Karalee Land Partners Pty Ltd v Ipswich City Council
[2014] QPEC 34
•20 June 2014
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Karalee Land Partners Pty Ltd v Ipswich City Council & Ors [2014] QPEC 34
PARTIES:
KARALEE LAND PARTNERS PTY LTD
(ACN 124 083 176)(Appellant)
v
IPSWICH CITY COUNCIL
(Respondent)
and
QUEENSLAND ELECTRICITY CORPORATION LIMITED
(ACN 078 849 233)(First co-respondent by election)
and
CHIEF EXECUTIVE ADMINISTERING THE TRANSPORT INFRASTRUCTURE ACT 1994 AND THE TRANSPORT PLANNING AND COORDINATION ACT 1994
(Second co-respondent by election)
FILE NO/S:
4980/12
DIVISION:
Planning and Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
Planning and Environment Court, Brisbane
DELIVERED ON:
20 June 2014
DELIVERED AT:
Brisbane
HEARING DATE:
21 to 30 October 2013 and 3 to 7 March 2014
JUDGE:
Searles DCJ
ORDER:
The order is that the appeal be dismissed.
CATCHWORDS:
Appeal from Council refusing small lot development on Large Lot Residential Zone – Significance of Existing Approval – Whether conflicts with the Ipswich Planning Scheme 2006; If so whether sufficient grounds for approval
COUNSEL:
Appellant: J D Houston
Respondent: J S Brien
SOLICITORS:
Appellant: Hopgood Ganim
Respondent: King & Co
Table of Contents
Appeal
Amendments to Application
Amended Proposal
Referral Agencies
DERM response 11 May 2012
DTMR response
Council Grounds of Refusal
Existing approval
Site and locality
Submitters
Legislative framework
Approach to Assessment of the Application
Southeast Queensland Regional Plan 2009-2031
Planning Scheme – Ipswich Planning Scheme 2006
Issues in dispute
Principles governing interpretation of Planning Scheme
Consideration of issues
1. Engineering issues: geotechnical, hydrology and storm water management and civil engineering
2. Ecology (flora and fauna)
2.1 Opinion of Mr Moffitt (Karalee)
2.1.1 Historical disturbance (quarrying)
2.1.2 Significance of Existing Approval
2.1.3 Landscape connectivity
2.1.4 Impact on vegetation
2.1.5 Impact on habitat trees
2.1.6 Impact on the Powerful Owl
2.1.7 Mr Moffitt’s final conclusions and recommendations
2.2 Opinion of Mr Chenoweth (Council)
2.2.1 Native vegetation
2.2.2 Habitat Connectivity
2.2.3 Mr Chenoweth’s conclusion
2.3 Mr Agnew’s opinion (Council)
2.3.1 Powerful Owl
2.3.2 Fauna and fauna habitat values recognised to date
2.3.3 Amended Proposal
2.3.4 Mr Agnew’s conclusions
2.4 Conclusion re Ecology
3. Character and visual amenity
3.1 Intended Character for the Area
3.2 Existing Character and Amenity
3.3 Conclusion re Character and Visual Amenity
4. Town Planning
4.1 Opinion of Mr Buckley (Karalee)
4.2 Opinion of Mr Perkins (Council)
4.3 Points of Disagreement on Planning Issues
4.4 The Character of the Locality
4.5 The Relevance of the Existing Approval
4.6 The Relevance of the SEQRP 2009
4.7 Council’s Planning Strategy
4.8 Compliance or Conflict with the Ipswich Planning Scheme 2006
4.9 Conclusion re Conflict with Scheme
4.10 Grounds for approval despite any conflict
4.10.1 Grounds Relied Upon by Karalee
5. Economic Need
5.1 Mr Duane’s Opinion re Availability of Land for Large Lot Subdivision
5.2 Need for Small Lots
5.2.1 Mr Duane’s Opinion
5.2.2 Mr Brown’s Opinion
5.3 The Subject of Need
5.4 Conclusion re Need
6. Conclusion re Sufficient Grounds to Overcome Conflict
Order
Appeal
This appeal is from the decision of the Council of 28 November 2012[1] refusing the Appellant’s (Karalee) application of 2 March 2012 to develop land at Rea Road Karalee described as:
[1]Exhibit 3, vol 6, pp 1258-1296.
1. Lot 153 and part of Lot 158 on S31118;
2. Lots 15, 18, 19 and parts of Lots 21 and 22 on RP14620;
3. Part of Lot 1 on RP14754;
4. Lot 8 and part of L10 on SP100582;
5. Lot 14 and part of Lot 12 on SP100583; and
6. Lot 18 on SP100584 (Site).
The Site has an area of 38.31 hectares and is burdened by an electricity easement in favour of Powerlink. There is a previous approval attaching to the land. That approval was granted under the Ipswich Planning Scheme 2006 (Scheme), the relevant planning scheme in this appeal.
Amendments to Application
The application of 2 March 2012 sought:-
1. A Preliminary Approval overriding the planning scheme to facilitate the development of Residential Low Density over the Site subject to Code Assessment in accordance with the Residential Low Density Zone; and
2. A Development Permit for Reconfiguring a Lot over Stages 1-3 (8 into 101 lots and 2 balance lots) to create 101 residential lots, new roads, open space, ample drainage reserve and two balance lots.[2]
[2]Exhibit 3(1), p 5.
By letter dated 13 March 2012, on behalf of Karalee, further particulars of the application for Preliminary Approval were provided. They identified the specific elements of the planning instruments sought to be varied. The particulars included identification that:-
1. The Large Lot Residential Code was to be replaced with the Residential Low Density Zone Code; and
2. All Levels of Assessment directed in accordance with Assessment Tables 4.5.1 and 4.5.2 of the Residential Low Density Zone Code, were to replace the Levels of Assessment Tables 4.4.1 and 4.4.2 of the Large Lot Residential Zone Code.[3]
[3]Exhibit 3(3), p 462.
Whilst the Application for the Development Permit was confined to the reconfiguration of the Site into 101 Lots and two balance Lots, Karalee’s overall outcome, as indicated in its Overall Plan,[4] is to develop approximately 420 Lots, in 11 stages, with 67 of 450m2 in area, 41 with 500m2, 273 with 600m2, 27 with 700m2 and 12 with greater than 800m2. Karalee proposed that any approval obtained in the present application remain extant for 20 years.[5]
[4]Exhibit 3(1), p 27 and Appendix D, p 108.
[5]Exhibit 3(1), p 18.
Amended Proposal
In the course of the assessment process on 26 July 2012 an amended plan of development and a staging plan were submitted by Karalee. These plans reduced the overall proposal from 420 to 403 Lots with 147 at 450m2, 39 at 500m2, 155 at 600m2, 20 at 700m2, 12 at 800m2 and 30 at greater than 1000m.2[6] Subsequently on 23 September 2013 a further Amended Proposal plan (Amended Proposal) was notified by Karalee reducing the number of allotments from 403 Lots to 341 Lots with 98 at 450m2, 34 at 500m2, 139 at 600m2, 19 at 700m2, 20 at 800m2 and 31 at greater than 1000m2.[7] The Amended Proposal also increased the conservation area on the southern part of the Site. On 7 March 2014 the court ordered that the Amended Proposal constituted a minor change.
[6]Exhibit 3(3), p 506 – WC006170.000.001L and p 551 – WC006170.000.008B.
[7]Exhibit 29, p 106.
Referral Agencies
There were three referral agencies: the Department of Environment and Resource Management (DERM), the Department of Transport and Main Roads (DTMR) and the Department of Local Government and Planning (DLGP) (now the Department of Infrastructure and Planning (DIP)). Powerlink, the beneficiary of the abovementioned easement, was a third party advice agency, as was SEQ Water (Queensland Bulk Water Supply Authority).
DERM response 11 May 2012[8]
[8]Exhibit 3(6), pp 1290-1291.
DERM authorised clearing of mapped vegetation shown on the certified Regional Ecosystem Map, which was identified as Least Concern Regional Ecosystem 12.9 – 10.2 and required a condition of approval that:-
1. “Clearing of remanent vegetation must be limited to that which is necessary for urban development that is authorised under the approval.”
DTMR response
DTMR identified certain conditions to be attached to any approval, focusing on development set backs from the Proposed Moggill Pocket Arterial Road, given that the planning for this road corridor indicated that a future land requirement affected the property. DTMR also conditioned as a requirement that any extension of Lewis Drive, accommodated bus, on-road cycle lanes and/or shared use pathways. Neither DLGP/DIP nor SEQ Water had any requirements and Powerlink set conditions to protect its easement.
Council Grounds of Refusal
The grounds of refusal relied upon by Council in its Decision Notice of 28 November 2012 were as follows:-
“the Reconfiguration of a lot component of the Development Application:
(a) does not achieve the Desired Environmental Outcomes for the Local Government Area, specifically sections 3.1(3)(a), 3.1(3)(b), 3.1(3)(i) and 3.1(3)(j);
(b) is inconsistent with the overall outcomes for Urban Areas of the Planning Scheme, specifically sections 4.3.2(2)(a), 4.3.2(2)(b), 4.3.2(2)(e), 4.3.2(2)(h), 4.3.2(2)(i) and 4.3.2(2)(j);
(c) is inconsistent with the specific outcomes for the Urban Areas of the Planning Scheme, specifically sections 4.3.3(3)(d), 4.3.3(4)(f) and 4.3.3(4)(f)(i);
(d) is inconsistent with the overall outcomes for the Large Lot Residential Zone of the Planning Scheme, specifically sections 4.4.2(2)(e)(i), 4.4.2(2)(e)(ii), 4.4.2(2)(e)(iv) and 4.4.2(2)(e)(v);
(e) is inconsistent with the specific outcomes for the Large Lot Residential Zone of the Planning Scheme, specifically sections 4.4.3(1)(b), 4.4.3(1)(c) and 4.4.3(1)(h);
(f) is inconsistent with the overall outcomes for the Development Constraints Overlays Code of the Planning Scheme, specifically section 11.4.3(2)(d);
(g) is inconsistent with the specific outcomes for the Development Constraints Overlays Code of the Planning Scheme, specifically sections 11.4.6(1)(a), 11.4.6(1)(b), 11.4.6(1)(c)(iii), 11.4.6.1(1)(c)(v), 11.4.6(1)(e);
(h) is inconsistent with the overall outcomes for the Vegetation Management Code of the Planning Scheme, specifically sections 12.4.3(2)(a), 12.4.3(2)(b), 12.4.3(2)(c) and 12.4.3(2)(d);
(i) is inconsistent with the specific outcomes for the Vegetation Management Code of the Planning Scheme, specifically sections 12.4.1(1) and 12.4.1(6);
(j) is inconsistent with the overall outcomes for the Reconfiguring a Lot Code of the Planning Scheme, specifically:
(1) sections 12.4.3(2)(a), 12.4.3(2)(l), 12.4.3(2)(m), 12.4.3(2)(n), 12.4.3(2)(q); and
(2) tables 12.5.2(1)(a), 12.5.2(2)(e), 12.5.2(2)(g), 12.5.2(2)(m), 12.5.2(22)(a), 12.5.2(22)(b), 12.5.2(22)(c), 12.5.2(22)(f), 12.5.2(22)(g), 12.5.2(22)(k), 12.5.2(22)(l), 12.5.2(22)(m), 12.5.2(22)(m). [sic]
(k) cannot be supported in accordance with section 329 of the SPA, as it is in conflict with the Scheme and there are insufficient grounds to justify the decision despite the conflict; and
(l) cannot be appropriately conditioned to address the matters listed in paragraph 39 (a) to (k) [above].”
Those provisions are later set out.
Existing approval
The Site is part of a larger area the subject of an Existing Approval for large lot development of 13 lots into 116 Large Lot Residential Lots[9] approved by this court on 5 May 2006. Subsequently on 22 December 2011 the development permit was amended by court order with minor amendments relating mainly to the staging of the development. The existing large lot development approval (Existing Approval) remains on foot and operational works permits have been issued for stages 1 and 2 (Lots 4-39).[10] Those areas are not included in the present application which is a proposed reconfiguration of the balance of the approved area in accordance with the requirements of the Residential Low Density Zone rather than the Large Lot Residential Zone.[11]
[9]Exhibit 3(2), pp 299-337.
[10]Exhibit 1, p 11.
[11]Exhibit 2 is an aerial map showing the overall area the subject of the Existing Approval with the land bordered by a broken line to the north, east and west and a continuous line to the south identifying the balance area not the subject of this application.
Under SPA s 314(3)(b) the court must have regard to the Existing Approval. I agree with the submissions of Karalee that any such regard should extend to a consideration of the implications of that approval for the subject Site, including any future impacts of development under that approval.
Site and locality
The Site is described[12] as having a total area of approximately 40.399 hectares (slightly larger than the 38.31 hectares set out in the Application). The land is bordered immediately to the north by the Stages 1 and 2 of the existing Existing Approval, to the east by the Large Lot Residential zoned blocks, to the south by DTMR preserved future road corridor (Moggill-Karalee Bypass) and to the west by Recreation and Large Lot Residential Zoned blocks. It possesses natural characteristics and constraints including:-
[12]Exhibit 5(1), First Joint Engineering Report, p 4.
1. A range of topography including some areas of steep topography;
2. Areas of regrowth amongst its mostly-vegetated land; and
3. Areas of degradation as a result of past gravel extraction.
Degraded areas exist over most of the northern part of the Site, characterised by being essentially devoid of topsoil. In these areas there are many small regrowth trees, but the ground surface is mostly bare with sheet and gully erosion evident in many places. Lantana and other weed plants are present in some of the gullies.
As mentioned, to the south of the Site, running generally southwest/east northeast, is the Moggill Pocket Arterial Road reserved transportation corridor referred to in the DTMR Response. Powerlines on the Powerlink electricity easements generally align with the southern boundary of the Site. To the north is the approved large lot development sloping down to the Brisbane River operated from the Site to the north by a road presently under construction pursuant to the Existing Approval. This is part of what is known as the Lewis Drive extension. That extension through the Site dominates an area identified for a future interchange for the Moggill Pocket Arterial Road. Karalee points out that the Site is isolated from land to the east by that proposed interchange in arterial roads.[13]
[13]Exhibit 1, Layout Plan, p 24.
To the east of the Site the land is zoned and/or developed as Large Lot Residential generally contiguous with the large lots being developed to the north of the Site. To the west is an unformed road generally identified as an extension of the Rea Road Reserve which extends from the Brisbane River in the north to Junction Road in the south.[14]
[14]Exhibit 1, p 4.
Submitters
According to the Council’s planner, Mr Perkins, there were six properly-made submissions and twenty-five improperly-made submissions.[15] Of the properly-made submissions; one provided some general support for the application, four were interpreted as objecting and one was neutral. In relation to character of the area, Mr Perkins said those six submitters made the following observations:-[16]
[15]Exhibit 19, Planning Report Mr Perkins (Council), p 9, para 33.
[16]Exhibit 19, p 16, para 71.
1. The area is characterised by quiet, peaceful surrounds, nature and wildlife, limited traffic, and good separation between properties;
2. Large lots are able to retain trees and habitat connections, and can retain a semi-rural, peaceful lifestyle;
3. The Amended Proposal will result in an increase in traffic, impact on biodiversity and less retention of amenity, all of which affect the character of the area; and
4. The impacts of the Amended Proposal are unable to be mitigated in the same way that would be possible with large lot residential. The existing large lot approval fronts Rea Road in the north with land zoned recreation including a cleared Landfill Site opposite. The subject Site has frontage to Rea Road opposite the southern half of the Landfill Site and, south of Lewis Drive, opposite the area identified as Council Reserve. The Site is zoned for large lot residential at its Rea Road frontage and is interrupted by Lots 151 and 152 on S31118. The southern extremity of the Site fronts Rea Road opposite the land zoned and being developed for Residential Low Density.[17]
[17]Exhibit 1, p 23.
Legislative framework
The application was lodged under the Sustainable Planning Act 2009 (SPA) and the appeal commenced under s 461. It is to be a hearing a new under s 495 based on the laws and policies applying when the development application was made. However, s 495(2)(a) allows the court to give weight to any new laws and policies it considers appropriate. Under s 493(1), the appellant bears the onus establishing that the appeal should be allowed.
It is common ground that the application, made under s 242 of SPA, is impact assessable given it involves an application for a material change of use. The relevant provisions of SPA are ss 241, 242, 243, 314, 316, 323-326, 327 and 329.[18]
[18]For the purposes of s 495(2)(a) of SPA the relevant reprint of SPA is no. 2 (enforced as at 2 March 2012).
The effect of ss 316(4)(d) and 329(2) is that, in considering whether there is a conflict with the Scheme, one does not take into account those aspects of the Scheme sought to be varied.
Approach to Assessment of the Application
The application is in two parts, development approval for the reconfigurations of eight Lots into 101 Lots, leaving two balance Lots and preliminary approval to vary the Scheme. That validation seeks to facilitate the future assessment and approval of the Amended Proposal to be assessed against the Residential Low Density Zone Code rather than the Large Lot Residential Code.
The first step in the process is to assess the development application. Next the assessment of the proposed variation to the Scheme should be considered by reference to the matters in s 316 of SPA. If the assessment of the development approval aspect of the application results in a refusal then s 324(4) mandates a refusal of the variation of the Scheme aspect.
In assessing the development application, as to whether it complies with the local planning instrument, it is to be considered against the existing local planning instruments, not the proposed variation identified in the development application.[19]
[19]SPA s 316(4)(d).
Southeast Queensland Regional Plan 2009-2031
Relevant provisions of the Southeast Queensland Regional Plan 2009-2031 (SEQRP 2009) are set out in Annexure B. I shall deal with them in more detail later.
Planning Scheme – Ipswich Planning Scheme 2006
The relevant provisions of the Scheme are:-
| “PART 3—DESIRED ENVIRONMENTAL OUTCOMES AND PERFORMANCE INDICATORS 3.1 Desired Environmental Outcomes … (3) The desired environmental outcomes for the Local Government area are as follows— (a) the values of significant natural features, including the principal conservation areas are not compromised; (b) adverse effects on the natural environment are minimised or prevented with respect to the loss of natural vegetation and associated habitat, soil degradation, air pollution and water pollution owing to erosion, chemical contamination, acidification, salinity, sewage and wastewater treatment, management and effluent disposal and the like; … (i) the adverse effects from natural and other hazards, including flooding, land subsidence, bush fires, ordnance explosions and aircraft operations, are minimised; (j) the healthy and safety of people, and the amenity they enjoy, are maximised, particularly in the urban and township areas where different types of uses are located close together;”[20] | |
| “PART 4—URBAN AREAS Division 3—Overall and Specific Outcomes for the Urban Areas as a whole 4.3.2 Overall Outcomes for Urban Areas … (2) The overall outcomes sought for the Urban Areas are the following— Overall Vision (a) Integrated communities are created and maintained which enjoy enhanced liveability, effective growth management, sustained economic growth, good urban design and ecological sustainability. Community Identity (b) Definable but inter-related neighbourhoods are created and maintained with a strong sense of community identity. Housing … (d) There is an adequate supply of residential land and dwellings that respond to community needs and locational constraints and opportunities. (e) The spacious, large lot, residential character of certain communities is maintained particularly— (i) to the north of the Warrego Highway; (ii) to the west of Old Logan Road, Camira; (iii) at North Bundamba; and (iv) in defined areas within the Deebing Creek and Ripley Valleys. … Amenity (h) Pleasant and safe living and working environments are created. (i) There is a high standard of amenity in residential areas and uses and works in these areas are compatible. Environmental Management and Greenspace (j) Uses and works are located and designed to minimise risks and nuisance to people and property. … 4.3.3 Specific Outcomes for the Urban Areas, as a whole … (3) Specific Outcomes … (d) Vegetated areas with strong scenic amenity or biodiversity values are retained where possible within development sites as open space areas, large lots or expanded road reserves. … (4) Specific Outcomes … (f) New uses and works on prominent hillsides or ridgelines are designed and located— (i) to conserve historic buildings, large mature trees and significant stands of vegetation, where possible; (ii) to retain important skyline elements, including tree canopies for vegetated ridgelines and knolls; and”[21] | |
| “PART 4—URBAN AREAS Division 4—Large Lot Residential Zone: Assessment Criteria and Assessment Tables … 4.4.2 Overall Outcomes for Large Lot Residential Zone … (2)… (a) The Large Lot Residential Zone caters primarily for residential uses on large suburban (i.e. acreage) lots, to the general exclusion of most other uses. … (e)… (i) maintain residential amenity; (ii) be compatible with other uses and works; … (iv) protect the spacious character of the zone; and (v) avoid significant adverse effects on the natural environment. … 4.4.3 Effects of Development – General … (1) Specific Outcome Uses and works reflect the established built character, maintain amenity and protect and enhance important townscape and landscape elements within local areas having regard to— … (b) dwelling density; (c) lot sixes and dimensions; (d) boundary clearances and the provision of space around buildings; … (h) vegetation protection; … (2) Probable Solution – for sub-section (1)(b) and (c) The overall density is 1.5 to 2.5 dwellings per hectare, with lots ranging from 4000m2 to 6000m2 in area.”[22] | |
| “PART 4—URBAN AREAS Division 4—Large Lot Residential Zone: Assessment Criteria and Assessment Tables … 4.4.5 Consistent and Inconsistent Uses, Use Classes and Other Development Specific Outcomes (1) The following are consistent uses, use classes and other development categories in the Large Lot Residential Zone— (a) agriculture, on lots 1 or more hectares in area, unless fruit framing or turf farming within 8km of RAAF Base Amberley; (b) animal husbandry, on lots 1 or more hectares in area; (c) caretaker residential; (d) carrying out building work not associated with a material change of use, if an existing building on site and complying with the Planning Scheme Building Matters Code; (e) clearing of vegetation, which complies with the Vegetation Management Code; (f) earthworks, not associated with a material change of use and which complies with the Earthworks Code; (g) home based activity, which complies with the Home Based Activities Code; (h) minor building work; (i) minor utility; (j) park, if not involving illuminated sporting activities; (k) placing an advertising device on premises which complies with the Advertising Devices Code; (l) single residential, if outside LLR2 and on lots of 4000m2 or more in area. (2) The following uses, use classes and other development categories are consistent with the outcomes sought for the Large Lot Residential Zone if of a type and scale appropriate for the prevailing nature of the area and the particular circumstances of the site and its surrounds— … (q) single residential, if within LLR2;”[23] | |
| “PART 4—URBAN AREAS Division 5—Residential Low Density Zone: Assessment Criteria and Assessment Tables ... 4.5.2 Overall Outcomes for Residential Low Density Zone … (2) The overall outcomes sought for the Residential Low Density Zone are the following— … (e) Uses and works within the Residential Low Density Zone are located, designed and managed to— … (ii) maintain or enhance important aspects of local character and places of cultural significance or streetscape value; … (iv) avoid significant adverse effects on the natural environment; and … 4.5.3 Effects of Development – General … Residential Uses – Density and Character (1) Specific Outcomes Use and works reflect the established built character, maintain amenity and protect and enhance important townscape and landscape elements within local areas having regards to— … (b) dwelling density; (c) lot sizes and dimensions; … (h) vegetation protection; … Vegetation and Landscaping (4) Specific Outcomes (c) All significant trees are retained, where possible, particularly on heavily treed, large lots.”[24] | |
| “PART 11—OVERLAYS Division 4—Development Constraints Overlays: Assessment Criteria and Assessment Tables ... 11.4.3 Overall Outcomes for the Development Constraints Overlays … (2) The overall outcomes sought for the Development Constraints Overlays are the following— … (d) Uses and works are sited, designed and constructed to avoid, minimise or withstand the incidence of a development constraint. … 11.4.6 Difficult Topography … (1) Specific Outcomes (a) Development on land greater than 15% slope maintains the safety of people and property from the risk of landslide. (b) Uses and works avoid land slopes with greater than 20% or on geologically unstable land. (c)… (iii) to minimise the extent of cut and fill and use of retaining walls by— (A) avoiding the use of a single plane concrete slab…; and (B) using a post supported construction or stepped (split level) building form; … (v) to minimise clearing of vegetation and where possible, provide supplementary planting; and (vi) to visually integrate into the surrounding landform and vegetation character of the area by— (A) not protruding above the height of the existing mature tree level (where in existence); and (B) not protruding above any significant ridgelines; and (C) having visible external building surfaces finished with natural colours/textures and non-reflective surfaces compatible with the surrounding natural landscape; and (D) not being visually intrusive particularly when viewed from public open space, major roads and other significant vantage points outside the site; and … (e) The creation of new lots is discouraged on land with slopes greater than 20% or on geologically unstable land.”[25] | |
| “PART 12—ASSESSMENT CRITERIA FOR DEVELOPMENT FOR A STATED PURPOSE OR OF A STATED TYPE … Division 4—Vegetation Management Code … 12.4.3 Overall Outcomes for the Vegetation Management Code … (2) The overall outcomes sought for the Vegetation Management Code are the following— (a) Significant areas of native vegetation and their associate wildlife habitats and linkages are conserved and appropriately managed. (b) Vegetation within defined water catchment areas, riparian areas or wetlands is conserved and appropriately managed. (c) Vegetation within environmentally sensitive areas including steeply sloping land and areas prone to erosion or salinity is conserved and appropriately managed. (d) Vegetation which is of cultural heritage, ecological, horticultural, scientific, educational, recreation or aesthetic (including streetscape, townscape or landscape) significance or value is conserved and appropriately managed. … Table 12.4.1: Specific Outcomes, Acceptable Solutions and Probable Solutions for the Management Of Vegetation | |
| Column 1 Specific Outcomes | Column 2 Acceptable/Probable Solutions |
| Environmentally Sensitive Areas (1) The clearing of vegetation does not cause of exacerbate land degradation within environmentally sensitive areas including steeply sloping land, areas prone to erosion or salinity, riparian corridors, wetlands or water catchment areas… | Environmentally Sensitive Areas (1) The clearing does not involve the removal of native vegetation from— (a) land with a slope of 15% or more; or (b) land within a Designated Watercourse or land within 30m of a Designated Watercourse or within 10 metres of the top of the bank of a Designated Watercourse where the slope of the bank exceeds 15%... |
| Wildlife Habitat (6) Important areas of wildlife habitat (including watercourses and wetlands) are maintained and protected from edge effects. | Wildlife Habitat (6) An ecological assessment, prepared by a suitably qualified and experienced person is provided to the local government which— (a) identifies important habitat areas; (b) demonstrates they are being retained in a manner that optimises the viability and connectivity of the retained vegetation, e.g. significant habitat is retained in a compact form or in corridors of sufficient width to protect species viability.”[26] |
| “PART 12—ASSESSMENT CRITERIA FOR DEVELOPMENT FOR A STATED PURPOSE OR OF A STATED TYPE … Division 5—Reconfiguring a Lot Code … 12.5.3 Overall Outcomes for the Reconfiguring a Lot Code … (2) The overall outcomes sought for the Reconfiguring a Lot Code are the following design elements— Residential (including Large Lot Residential), Commercial and Industrial Estate Design (Urban Areas Only) … Street Networks (e) Street networks are created in which the function of each street is clearly identified, providing acceptable levels of access, on-street parking (urban areas only), safety and convenience for all users whilst minimising the impact on the environment and maintaining and enhancing identified conservation values. … Street Design and On-Street Carparking (i) Streets are designed to— (i) fulfil their designated functions within the street network; (ii) accommodate public utility services, drainage systems and on-street carparking (urban areas only); (iii) create acceptable levels of safety and convenience for all street users; (iv) contribute towards an attractive environment; and (v) avoid configurations of lights in areas within 6km of the RAAF Base Amberley runway that replicate the appearance of airport runways at night. … Stormwater Quality Management (l) Stormwater quality management systems are provided which— (i) ensure that disturbance to natural riparian systems is minimised including the minimisation of erosion and scour resulting from changed water regimes; and (ii) ensure stormwater discharge to receiving waters, both during construction and in developed catchments, does not degrade the quality of water in the receiving environments. … Streetscape and Landscape (Urban Areas Only) (m) Attractive streetscapes are provided that— (i) reinforce the functions of a street; (ii) enhance the amenity of premises; (iii) are sensitive to the built form, landscape and environmental conditions and character of the locality; and (iv) promote safety and security. (n) New development is cognisant of the existing landscape character, and retains or reinforces that character through measures such as vegetation retention, provision of new landscaping, management of stormwater quality and use of appropriate urban design principles. … (q) For residential development, lots are in keeping with the environmental values of the site (including local and regional biological diversity, where possible) and are orientated where practicable to enable microclimate management, including the application of energy conservation principles. … Table 12.5.2: Specific Outcomes and Probable Solutions for Moderate and Major Subdivisions | |
| Column 1 Specific Outcomes | Column 2 Probable Solutions |
| Residential/Industrial Estate Design (MAJOR SUBDIVISIONS ONLY) (1) For Major Subdivisions, the layout and design— (a) gives a residential neighbourhood or a commercial/industrial location a strong and positive identity, by responding to site characteristics, setting, landmarks, views and places of cultural significance and through clearly legible streets and streetscaping themes, and in the case of residential neighbourhoods, open space networks; … | Residential/Industrial Estate Design (1) There are no recommended probable solutions for this specific outcome as each situation requires and individual approach. … |
| Lot Layout and Design (2) Lots (including hatchet lots) have the appropriate layout, area and dimensions to— … (e) take into account the slope of the land, in particular the desirability of minimising earthworks/retaining walls associated with building construction; … (g) conserve natural, cultural or special features (e.g. trees, buildings, views etc); … (m) integrate with the surrounding urban environment, and in particular complement existing streetscapes and landscapes and, where possible in residential areas, provide connectivity to facilitate shared use of public facilities by adjoining communities; … | Lot Layout and Design (2) (a) The lot size, frontage and special characteristics for the different residential lot types are outlined in Appendix A. … |
| (22) The street layout and design— (a) takes account of the topography (especially steep land) and significant vegetation; (b) avoids steep slopes (i.e. greater than 15%) so as to minimise landscape disturbance and vegetation loss; (c) avoids penetrating and fragmenting large tracts of remnant vegetation; … (f) takes account of streetscapes that may be created or that already exist; (g) permits the establishment of streetscapes that blend with existing streetscapes or comply with any approved public streetscape plan; … (k) is located, designed and managed to enhance the habitat and corridor requirements of native wildlife (plants and animals); (l) locates the streets to the least environmentally sensitive sites; (m) avoids extensive use of cut and fill; (n) avoids important stands of vegetation to minimise the loss of important trees or ecosystems;… | (22) There are no recommended probably solutions for this specific outcome as each situation requires an individual approach.”[27] |
[20]Folder of Extracts from Ipswich Planning Scheme 2006, p 25.
[21]Folder of Extracts from Ipswich Planning Scheme 2006, pp 31-40.
[22]Folder of Extracts from Ipswich Planning Scheme 2006, pp 41-42
[23]Folder of Extracts from Ipswich Planning Scheme 2006, p 44.
[24]Folder of Extracts from Ipswich Planning Scheme 2006, pp 52-53
[25]Folder of Extracts from Ipswich Planning Scheme 2006, pp 70-84.
[26]Folder of Extracts from Ipswich Planning Scheme 2006, pp 94-96.
[27]Folder of Extracts from Ipswich Planning Scheme 2006, pp 98-118.
Issues in dispute
The issues in dispute relate to:-
1. Engineering;
(A) Geotechnical;
(B) Hydrology and storm water management; and
(C) Civil engineering;
2. Ecology (flora and fauna);
3. Character and visual amenity;
4. Town planning; and
5. Need.
Principles governing interpretation of Planning Scheme
The principles relating to the construction of Planning Schemes were summarised in Westfield Management Ltd v Pine Rivers Shire Council[28] as:
[28](Unreported) Planning & Environment Court, Brisbane, 14 November 2003, 1627/03 at pp 8-9. See also Kotku Education & Welfare Society Inc v Brisbane City Council & Ors [2005] QPELR 267 at [271]-[272].
“(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 of 360; Yu Feng Pty Ltd v Maroochy 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 368 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 (Degree 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 Logon City Council [1997] QPELR 208 at 212;
(j)Implementation Objectives must be read sensibly and in context. They are but a function of the principal objective. The purpose of the objective is better understood by reading all the implementation objectives and understanding the strategy that is inherent. (Jenkinson Pty Ltd v Caloundra City Council [2002] QPELR 527 at 528).”
Consideration of issues
1. Engineering issues: geotechnical, hydrology and storm water management and civil engineering
Engineering evidence was given for Karalee by Mr Middleton (geotechnical), Dr Newton (hydrology and storm water) and Mr Millwood (civil engineering). For Council, evidence was given by its Engineering & Environment Manager, Mr Ellis. The experts produced two Joint Reports[29] and individual reports.[30] At the conclusion of the Second Joint Report there were no outstanding engineering issues. Subsequent to that report the Amended Proposal materialised which resulted in Mr Ellis identifying in his individual report concerns he held as to the changed proposal. However, by day eight of the trial, under cross-examination, Mr Ellis agreed that, of Council’s particulars in relation to engineering issues, there were no outstanding issues or issues of concern to him on engineering matters.[31]
[29]Exhibit 5(1) and (2).
[30]Exhibit 11 (Middleton), Exhibit 12 (Newton), Exhibit 13 (Millwood) and Exhibit 18 (Ellis).
[31]T8.69.26-32; T8.70.15-21.
Apart from engineering issues, Mr Ellis raised further concerns as to what he saw as the likely necessity for all vegetation to be removed in those areas of the proposed conservation area and the southern area of the Site the subject of the footprints for the proposed detention basin, bio detention basin and associated drainage infrastructure.[32] He also raised the issue of a restriction that would be put on the potential for re-vegetation of the detention basin area manifested by the exclusion of large tree planning in the basin floor, water retaining embankment and its close proximity to residential allotments, this gave rise to safety concerns and questions of the maintenance and integrity of the engineering infrastructure.
[32]Exhibit 18, para 13.
As to Mr Ellis’ concerns, Mr Middleton gave evidence[33] that the detention basin embankment could be constructed with a core structural zone to perform the function of the wall and could be oversized in accordance with good and current practice to accommodate the planting of various types of vegetation as appropriate. He acknowledge that the design of any such planting should take into account the root zones of any vegetation. That would be necessary to avoid any impact on the core part of the embankment forming the function of stopping water flowing in times when water was being detained in the basin. He said, from his experience designing flood levies for the Lockyer Valley Council and his knowledge of US practice on sizing embankments to allow for the planting of trees and other vegetation, that approach was accepted current practice for levies. He noted the proposed detention basin wall was already oversized. Dr Newton (hydrology and storm water) had no concerns with the matters raised by Mr Ellis[34] and in the end result Mr Ellis himself[35] agreed that his concerns could if necessary, be worked out at the conditioning stage.
2. Ecology (flora and fauna)
[33]T8.10.29-36.
[34]T8.57.4-7; T8.57.25-29.
[35]T8.70.1-20.
Evidence on ecology issues was given by Mr Moffitt (Karalee) and, for Council, Mr Chenoweth (flora) and Mr Agnew (fauna). They produced four Joint Reports[36] dated respectively 10 July 2013, 24 July 2013, 30 August 2013 and 6 September 2013. All three experts were authors of those reports except in relation to the Second Joint Report of 24 July 2013 which did not include Mr Chenoweth as fauna issues only were covered. Each expert also produced an individual report.[37]
2.1 Opinion of Mr Moffitt (Karalee)
[36]Exhibit 6.
[37]Exhibit 14 (Mr Moffitt), Exhibit 21 (Mr Chenoweth), Exhibit 23 (Mr Agnew).
In his individual report Mr Moffitt traversed the Joint Report identifying areas of disagreement amongst the experts and set out his position on those issues together with his conclusions overall. I adopt his topic headings.
2.1.1 Historical disturbance (quarrying)
It is common ground that the Site historically suffered from clearing and erosion resulting from quarrying operations. Mr Moffit identifies[38] the area as completely cleared, partially cleared or the subject of minor or no clearing. This illustrates the different quality of vegetation across the Site with vegetation in areas where there has been only minor or no clearing being of higher quality than that in areas partially cleared and higher quality still to that where completely cleared.
[38]Exhibit 14, para 6.1.2; Exhibit 6 (1), Fig 8 – First Joint Report, p 56.
In his view the extent of the historical disturbance is greater than that suggested by Mr Chenoweth in the Third Joint Report.
2.1.2 Significance of Existing Approval
Mr Moffitt treated the Existing Approval as being relevant to the consideration of impacts of the Amended Proposal and I agree with that approach. In his view the Existing Approval provides a base line against which the impacts of the proposed development can be assessed.
2.1.3 Landscape connectivity
In Mr Moffitt’s opinion the Amended Proposal represents a considerable improvement on the Existing Approval in that it establishes a significantly wider riparian corridor thereby establishing a consolidated conservation area which can be managed primarily for conservation purposes. In his view, to the extent the Amended Proposal does not facilitate significant fauna movement through the developed areas of the Site, compensation for that is found by the establishment of significant fauna movement opportunities along the riparian corridor to the south. He says bridge design and the provision of fauna underpass structures along the road fill batter can address any impact of the road structure on fauna movement along that riparian corridor.
2.1.4 Impact on vegetation
Mr Moffitt points to the Existing Approval, which he says, conserves 32.2 percent of the Site’s remnant Least Concern Vegetation and 21.6 percent of the remnant Of Concern Vegetation leading him to believe that the retained remnant areas would be too small and fragmented to meet the minimum requirements for inclusion on the remnant map. In short, the Existing Approval would result in the loss of remnant vegetation from the Site.
As against that, Mr Moffitt says the Amended Proposal conserves 10.6 percent of the Site’s remnant Least Concern Vegetation and 67.7 percent of the remnant Of Concern Vegetation.
Acknowledging the increased intensity of development of the Amended Proposal when compared with the Existing Approval, Mr Moffitt makes the point that the layout of the Existing Approval appeared to him to have limited regard for areas of greatest ecological significance, with tree retention areas more reflecting left over land much of which is in very poor condition from historical quarrying. On the Existing Approval 9.6 hectares of reasonable quality vegetation would be retained. On the Amended Proposal 6.7 hectares is conserved exclusive of the Powerlink easement, which figure rises to 9.6 hectares if that area is included. Whereas the detention and bioretention basins will account for the removal of a further small area of vegetation, he believes those basins could revegetated to mitigate this impact. Overall Mr Moffit sees the Amended Proposal as offering a considerable advantage over the Existing Approval on the issue of the retention of the vegetation.
2.1.5 Impact on habitat trees
Mr Moffitt points to what he calls the superseded Development Proposal being the proposal for 403 Lots prior to the Amended Proposal (341 Lots) and to its retention of 23 habitat trees noting that at least 6 of those trees (15, 18, 20, 44, 63 and 66) are stags in a highly advanced state of decay and would probably be removed. Further, he said lopping of other decayed and hollow limbs would occur. As to the suggestion by Mr Agnew and Mr Chenoweth that protection covenants could prevent that lopping, Mr Moffitt doubts the landowners would seek approval before removing those trees. As against the above figure of 23 trees, deducting the aforementioned 6 decaying trees, one is left with 17 retained habitat trees, whilst under the Amended Proposal the remainder is 14. In his view, while some have defects, their position in the public open space, well removed from dwellings, will allow them to be managed so as to retain their habitat values.
2.1.6 Impact on the Powerful Owl
Figure 6 to Mr Moffitt’s report is an aerial photograph identifying the Powerful Owl Observation Site. In relation to the research on Powerful Owls Mr Moffitt was assisted by Dr Debus, a recognised expert on owls and raptors.[39] In the Fourth Joint Ecology Report[40] there is an aerial survey map identifying four areas where the Powerful Owl was observed. Those sites were identified before the Amended Proposal. Of those four sites, three will be maintained under the Amended Proposal. After what he described as comprehensive efforts to locate potentially suitable Powerful Owl nest trees on the Site, Mr Moffitt concluded that the agreed focus trees[41] do not provide Powerful Owl nest sites. This was notwithstanding the initial assessment of Dr Debus that there was a resident territorial Powerful Owl pair nesting in the lower gully of the Site. Mr Moffitt says all roosting observations of the owl were in the lower gully which is likely to be the area of greatest importance for roosting activity and to provide the most important forage habitat. He does not agree with Mr Agnew that, despite the absence of detection of nest sites, that does not preclude the possibility of Dr Debus’ pair of owls having a nest site that remains undetected.
2.1.7 Mr Moffitt’s final conclusions and recommendations
[39]Exhibit 6(2), Second Joint Ecology Report, p 3.
[40]Exhibit 4(4), p 16, Figure 2.
[41]Exhibit 6(2), Second Joint Ecology Report, p 8, Figure 1.
Mr Moffitt concludes that the Amended Proposal is a significant improvement on the existing Proposal in that:-
1. It establishes a significantly wider riparian corridor;
2. It establishes a consolidated conservation area which can be managed by a single entity primarily for conservation purposes;
3. It conserves a significant component of the Site’s Remnant Of Concern Vegetation;
4. It conserves a significant component of the Site’s Most Important Habitat For The Species Of Conservation Concern and retains this habitat in a consolidated conservation area; and
5. That conservation area resolves the concern expressed by Mr Chenoweth[42] that the width of the riparian corridor could be compromised by a potential future subdivision in the north east of Lot 152 on S3118 as shown on the plan of Karalee’s original unamended proposed development.
[42]Exhibit 6(3), para 2.1.15.
Mr Moffitt makes the following recommendations:
1. Construction through and surrounding the Open Space Conservation area should be undertaken in a manner which minimises further incursion;
2. Design of the north-south access road should make provision for fauna underpasses (including dedicated dry passage);
3. Detention/bioretention and retention basins should be of a naturalistic form, and be revegetated with appropriate native species; and
4. A vegetation and habitat management plan should be prepared for the retention area. The vegetation management plan should specifically address requirements for weed management; establishment of Powerful Owl roost habitat species (i.e. dense-canopied rainforest species); and nest boxes.[43]
2.2 Opinion of Mr Chenoweth (Council)
2.2.1 Native vegetation
[43]Exhibit 14, pp 16-17.
Mr Chenoweth says there is a high proportion of remnant vegetation or high-value regrowth in the investigation area[44] notwithstanding the history of site disturbance outside the main north-south gully. Most is remnant Least Concern Vegetation but there is also Of Concern Vegetation in the southern low wet area.
[44]Exhibit 6(1), First Joint Ecology Report, p 64, Figure 16.
Mr Chenoweth referred to a table in the Second Joint Report[45] comparing the extent of the vegetation clearing in the investigation area, at that stage, proposing a 403 lot proposal, with the existing approved 80 lot development. This is the table:[46]
[45]Exhibit 6(2), Figures 6-9.
[46]Exhibit 21, para 2.7.
| 80 Large Lots (4000 – 4500m2) | 403 Small Lots (most 600m2 or smaller) | |
| Remnant Vegetation (Least Concern) | 32.2% retained | 3.3% retained |
| Remnant Vegetation (Of Concern) | 21.6% retained | 10.5% retained |
| Habitat Trees | 23 retained | 3 retained |
Even though the present Amended Proposal intends 341 lots rather than 403 which will result in additional tree retention in the southern conservation area, Mr Chenoweth says that any comparative analysis based on 341 lots would be similar for the remainder of the investigation area. A development of large 4,000m² - 4,500m² allotments will, he says, retain more remnant vegetation and habitat trees with more high-value regrowth than the development of small low density residential allotments proposed.
He says the vegetation on the Site is gradually regenerating and will continue to do so and that those areas which have been stripped of top soil and gravel have minimal weed invasion. Most of the lantana invasion is in the gully where there has been much less top soil stripping and gravel extraction and in the low lying wet southern corner.
If the Site was developed with allotments of 4,000m² or larger as presently approved, the present regrowth vegetation would continue to develop in the rear part of allotments outside building envelopes. Even the very disturbed patches of neither remnant nor high value regrowth vegetation would gradually regenerate, though on the steep slopes thereof understory and ground layer vegetation, active revegetation by native trees and shrub planting is recommended by him. Retention of vegetation on the larger lots, Mr Chenoweth speaks of, is likely, in his view, to enhance ecological values and result in the retention of a higher proportion of native vegetation and habitat with better connectivity. By contrast the Amended Proposal of 341 small allotments and the larger area of native vegetation and wildlife habitat retained in the southern conservation area, whilst improving ecological outcomes compared with the originally proposed 403 lot development, will not retain much native vegetation overall or allow the retained vegetation to form a network of interconnected habitat across the Site.
2.2.2 Habitat Connectivity
Mr Chenoweth describes the Site as a relatively large area of bushland and regenerating habitat adjacent to the Brisbane River between Kholo and Moggil with bands of riparian forest and sections of steep bank free of development. He sees it as an important state and regional wildlife corridor as mapped in the South East Queensland Biodiversity Planning Assessment (SEQBPA) Mapping Version 3.5 (2006). The mapping of the area is, in his view, consistent with the principles of conversation biology and landscape ecology emphasising riparian arteries as a core element. The width, integrity, structure and connectivity required for effective corridor links varies according to the needs of each fauna species and their local populations. But, in general, well vegetated riparian bands of habitat with links to patches of bushland and higher elevation, with no or few barriers, will serve the needs of a wide range of native fauna. He sees the Site as one opportunity for linking an area of bushland habitat to the Brisbane River.
2.2.3 Mr Chenoweth’s conclusion
Mr Chenoweth concludes that the Site, despite its historical disturbance, has some ecological values associated with its native vegetation and habitat with connections to a regional wildlife corridor along the Brisbane River. Some of these values will remain if the investigation area is developed for large allotments of 4,000m² to 4,500m² because of the resulting retention of some trees and other vegetation within the allotment. He agrees that some of those values would be retained if the land is developed as proposed for small or low density lots with the southern conservation area, but says a higher proportion of trees will be removed. That loss would not be offset by the proposed parkland conservation in the southern corner. That conservation area will not be well connected to the Brisbane River corridor.
2.3 Mr Agnew’s opinion (Council)
2.3.1 Powerful Owl
In relation to the Powerful Owl, Mr Agnew points to the agreement reached by the experts in the First Joint Report that there was evidence to suggest that sufficient prey and nesting opportunities may occur within the investigation area and that Dr Debus had suggested that there is potential for the species to breed on the Site. Whilst no nest sites were detected, Mr Agnew says that does not preclude the prospect that a pair of Powerful Owls may have had an undetected nest site on the Site. He observed the presence of the Powerful Owl within the investigation area over a five month period and confirms that the subject Site, and in particular, the investigation area, provides habitat values for the vulnerable Powerful Owl. The Site’s habitats, including those within the investigation area are likely to be important in maintaining Powerful Owl presence within the wider area.
2.3.2 Fauna and fauna habitat values recognised to date
Mr Agnew summarised the above fauna and fauna habitat values recognised by the experts to the point of his individual report 15 October 2013. Three Regional Eco-systems (REs) as mapped under the register at Vegetation Management Act 1999 (VMA) occur in the agreed investigation area being the upper section of the waterway, central and lower sections of it and a small patch in the south-west corner adjacent to the waterway/Powerlink easement. All three of these REs are recognised under the VMA for the following listed threatened fauna under the Nature Conservation Act 1992 (NCA) – Koala, Powerful Owl, Tusked Frog, Grey Goshawk, Glossy Black-Cockatoo, square-tailed Kite and Collared Delma. The remainder of the investigation area according to Mr Agnew supports VMA mapped High Value Regrowth containing Of Concern Remnant Vegetation and areas of formerly cleared, and now degraded, land. Those areas cover the mid and upper slopes over a wide area of vegetated swamp/wetland covering the lower section of waterway adjacent to the Powerlink easement.
Mr Agnew says that at least 85 habitat trees, mainly hollow-bearing, of a notable density and important habitat resources for fauna have been recorded in the investigation area. Further, five fauna species of conservation significance are known to use habitats of the investigation area, namely:
1. Koala;
2. Powerful Owl;
3. Tusked Frog;
4. Grey-headed Flying Fox; and
5. Square-tailed Kite
In addition, potentially suitable habitat occurs within the investigation area for a further four species of conservation significance, the likelihood of occurrence of which is possible, namely:
1. Glossy-black Cockatoo;
2. Grey Goshawk;
3. Collared Delma; and
4. Swift Parrot;
Mr Agnew says there is evidence of the vulnerable Koala recorded within these habitats and likewise the vulnerable Tusked Frog has been recorded in the wetland habitats within the southern section of the investigation area. All these habitats contribute to the opportunities for fauna movement within the habitat network. As to corridors and habitat connectivity, those habitats have been recognised as partly within the Brisbane River base corridor of State significance and partly within a corridor of Regional significance under the South East Queensland Bio-diversity Planning Assessment. These habitats are also part of the natural systems connectivity status of “well connected within the Ipswich Nature Conservation Strategy of the Council”.
2.3.3 Amended Proposal
As to the Amended Proposal, and putting aside consideration of the proposed open space conservation areas, Mr Agnew says it will result in the removal of the majority of vegetation cover, fauna habitat of the investigation area, the removal of the approximately 70 percent of the fauna habitat of high value within that area and the filling of approximately 80 percent of the waterway habitats within the area. While the proposed conservation area in the southern part of the Site will increase the overall open space, that does not, in his view, adequately address the issues of acceptable contribution to local habitat/landscape connectivity and wildlife movement or the protection of fauna and fauna habitat values.
A significant portion of the proposed open space conservation area will be cleared of vegetation and fauna habitat of high value within the investigation area as a result of the development of three bioretention basins, a detention basin, a pump station and the road. Mr Agnew considers that the detailed design of that proposal structure would be insufficient to enable the retention of, and the long term protection of, a number of those habitat trees in that area. He considers it probable that 50 percent of the mapped habitat trees would be at high risk of being removed from within the open space conservation area and, even on the most optimistic scenario of retention of the 14 habitat trees, the proposal will result in the removal of approximately 80 percent of mapped habitat trees within the investigation area.
2.3.4 Mr Agnew’s conclusions
Mr Agnew concludes that the Amended Proposal does not provide a suitable response to the protection of fauna and fauna habitat values of the Site or the Site’s contribution to maintenance of habitat connectivity and wildlife movement within the context of the wider landscape. It does not adequately address the key issues of the capacity of the Proposed Development to deliver an acceptable outcome with regard to the maintenance of and contribution to local habitat and landscape connectivity and wildlife movement or the capacity of the proposal to deliver an acceptable outcome as to protection of fauna and fauna habitat values. He sees the Amended Proposal as being inconsistent with the outcomes sought in the Scheme as particularised by him in his Individual Report.[47]
2.4 Conclusion re Ecology
[47]Exhibit 23, p 58.
On balance I prefer the evidence of Mr Chenoweth and Mr Agnew to that of Mr Moffitt. I am satisfied that the Amended Proposal would have a significant impact on the fauna and flora habitat areas of the Site and on the ecological values associated with natural vegetation of the area. It is inconsistent with the Vegetation Management Code as relied upon by the Council in its grounds for refusal.
3. Character and visual amenity
Evidence on character and visual amenity was provided by Mr McGowan (Karalee) and Mr Chenoweth (Council). Messrs McGowan and Chenoweth also prepared two joint reports of 10 July 2013 and 31 August 2013 alongside individual reports. The differences between the expert can be summarised as follows:-
1. Whether the development is consistent with the intended character of the area; and
2. Whether the development would adversely affect the landscape character and visual amenity of the area in terms of landform modification, vegetation removal and building density having regard to two visual receptor groups being located on the future bypass road and locations within the Site.[48]
3.1 Intended Character for the Area
[48]Exhibit 7.1, p 5, para 3.2; Exhibit 7.2 and Exhibit 15, p 10, para 36.
Mr McGowan expressed the opinion that the Amended Proposal is not inconsistent with the intended character for the area.[49] He sees the provisions of the Large Lot Residential Zone in the Scheme as reflecting an intention for development to compatible with the existing character even if not Large Lot Residential.[50] In his view the intended character of the area can only be gleaned by reference to the zoning because the Scheme contains no expression of intention for the character of the Site itself.[51] Further, Mr McGowan points to the mix of allotment sizes, what he calls a “patchwork”, in the area surrounding the Site.[52]
[49]Exhibit 15, p 12, para 53.
[50]Exhibit 7.2, p 6, para 2.17.
[51]Submissions of the Appellant, p 70, para 232.
[52]Submissions of the Appellant, p 72, para 242.
By contrast Mr Chenoweth considers, the character of the Amended Proposal is very different from that intended by the Scheme and that which would result from the existing approval having regard to the earthworks, vegetation removal and the density of housing proposed.[53] He says the Amended Proposal would lead to Karalee being dominated by suburban residential housing irreversibly changing its existing character. Small lots would become the predominant character in this part of Karalee.”[54] Larger allotments such as already approved would be more consistent with the existing and intended character.”[55]
[53]Submissions of the Respondent, pp 34-35, para 136.
[54]Submissions of the Respondent, p 35, para 138.
[55]Submissions of the Respondent, p 35, para 138.
Mr McGowan and Mr Chenoweth agreed that, due to topography, vegetation and existing built form on neighbouring properties, most of the subject site is not visible from the local area.[56] They also agreed that the proposal was of an intensity and character not in accordance with what is intended by the Ipswich Planning Scheme for the Large Lot Residential Zone.[57] On that point, Karalee says that, whilst the overall outcome for the Large Lot Residential Zone is to cater primarily for large suburban lots, the outcome does not intend that the zone be exclusively for such uses.[58] Further, it is said, the intended character for the area under the Scheme does not exclude development of the type proposed.[59] Having said that, it accepts that the primary (and dominant) residential land use in the area is large lot residential.[60]
[56]Exhibit 7.1, p 6.
[57]Exhibit 7.1, p 6, para 4.4.
[58]Submissions of the Appellant, p 72, para 244.
[59]Submissions of the Appellant, p 73, para 245.
[60]Submissions of the Appellant, p 71, para 236.
Council’s concern, relying on Mr Chenoweth’s evidence, is that the introduction of 341 small lots will “tip the balance” of the area away from Large Lot Residential.[61] It argues that a Large Lot development, akin to the Existing Approval, will sufficiently retain the existing character and local identity as intended by the Scheme. A small lot development, akin to the Amended Proposal, will not.[62]
3.2 Existing Character and Amenity
[61]Exhibit 20, p 8, para 3.2 and T.6-38 [1.25-30].
[62]Submissions of the Respondent, p 35, para 140.
Karalee argues that the Amended Proposal will not have a substantial impact on the existing character and amenity of the local area when compared to the Existing Approval,[63] though Mr McGowan concedes that under the Amended Proposal residents will have less privacy due to the smaller lot sizes than with development under the Existing Approval.[64] Mr McGowan accepts that the proposed 271 lots of 600m2 or less in the Amended Proposal is a much denser development than the Existing Approval.[65]
[63]T.3-68 [1.46] to 3-69 [1.2].
[64]T.3-69 [1.10-14] to [1.19-20].
[65]T.3-66 [1.44].
Mr Chenoweth, expressed concern that the Amended Proposal, requiring tree clearing and substantial earthworks will degrade the distinctive character of the area.[66] He regards the Amended Proposal as insensitive to the landform, vegetation, and character of the area.[67] He said:-
“The landform, vegetation and gullies will be so changed by the proposed small-lot development as to be unrecognisable. Although it is acknowledged that a large-lot subdivision would also remove many trees, and the approved 115 lot subdivision would fill in some of the gullies, the proportion of trees removed would be less and the earthworks less extensive; and there are likely to be alternative patterns of large lot development which could retain more of the gullies.”[68]
[66]Exhibit 7.2, p 8, para 4.5.
[67]Exhibit 20, p 8, para 2.16.
[68]Exhibit 20, p 8, para 2.16.
However, as Karalee points out, in relation to the conservation of identified special features, namely the main ridge and gullies, the landscape and visual amenity experts agree the Amended Proposal would have no greater impact on significant natural features on the Site than would the Existing Approval.[69]
3.3 Conclusion re Character and Visual Amenity
[69]Submissions of the Appellant, p 75, para 256.
Ultimately, on the issue of character intended for the area, I prefer the evidence of Mr Chenoweth. Whilst Karalee is correct that the Ipswich Planning Scheme does not exclude development of the type proposed I regard the Amended Proposal as inconsistent with the intended character of the Karalee area. Such a development of such small lots would irreversibly change the predominant character of the surrounding suburb.
As to existing character and amenity I find it difficult to accept that the Amended Proposal will not erode and alter the existing character and amenity of the area. The substantial increase in the number of lots and corresponding decrease in their size is at odds with the existing character and amenity of the Site. I consider the Amended Proposal will erode and alter the existing character and amenity of the Site.
4. Town Planning
Town Planning evidence was given by Mr Buckley (Karalee) and Mr Perkins (Council). The experts prepared two joint reports dated 11 September 2013 and 18 September 2013, as well as individual statements dated 16 October 2013 (Karalee) and October 2013 (Council).
4.1 Opinion of Mr Buckley (Karalee)
In the joint report of 11 September 2013 Mr Buckley identified the following overall outcomes sought for Urban Areas in s 4.3.2 of the Scheme:-
“Overall Vision
a. Integrated communities are created and maintained which enjoy enhanced liveability, effective growth management, sustained economic growth, good urban design and ecological sustainability.
Community Identity
b. Definable but inter-related neighbourhoods are created and maintained with a strong sense of community identity.
Housing
c. There is a diversity of housing types.
d. There is an adequate supply of residential land and dwellings that respond to community needs and locational constraints and opportunities.
e. The spacious, large lot, residential character of certain communities is maintained particularly – to the north of the Warrego Highway;”[70]
[70]Exhibit 9.1, pp 11-12, para 31.
Mr Buckley also referred to s 4.4.2(2) which relevantly provides:-
| 4.4.2 Overall Outcomes for Large Lot Residential Zone … (2)… (a) The Large Lot Residential Zone caters primarily for residential uses on large suburban (i.e. acreage) lots, to the general exclusion of most other uses. … (e)… (i) maintain residential amenity; (ii) be compatible with other uses and works; … (iv) protect the spacious character of the zone; and (v) avoid significant adverse effects on the natural environment. … |
In Mr Buckley’s view the Large Lot Residential zoning of the area is so zoned to cater primarily, but not exclusively, for acreage lots. He says the term “to the general exclusion of most other uses” does not rule out the Amended Proposal. Further he notes that the standard residential lot approvals in the western part, do not take away from the expected outcome of the area being primarily for large lot residential. As such he considers that approval of the Amended Proposal complements the Existing Approval and would not be out of step with that outcome.[71]
[71]Exhibit 9.1, p 14, para 36.
He concluded that the Amended Proposal was consistent with the Scheme in that:
1. It achieved appropriate amenity, consistent with both existing and future character;
2. Being a mix of large lot and smaller lot development, it is consistent with the character of this part of the wider Karalee/Chuwar locality and still allows the primary objective for large lot development to persist over the wider area;
3. The character of the area, described as spacious, will be maintained; and
4. The established built character will be complemented and reinforced using the environmental and landscape character of the immediate wider area.[72]
4.2 Opinion of Mr Perkins (Council)
[72]Submissions of the Appellant, p 84, para 299; Exhibit 9.1, p 17, para 48.
In the experts’ second joint report of 18 September 2013 Mr Perkins also discusses s 4.3.2 of the Scheme with particular reference to:-[73]
[73]Exhibit 9.2, p 4, para 16.
Housing
c. There is a diversity of housing types.
d. There is an adequate supply of residential land and dwellings that respond to community needs and locational constraints and opportunities.
e. The spacious, large lot, residential character of certain communities is maintained particularly – to the north of the Warrego Highway;”
In that report, he says the diversity of housing types should be distributed across the Scheme area in accordance with the zones. In his view the zones are deliberately allocated not only to ensure sufficient supply for various land uses but also to contain and mitigate the potential impacts of particular land uses on other land uses.[74]
[74]Exhibit 9.2, p 4, para 17.
Mr Perkins sees no compelling reason why Karalee should be developed more extensively for small lot residential development. As to the existing small lot housing in Karalee, he says it is better located than the Amended Proposal given its proximity to the Karalee Shopping Centre, existing urban infrastructure and Warrego Highway. Expansion of small lot housing, beyond that which already exists and approved on land surrounding the centre, is not needed given the extensive supply elsewhere in Ipswich City.[75]
[75]Exhibit 9.2, p 4, para 20.
Mr Perkins summarised his opinion as follows:
1. The proposed development conflicts with the Scheme;
2. The proposal does not accord with the large lot residential intent for the site and does not maintain or reinforce the existing preferred or desirable large lot residential character of the locality;
3. Due to the apparent adverse impacts of the proposed development on the ecological values, as a result of extensive cut and fill, removal of the majority of the site’s vegetation and intended density of housing, the proposed subdivision is simply unacceptable from a town planning viewpoint;
4. There is no demonstrable need for additional allocation of smaller housing in Ipswich City or Karalee in particular, due to extensive allocation elsewhere in the City but conversely there is a need to retain the limited large lot residential opportunities as a significant part of housing choice and diversity for the City as a whole; and
5. A broader strategic/structure planning exercise has not been undertaken to ensure orderly and appropriate development of the site in its context, and the proposal is an adhoc and small lot development which if approved would have serious strategic implications on the future of other land uses in the locality.[76]
4.3 Points of Disagreement on Planning Issues
[76]Submissions of the Respondent, p 16, para 51; Exhibit 9.2, p 4, para 21.
In submissions Karalee identified the following are the points of disagreement with Council:-
1. the character of the locality;
2. the relevance of the Existing Approval;
3. the relevance of the SEQRP 2009;
4. Council’s Planning Strategy for the Site and its Locality;
5. compliance or conflict with the Ipswich Planning Scheme 2006; and
6. grounds for approval despite any conflict.
4.4 The Character of the Locality
The character of the locality and Site has been dealt with.
4.5 The Relevance of the Existing Approval
The Relevance of the Existing Approval is discussed in paragraph [12] above.
Karalee says that it would be difficult, for the Court to attempt to investigate whether or not, on the basis of additional information, the Existing Approval should or should not have been granted or should have been granted for a layout different to that for which it was granted that is not in issue before the Court. If the proposed development does not proceed, the Existing Approval remains in force and the subject site can (and one would reasonably expect will be) developed in accordance with that approval. The Existing Approval development is conditioned to limit the amount of cut and fill and to seek to retain vegetation.[77]
4.6 The Relevance of the SEQRP 2009
[77]Exhibit 9.1, p 24, para 68 and conditions 10(b), 10(d), 10(e)(i) and (iii) and 22.
Karalee argues that the Amended Proposal is clearly consistent with the SEQRP. In particular of Desired Regional Outcome 8 which relevantly provides:-[78]
[78]Submissions of the Appellant, p 81, para 284.
8.1 – Compact development
Principle
Conserve land by making the most efficient use of land allocated for urban development.
Policies
8.1.1Accommodate a higher proportion of growth through infill and redevelopment of existing urban areas to meet the dwelling targets in table 3.
8.1.2Focus higher density and mixed-use development in and around regional activity centres and public transport nodes and corridors.
8.1.3Include in Development Areas a diversity of uses and employment opportunities at densities that support walkable communities, shorter vehicle trips and efficient public transport services.
8.1.4Achieve a minimum dwelling yield of 15 dwellings per hectare net for new residential development in Development Areas.
…
8.2 – Containing growth
Principle
To promote liveability and transport efficiency and reduce car dependence and private vehicle travel, locate urban development in the Urban Footprint either within or near existing communities to utilise their infrastructure and services, or within existing activity centres and at key locations along planned public transportation infrastructure.
Policies
8.2.1Accommodate regional growth in locations that provide superior transportation choices or otherwise reduce car use, particularly through supporting growth in established urban areas and redevelopment in and around existing urban centres, and along priority transit networks and other high-frequency transit corridors.
8.2.2Make Development Areas contiguous with existing communities wherever possible, or otherwise provide development with direct transport linkages to established urban areas early in the development.
8.2.3Ensure physical and social infrastructure can be adequately funded and delivered before permitting development of Development Areas.
8.2.4Proponents must demonstrate how necessary infrastructure and services for broadhectare areas outside current state and local government infrastructure delivery programs will be delivered and funded.
…
8.3 – Urban character and design
Principle
Design and site development to reflect SEQ’s subtropical climate, reinforce local character and achieve innovation and design excellence.
Policies
8.3.1Ensure that new development and redevelopment in established urban areas reinforce the strengths and individual character of the urban area in which the development occurs.
8.3.2Ensure that new government buildings respond with high-quality design to the urban context in which they are to be located, and that particular attention is afforded to making high-quality public spaces.
8.3.3Ensure all development and appropriate infrastructure, such as public transport stations, incorporate subtropical design principles, including orientation, siting and passive climate control.
8.4.4Achieve design excellence for all new prominent buildings and public spaces in the Brisbane central business district, regional activity centres and transit communities.
8.3.5Provide an accessible and high-quality public realm in all Development Areas by allocating or revitalising open space and creating well-designed public places.
…
8.5 – Housing choice and affordability
Principle
Provide a variety of housing options to meet diverse community needs, and achieve housing choice and affordability.
Policies
8.5.1 Prioritise the short- to medium-term supply of broadhectare land in SEQ.
8.5.2Provide housing choice through a range and mix of dwelling type, size and location in residential developments.
8.5.3Support an increased provision of affordable housing through community-based, not-for-profit entities and housing cooperatives.
8.5.4Encourage all major development to incorporate affordable housing, including appropriate housing for the entry buyer and low-income housing markets.
8.5.5Consider affordable housing in decisions on the disposal or redevelopment of government property and surplus land.
…
8.6 – Activity centres and transit corridors
Principle
Focus employment, infill housing and community services in well-planned, vibrant and accessible regional activity centres and along high-frequency transit corridors.
Policies
8.6.1Ensure that development supports the activity centres network and the transport system.
8.6.2Locate major employment and trip-generating activities in regional activity centres and on priority transit corridors and other high-frequency transit corridors.
8.6.3Encourage mixed-use development along priority transit corridors and other high-frequency transit corridors.
8.6.4Ensure that new state government facilities for health, education, justice, community and administration and employment activities are located within regional activity centres on priority transit corridors and other high-frequency transit corridors.
8.6.5Exclude out-of-centre land use and development that would detrimentally impact on activity centres.
8.6.6Ensure optimal use of transport and service availability in regional activity centres and corridors by delivering appropriate residential densities and by maximising business location opportunities.
…
8.9 – Integrated land use and transport planning
Principle
Ensure new development utilises existing infrastructure or can be provided with timely transport infrastructure, community services and employment.
Policies
8.9.1Prioritise new broadhectare development sites with access to existing or planned transport infrastructure.
8.9.2Undertake land use and transport planning concurrently and sequence development with timely infrastructure provision.
8.9.3Plan new public transport routes, facilities and high-frequency services to ensure safe and convenient passenger accessibility, and support the interrelationship between land use and transport.
8.9.4Connect active transport routes to improve accessibility and encourage transport use by a broader range of people.
8.9.5Apply transit oriented development principles and practices to the planning and development of transit nodes, having regard for local circumstances and character.
8.9.6Manage car parking provision in regional activity centres and high-capacity transport nodes to support walking, cycling and public transport accessibility.
8.9.7Ensure all new development within walking distance of a transit node or regional activity centre maximises pedestrian amenity, connectivity and safety.
…
8.11 – Rural residential development
Principle
Contain and limit areas allocated for rural residential development to ensure efficient provision of services and infrastructure and limit further land fragmentation.
Policies
8.11.1Restrict further rural residential development to the identified Rural Living Area and in the Urban Footprint where lands are unsuitable for urban use.
8.11.2Facilitate opportunities to consolidate existing rural residential development in the Urban Footprint or convert it to an appropriate urban use wherever possible.
Program
8.11.3 Support the conversion of rural residential lands for urban development by facilitating the orderly planning and delivery of land use frameworks and infrastructure.
Karalee argues that the Amended Proposal facilitates consolidation of existing rural residential development land in the Urban Footprint and allows for the conversion of rural residential lands for urban development by facilitating the orderly planning and delivery of a land use framework supported by appropriate infrastructure. That, it says, is consistent with SEQRP.[79]
[79]Submissions of the Appellant, p 81-82, paras 285-288.
Further, it is said the Amended Proposal is consistent with the principles of the SEQRP 2009 as it provides for compact settlement utilising existing infrastructure. For example, it will provide sewerage infrastructure by utilising the existing sewerage infrastructure, utilise the existing road network and can provide additional support and focus for the Karalee shopping centre which is a focal point for the existing Karalee community.[80]
[80]Submissions of the Appellant, p 90, para 322.
For Council, Mr Perkins considers the Scheme provides a current and relevant land use framework for the development of this part of Ipswich, the preparation of which was based on rigorous planning analysis.[81] The Scheme was informed by the Ipswich Northern and Inner Western Corridors Planning Study 1999 and the consequent structure plan 2001.[82] He sees no misalignment between the SEQRP and the Scheme.[83] He said in evidence:[84]
“Well, if we can just start with this – Mr Buckley sort of, in earlier paragraphs, has – this is a culmination of a number of observations he makes. I talk at some length about the planning study that was prepared for this part of the city back in 1999, which sort of then formed a structure plan, which then informed the 2004 planning scheme. And he sort of draws – looks at the date, the distance and time between when that planning study occurred and when the planning scheme occurred, and then the planning scheme date and the SEQ Regional Plan, but in fact I think the differences are much less acute than what he says. The planning scheme was adopted in about April 2004. The draft SEQ Regional Plan was released in October 2004. It’s hard to credit that there’d be no – well, I know the planning scheme – the SEQ Regional Plan was prepared in consultation and in concert with the relevant local governments. So, there’s just – there’s no suggestion there in my mind that there is going to be an immediate misalignment because of that. The draft SEQ was sort of – although it was enforced from – immediately in October 2004, there was a consultation period which went to the end of February 2005, and then the document called SEQ Regional Plan 2005-2026 was released in June 2005. In January 2006, we know that a consolidated Ipswich Planning Scheme was adopted. Now, since the time of that scheme’s adoption, of the consolidated scheme, there have been quite a number of progressive amendments to that planning scheme, and it’s interesting to note that those amendments include things such as amendments relating to the Redbank Plains area, to Springfield, to Goodna Town Centre, to the Ripley Valley, to the city centre, and all of those seem to reflect priorities identified in the South East Queensland Regional Plan for the Ipswich local government area. In [the] 2009 South East Queensland Regional Plan, there are what are called sub-regional narratives, and – so there is a sub-regional narrative for Ipswich, and that identifies a number of priority areas and explains in a nutshell the SEQ Regional Plan’s sort of desired outcomes for that particular sub-region.”[85]
4.7 Council’s Planning Strategy
[81]Exhibit 19, p 18, para 87.
[82]Exhibit 19, p 18, para 87.
[83]T.10-53 [l. 20-21].
[84]T.10-53 [l.23] to T.10-54 [l. 2].
[85]T.10-53 [l.23] to T.10-54 [l. 2].
Mr Buckley made the point that the planning study Council relied upon was published 14 years ago and since that time there have been two Regional Plans, the latest of which was in 2009.[86] As such, it is said, Council’s planning strategy is not relevant given the existence of the SEQRP 2009 and its specific provisions.[87] I agree that in the event of a conflict the SEQRP must prevail but the planning strategy is part of the history of the planning policy of the area. It is one of a series of documents identified by Mr Perkins, as above, evidencing the history of the planning of the area.
4.8 Compliance or Conflict with the Ipswich Planning Scheme 2006
[86]Exhibit 17, p 7, para 49.
[87]Submissions of the Appellant, p 83, para 295.
Relying on the opinion of Mr Buckley, Karalee says the Amended Proposal is not in conflict with the Scheme. To the extent there is any conflict, it is minor.
4.9 Conclusion re Conflict with Scheme
The concept of conflict was stated by Fryberg J in Woolworths Ltd v Maryborough City Council & Anor[88] in these terms:-
“[23] ‘Conflict’ in this context means to be at variance or disagree with. It describes a quality of a relationship between the subject (the decision) and a part of the predicate (the Scheme). Unlike ‘compromise’ in para (a), in implies no particular impact by a subject upon an object. A determination that there has been a breach of the requirement that ‘the assessment managers decision must not … conflict with the Planning Scheme’ requires the identification of the decision, the identification of some part or parts of the Scheme with which the decision might be said to conflict and a decision whether the former conflicts with the latter. Only if such a determination has been made is it necessary to consider whether there are sufficient planning grounds to justify the decision. …”
[88][2005] QCA 262.
I prefer the evidence of Mr Perkins to that of Mr Buckley as to the question of conflict with the Scheme. For the reasons enunciated by Mr Perkins, I find the Amended proposal conflicts with the Scheme. That conflict is more than a minor one.
4.10 Grounds for approval despite any conflict
Having found conflict with the Scheme the question now arises to whether there are sufficient grounds to overcome this conflict.
Schedule 3 of SPA defines grounds as follows:-
“Grounds, for s 326(1)(b) and s 329(1)(b)-
(1) Grounds means a matter of public interest
(2)Grounds does not include the personal circumstances of an applicant, owner or interested party.”
In Weightman v Gold Coast City Council & Anor[89] the Court of Appeal considered the concept of sufficient planning grounds in these words :-
[89][2002] 121 LGERA 161 at 173.
“Sufficient planning grounds
The proposal must be refused in such a situation if there are not sufficient planning grounds to justify the approval despite the conflict. The discretion, as White J observed in Grosser v Council of the City of the Gold Coast, is couched in negative terms, that is, the application must be dismissed unless there are sufficient grounds. This is a mandatory requirement. If there is a conflict, then the application must be rejected unless there are sufficient planning grounds to justify its approval despite the conflict. The primary judge wrongly held that it was directory only. In order to determine whether or not there are sufficient planning grounds to justify approving the application despite the conflict, as required by s.4.4(5A)(b) of the P&E Act, the decision-maker should:-
(1) examine the nature and extent of the conflict;
(2)determine whether there are any planning grounds which are relevant to the part of the application which is in conflict with the planning scheme and if the conflict can be justified on those planning grounds;
(3)determine whether the planning grounds in favour of the application as a whole are, on balance, sufficient to justify approving the application notwithstanding the conflict.
(4)The first task required of the decision-maker, as the learned primary judge recognised, is to consider the nature and extent of the conflict. The conflict may be minor or major in the nature or indeed anywhere on the continuum between those two extremes. The conflict in this case is a major one, arising as it does from an absolute prohibition on the height of any development exceeding the maximum stipulated height of three storeys.”
4.10.1 Grounds Relied Upon by Karalee
Karalee argues that in the event of a conflict with the Scheme the following grounds support approval of the Amended Proposal:-
1. There is a need for the development;
2. When regard is had to the Existing Approval, the Amended Proposal does not have any adverse impact upon amenity or the environment and in fact provides for improved environmental outcomes compared to the Existing Approval;
3. The Amended Proposal:-
(A) is consistent with principles of compact settlement, containing growth, housing choice and affordability and integrated land use and transport planning identified in the SEQRP 2009;
(B) will utilise existing infrastructure, including sewerage connections and traffic infrastructure consistently with principles in the SEQRP and good town planning practice;
(C) aligns with the intent of the 2006 Planning Scheme;
(D) is consistent with the existing local pattern of development in the area;
(E) will provide further enhancement of the existing community supporting the Karalee Shopping Centre;
(F) provides local parks and greenspace to the benefit of the local community;
(G) represents an appropriate site upon which to conveniently and efficiently establish the type or residential development sought, being:-
(1) within the Urban Footprint of the SEQ Regional Plan;
(2) well located in the road network;
(3) connected, or having the ability to connect to, infrastructure networks for water, sewerage and stormwater;
(4) designed to appropriately respond to constraints;
(H) has received support from the relevant state agencies, with DSDIP, DNRM and DTMR, indicating they have no requirements in respect of the Development Application, or support approval with conditions;
5. Economic Need
Economic evidence was given by Mr Duane (Karalee) and Mr Brown (Council). They prepared two joint reports dated 12 September 2013 and 4 October 2013 and individual statements.[90] The issue of need only arises if the Amended Proposal is determined to be in conflict with the Scheme.[91] The identified issues between the experts were:-
[90]Exhibits 8.1, 8.2, 16 and 22.
[91]Submissions of the Respondent, p 51, para 221.
1. The impact of the Amended Proposal on the supply of land for large lot development;
2. The need for small lots in this area;
3. The utilisation of infrastructure;[92]
5.1 Mr Duane’s Opinion re Availability of Land for Large Lot Subdivision
[92]Submissions of the Appellant, p 86, para 306.
Mr Duane’s opinion is that given the number and rate of projected dwelling and population growth in Ipswich municipality, the proportion of Large Lot Residential dwellings would be expected to fall (naturally) as a percentage of the total dwellings. In his view the rapid urban expansion projected for Ipswich municipality cannot be sustained by building 4,000m2 Large Lots.[93]
[93]Exhibit 16, p 15, s 5.3.
In his view given the current number of Large Lot Residential dwellings of 3,952 in Table 1 in Appendix 1 of the Supplementary Joint Town Planning Report, the potential to accommodate a further 2,713 Large Lot Residential dwellings if the Amended Proposal is approved will still provide housing choice and diversity in the Ipswich municipality.”[94]
[94]Exhibit 16, p 16, s 5.7.
Consistent with that view, Karalee says the removal of 80 approved Large Lot Residential sites resulting from this Amended Proposal would have no significant effect on the future availability of Large Lot Residential dwellings.[95]
5.2 Need for Small Lots
5.2.1 Mr Duane’s Opinion
[95]Submissions of the Appellant, p 87, para 313.
Mr Duane summarised his opinion in the first joint report of the need experts[96] and in his statement of evidence.[97] He concluded that:-
[96]Exhibit 8, p 46.
[97]Exhibit 16, para 1.3-1.7.
1. The Ipswich Local Government Area is projected to grow rapidly over the next 20 year period, making it one of the fastest growing areas in Australia;
2. The suburb of Karalee is an attractive destination for high income household residents. It is a leafy suburb situated by the Brisbane River and separated from the majority of urban area by the Warrego Highway being a very attractive destination for residents looking not only for large lot residential development, but also small lot residential development.
3. The Amended Proposal will present opportunity for a range of residents to locate within Karalee, including new residents looking for a wealthier pocket of affluent residents, and existing older residents or families who would be looking to downsize from larger residences, to remain within the local community;[98] and
4. The amended layout for the subject site, together with the approved 32 large lot plan, comprises a variety of lot sizes, from large lots to smaller, essentially in one estate that would appeal to a broad cross-section of the community, but principally, second and third home buyers.
[98]Exhibit 8, p 48.
On the basis of Mr Duane’s opinion Karalee argues there is a strong potential and existing need for the Amended Proposal.[99]
5.2.2 Mr Brown’s Opinion
[99]Exhibit 16, p 17, s 6.
For Council, Mr Brown says that, if there is a need for the Amended Proposal, it would only be at a minor level, based on the following:
1. The rapid growth for Ipswich over the next 20 years has been foreshadowed if not directed by the various iterations of the SEQRP and is reflected in the large quantum of land designated for residential development and future residential development in the Scheme and associated planning documents;[100]
[100]Exhibit 8.1, p 48, para 74.
2. Those instruments provide for a significant range of residential opportunities/diversity and the Chuwar/Karalee locality fulfils a strategic role in providing the future long term supply of large lot residential within Ipswich;[101]
[101]Exhibit 8.1, pp 48 and 53, paras 74 and 89.
3. The concept of diversity is directed to ensuring diversity of neighbourhoods or suburbs throughout Ipswich rather than diversity within each individual neighbourhood or suburb;[102]
[102]Exhibit 8.1, p 48, para 74.
4. The attractiveness of the Chuwar/Karalee locality is, to a large extent, determined by its being predominantly large lot rural residential;[103]
5. Increasing residential density within the area beyond that planned would change market perceptions of the locality;[104] and
6. As nearly half of the proposed lots are 500m2 or less these are more directed to the first home buyer market and there is no evidence apart from lot make up that the proposal is pursuing second and third home buyers.[105]
[103]Exhibit 8.1, pp 48 and 53, paras 74 and 89.
[104]Exhibit 8.1, pp 48 and 54, paras 74 and 89.
[105]Exhibit 8.1, p 48, para 74.
Mr Brown says that the Amended Proposal is not sufficiently different from the Existing Approval to materially change the way the market perceives the estate.[106] He sees the key market characteristic of the Karalee/Chuwar locality as the fact it is a large lot area.[107] Mr Duane not only agrees with him on that but agrees that aspect is one of its defining features resulting in its development over time.[108] Mr Duane also agreed that part of the attractiveness of the Site is the current amenity, its leafiness though noting the Amended Proposal would only impact a small proportion of the total area. Mr Duane accepted that larger lots of 4000m2 square metres or more, traditionally not provided for as part of master planned communities, are available,[109] but says the physical separation of the Site from the existing low density residential in Karalee will attract a slightly different buyer.[110]
[106]Exhibit 22, p 2, para 12.
[107]Exhibit 22, p 2, para 16.
[108]T.2-13 [l.15-18].
[109]T.2-42 [l.1-9].
[110]T.2-44 [l.30-34].
As to Mr Duane’s view that there should always be diversity of housing product within individual localities, Mr Brown disagreed. He said Cities comprise many different localities, each with their own market characteristics and it is that difference between localities that influence their desirability or otherwise to different buyer groups.[111]
[111]Exhibit 22, p 3, para 15.
Mr Brown further says that the Scheme has identified large lot suburbs, suburban suburbs and urban suburbs and in the current policy environment it is unlikely that new large lots will be identified in the future.[112] He does not agree that all localities need to offer a specific mix of housing options.[113] Diversity of allotment choice across suburbs, as opposed to within suburbs, ensures Ipswich City is a diverse city.[114]
[112]Exhibit 22, p 3, para 18.
[113]Exhibit 22, p 7, para 17.
[114]Exhibit 22, p 3, para 15.
Council points to only about 27% of the Karalee/Barellan Point area having an average age of just over 34 years, so the area does not presently have an older population. It is not an area skewed towards an aged population.[115] Mr Brown is of the view that the ageing of the population will happen over time and will not be sufficiently rapid to cause a material change in the demand for large residential lots.[116] He could not identify any evidence to support Mr Duane’s claim that there is need for additional smaller allotments to those planned for to facilitate downsizing.[117]
[115]Submissions of the Respondent, p 55, para 244.
[116]Exhibit 8.1, p 52, para 86.
[117]Exhibit 22, p 4, para 25.
Finally, Mr Brown points out that downsizing does not necessarily create new demand for housing per se, as it may involve the purchase of an existing house in the low density residential zone.[118] Given that, Council argues that Mr Duane’s point regarding downsizing is overplayed.[119]
5.3 The Subject of Need
[118]Exhibit 8.1, p 39, para 62.
[119]Exhibit 8.1, p 39, para 62.
On the subject of need in Roosterland Pty Ltd & Ors v Brisbane City Council[120] the court said:
“Need
Need in planning terms is a relative concept it does not connote pressing urgency, but rather relates to the general well-being of the community. A use is needed if it would, on balance, improve the services and facilities available in a locality.”
[120](1986) 23 APAD 58 at p 60.
Also in Cutprice Stores Retailers v Caboolture Shire Council[121] in the court said:-
“Need
Need in cases such as this does not mean pressing need, critical need, widespread desire, or anything of that nature. A thing is needed if its provision, taking all things into account, improves the physical wellbeing of the community.”
5.4 Conclusion re Need
[121](1984) QPLR 126 at 131.
I prefer the evidence of Mr Brown to that of Mr Duane accepting that the concept of need is a relative concept relating generally to the need being of the community and does not mean pressing or critical need. I am not persuaded that there is a need for the development proposed.
6. Conclusion re Sufficient Grounds to Overcome Conflict
I am not persuaded that any of the grounds advanced by Karalee, taken individually or collectively, are sufficient to overcome the conflict I have found so as to justify approval of the application.
Accordingly the development approval element of the application is refused. It follows under s 324(4) of SPA that the Scheme variation element must be refused.
Order
The order is that the appeal be dismissed.
Annexure A
The relevant provisions of the Sustainable Planning Act 2009 are set out below.
| 241 Preliminary approvals (1) A preliminary approval— (a) approves development, but does not authorise assessable development to take place; and (b) approves development— (i) to the extent stated in the approval; and (ii) subject to the conditions of the approval. (2) However, there is no requirement to get a preliminary approval for development. Note— Preliminary approvals assist in the staging of approvals. |
| 242 Preliminary approval may affect a local planning instrument (1) This section applies if— (a) an applicant applies for a preliminary approval; and (b) part of the application states the way in which the applicant seeks the approval to vary the effect of any local planning instrument for the land. (2) Subsection (3) applies to the extent the application is for— (a) development that is a material change of use; and (b) the part mentioned in subsection (1)(b). (3) If the preliminary approval approves the material change of use, the preliminary approval may, in addition to the things an approval may do under part 5, do either or both of the following for the material change of use or development relating to the material change of use— (a) state that the development is— (i) exempt development; or (ii) self-assessable development; or (iii) development requiring compliance assessment; or (iv) assessable development requiring code or impact assessment, or both code and impact assessment; (b) identify or include codes for the development.[122] |
| 243 Development permits A development permit authorises assessable development to take place— (a) to the extent stated in the permit; and (b) subject to— (i) the conditions of the permit; and (ii) any preliminary approval relating to the development the permit authorises, including any conditions of the preliminary approval. |
| 314 Impact assessment—generally (1) This section applies to any part of the application requiring impact assessment. (2) The assessment manager must assess the part of the application against each of the following matters or things to the extent the matter or thing is relevant to the development— … (b) the regional plan for a designated region, to the extent it is not identified in the planning scheme as being appropriately reflected in the planning scheme; … (i) a planning scheme; … (3) In addition to the matters or things against which the assessment manager must assess the application under subsection (2), the assessment manager must assess the part of the application having regard to the following— (a) the common material; (b) any development approval for, and any lawful use of, premises the subject of the application or adjacent premises; (c) any referral agency’s response for the application. |
| 316 Assessment for s 242 preliminary approvals that affect a local planning instrument (1) This section applies to an application for a preliminary approval mentioned in section 242. (2) Sections 313 and 314 apply to any part of the application requiring code or impact assessment. (3) Subsection (4) applies to the part of the application that states the way in which the applicant seeks to vary the effect of any applicable local planning instrument for the land. (4) The assessment manager must assess the part of the application having regard to— (a) the common material; and (b) the result of the assessment manager’s assessment of any parts of the application requiring code or impact assessment; and (c) all of the following to the extent they are relevant to the application— (i) the State planning regulatory provisions; (ii) the regional plan for a designated region, to the extent it is not identified in the planning scheme as being appropriately reflected in the planning scheme; (iii) State planning policies, to the extent the policies are not identified in— (A) any relevant regional plan as being appropriately reflected in the regional plan; or (B) the planning scheme as being appropriately reflected in the planning scheme; (iv) a structure plan; (v) a master plan; and (d) the consistency of the proposed variations with aspects of the local planning instrument, other than the aspects sought to be varied; and (e) the effect the proposed variations would have on any right of a submitter for following applications, with particular regard to the amount and detail of supporting material for the current application available to any submitters; and (f) any referral agency’s response for the application. |
| Subdivision 2 Decision rules—generally 323 Application of sdiv 2 This subdivision does not apply to the part of an application for a preliminary approval mentioned in section 242 that states the way in which the applicant seeks approval to vary the effect of any applicable local planning instrument for the land. |
| 324 Decision generally (1) In deciding the application, the assessment manager must— (a) approve all or part of the application; or (b) approve all or part of the application subject to conditions decided by the assessment manager; or (c) refuse the application. (2) The assessment manager’s decision must be based on the assessments made under division 2. (3) The assessment manager’s decision must not be inconsistent with a State planning regulatory provision. (4) Subsection (5) applies for an application for development in a master planned area if the structure plan for the area requires a master plan for the development. (5) If a master plan application for the master plan is refused, the development application must be refused. (6) To remove any doubt, it is declared that— (a) the assessment manager may give a preliminary approval, other than a preliminary approval to which section 242 applies, even though the applicant sought a development permit; and (b) if the assessment manager approves only part of an application, the balance of the application is refused. |
| 325 Effect of concurrence agency’s response (1) If a concurrence agency’s response requires conditions to be attached to a development approval for the application, the assessment manager must attach to any approval, in the exact form given by the concurrence agency, the concurrence agency conditions. (2) If a concurrence agency’s response has, under section 287(1)(b) or (c), stated an action that must be taken, the assessment manager must take the action. (3) If a concurrence agency’s response has, under section 287(1)(d), stated a different period for section 341(1)(b), (2)(c) or (3)(b), the assessment manager must, on any development approval, state the period. (4) If a concurrence agency’s response requires the application to be refused, the assessment manager must refuse it. |
| 326 Other decision rules (1) The assessment manager’s decision must not conflict with a relevant instrument unless— (a) the conflict is necessary to ensure the decision complies with a State planning regulatory provision; or (b) there are sufficient grounds to justify the decision, despite the conflict; or (c) the conflict arises because of a conflict between— (i) 2 or more relevant instruments of the same type, and the decision best achieves the purposes of the instruments; or Example of a conflict between relevant instruments— a conflict between 2 State planning policies (ii) 2 or more aspects of any 1 relevant instrument, and the decision best achieves the purposes of the instrument. Example of a conflict between relevant instruments— a conflict between 2 State planning policies (2) In this section— Relevant instrument means a matter or thing mentioned in section 313(2) or 314(2), other than a State planning regulatory provision, against which code assessment or impact assessment is carried out. |
| Subdivision 3 Decision Rules – application under section 242 327 Decision if application under s 242 requires assessment (1) In deciding the part of an application for a preliminary approval mentioned in section 242 that states the way in which the applicant seeks approval to vary the effect of any applicable local planning instrument for the premises, the assessment manager must— (a) approve all or some of the variations sought; or (b) subject to section 242(3) and (5)—approve different variations from those sought; or (c) refuse the variations sought. (2) The assessment manager’s decision must be based on the assessments made under division 2. (3) The assessment manager’s decision must not be inconsistent with a State planning regulatory provision. (4) To the extent development applied for under other parts of the application is refused, any variation relating to the development must also be refused. |
| 329 Other decision rules (1) The assessment manager’s decision must not conflict with a relevant instrument unless— (a) the conflict is necessary to ensure the decision complies with a State planning regulatory provision; or (b) there are sufficient grounds to justify the decision, despite the conflict; or (c) the conflict arises because of a conflict between— (i) 2 or more relevant instruments of the same type, and the decision best achieves the purposes of the instruments; or Example of a conflict between relevant instruments— a conflict between 2 State planning policies (ii) 2 or more aspects of any 1 relevant instrument, and the decision best achieves the purposes of the instrument. Example of a conflict between aspects of a relevant instrument a conflict between 2 codes (2) In this section— relevant instrument means a matter or thing mentioned in section 316(4)(c) or (d), other than a State planning regulatory provision, the assessment manager must have regard to in assessing the part of the application. |
[122]s 242 is reproduced in part only and the Notes to subsection (1) and subsection (3) are not included.
Annexure B
The relevant provisions of the Southeast Queensland Regional Plan 2009-2031 (SEQRP 2009) are set out below.
| “Effect The SEQ Regional Plan is the pre-eminent plan for the SEQ region and takes precedence over all other planning instruments.”[123] |
| “The following parts of the SEQ regional plan are relevant when assessing a development application or an application for approval of a master plan against or having regard to the SEQ Regional Plan:
An application conflicts with the SEQ Regional Plan if it does not comply with the sub-regional narratives in part C or the regional policies in Part D. If there is an inconsistency between the sub-regional narratives in Part C and the regional policies in Part D, the sub-regional narratives prevail.”[124] |
| “Purpose The regional land use pattern defines the spatial framework for the region to achieve the desired regional outcomes. It identifies:
It also helps to align regional infrastructure and transport systems with urban and economic activity areas. Regional land use categories The SEQ Regional Plan allocates all land into one of three regional land use categories:
These categories provide the spatial context for the regulatory provisions of the SEQ Regional Plan. They are shown in Map 2 and are more precisely defined on the regulatory maps (at 1:50 000 scale) that accompany the SEQ Regional Plan and are contained within the South East Queensland Regional Plan 2009-2031 State planning regulatory provisions.”[125] |
| “Urban Footprint Intent The Urban Footprint identifies land that can meet the region’s urban development needs to 2031 in a more compact form. Description The Urban Footprint includes established urban areas, broadhectare and remnant broadhectare areas that could be suitable for future urban development. It incorporates the full range of urban uses, including housing, industry, business, infrastructure, community facilities and urban open space. Remnant broadhectare lands are undeveloped lots that could potentially be developed for urban residential purposes but are not currently zoned for higher density development. They are located within the Urban Footprint, and are usually surrounded by urban development or near existing or planned urban infrastructure services.”[126] |
| “Part D – Regional policies Regional policies set out the desired regional outcomes, principles, policies and programs to address growth and management of the region. For each desired regional outcome, a set of principles is indentified to achieve the outcome. Specific policy statements indicate what must be done for the principles to have effect. Programs identify actions that need to be implemented over the life of the plan. Notes are also included to provide an explanation of the policy statements, identify implementation processes and provide additional relevant information.”[127] |
| “8. Compact settlement Desired regional outcome 8 A compact urban structure of well-planned communities, supported by a network of accessible and convenient centres and transit corridors linking residential areas to employment locations established the context for achieving a consolidated urban settlement pattern.”[128] |
[123]Exhibit 24, p 7.
[124]Exhibit 24, p 7.
[125]Exhibit 24, p 15.
[126]Exhibit 24, p 17.
[127]Exhibit 24, p 40.
[128]Exhibit 24, p 92.
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