modified proposal which passed the tests in sub-paragraphs of subsection (3) was taken to be of a minor nature. In that regard, reference was made to the statutory history, including the change of language between subsection (3), (which specified what was of a minor nature) and its predecessor (which stated what was not of a minor nature), and the description of subsection (3), in other cases, as a deeming provision.

[73] A perusal of subsection (3) suggests that it was not comprehensive with respect to the nature of changes which might be sought to be made to a proposal. It is possible to construe subsection (3) as a deeming provision in relation to changes of the type dealt with in the sub-paragraphs, rather than for other changes. That approach would be consistent with this court’s decision in Rubyway Pty Ltd v Noosa Shire Council (supra) and with what was said in Westfield Ltd v Gold Coast City Council (supra) at 138 F-G. It should also be noted that, in Texbeam v. Brisbane City Council (supra) Helman DCJ (as he then was) said that while s 4.15 was a “useful guide”, “the categories of cases in which there are material differences cannot be regarded as closed”. That case was referred to in the earlier quoted passage from Ecovale as an example of the practice of the Planning and Environment Court according with the analysis of Pincus JA. It is, however, unnecessary for me to express a precautionary conclusion on matters of law.

[74] I will record my precautionary findings in relation to the sub-paragraphs of subsection (3) which were in issue. The sub-paragraphs particularly relied upon by the respondent were sub-paras (d) and (e) in relation to the specification in the FNP of a haul road accessing directly from Highfield Road during construction, whereas no such access was specified in the EIS proposal. As Mr Holland pointed out, this is more a change to what is specified or documented than a consequence of a new development concept. It is likely that such a construction access would have been provided or required in connection with the EIS proposal in respect of which the ‘supplementary information’ had stated “all construction traffic shall be directed where possible around existing residential areas”. It was submitted for the appellants that these subparagraphs of subsection (3) were not applicable to construction access however, that change is something which, in any event, I would have considered minor in the context of the subject application, even if it were not deemed minor by virtue of subsection (3).

(vii) Discretion to allow amendment

[75] Had the FNP been only a minor modification then I would have been prepared to exercise my discretion to permit the appeal to proceed on the basis of that proposal.

[76] While I appreciate the relevance of the discretionary matters urged on behalf of the respondent, principally the passage of time, the intervening change in the legislation and planning instruments, the significance of the site and its locality as well as the absence of comment from referral agencies, I would have been prepared to exercise my discretion favourably to the appellant had the changes not been so extensive.

[77] While a substantial amount of time has passed since the application was first lodged and the planning instruments have changed, those changes could be fairly described as evolutionary in terms of the relevant planning strategies, and were the subject of careful consideration (it being accepted that they were matters to which the court would give weight in the determination of the merits). There were no public notification requirements or third party objection or appeal rights. The merits of the FNP have been subject to intense scrutiny by ably represented parties with the benefit of a range of experts. While the FNP was not subject to a fresh EIS or referred to government agencies for comment, the environmental issues were comprehensively examined for the purposes of the appeal. Indeed the level of scrutiny was at least as great as, if not greater than, what one might expect in an application assessment process before the local government, even for a complex application. The Council has been able to formulate its attitude, present evidence and make submissions with respect to the merits of the FNP.

Should the merits be considered

[78] The respondent contended that, if it was concluded that the appeal must be dismissed by reason of the change of proposal issues, the court should not proceed to consider the merit issues, since it would then be embarking upon an assessment of a proposal which it had no jurisdiction to consider.

[79] I accept that the finding on the modification issue requires the appeal to be dismissed in any event. The court is not, however, precluded from expressing, on a precautionary basis, findings on the merits.

[80] I gave some consideration to whether it would be inappropriate to express conclusions on a precautionary basis lest it be seen to pre-empt the Council’s decision on a possible future application. As Senior Counsel for the appellant pointed out however, I cannot assume that there will be a new application in the same terms. Further, if and when a further application is made, the Council will have to consider that application by reference to the form it takes at the relevant time, having regard to the facts and circumstances which then exist and the planning provisions relevant to that application. I consider it is appropriate for me to express my findings on a precautionary basis, the merits of the FNP having been litigated before the court.

Merit Issues

(i) Engineering Issues

[81] The extent of the dispute on the merits contracted over time. The issues were identified in the respondent’s 52 page “final” Statement of Issues, which contained 18 pages of merit issues and the appellant’s 62 page response[25]. Substantial progress was made however, in resolving or limiting those areas of dispute.

[25] The Statements of Issues should be read with Exhibits 11 and 59 produced during the hearing and Counsel for the respondent’s clarification at T900 ll 20-30.

[82] This appeal (in which early estimates of required hearing time exceeded 10 weeks) was the subject of greater than usual case management in which the parties and the experts retained by them co-operated. An important element was the requirement for experts to meet and prepare joint statements succinctly summarising areas of agreement and disagreement. That is commonplace in the court. In this case however, the experts were involved, to a greater degree, in ongoing meetings to work towards the resolution of issues. This resulted both in improvements to the proposal and a substantial narrowing of the dispute on the merits.

[83] Subject to the imposition of conditions, the experts were agreed that the FNP was acceptable from the perspective of hydraulics, geotechnical engineering, sediment and erosion control, acid sulphate soils (and associated ground water issues), civil engineering and water quality (subject to an issue of ownership of the waterway and wetland system discussed later).

[84] A water ecology issue related to the risk of nuisance algal bloom in the wetlands in the FNP remained controversial. Dr Breen, who was called by the respondent, and Mr Adcock, who was called by the appellants, held differing views as to how the risk of algal bloom should be managed. Mr Adcock’s proposal would subject the algae to adverse environments on a number of occasions, whereas Dr Breen contended the algae should be put through adverse environments less often but for a longer time.

[85] Mr Bristow, who was called by the respondent and also has a deal of knowledge and experience in relation to algal management, confirmed that he was “comfortable” with the FNP proposal although, in re-examination, he confirmed that he would defer to Dr Breen’s greater expertise in dealing with freshwater ecology rather than the waste water systems with which he is more familiar.

[86] I prefer the evidence of Mr Adcock to that of Dr Breen. Mr Adcock has considerable experience in the design, construction and maintenance of wetlands including experience with features of the kind proposed and gave convincing evidence to the effect that his system would not only be adequate but superior to the current systems in operation in South East Queensland. Dr Breen had a relative lack of experience with systems of the type proposed by Mr Adcock and I found his evidence less than convincing. I find that the risk of algal bloom is acceptable if managed in the way proposed by Mr Adcock.

[87] The remaining issue with respect to the waterway and wetlands system related to ownership. This was an issue going to conditions, specifically whether any approval ought require dedication of Lot 2[26]. The FNP proposes that the on-stream component of the system, contained in proposed Lot 2, be “dedicated to Council”, while the off-stream components, within management lot 3, be maintained in private ownership. The respondent’s attitude was averse to be obliged to take ownership and responsibility for the system and contended that the court should not act on the assumption that it will accept any part of Lot 2. Some issue was also taken in the Statement of Issues concerning compliance of the proposed open space with the Parkland Dedication Guidelines, however that was not pursued in the Respondent’s submissions.

[26]the Respondent, by its Counsel, confirmed that this was an issue going to conditions – T900 ll 10-15.

[88] The Council had taken a similar approach to ownership of the canal style lakes in the EIS proposal. This resulted in appellants writing to Council on 26 June 1998 indicating a preparedness to accept a decision that the lakes be held in private ownership.

[89] In seeking to justify devolving ownership and responsibility, the appellants pointed out that the system would not only deal with the effects of development on site but also provide treatment of upstream flows from an urbanised catchment. It was argued that it is far more sensible and appropriate for the respondent to be responsible for the ongoing maintenance of the facility, as it would otherwise have the obligation to address the poor water quality from the upstream catchment irrespective of the outcome of the appeal. It was also said that the number of existing residences upstream of the site far exceeds those proposed for the site (who, it was submitted, should not bear the ongoing cost of maintaining a regional treatment facility) and that the Council previously accepted an on-stream waterway at Emerald Lakes. It was also pointed out that Lot 2 contains what is intended to be public open space and a canoe trail.

[90] Mr Bristow expressed an understandable concern that a difference in ownership between the on-stream and off-stream components of the system might create operational difficulties and disputes given the connection between the 2 components. His concern was that the system can fail to operate as intended if either the on-stream or the off-stream components are not managed well and, given the connectivity between the 2, there should be a single ownership and management regime.

[91] The appellant responded by pointing out that the Body Corporate of the proposed development could undertake the day-to-day management of the whole of the system under an arrangement with Council, even if it did not own the on-stream system. No agreement on such an arrangement has been reached[27]. Mr Bristow expressed a residual concern about risks in the event of a difference in ownership.

[27]Section 5-6 of the Guragunbah (Merrimac/Carrara Floodplain) Structure Plan provided that Council would only assume responsibility for water bodies covered by a specific agreement at the time of approval, would not assume responsibility unless it could be demonstrated that a stable regime was established and would not assume financial responsibility for water bodies where pumping is required. I was not referred to any corresponding provisions of the LAP.

[92] The fact that the respondent has indicated its wish not to accept Lot 2, does not constrain the court from imposing a condition requiring its dedication. Any requirement that land be dedicated would impose an obligation upon the appellants to surrender Lot 2 to the Crown rather than to the respondent. Pursuant to s 51(3) of the Land Title Act, where the dedication of land for public use is for other than a road, the lot becomes unallocated State land under the Land Act 1994, “without anything further” upon registration of the Plan of Subdivision. Thereafter the Crown may dedicate the land as reserve, in trust, or grant it to the Council in fee simple in trust as it sees fit.

[93] In the present circumstances however, I would not be prepared, as a matter of discretion, to impose a condition requiring dedication. Dedication does not, of itself, achieve management. While Senior Counsel for the appellant submitted that one should assume that “responsible authorities would deal with these matters responsibly”, the diligent and proper management of the waterway and wetland system as a whole is critical and, given the absence of an agreement in relation to future maintenance, that is, in my view, appropriately provided for in this case by keeping the system under common ownership and control with stringent conditions imposed on the approval with respect to maintenance and management.

[94] Further, while the system would, in effect, perform a regional function which might otherwise fall upon the local government, it is a system which is not of the Council’s design or choosing (and has not been reviewed by the State, to which the land would be surrendered - no fresh EIS process having been undertaken). It is proposed by the appellant as a component of a development application and I do not regard it as unreasonable in the circumstances for approval of the FNP to be on the basis that it is the applicant which retains ownership and responsibility for the system.

[95] I appreciate that, if the waterway remains in private ownership, the owner may be reluctant and allow public access for the canoe trail, except by agreement however, partial dedication may be appropriate to secure the other public linkages through the site, in a similar way to what had been proposed in paragraph 2 of the letter of 6 June 1998. This is a matter which could be further considered in the formulation of conditions. There is no apparent deficiency in public open space in the area otherwise and the respondent confirmed, by its counsel, that there is no suggestion that, with the retention of Lot 2 in private ownership, there should be a refusal on the basis of insufficient park dedication[28]

[28]T899 l 5-T900 l 1.

[96] Traffic issues were considered by Mr Holland, called by the appellants, and a Mr Eppell (called by the respondent). Ultimately, Mr Eppell did not contend that the proposal ought be refused. He did express a reservation that the Main Roads Department be given an opportunity to assess the impact of the ultimate development upon the motorway interchange and for consideration to be given to whether vehicle generation along Breakwater Road should be limited to 200 equivalent allotments (rather than 300) for amenity reasons. Those qualifications relate to matters which, if not resolved in the formulation of conditions of approval at this stage, can appropriately be addressed in subsequent stages of the development approval process. The FNP would not be refused on that account.

[97] (ii) Visual Amenity, Landscape Character and Town Planning

[98] The issues of visual amenity and landscape character and town planning, are conveniently considered together. The resolution of the engineering issues make it unnecessary to transverse the provisions of the planning scheme relevant to those issues. Counsel for the respondent confirmed that the maters discussed under the heading of ‘Risk’ in the written submissions went to matters of conditions[29].

[29]T900 ll 10-15.

[99] The most controversial merit issue pursued in the hearing was the intention for Snake Hill to be a development area. That was the focus of the respondent’s submissions on the merits. While the Statements of issues referred to many issues and many provisions of the planning instruments, counsel for the respondent confirmed that it was only the matters dealt with in the respondent’s submissions which were relied upon. Accordingly, these reasons do not deal with each and every issue or Planning provision mentioned in the issues documents.

[100] Mr Chenoweth, who was called by the respondent, gave evidence to the effect that, considered in isolation, the FNP’s treatment of Snake Hill recognises and protects the values of Snake Hill although, in his view, the best solution was for Snake Hill to be preserved in public open space. He expressed the view that, given the development otherwise proposed, the proposal for development of houses up to three storeys on Snake Hill did not achieve an appropriate balance. On the other hand, the respondent submitted, consistently with Mr Chenoweth’s evidence, that if density was reduced on the other building platforms (creating a greater open space environment), moderated development of Snake Hill may be tolerable.

[101] To some extent the parties conducted the case in relation to Snake Hill as if the application were for ultimate development of that feature. As the appellant otherwise emphasised however, the subject application was for subdivision into management lots. In the course of the hearing I expressed some reservation that it might not be necessary for the court to make any finding about the ultimate development of Snake Hill for the purposes of the subject application, however, the matter was litigated by the parties, who urged me to deal with the issue of Snake Hill if the merits were considered and I am prepared to do so.

[102] Snake Hill, it was agreed, is visually significant and sensitive. Its value arises more from its vegetated appearance, with relatively tall trees in the midst of the floodplain, than from its relatively low rise landform. The trees are largely situated around the edges of the elevated area and on the upper slopes on the side slopes of the hill and partly obscure the view of a relatively flat and open ‘plateau’ on top. Depending on the viewing position, one sees past the vegetation to filtered views of existing development beyond the site, as shown in Exhibit 14B.

[103] The intention for Snake Hill is to provide for development of the majority of the ‘plateau’ and an infrastructure area, in accordance with certain guidelines[30], while retaining much of the vegetation (most of the largest trees are to be retained) and carrying out supplementary planting. The intention is to achieve development below the tree canopy which is substantially screened by existing and supplementary landscaping, so as to respect the visual values of Snake Hill. The guidelines include measures for tree protection and also for long term maintenance of the tree cover, by planting three trees below each retained tree, as well as a requirement for a Vegetation Management Plan to be included in an Environmental Management Plan for a subsequent development application. The acceptability of that approach must, of course, be judged in the context of the planning instruments.

[30] See XXX 14 Appendix II

[104] A concern was also expressed in the evidence that, with the development of Snake Hill, the extent to which development, as a whole, intruded into the floodplain would have a detrimental effect upon the desired character. Mr Chenoweth drew attention to the extent of engineering proposed even in relation to the proposed open space areas.

[105] The relevant planning scheme at the time the application was made was the 1995 Planning Scheme, which is the primary document pursuant to which the application is to be decided. Weight may however, be given to subsequent changes to the planning instruments. The significant subsequent changes were the commencement of the Guragunbah Structure Plan (the GSP), which became part of the Strategic Plan under the 1995 Scheme relatively shortly after the subject application was duly made and the 2003 Planning Scheme, particularly the relevant Local Area Plan (LAP), which appears to have evolved from the GSP.

[106] I accept the submissions, on behalf of the appellants, that significant weight should be attached to the GSP and LAP.

[107] The correct approach to the construction of planning instruments has recently been helpfully summarised by Britton SC DCJ in Westifield Management Limited v Pine Rivers Shire Council [2004] QPELR 337 at 342:

“(a)They should be construed broadly rather than pedantically or narrowly and with a sensible, practical approach (ZW Pty Ltd v Peter R Hughes & Partners Pty Ltd (1992) 1 Qd.R. 352 at 360; Yu Feng Pty Ltd v (1992) 1 Qd.R. 352 at 360; Yu Feng Pty Ltd vMaroochy Shire Council (1996) 92 LGERA 41 at 73, 75, 78; Harburg Investments Pty Ltd v Brisbane City Council (2000) QPELR 313 at 318.
(b)They should be construed as a whole (Luke v Maroochy Shire Council & Anor (2003) QPELR 447
(c)They should be construed in a way which best achieves their apparent purpose and objects (Luke v Maroochy Shire Council & Anor (supra); Nordale Management Pty Ltd v. Maroochy Shire Council (1995) QPLR 369 at 370; Acts Interpretation Act 1954 s 14A;
(d)In the light of the proscription against prohibiting development contained in IPA (s 6.1.2(3));
(e)Statements of Intents or Aims or Objectives are intended to provide guidance for the task of balancing the relevant facts, circumstances and competing interests in order to decide whether a particular use should be rejected as inappropriate (Degee v Brisbane City Council [1998] QPELR 287;
(f)a Strategic Plan sets out broad desired objectives and not every objective needs to be met before a proposal can be approved (Lewiac Pty Ltd v. Gold Coast City Council (1994) 83 LGERA 224 at 230;
(g)A Strategic Plan should be read broadly and not pedantically (Yu Feng Pty Ltd v Maroochy Shire Council (supra));
(h)Although planning documents have the force of law they are not drawn with the precision of an Act of Parliament;
(i)A conflict alone may not have the effect of ruling out a particular proposal (Fitzgibbon’s Hotels Pty Ltd v Logan City Council [1997] QPELR 208 at 212;
(j)Implementation Objectives must be read sensibly and in context. They are but a function of the principle objective. The purpose of the objective is better understood by reading all of the implementation objectives and understanding the strategy that is inherent (Jenkinson Pty Ltd v Caloundra City Council [2002] QPELR 527 at 528.”

[108] Save for sub-para (d), those propositions were equally applicable under the P&E Act, although sub-para (i) should also be read with provisions such as s.5.1 (6A) and in light of the decision in Weightman v Gold Coast City Council [2003] 2 Qd R 441.

[109] Pursuant to a 1992 approval, the subject land was included in the Special Facilities (tourism, public and private recreational facilities, residential allotments, detached dwellings, dwelling units, accommodation units, retirement communities, international hotels, sports clubs, liquor licence facilities, community facilities, boat hire rank and storage, estate sales office, display homes, catering business, ancillaries) zone and the Open Space Zone. That zoning was carried over into the 1995 Planning Scheme.

[110] The strategic plan was composed of an introduction, a statement of seven goals, general objectives and implementation criteria (which are to be read together and have general application), Preferred Dominant Land Uses (“PDLU’s - devised and allocated so as to enable the goals to be expressed in more detail) and Specific Area Strategies (which give more detailed expressions of planning strategy for particular areas).

[111] The general objectives and implementation criteria include, in s 1.3.2, “Shire image objectives” which include the following:

“Objective 1 – to identify, maintain and enhance elements which constitute and contribute to Shire image.
Objective 7 – to maintain the open character of areas of the Merrimac and Carrara flood plain area, and develop it as a major open space, recreational, residential and tourist area, providing areas of breathing space for the built up areas of the Gold Coast and southern urban Albert Shire.
Objective 9 – to retain and enhance the character of undeveloped, rural and open space parts of the coastal plain.

[112] Those objectives are relied upon by the respondent[31]. The objectives speak variously to ‘maintain and enhance’ elements which constitute and contribute to Shire image and ‘maintain’ the open character of areas of the Merrimac and Cararra floodplain and ‘retain and enhance’ the character of undeveloped rural and open space parts of the coastal plain. The respondents submissions relied on a literal interpretation of those verbs. A perusal of the implementation provisions however suggests that development is not prohibited. Further the objectives, which are expressed in fairly general terms, cannot be read in isolation. Indeed, implementation provisions (i) to Shire Image Objective 7 states that “this objective will be implemented primarily through the implementation of objectives relevant to the Open Space and Special Development Area objectives and through the preparation of a Merrimac Flood Plain Structure Plan”.

[31] Some reference was also made to tourism objective 5 which seeks to promote the opportunity to establish tourist and recreation oriented facilities in the Carrara/Merrimac Tourism and Recreation area, but does not require such facilities on every site. Implementation paragraph (i) directs the reader to the (then proposed) structure plan and to Special Development Objective 1. The respondent did not pursue the issue of this objective in submissions on town planning.

[113] The subject land was mainly included within the Special Development PDLU, although a section on the western part of the site, to the north of the existing development adjacent to Highfield Drive, was included in the Urban Residential PDLU. The objectives and implementation provisions for the PDLU’S were expressed to provide guidance in dealing with, amongst other things, applications for subdivision.

[114] The Special Development objectives and implementation provisions were contained in s.1.4.17. Special Development areas were expressly “intended to cover parts of the Shire which because of their special planning requirements or multiple land use opportunities cannot be satisfactorily included in any other preferred dominant land use designation”. Special development Objective 1 was “to provide for the appropriate future development of part of the Merrimac/Carrara Floodplain”. Special Development Objective 3 was “to ensure that the development of Special Development areas takes place consistent with appropriate hydrological and hydraulic management goals”.

[115] The propositions which emerge from a consideration of the provisions relating to those objectives include:

· the provisions were intended to facilitate appropriate future development in the flood plain[32];
[32]S DO 1.

· a Merrimac/Carrara Structure Plan is foreshadowed[33]
[33]Implementation provision (i) last para.

· in order to achieve desired character, meet hydraulic criteria and minimise site filling, development will include a component of urban residential or tourist accommodation development areas, waterways and dry open space[34];
[34]Implementation provision (iii)(a).

· the desired character is to be achieved by clustering urban development to maximise opportunities to provide large useable and/or visually prominent areas of open space and limiting site density (the basic gross site density is seven dwellings per hectare)[35];
[35]implementation provision (iii)(c).

· development is to meet hydraulics requirements[36];

· at least 10% of the structure plan area is to be available as public open space, with significant areas of open space (whether public or private) “highly visible” from the highway and the railway; and[37]

· a pedestrian cyclist open space system, and provision of an appropriate range of community facilities will be sought[38].

[36]SDO1 implementation provision (ii), SDO3.

[37]Implementation provisions (iii)(e)(f).

[38]Implementation provisions (iii)(g)(h).

[116] The FNP responds well to these provisions. It provides areas for development areas, waterways and dry open space. The basic gross site density is to be respected. The proportion of the site represented by the building platforms and development area is relatively low (around 20%). Overall site density will be achieved by clustering development and providing substantial areas of open space which are “highly visible” from the highway[39] and railway line. While, in the event Lot 2 is not dedicated, the site will not make as significant a contribution to public open space, there was no suggestion that the “at least 10%” figure across the larger Structure Plan area would thereby be compromised[40]. Provision is made for other elements such as a pedestrian and bicycle paths. Hydraulic issues have been resolved.

[39]Although views from the highway are relatively fleeting at highway speed.

[40]As noted earlier, the respondent does not contend that retention of work in private ownership should lead to a refusal on the basis of inadequate dedication to public ownership.

[117] Some of the flood plain is included within the Open Space PDLU, however that designation does not apply to the subject site. For that part of the floodplain designated Special Development, Implementation Provision (iv) to Open Space Objective 1 refers the reader to Special Development Objective 3, the implementation provisions which, in turn, refer back to Special Development Objective 1.

[118] The Urban Residential objectives were contained in s 1.4.4.1 of the Strategic Plan and, as one might expect, contemplate more typical residential densities of 10-15 dwellings per hectare with residential land use dominating. This designation applies only to the western part of the site.

[119] The Guragunbah Structure Plan was adopted in 1998 as an amendment to s 1.5 of the Strategic Plan, which deals with specific area strategies providing more detailed expressions of planning strategy for particular areas. These ‘more detailed’ expressions should be regarded as consistent with the general objectives and implementation criteria discussed earlier.

[120] The introduction and background section of the GSP states that it:

‘Expands on the planning strategy provided in section 1.4.17.2 of the Strategic Plan in respect of the “Special Development Area’ identified as the Merrimac-Carrara flood plain. In doing so, it also draws upon Council’s Corporate Plan Objectives and other parts of the Strategic Plan.”

[121] The GSP covers a much larger area than the subject site.

[122] The objectives of the GSP include:

(1)To optimise opportunities for urban development consistent with the environmental capacity of the land and the continuing functioning of the flood plain; and
(2)To ensure that any urban development is of a scale, form and character appropriate to the immediate neighbourhood and the intended open character of the flood plain.

[123] Urban development is expected to be clustered to maximise the opportunities to provide open space areas, at a gross density of seven dwellings per hectare[41]. The FNP is consistent with that.

[41]See “explanation” to Land Use objectives at p 3.

[124] In so far as hydraulic objectives are concerned, “the structure plan seeks to allow for appropriate earthworks in the flood plain using compensated filling techniques to create platforms with sufficient flood immunity for a development …”[42]. The FNP is consistent with that. While, as a general proposition, the Strategic Plan sought to minimise disturbance and retain natural drainage patterns[43], it is evident that an engineered solution is required to achieve development in this area, as is contemplated by the GSP.

[42]See the “explanation” to the hydraulics objectives at p 7.

[43]See Environment Objective 4 and implementation paragraph (ii)

[125] The provisions dealing with the Open Space network, in s.4 of the GSP, are of particular relevance to the acceptability of development on Snake Hill. Those objectives include:

“• to create and enhance open space corridors within and around the floodplain.
• to maintain existing significant views and enhance the visual quality and landscape character of the flood plain”.

[126] The open space map (map 2) designates Snake Hill as a “high conservation significant area” and, in particular, a “visual value area”. The same map notes that there are short views from the railway line to open space flood plain areas on the site and that long views are available from the Pacific Highway to Surfers Paradise and short views to flood plain areas. The open space map also shows open space corridors along the boundaries of the site, with the northern boundary being designated an open space corridor (along water course).

[127] The explanation of the Open Space network states, in part, that:

“The Structure Plan seeks to protect the key features and areas of the natural environment through the identification of High Conservation Significant Areas and Moderate Conservation Significance areas. Within these areas, development would either be inappropriate or significantly restricted. View sheds are defined to preserve significant views within, across and out of the flood plain…”

[128] The provisions dealing with view sheds (s 4.4) identify an intention to maintain “the overall open character and visual quality of the floodplain”. Provisions by which this will be achieved are identified, and include:

(a) the use of dry detention basins, wetland areas, formalised sporting and recreational areas, and general vegetated areas;

(b) the breaking up of large development areas into smaller components, separated by waterways and open space;

(c) the use of screening vegetation and vegetation which filters views, and the location of open space uses and view corridors;

(d) the use of landscape treatment to filter and frame views; and

(e) the use of water features and open space buffers along major transport corridors.

[129] It is apparent that the Structure Plan accepts that development within the floodplain may be consistent with the achievement of the open character which it seeks.

[130] I accept the appellants’ submission that the following conclusions can be reached with respect to the intended open character of the floodplain:

(a) the presence and visibility of development is not inconsistent with the intended character, if development is clustered, and the clusters are separated by waterways and open space;

(b) the filtering of views by landscape treatment is accepted and encouraged;

(c) the use of detention basins, wetland areas, sport and recreation areas, and vegetation are all seen as contributing to the intended character; and

(d) the use of native vegetation species is encouraged.

[131] Overall, the FNP is, I find, consistent with the intended open character of the flood plain. While care needs to be exercised to ensure that the development of building platforms and development areas respects open character, I do consider that the FNP does so in a way which is consistent with the planning instruments. It also, I find, respects the view sheds in the GSP. In these respects I prefer the evidence of Mr Hassell and Mr Vann. I do not consider that the planning provisions require a different result.

[132] Some reference was made, in the evidence, to the conceptual land use map (map 6) in the GSP[44] which shows future low/medium density residential development expanding out from the existing residential development to the south west with a ‘tongue’ of tourism development protruding further into the floodplain and a separate area of tourism development, to the east of Snake Hill. The FNP does not follow the conceptual land use map. However, as the map itself notes:
[44]Which also appears as map 14.7 in the LAP

“This conceptual land use map represents a synthesis of the constraints and opportunities identified in structure plan maps 1-5, along with consideration of a range of potential land uses.
It illustrates one long term vision of the flood plain, but considerable flexibility is provided in the structural plan to facilitate other individuate development proposals which may result in a different final development form.
This map is intended to be indicative only and then does not confer or remove use rights. The rights to use land are determined by the zoning provisions of the planning scheme.
This map is intended to be indicative only, and the map notations are not defined as precise geographical boundaries, and are not related to cadastral boundaries.”

[133] In light of that qualification, a departure from the conceptual land use plan can hardly be thought to constitute a conflict with the planning scheme and the respondent did not suggest that in its submissions. Further, the evidence noted several potential difficulties with the conceptual land use plan including from a hydraulic perspective and a likely difficulty of achieving appropriate development between the visually significant Snake Hill and the railway line, from which the most significant views of Snake Hill are obtained.

[134] Ultimately, the distribution of development on a site such as this cannot be done from only one perspective. A diligent consideration of diverse opportunities and constrains is required. The appropriate approach might be one which is not optimal from each perspective, but is an appropriate overall response to the range of relevant issues. In my view, the FNP represents a diligent and appropriate resolution of the issues, consistently with the intended character.

[135] The provisions relating to High Conservation Significance Areas were contained in s 4.1 of the GSP. Areas were so designated on map 2 by reason of their ecological values or their visual values or both. In the case of Snake Hill, the designation was by reason of its visual values the provisions in relation to which were as follows:

“4.1.2    Visual Value Areas
These areas have been identified as significant visual landmarks or features within the floodplain. The key components that make up their designation include:
>      the landform itself (as a visual feature set against the largely flat landscape of the floodplain)
>      the existing undeveloped nature of the area
>      the existing vegetation
>      the public views of the landmark or feature from other parts of the floodplain, surrounding communities and transport corridors.
4.1.2.1Land identified as High Conservation Significance Areas – Visual Value, is intended to be retained predominantly in its current state. These identified areas could be protected through such means as dedication to Council as public open space, or by means of an agreement to ensure the perpetual protection and management of these areas. Where it is not possible to retain these identified areas in their current undeveloped state, the following minimum measures will apply to any development proposals in the defined areas:
(i)No changes to the landform, other than minor changes to the ground level necessary to achieve individual building pads and local access roads. Proposed landform changes will be assessed against their impact on the character of the surrounding landscape setting; and
(ii)Retention of significant mature trees. Proposed vegetation removal will be assessed against its impact on visual amenity; and
(iii)Buildings and structures should be sited below the predominant treeline and designed to visually integrate into the landscape. Proposed buildings and structures will be assessed against the impact on existing views and the impact on the character of the surrounding areas through siting, form, and massing; and
(iv)Building materials and colours should be recessive colours and non-reflective. Proposed buildings and structures will be assessed against the impact on the character of the surrounding areas through the use of materials and colours.”

[136] These provisions differ from those contained in s 4.1.1.1 dealing with ecological value areas. In particular:

· While Visual Value Areas are to remain ‘predominantly’ in their current state, ecological value areas are to be “retained and protected”.[45]
[45]See s 4.1.1.1.

· While Visual Value Areas “could be protected through such means as dedication to Council as public open space, or by means of an agreement to ensure the perpetual protection and management of these areas” Ecological Value areas “shall be retained, and protected through such means as …”.

· While, in the Visual Value Areas, “minimum measures” are said to apply to any development proposals “where it is not possible to retain these identified areas in their current undeveloped state”, no such possibility is canvassed in the provisions for Ecological Value Areas.

[137] As already noted, the evidence demonstrated that the most important visual element of Snake Hill was its vegetation, particularly its tall trees. An indication of the effectiveness of the measures which are intended is demonstrated in the photo montages (Exhibit 14A). The joint report of Mr Hassell and Mr Chenoweth included the following point of agreement:

“1.1 The visual values of Snake Hill lie predominantly in the presence of tall mature vegetation, and secondarily in its modest landform. The FNP retains the landform, and the significant mature trees (some of which have hollows suitable for faunal habitat) are to be retained in the medium to long term through appropriate conditions of approval, as proposed in the Design Guidelines. The visibility of buildings as per the FNP on Snake Hill from within the subject land, from the railway and highway, and from sourrounding local viewpoints will be limited by existing and proposed plantings. Conditions to achieve this aspect of the proposal can reasonably be applied to ensure the buildings are visually subordinate to their wooded setting.”

[138] I am satisfied, on the basis of Mr Hassall’s evidence of the proposals and their effects, that sub-paras (i) to (iv) of s 4.1.2.1 would be satisfied. Professor Brannock questioned compliance with subparagraph (ii) on the basis of those trees which would be lost. The evidence of Mr Hassell satisfies me that care has been taken to retain the significant (in the sense of important) mature trees and that proposed vegetation removal has been carefully assessed against its impact on visual amenity and is acceptable. Even if there were thought to be a conflict with this sub-paragraph by reason of the loss of some of the taller trees, I would be prepared to approve the application notwithstanding the conflict having regard to the extent and location of the tree retention and the effect which that retention, coupled with the proposed supplementary planting and the proposed guidelines, has in protecting the visual values of Snake hill and providing for the maintenance of those values.

[139] Mr Chenoweth expressed a concern about the proposal to set the maximum height of buildings by reference to 3 storeys rather than 2. Unfortunately Mr Hassell’s photomontages did not depict 3 storey development, however it is evident that 3 storey development, subject to the guidelines, would still be well below the predominant tree line, be designed to visually integrate into the landscape and as a matter of merit, would be acceptable in my view[46]

[46] there was debate about whether the appellants otherwise have a right to develop to 3 storeys, by reference to the conditions of the rezoning approval or whether those rights were lost upon the commencement of the 1995 Planning Scheme. That might be of relevance to what, if any, further approvals would be required to achieve the ultimate development, but is not a matter upon which I need express a precautionary finding. It is enough to say that the conditions of the subdivision would require observance of the guidelines developed by Mr Hassell, including that no development exceed 3 storeys.

[140] The respondent focused upon the words “where it is not possible to retain these identified areas in their current undeveloped state” in the introductory paragraph to 4.1.2.1. Those words, may be contrasted with the earlier words, in the same paragraph, which refer to an intention for such an area “to be retained predominantly in its current state”.

[141] Notwithstanding the intended development area, the designated visual value area of Snake Hill is intended to be kept “predominantly” free of development other than by way of supplementary landscaping. The total building location envelope and infrastructure area comprises some 7,136 m² out of a total of 20,214m[47]^..Not only is the designated area of Snake Hill to be kept predominantly free of development in terms of area but also in its visual perception. Its treed banks are not to be interfered with, save for supplementary landscaping (and in the infrastructure area associated with an intended future bridge connection) and only filtered views of development will be possible. It will be and will appear to be predominantly free of development.

[47]Exhibit 14 p.41.

[142] The respondent invited the court to approach the words “where it is not possible to retain these identified areas in the current undeveloped state” as a requirement to leave the feature undeveloped unless it was impossible to do so. I am not sure that, read in context and in accordance with the principles referred to earlier, s 4.1.2.1 should be approached in that way.

[143] Counsel for the respective parties postulated a number of interpretations. Senior Counsel for the respondent suggested that the words might mean that the features had to be retained in their current undeveloped state unless it was otherwise impossible to achieve development on site. Senior Counsel for the appellants submitted that, since the Strategic Plan did not seek to confer or take away use rights, the passage should be read as referring to retention of these areas in their undeveloped state unless the use rights had already been conferred (by, in this case, the zoning of the land). Read with the preceding sentence, it might be a reference to where it is not possible to insist on the land being dedicated to Council or to secure an agreement of the type described.

[144] Whatever construction is adopted, I would not be prepared to rule against Snake Hill being a development area on the basis of conflict with those words. I am satisfied that the intended treatment of Snake Hill not only respects its visual values but, by the supplementary planning, will, to a limited extent, improve upon those values, notwithstanding the intended development.

[145] Further, in 2003, the GSP was overtaken by the Guragunbah Local Area Plan (LAP) in the new Gold Coast Planning Scheme. As the LAP states[48], it was quite extensively based on the work undertaken as part of the GSP. It may generally be described as a further evolution of the strategies expressed in the GSP. Snake Hill, and the subject site in general, bear the same designations on the Open Space Map in the LAP as in Figure 2 of the GSP. The corresponding provision to s 4.1.2.1 of the GSP now appears as an “acceptable solution” (AS 33) to a performance criteria (PC 33) which speaks of areas with significant visual landmarks or features identified on the Open Space Map being “maintained and enhanced”. The acceptable solution commences:

“land identified as High Conservation Significant Areas – Visual Value is to be retained predominantly in its current state. These identified areas are protected through the following:…..
“

[48]1.0.

[146] What follows in the acceptable solution is a repetition of what appeared in sub-paras (i) to (iv) of s.4.1.2.1 of the GSP. The reference to “where it is not possible to retain these identified features in their current undeveloped state” has been deleted.

[147] Accordingly, if there were thought to be conflict with the provision of s 4.1.2.1 by reason of the possibility that Snake Hill could be retained in its current undeveloped state, then I would be prepared to approve the development notwithstanding that conflict.

[148] Since the GSP only came into effect after the application was duly made, the provisions of the GSP are a matter of weight only and recourse to s.5.1(6A) and the process specified in Weightman v Gold Coast City Council (supra) is not necessary. Even if that were required, I am satisfied that there are sufficient grounds to justify approving the application despite any such conflict, having regard to the subsequent repeal of the provision and the merits of the FNP (with the guidelines) in respecting the identified visual values.

[149] For the same reasons, I would be prepared to approve the FNP despite any conflict which might be thought to arise with the earlier mentioned Shire Image Objectives by reason of the intended use of Snake Hill as a development area.

[150] I have indicated the planning grounds relevant to the part of the application which is said to be in conflict which would be sufficient to justify approval. In my view there are also planning grounds in favour of the application as a whole which would justify approval. The FNP’s diligent response to the opportunities and constraints relevant to this complex site exhibits substantial merit in achieving a balanced approach, set against the broad principles and objectives of the planning documents, and would bring a number of benefits including as to revegetation, rehabilitation of acid sulphate, improved drainage and water treatment (including at a regional scale), the provision visually attractive open space[49], the protection of the visual values of Snake Hill and provision for their maintenance and the appropriate development of a site which has been zoned for development and sited within a broader locality developed for a range of urban uses. It has sufficient overall merit to warrant approval in the event of conflict.

[49]Mr Hassell and Mr Chenoweth agreed that the outcome of the proposed landscape is a distinct improvement in the visual interest of the low lying parts of the floodplain.

[151] I am satisfied that the FNP, including (but not limited to) the designation of Snake Hill as a development area, is appropriate. I would not require the dedication of Snake Hill as public open space.

[152] Conclusion

[153] But for the finding with respect to the modification issue, I would have indicated that the appeal would be allowed, that Lot 2 would not be dedicated and, following the ordinary course, I would have adjourned the further hearing to allow time for the formulation and consideration of conditions. Given my finding with respect to the modification issue however, the appeal must be dismissed.

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Citations

Heilbronn & Partners v Gold Coast City Council [2004] QPEC 80

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Arksmead Pty Ltd v Gold Coast City Council [2000] QCA 60

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CITATION:	Heilbronn & Partners Pty Ltd & Ors v Gold Coast City Council [2004] QPEC 080
PARTIES:	HEILBRONN & PARTNERS PTY LTD, BAYMILL INVESTMENTS PTY LTD, PETER REGINALD COOPER FIRTH and JEANETTE LILLIAN FIRTH (Appellants) v GOLD COAST CITY COUNCIL (Respondent)
FILE NO/S:	1131 of 2001
DIVISION:	Planning and Environment
PROCEEDING:	Appeal
ORIGINATING COURT:	Planning and Environment Court Southport
DELIVERED ON:	3 December 2004
DELIVERED AT:	Brisbane
HEARING DATE:	2,3,4,5,6,10,11,12,19,24 August, 1 December 2004
JUDGE:	Rackemann DCJ
ORDER:	Appeal dismissed
CATCHWORDS:	SUBDIVISION – APPLICATION UNDER LOCAL GOVERNMENT (PLANNING AND ENVIRONMENT) ACT to create Management Lots – whether change of proposal a minor modification – s 4.15 of P&E Act - whether change ought be allowed as matter of discretion – should merits be considered if leave to amend refused – whether land proposed to form part of waterway system could or should be dedicated to public ownership contrary to wishes of the local government - whether impact on visual amenity and landscape character acceptable having regard to planning instruments. Local Government (Planning and Environment) Act 1999 (P&E Act) Integrated Planning Act 1997 (IPA), s.6.1.25 Land Title Act s.51(3) Land Act 1994 Cases cited: Addicoat v Fox (1978) 37 LGERA 411 Arksmead Pty Ltd v Council of the City of the Gold Coast (2000) 187 LGERA 60 Barakat Properties Pty Ltd v Pine Rivers Shire Council (1994) 85 LGERA 99 Begley v Pine Rivers Shire Council[1995]QPELR 77 Heritage Properties Commercial Pty Ltd v Maroochydore Council [1999] QPELR 108 Ecovale Pty Ltd v Gold Coast City Council [1999] 2 Qd R 35 Hancock Development Corporation Pty Ltd v City of Tee Tree Gully & Ors (1995) 55 LGRA 146 Jeteld Pty Ltd v Toowoomba City Council [1995] QPLR 285 at 287J Kidd v Brisbane City Council [1984] QPELR 34 McBain v Clifton Shire Council [1995] QPLR 363 Pacific Seven Pty Ltd v City of Sandringham [1982] VR 163, 164 R v Shanahan ex parte Northern Territory Planning Authority (1984) 54 LGERA 255 Rubyway Pty Ltd v Noosa Shire Council [1998] QPLR 241, 243 Roy Sommerville Surveys Pty Ltd v Brisbane City Council [1992] QPELR 114 Stavrianos Superannuation Funds 1 & 2 v Ipswich City Council [1999] QPELR 64 Texbeam v Brisbane City Council [1995] QPELR 108 Transport Action Groupagainst Motorways Inc v Roads & Traffic Authority (1999) 104 LGERA 133 Westfield Limited v Gold Coast City Council [2000] QPELR 121 Westfield Management Limited v Pine Rivers Shire Council [2004] QPELR 337
COUNSEL:	Mr PJ Lyons QC with Mr R Needham and Mr B Job for the appellants Mr J Gallagher QC with Mr R Litster for the respondent
SOLICITORS:	Corrs Chambers Westgarth for the appellants Minter Ellison Gold Coast for the respondents