Heritage Properties v Redland Shire Council
[2011] QPEC 56
•12 April 2011
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Heritage Properties & Anor v Redland Shire Council & Ors [2011] QPEC 56
PARTIES:
HERITAGE PROPERTIES PTY LTD AND AUSBUILD PTY LTD
(Appellants)V
REDLAND CITY COUNCIL
(Respondent)And
CHIEF EXECUTIVE DEPARTMENT OF TRANSPORT AND MAIN ROADS
(Co-Respondent)And
GARY NAHRUNG AND SUSAN NAHRUNG
(Fourth Co-Respondents by election)And
EDWARD TURK AND MARY JANE TURK
(Fifth Co-Respondents by election)
FILE NO/S:
BD 1880 of 2008
DIVISION:
Appellate
PROCEEDING:
Appeal
ORIGINATING COURT:
Brisbane
DELIVERED ON:
12 April 2011
DELIVERED AT:
Brisbane
HEARING DATE:
28/03/2011 – 30/03/2011
JUDGE:
Searles DCJ
ORDER:
1. Appeal allowed;
2. Matter adjourned for resolution of the issue of the appropriate conditions.
CATCHWORDS:
Appeal Against Council Refusal of Application for preliminary approval for a Material Change of Use and Development Permit for the Reconfiguration of a Lot - Minor Change- Court’s power to approve part of Application - weight to be given to new laws and policies - whether sufficient planning reasons to justify approval despite conflict with Planning Scheme.
COUNSEL:
T Trotter and J Lyons - for the Appellant
S Ure – RespondentE Morzone – Co-Respondent
Fourth and Fifth Co-Respondents self represented
SOLICITORS:
HWL Ebsworth – for the Appellant
Corrs Chambers Westgarth – for the Respondent
Crown Law - Co-respondent
Appeal
This appeal is against a deemed refusal by the respondent Council (Council) of an application by the Appellants dated on or about 18 June 2003[1] seeking:-
(a)a preliminary approval for a Material Change of Use (Residential Development); and
(b) a Development Permit for the Reconfiguration of a Lot to create 34 lots (Stage 1a); and
(c) a Development Permit for the Reconfiguration of a Lot to create 25 lots (Stage 1b)
[1] Exhibit 2, Appeal Book No 1, Page 11
The land
The application originally related to land described as:-
(a) Lot 1 on RP 869105;
(b) Lot 14 on RP 869105;
(c) Lot 2 on RP 14813;
(d) Lot 5 on RP 14813;
(e) Lot 6 on RP 14813;
(f) Lot 3 on RP 173523;
(g) Lot 6 on RP 64656; and
(h) Lot 1 on RP 59490.
Lots 5 and 6 on RP 14813, (Ausbuild land), whilst part of the original application, were not a part of the application before the court. On the first day of the hearing Mr Trotter for the Appellant Heritage Properties Pty Ltd (Heritage) advised that the approval now being sought was a partial approval of the above land excluding Lots 5 and 6. Consistent with that, the Appellant Ausbuild Pty Ltd took no part in the appeal. Nor did the First, Second and Third Co-Respondents by election each of whom had earlier sought and obtained the leave of the court to withdraw. Accordingly the only active parties at the appeal hearing were Heritage, the Council and the Fourth (Nahrungs) and Fifth (Turks) Co-Respondents represented, respectively, by Mr Nahrung and Mrs Turk.
Parties in dispute
Mr Trotter further informed the court on the first day that all issues between Heritage on the one hand, and the Council and the Co-Respondent Chief Executive Department of Main Roads (DTMR) on the other, had been resolved as a result of discussions the preceding weekend.The only live issues now are between Heritage, and the Nahrungs and Turks.
Land now the subject of the appeal
As I have said, the land for which part approval is now sought is the above land minus Lots 5 and 6. It is approximately 24.4769 hectares in area[2] reduced from the original area of 32.55 hectares[3]. The land contains native vegetation and cultivated grassed landscape[4] as well as a constructed dam on Lot 1 on RP 59490.[5]
[2] Exhibit 3, Report of Mr Reynolds page 9, section 2.1(12)
[3] Exhibit 2, Volume 1, page 11
[4] Exhibit 10, First Joint Fauna Experts Report, page 3
[5]Ibid page 4
“The current proposed plan of development is depicted in Exhibit 4 and seeks:-
(a)preliminary approval for a Material Change of Use (Residential Development) for 170 lots (including 35 lots in Stage 1a; and
(b) A Development Permit for Reconfiguration of a lot to create 35 lots (Stage 1a) – (Development Application)”
The application for the Development Permit in relation to Stage 1b on the Ausbuild land, lots 5 and 6 above, has been abandoned.
Location of land
To the north and north-east of the land there is open space bushland and Moreton Bay.[6] To the south and south-east there are large acreage properties including land which was described as the May land which itself was the subject of a Development Approval given by this court in October 2009 for a residential development.[7] To the east of the land is the foreshore of Moreton Bay[8] and to the west is Cleveland/Moreton Bay Road which is under the control of DTMR.[9]
[6]Exhibit 10, Koala Experts’ Joint Report page 31; Exhibit 3, the report of Mr Reynolds, page 10, section 2.3(20)(b)
[7]May & Anor v Redland Shire Council (2010) QPELR 225, Exhibit 3 of Mr Reynolds’ report, section 2.3(20)(c)
[8]Exhibit 10, Koala Experts’ Joint Report, page 31.
[9]Exhibit 11, Traffic Engineers’ Joint Report, page 4
Statutory Framework
The Notice of Appeal was filed on 11 June 2008 when the Integrated Planning Act 1997 (IPA) was operative. IPA was repealed by s 764 of the Sustainable Planning Act 2009 (SPA) which commenced on 18 December 2009 but pursuant to SPA ss 819(1) and 819(2) any proceeding commenced under IPA, as this one was, must be heard and determined under IPA as if SPA had not commenced. One of the limited exceptions is s 821 dealing with Minor Change which is relevant to this matter.
The appeal was commenced pursuant to IPA s 4.1.27 and by virtue of s 4.1.52(1) is by way of hearing anew. It must be decided based on the laws and policies applying when the Application was made but with the court having power to give weight to any new laws and policies since then which the court considers appropriate.[10] The Appellant bears the onus of establishing that the appeal should be upheld.[11]
[10]IPA s 4.1.52(2)(a)
[11]IPA s 4.1.50(1)
The Application was lodged under the provisions of the Town Planning Scheme for the Shire of Redland 1988 and the Strategic Plan 1998 forming part of the Scheme (Transitional Planning Scheme) which Transitional Planning Scheme is within IPA s.6.1.3.
The two components of the Application namely Preliminary Approval for a Material Change of Use and a Development Permit for a Reconfiguration of a Lot are the equivalent, under the now repealed Local Government (Planning and Environment) Act 1990 (P & E), of an Application for Re-Zoning and Subdivision respectively.
Under the P & E an Application for Rezoning was made under s 4.2.(1) and an Application for Subdivision, under s 5.1(1). By virtue of the operation of IPA s 6.1.29(3)(h)(i) and (ii) assessment of the present Application was, and is now, to be made under the relevant provisions of the P & E. Similarly, pursuant to IPA s 6.1.30(3)(a) and (c) the Application is to be decided under the relevant provisions of the P & E.
Relevant assessment and decision making provisions of P & E
(a) Rezoning/Material Change of Use component of Development Application
Under IPA s 6.1.29(3)(h)(i) this component is to be assessed having regard to the matters stated in s 4.4(3) of the P & E Act and, pursuant to IPA s 6.1.30(3)(a), to be decided under, P&E ss 4.4(5) and (5A).
(b) Subdivision/Reconfiguration of Lot component of Development Application
Under IPA s 6.1.29(3)(h)(ii) this component is to be assessed having regard to the matters stated in s 5.1(3) of P & E and, pursuant to IPA s 6.1.30(3)(c), to be decided under P&E ss 5.1(6) and 6(A).
P & E ss 4.4(5) and 5.1(6) set out the powers of the court to approve, or approve subject to conditions or refuse an application. I shall return to the issue of the approval of a Application in part. P & E ss 4.4(5A) and 5.1(6A) dealing with the old Applications for Rezoning and Subdivision respectively are in identical terms and provide that the Assessment Manager must refuse to approve the present Application if:-
“(a)the Application conflicts with any relevant Strategic Plan or Development Control Plan; and
(b) there are not sufficient planning grounds to justify approving the application despite the conflict”.
As I have said the application was made under the 1988 Transitional Planning Scheme and was identified in that scheme as being within the Rural/Non-Urban Zone and partly within the Special Planning Intent No. 4 Area in the 1998 Strategic Plan.[12]
[12]Exhibit 3, Reynolds Report, page 14, section 4.1.1.
Specific Planning Intent No. 4 provided:
“4.2.5 Specific Planning Intent
This designation covers land in respect of which there is, for varying reasons, a requirement to adopt detailed individual development guidelines as set out below.
…
Specific Planning Intent No. 4 plays an important role in the separation of the Thornlands and the Victoria Point urban communities both in a physical and visual sense. All development within this area shall be predominantly open rather than built up in nature in order to retain its rural non-urban character. The protection of the environmental values of the remnant bushland and coastal vegetation within the area is also considered important.
Development of the area shall be primarily residential (6,000 m2 – 10,000 m2 sized allotments), however suitable commercial, recreational and service orientation uses may be considered provided that they are consistent with protecting the health and amenity of residents and the principles of retaining the rural non-urban character and the environmental values of the area.
Reticulated sewerage shall not be provided or planned for. Access to State controlled roads will be limited and involve shared access ways wherever possible.”[13]
[13]Exhibit 20, planning documents, Volume 1, Tab 2, pages 178-180.
In March 2006 the Redland IPA Planning Scheme came into force and the subject land was then included in the Emerging Urban Community Zone.[14]
[14]Exhibit 3, page 26; Exhibit 17, Venn Report, page 2.
The Overall Outcomes for the Emerging Urban Community Zone provided relevantly:
“Until such time as the Structure Plan and an amendment to the Redlands Planning Scheme is completed and approved by Redland Shire and where necessary, the Regional Planning Minister, only a limited range of uses may be undertaken.”[15]
[15]Exhibit 20, planning documents, Volume. 2, Tab 6, page 244, clause 4.5.7.
On 31 March 2010 the South East Thornlands Structure Plan (Structure Plan) came into force and the Redland Planning Scheme was amended to include the South East Thornlands Structure Plan Overlay (SETSP).[16] The Structure Plan Map[17] shows the subject land as allocated to a number of precincts including Housing, Green Space Network - 4(a) Coastal Corridor, 4(c) Pink Land Reserve Corridor and District Park.
[16]Ibid Vol 2, Tab 17, page 428.
[17]Ibid, page 455
Under the 2006 Planning Scheme, subsequently amended in 2010, the land is included partly in three zones, the Urban Residential Zone, Open Space Zone and Community Purposes Zone.[18] The land is also identified in the South East Queensland Regional Plan (SEQRP) as within the Urban Footprint and within the boundaries of a designated Development Area.[19]
[18]Exhibit 3, Reynolds Report at page 23, para 4.2.3.1.
[19]Exhibit 3, Reynolds Report pages 21-22, section 4.2.1.
Preliminary Issues
There are two preliminary issues requiring determination:
(a) whether the changes manifested in the current development proposal[20] from its predecessor constitute a minor change;
(b) whether this court is empowered to approve part of an application.
[20]Exhibit 4.
(a) Minor Change Point
The most recent predecessor on the court record to the current proposed development plan Exhibit 4 is that attached to an order of his Honour Judge Rackemann of 3 March 2010. There His Honour dealt with a minor change application and directed that the appeal proceed on the basis of the changes reflected in the plans identified and set out in his order.[21]
[21]Appeal book, Volume 1, pages 4-9.
Notwithstanding that the appeal is to be determined under IPA as if it had not been repealed, SPA s 821(2)(b) calls for the determination of a minor change issue by reference to the definition of that term under SPA. SPA s 350 relevantly provides:
“350 Meaning of Minor Change
(1)A minor change in relation to an application, is any of the following changes to the application:
(a) …
(b) …
(c) …
(d) A change that:-
(i)Does not result in a substantially different development; and
(ii)does not require the application to be referred to any additional referral agency; and
(iii)does not change the type of development approval sought; and
(iv)does not require impact assessment for any part of the changed application, if the original application did not involve impact assessment.
(2) …
(3)Application of the applicable law does not stop a change mentioned in sub-section 1(d)(ii) or (iv) from being a minor change only because the applicable law, if applied to the application as originally made, would require referral to any additional referral agencies or involve impact assessment.”
There is no suggestion that changes call for referral to an additional referral agency but the original application was impact assessable under the 1988 scheme.[22]
[22]Appellant’s written submissions, para 12.
Of further assistance is statutory guide 06/09 issued by the Department of Infrastructure and Planning which, amongst other things, deals with the question of what constitutes a substantially different development. It particularises certain changes which may result in a substantially different development namely:-[23]
[23]Statutory guideline 06/09, page 3.
(a) involves a new use with different or additional impacts;
(b) results in the application applying to a new parcel of land;
(c) dramatically changes the built form in terms of scale, bulk and appearance;
(d)changes the ability of the proposal to operate as intended. For example, reducing the size of the retail complex may reduce the capacity of the complex to service the intended catchment;
(e)removes a component that is integral to the operation of the development;
(f)significantly impacts on traffic flow and the transport network, such as increasing traffic to the site;
(g)introduces new impacts or increases the severity of known impacts;
(h)removes an incentive or off-set component that would have balanced a negative impact of the development; and
(i) impacts on infrastructure provision, location or demand.”
Mr Reynolds, the Town Planner for Heritage, gave evidence identifying the relevant changes between Place Planning Design Environment plan no. HTP03-01 Revision E being part of the abovementioned order of Judge Rackemann of 3 March 2010 and Exhibit 4 the current proposal.[24] He identified the following changes:
[24]T1.34.35-40.
(a)The reduction of proposed lots to the west of the dam on lot 1 on R.P. 59490 from 18 or 19 lots previously to 9 lots on Exhibit 4;[25]
(b)in the Stage 1a layout the reduction of the lots from 34 to 33;[26]
(c)the north western corner of the site is now to be a district park rather than being subdivided as originally intended;[27]
(d)the change of access to the Nahrung’s and Turks’ properties from a slender lane way to more direct street frontage;[28]
(e)Provision of rear access to the Turks’ land where previously there was none.[29]
[25]T1.35.5.
[26]T.35.47.
[27]T.36.20.
[28]T.36.50 – T1.37.
[29]T.38.20.
Having regard to the evidence, the definition of minor change and the statutory guideline and notwithstanding that the original application was impact assessable, I consider that the change in the plan as manifested in Exhibit 4 is a minor change.
(b) Does court have power to approve part application?
As I have said the Ausbuild land has been excised from the current proposal so that Stage 1(b) has been abandoned. The question is whether this court can give approval for the remaining part of the application in accordance with Development Plan Exhibit 4 which I have found to constitute a minor change to the earlier plan. Having regard to ss 3.5.11 and 3.5.14A of IPA and the authorities relied upon by Heritage[30] it is clear to me that this court has power to approve part of an application. No party argued to the contrary.
[30]Metroplex Management Pty Ltd v Brisbane City Council [2010] QCA 333; SLS Property Group v Townsville City Council l75 LGERA 136.
Outstanding Issues
As I have said there are no issues outstanding amongst Heritage, the Council or DTMR but only between Heritage and Mr and Mrs Nahrung and Mr and Mrs Turk. Both couples submitted statements of evidence[31] but did not call any expert evidence. Neither were required for cross-examination. It is clear that at an earlier stage Mr and Mrs Turk had engaged the services of the traffic engineer Mr Syson but his services were terminated due to the cost to them.[32]
[31]Exhibit 15, Mr and Mrs Nahrung; Exhibit 16, Mr and Mrs Turk.
[32]Exhibit 16, para 4.
Issues raised by Mr and Mrs Nahrung
From the witness statement and final written submission[33] the following issues can be identified as of concern to Mr and Mrs Nahrung if the proposed development proceeds:
[33]Exhibit 23.
(a) Necessity of fencing of their property for privacy and security;
(b) provision of air-conditioning to address the additional levels of noise and dust;
(c) traffic noise will border all sides of the property as opposed to one side presently;
(d) whether the developers will pay for their sewerage connection;
(e) probable future land resumptions;
(f) housing in the environmentally sensitive area around the dam;
(g) the provision of appropriate park land as a part of any approval;
(h) loss of present amenity manifested by:
(i) adverse effect on present views to Moreton Bay;
(ii) security issues that urban development will bring about;
(iii) no present need for fences;
(iv) no present additional costs for sewerage;
(v) rates increase;
(vi) loss of the semi-rural lifestyle;
(vii) environmental impacts of development on wildlife – native birds, insects, mammals, reptiles and amphibians, koala bears and kangaroos.
(i) Traffic
(i)Traffic volumes have grown at 4% every year. Presently, congested traffic travels along Redland Bay-Cleveland Road at less than 20 kilometres per hour most weekdays at peak period;
(ii)the development is out of sequence with the road widening, sewerage and public transport infrastructure which will result in unnecessary disruption;
(iii)every extra home in the development represents 10 extra traffic movements;
(iv)single entrance design to the property from the already congested road risks further disruption as an accident can close off the intersection;
(v)the new intersection will force the installation of an additional set of traffic lights.
(j) The development will leave the area with no significant recreation area;
(k)When DTMR inevitably widens the road as they will need to do it is expected that 11 metres of land be resumed from their property.
The above does not set out every point made by Mr and Mrs Nahrung because there was repetition in their statement and in final submissions but it gives an appreciation of their concern as to the impact the development and the widening of the road frontage on Cleveland-Redland Bay Road will have on their property and lifestyle.
Issues raised by Mr and Mrs Turk
Mr and Mrs Turk raised the following issues:-
(a)The impact the development will have on their currently approved home business (retail sale of maternity wear) and the keeping of horses in stables at the rear of their property;
(b)the development will conflict with their current entitlement to keep livestock;
(c)the widening of Cleveland-Redland Bay Road will require land acquisition and it is assumed that all access from their property on to that road will be removed. The plan of development HTP03-01AG does not show a buffer zone and does not reflect a compliant development;
(d)the plan of development should provide a sub-divisional pattern which allows for the orderly development of the adjacent land and, assuming access to Cleveland-Redland Bay Road will be removed, should demonstrate reasonable access to their land;
(e)the development places residential properties adjacent to their land which infringes the specific provisions dealing with the keeping of animals;
(f)placing residential development adjacent to the their existing use of keeping livestock neglects the need for a buffer between dwellings and livestock;
(g)impacts likely to be caused by the unreasonable pacing of the development adjacent to their property are:
(i) Domestic pets physically interfering with livestock;
(ii) dogs barking;
(iii)residents (including children) interfering with the livestock placing them in danger of injury;
(iv)domestic and vehicle noises disturbing livestock;
(v)the Turks being placed in the vicarious position of potential legal liability.
(h)Unreasonable pressure on the Turks to cease a lawful use on their land.
(i)Reasonable outcomes the Turks would expect are:-
(i)Main Roads Department to confirm and identify land required for the upgrade of Cleveland-Redland Bay Road; and
(ii)confirm and identify reasonable long term access for their land;
(iii)the plan of development should demonstrate reasonable long term access to their land;
(iv)the plan of development should demonstrate by conditions that “sensible development will not impinge on the lawful use of their land; and
(v) the plan of development should provide for a condition for the connection of the Turks’ land to water and sewerage reticulation as required by the Structure Plan.”
Again, in her written address, Mrs Turk went over many of the above matters expressing the concern of her and her husband for the impact which they see the development will have upon their present amenity and lifestyle.
Expert’s reports
The resolution of issues between Heritage and the Council and DTMR resulted from discussions in the weekend prior to the Monday trial. Those discussions were against the background of extensive reporting by various experts on a multiplicity of issues. I set out a schedule of the expert reports tendered:
No. Discipline Exhibit No. Author Commissioning Party 1 Town Planning 3 S Reynolds Heritage 2 Town Planning 17 G Vann Council 3 Five joint Town Planning Reports 14 G Vann
S Reynolds
P Syson
C Lambert
(1) G Vann
(2) G Vann )
)
S Reynolds )
)
P Syson )
(3) G Vann )
)
S Reynolds )
(4) G Vann )
S Reynolds )
(5) G Vann )
)
S Reynolds )
Council
Heritage
Turks
May – Third Co-Respondent by election
Council
Council
Heritage
Turks
Council
Heritage
Council
Heritage
Council
Heritage
4 Economics (need) 5 J Norling Heritage 5 Traffic 6 S Williams Heritage 6 Cycleway 7 J Wood Heritage 7 Bush Fire Risk Assessment and Mitigation Plan 8 C Bain Heritage 8 Terrestrial Ecology 9 W Moffitt Heritage 9
Five joint fauna reports
10
(a) Four reports –
L Agnew
W Moffitt
(b) One report - koala experts
L Agnew
S Fitzgibbon
Council
Heritage
Council
Heritage
10
Four joint traffic reports
11
T Eppell
S Holland
E Beard
P Syson
Heritage
Council
DTMR
Turks
11 Two joint stormwater reports 12 M Collins
N Sutherland
Heritage
Council
12 Joint bushfire report 13 C Bain
R Friend
Heritage
Council
13 Traffic report 18 S Holland Council 14 Ecology report 19 L Agnew Council
Weight to be given to the 2006 Planning Scheme
As previously outlined IPA s 4.1.52(2)(a) requires the appeal to be determined based on the laws and policies applying when the application was made but with appropriate weight given to any new laws and policies the court considers appropriate. The scheme applying at the time of the application on 18 June 2003 was the Transitional Planning Scheme. Since then the 2006 Planning Scheme has been amended by the inclusion of the South East Thornlands Structure Plan including the South East Thornlands Structure Plan Overlay.[34] The question arises then as to the weight if any to be given to this new scheme. Heritage argues that significant weight should be given to it for the following reasons:-
[34]Exhibit 20, Planning Documents,Volume 2, Tab 17 page 428.
(a) the Development Application was lodged in 2003;
(b) the Transitional Planning Scheme under which the application was assessed came into force in 1988;
(c) the Strategic Plan under which the application was assessed came into force in 1998;
(d) the planning studies that would have informed the Transitional Planning Scheme including the Strategic Plan would have been prepared sometime before the introduction of those documents; and
(e) the 2006 scheme has been enforced for over five years since 30 March 2006.
The Council supported that submission arguing that the South East Thornlands Structure Plan which came into force on 31 March 2010 was announced in November 2005[35] and represents the current planning for the subject land. It argued that that Structure Plan was the subject of detailed investigation by the Council and the State Government. Proposals were placed on public display, were open for submissions from the public and underwent two State interest checks. In the Council’s view, given that the Structure Plan has been in force for the last 12 months to ignore its provisions would, in the circumstances be illogical and that determinative weight should be given to it.
[35]Exhibit 3, Reynolds Report, page 26.
The Council referred to a statement by Wilson SC DCJ in Ross Nielson Properties Pty Ltd v Brisbane City Council & Anor[36] to support its submissions. In that case the Development Application was lodged in October 2004 and subsequently the Brisbane City Council resolved to review its overall planning strategy for the relevant area. A new Local Plan was drafted and publicised in early 2005 and the application was approved in December 2005. A new local plan became law on 1 July 2006. The appeal was heard in September 2006. In dealing with the issue regarding weight to be given to the new Local Plan his Honour said:
“(9)A fundamental issue concerns the weight to be given to the new Local Plan in light of its promulgation after Council approved this development. Under the Integrated Planning Act 1997 (IPA), s 4.1.52, appeals of the present kind are by way of hearing anew but the court ‘… must decide the appeal based on the laws and policies applying when the application was made, but may give way to any new laws and policies the court considers appropriate.’
(11)To ignore the Local Plan and the zoning changes it makes would, in those circumstances, be illogical. While the weight to be given to a new planning instrument like the Local Plan might, in some cases, be tempered by the fact that it did not achieve its final form until six months after RNP’s proposal was granted approval, the issues raised in these appeals cannot be allowed to slip through the cracks created by this unusual conjunction of events. The clear aims of IPA and the planning schemes promulgated under it mean the court must do its best to determine an appeal by reference to a statutory yardstick which can be located by those with a relevant interest. Here, logic and the prevailing circumstances complete the conclusion that it is the Local Plan which should be the primary, determinative planning instrument.”
[36][2007] QPELR 323.
In the present case according to the Council the argument is even stronger given that the Structure Plan has been in force for 12 months prior to this appeal being heard. I agree with the submissions of Heritage and the Council that the current scheme should be given determinative weight given that it reflects the current planning for the subject land. To pick up the words of his Honour Wilson SC DCJ I think it would be illogical to do otherwise than afford the current scheme that determinative weight. Neither Mr and Mrs Nahrung nor Mr and Mrs Turk argued to the contrary.
Conflicts between the development proposal and the relevant planning provisions
Having decided that consideration should be given to the current scheme as well as the Transitional Planning Scheme, the question arises now whether there are any conflicts between the development proposal and either of those schemes.
Conflicts with Transitional Planning Scheme
Both town planning experts Mr Reynolds and Mr Vann agreed that the proposal conflicts with the Transitional Planning Scheme and Heritage does not assert to the contrary. Those experts saw conflict with the following provisions of the Transitional Planning Scheme:[37]
(a) Specific Planning Intent (No. 4) in the Strategic Plan;
(b) the Rural Zone; and(c)the Rural/Non-Urban Category in the Development Controlled Plan (1) (DCP 1).
[37]Exhibit 14 Joint Planning Reports, page 3, para 4.2.
(a) Specific Planning Intent (No. 4) of Strategic Plan
The relevant section of the Specific Planning Intent No. 4 is set out in paragraph 14 above. Any conflict must be plainly identified[38] and must be more than a minor one.[39] Heritage argued that the only plainly identified conflict with specific planning intent no. 4 arises from the proposed lots not being at the rural non-urban size of 6,000 m2 – 10,000 m2. I pointed out the current planning instruments had no such requirement.
[38]Fitzgibbons Hotel Pty Ltd v Logan City Council [1997] QPELR 208 at 212J; Harburg Investments v Brisbane City Council & Anor (2000) QPELR 313 at 328.
[39]Elf Band Pty Ltd v Maroochy Shire Council [1995] QPELR 290; Delaview Pty Ltd v Redland Shire Council [1997] QPELR 250 at 253.
(b) Rural Zone
The land is entirely within the Rural/Non-Urban Zone in the Transitional Planning Scheme. The intent of that zone is described as follows[40]:-
“This zone comprises predominantly agricultural land but also includes non-urban areas of the Shire not presently used for, and not necessarily suitable for, agricultural or other rural production. Included in the zone is land which is expected to be required for urban development following rezoning during the life of the town planning scheme. Also included is land which is designated for urban development in the Strategic Plan but which is not expected to be required for such purpose during the life of the Town Planning Scheme. Extractive industries are permissible but it is envisaged that consent will not be forthcoming where there would be any undue detriment to the environment or amenity of rural residences and that, where it is forthcoming, stringent controls will be imposed.
Certain other uses of a non-agricultural nature, in particular those which assist in maintaining a non-urban character of the area may be permitted.”
[40]Exhibit 20, Volume 1, page 18.
Heritage makes the point that the conflict with this provision arises from the non-urban character of land within that area but points to the second sentence above which shows that some of the land in that zone was expected to be required for urban development following rezoning during the life of the Transitional Planning Scheme. Heritage makes the further point that, given the current planning instruments, any conflict with the above zone is, in context, of little moment.
(c) Rural/Non-Urban Category in Development Control Plan Figure 1
The land is also included within the boundaries of this Development Control Plan and is entirely within the Rural/Non-Urban Designation of the Elements of the Plan. The intent statement for that designation provides:-
“Rural/non-urban – this designation caters for agricultural and animal husbandry and all non-urban activity. It also provides for other privately owned land in the Shire where the predominant lot size is greater than approximately two (2) hectares.”[41]
Consistent with its argument in relation to the conflict with the other two provisions of the Transitional Planning Scheme, Heritage submits that, in the context of the current planning instruments, this conflict, likewise, is of little moment.
[41]Exhibit 20, Volume 1, page 65.
Conflict between proposal and the 2006 Scheme
As I have said under the SETSP Overlay in the 2006 Scheme the land is mapped as:-[42]
[42]Exhibit 3, Reynolds Report, page 68, figure 23 and page 23, section 4.2.3.2(67).
(a) predominantly within the housing land use precinct (precinct 2);
(b)within the green space network land use precinct (precinct 4(a) – coastal corridor and precinct 4(c) – pink land reserved corridor);
(c)partly included in the road widening/landscaping/acoustic treatments land use precinct; and
(d)included in the district park land use precinct.
In Heritage’s submission the only issue of conflict is the extent of the development around the existing dam which is within the green space network land use precinct (precinct 4(a) – coastal corridor).
Originally there were 19 residential lots proposed on the land to the west of the dam but the current proposal has reduced that to nine lots.[43] To the south west of the dam site land proposed to be developed is land predominantly within the Housing Precinct. The May land the subject of the October 2009 approval is also partly within that precinct.[44] Heritage submits that the development of the May land will change the characteristics of that area to a more urban form of development than the proposed nine lot sub-division of Heritage’s would do.[45]
[43] Exhibit 4.
[44]Exhibit 3, page 30, section 5.2.1(82) and page 68, Figure 23.
[45]For the May subdivision layout see Exhibit 3, Figure 26.
Both town planners Mr Reynolds and Mr Vann agreed that some form of urban development on this land around the dam was appropriate[46] and both agreed that the reduced nine lot proposal was acceptable.
[46]Exhibit 3, Reynolds Report, page 31, section 5.2.1(85); T2-42/10-20; Exhibit 17, page 5, section 3.
Likewise, from an environmental point of view both environmental experts Mr Agnew and Mr Moffitt agreed that some form of urban development on the dam land was appropriate and that the proposed nine lots subdivision was acceptable.[47]
[47]T2-58/55; T2-59/15; T2-60/50
In summary Heritage made the following points in support of the development of the nine residential lots on the dam site:-
(a) The experts agreed some form of development was appropriate;
(b) the May land recently approved is further east and thereby closer to Moreton Bay than the proposed nine lots;
(c) approval of the Development Application for this aspect will retain the dam thereby achieving the relevant outcomes in the SETSP Overlay;
(d) prior farming of the land immediately west of the dam has left it with a lack of vegetation; and
(e) The May development to the east was much broader in extent than the proposed sub-division.[48]
[48]See generally Exhibit 3, Reynolds Report, Page 40.
Heritage response to issues raised by Mr and Mrs Turk and Mr and Mrs Nahrung
In relation to the issues of the impact on their lifestyle Heritage characterised that as being an objection by the Nahrungs and Turks to the Council’s decision to convert the land to use for urban purposes pointing out that the planning instruments under which the application was lodged were very old and that the current planning instruments intend the land is to be used for urban purposes. Heritage made the point that if a fresh Development Application was made over the land, development for residential purposes would be wholly consistent with the current planning instruments and those parts of the land adjoining the subject land owned by the Turks and Nahrungs.[49]
[49]Exhibit 3, Reynolds Report, Page 68, Figure 23.
As to the proposed development of that land between the Turks’ land and the Nahrungs’ properties, as part of Stage 1a Heritage points to the plan of development the subject of the order of his Honour Judge Rackemann on 30 March 2010[50] which clearly shows that development was always scheduled for Stage 1a. Further it says that development in Stage 1a was insisted on by the traffic experts including Mr Syson who at that point was engaged by the Turks.[51]
[50]Exhibit 2, Volume 1, Page 6.
[51]Exhibit16, Page 4, Section 4. See also fourth Joint Traffic Report Exhibit 11, Page 16, paragraph 5.
As to the concerns generally expressed by the Turks and the Nahrungs about traffic matters Heritage says that the evidence clearly shows that the traffic impacts on Cleveland-Redland Bay Road arise not from the development proposed but from its use generally.
Council’s response to issues raised by Mr and Mrs Nahrung and Mr and Mrs Turk.
As to the amenity impacts complained of the Council admitted that they were the consequence of the ordinary use of land for urban residential purposes. Accepting that, when they purchased their land they may have had an expectation that any development near them would be in the 6,000 m2 – 10,000 m2 allotment size, any expectation must be tempered by changes in the planning regime. Council submitted that it was apparent from 2005 by reference to the planning process that consideration was being given to urban residential development becoming the preferred planning outcome for land in the area and that upon introduction of the south east Thornlands Structure Plan on 31 March 2010 the only legitimate expectation they could have had based on planning documents was that urban residential development would occur on lands adjacent to them.
As to development of the nine lots sub-division on the dam block the Council relied on the uncontradicted evidence of the environmental experts Mr Moffitt and Mr Agnew that the proposal will meet the aims and objectives of the current planning scheme with respect to the opportunities for fauna movement between the major vegetated areas being the pink lands reserve to the north and Eprapah Reserve to the south.
Response of DTMR to Nahrung Turk Issues
DTMR issued an amended concurrence agency response[52] containing conditions which it seeks to be attached to any development approval. None of those conditions involve resumption of any land from either the Nahrungs or the Turks or involve any external road works which will have any impact on the continued use of their respective driveways on to Cleveland-Redland Bay Road. In short there is no current plan to resume any part of either of their land.
[52]Exhibit 21.
DTMR made the following points in relation to the issues raised by Mr and Mrs Nahrung and Mr and Mrs Turk:-
(a)The issues relating to setbacks and future likely land requirements are not directly relevant to the subject development;
(b)no change is proposed to access of either of their properties;
(c)neither the subject development nor external road works will have any impact on their continued use of their driving access to Cleveland-Redland Bay Road;
(d)the subject development will not significantly change the traffic volumes on Cleveland-Redland Bay Road;
(e)both the Turk and Nahrung Properties will be provided with an alternative access to Cleveland-Redland Bay Road as part of Stage 1 by the internal road system in that stage, which they can use to gain safer signalised access to Cleveland-Redland Bay Road.
Conclusion regarding issues raised by Mr and Nahrung and Mr and Mrs Turk
I am satisfied on all the evidence that there is nothing in any of the issues raised by Mr and Mrs Nahrung or Mr and Mrs Turk which would prevent approval being given to the Development Application if, in all other respects, it warrants approval.
Are there sufficient grounds to justify approving the Development Application despite the conflict with the planning scheme?
Apart from the matters already raised by Heritage in dealing with the above issues, it relied on the following further matters in support of its submission that there are sufficient town planning grounds to justify approving the Development Application despite the conflict with the transitional planning scheme:-
(a)There was a need for housing in the local and wider area warranting the efficient use of land for urban purposes which the proposal represents;[53] and
(b)the development proposed represents a better environmental and planning outcome compared to the rights that existed for rural residential development at the time the application was lodged in 2003; and[54]
(c)the development results in significant additional areas being made available for public urban space and environmental purposes.[55]
[53]Exhibit 5, report Mr Norling, Page 22, Section 80 and 82; Exhibit 3Reynolds’ Report, Page 44, Section 5.5.
[54]Exhibit 3, Page 44, Section 5.5.
[55]Exhibit 3, Page 44, Section 5.5.
The Council also submitted that sufficient planning reasons exist. It says the development as proposed is now actively encouraged by the current planning regime. The Council’s view is that it would be difficult to imagine a more cogent and sufficient planning ground to justify approval despite the conflict.
Conclusion
I am satisfied that, despite the conflict with the Transitional Planning Scheme, there are sufficient planning grounds to justify approval of the Development Application. The appeal is allowed. I adjourn the matter for resolution of the issue of the appropriate conditions.
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