Keristar Pty Ltd v Maroochy Shire Council
[2003] QPEC 64
•21st November 2003
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Keristar Pty Ltd v Maroochy Shire Council [2003] QPEC 064
PARTIES:
Keristar Pty Ltd Appellant
against
Maroochy Shire Council Respondent
FILE NO/S:
34 of 2003
DIVISION:
Planning and Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
District Court
DELIVERED ON:
21st November 2003
DELIVERED AT:
Maroochydore
HEARING DATE:
16th – 22nd September 2003
JUDGE:
K.S Dodds DCJ
ORDER:
APPEAL IS DISMISSED
CATCHWORDS:
ENVIRONMENT & PLANNING – ENVIRONMENTAL PLANNING – RECONFIGURATION APPLICATION – APPEAL – where application to reconfigure earlier rezoned land for residential development – where deemed refusal for failure to decide application within prescribed period – where steep land with risk of landslip – whether sufficient geotechnical investigation.
COUNSEL:
Mr R.S Litster for the Appellant
Mr C. Hughes SC for the RespondentSOLICITORS:
Deacons Lawyers for the Appellant
Legal Services for the Respondent
By an application lodged with the respondent, Maroochy Shire Council (Maroochy) on 22nd May 2002 the appellant (Keristar) made application for development approval for reconfiguration of land for residential development (the subject land). Maroochy failed to decide the application within the prescribed period thus deeming a refusal of the application. On 26th February 2003 Keristar appealed to the court against that refusal.
HISTORY
In December 1992 pursuant to section 4.6 of the Local Government (Planning and Environment) Act 1980 (the P&E Act) Keristar applied to Maroochy to rezone in four stages land described as lot 13 on RP 227810 and lot 4 RP 157061 containing a total of 21 hectares more or less from rural B zone to residential ‘A’ zone.
The subject land was part of lots 13 and 4. Its description now is lot 202 on SP155448 and lot 4 on P157061. It contains 11.75 HA.
In March 1993 Maroochy wrote to Keristar regarding its staged rezoning application. It referred to part of the land being on a steeply sloping escarpment and sought a thorough geotechnical report which investigated soil stability and ground water circumstances having regard to the subdivision layout, road works and site works pattern of development which had accompanied the application. It also sought a comprehensive engineering investigation of the proposal, a vegetation assessment and a visual assessment of the impact of road works and earth works.
Keristar responded with a geotechnical report prepared by Golder Associates (Golders) dated April 1993. The report expressed the opinion the land could be developed for residential development, the final lot layout and sizes depending upon detailed geotechnical studies in association with the engineering design of the development. An engineering report and plans by Todd Group consulting engineers was also provided.
In June 1993 Maroochy approved the application subject to conditions. Condition 7 provided that the approval only authorised rezoning for stage 1 and the park area
“as generally depicted on plan 9201A/C by J. Dale Fisher architect and as modified by the conditions herein. The schematic layout for successive stages is also depicted on this plan for which subsequent applications will be required.”
Condition 9 headed ‘Subdivisional layout’ provided in part:
“(a) council has not assessed the submitted layout and may require amendment either major or minor at the actual time of subdivision.
(b) any subsequent subdivision shall be required to conform with council’s subdivision of land bylaw and any relevant council policy in existence at the time of lodgement of the subdivision application.
(c) Notwithstanding the above, the subdivisional layout and the staging of this application shall conform generally to layout depicted on plan 9201A/C by J Dale Fisher architect. Modifications generated by the conditions herein and detailed geotechnical engineering and vegetation consideration shall be included and the plan amended accordingly prior to submission to the chief executive. These amendments may result in a significant reduction in the number of allotments in the proposed subdivision
(d) low densities on future stages and design control to minimise visual impact”.
The stage one land was rezoned in October 1993.
In August 1994 Keristar, sought a subdivision permit for stage one. Permit to subdivide was issued in November 1994. In response to a letter from Keristar dated 30th November 1994 evidently regarding some of the conditions of the permit, Maroochy advised that the design of the stormwater drainage for the whole estate “should be undertaken at this stage”. In 1996 the permit period was extended until 13th November 1997. In October 1997 application was made for approval of engineering drawings for design of works. These were approved subject to conditions in April 1998. A modified subdivision permit for stage one land issued on 14th November 1998.
In July 1998 Keristar made application for a development permit for a material change of use for the remaining stages of the original application for a staged rezoning. The application included with it plans, longitudinal and cross sections of all future roads with lot access and the extent of retaining walls where cut for proposed roads required them. The application was to allow for the reconfiguration of 91 residential lots over stages 2, 3 and 4 of the original rezoning application. A material change of use application was necessary because the Integrated Planning Act 1997 (IPA) had replaced the P & E Act. Sections 4.6 and 4.7 of the P & E Act had made provision for application and approval of a rezoning of land in stages. Approval of such an application with or without conditions meant that on an application pursuant to the P&E Act to rezone land in subsequent stages of a staged development plan, the local authority was required to either approve the application or approve it subject to conditions – section 4.9(4) P & E Act. Under IPA to alter the potential use of land which retained its rural designation (the subject land) to urban residential, approval of a material change of use was required.
In September 1998 Maroochy sought further information with respect to the application. One aspect of that was a request for a detailed report about slope stability and land slip risk zones, remediation measures, construction limitations and ongoing maintenance issues. In its response in which it declined to provide the information sought, Keristar referred to condition 9 of the 1993 staged rezoning approval. It also referred to the geotechnical information provided to Maroochy prior to its approval of the 1993 staged rezoning application and asserted that Maroochy had accepted this geotechnical information in its evaluation of the staged rezoning application and issued the staged rezoning permit for four stages on that basis. It asserted that Maroochy’s
“request for information confused the geotechnical requirements already accepted by Maroochy for all of the area of the staged rezoning with geotechnical information that would be required in order to assess conditions of an application for reconfiguration of lots or operational work”.
It continued
“it is appropriate that the detailed geotechnical investigations are carried out coincidentally with the investigative and design work for application for reconfiguration of lots and/or operational works”.
In April 1999 Maroochy issued a negotiated decision notice for the material change of use application approving it subject to conditions. Condition 6 dealt with geotechnical investigations. It required detailed investigation by a suitably qualified and experienced geotechnical consultant to be carried out on the ‘subject site’. The investigation and subsequent reports, including recommendations, were to be submitted to Maroochy for assessment and approval and
“shall include but not be limited to the following:
(a) prior to or at the time of lodgement of the development application for reconfiguring a lot;
(i) assessment of the geological stability of the site including identification of any land slip risk zones
(ii) provision of design guidelines and limitations to be applied to earth works, retaining structures and other site elements such as road ways, drainage, footpath and underground services
(b) prior to or at the time the lodgement of the development application for operational work;
(i) certification by a suitability qualified and experienced geotechnical consultant that detailed design drawings had been reviewed and are in accordance with recommendations
(ii) recommendations regarding preferred building types and guidelines for detailed investigations and building footing design for each lot of the stage one application for building approval
(iii) recommendations for future site maintenance procedures relating to the promotion of site stability”
The application of May 2002 applying for development approval for reconfiguration of future stages 2, 3 and 4, was made under the superseded planning scheme for the shire of Maroochy. The application included a report by Golders dated May 2002. The report contained a preliminary assessment of a high risk of slope instability affecting proposed lots 77 to 87 and parts of lots 95 and 96, a moderate risk for lots 96 to 98 and a low risk for lots 118-123. All these lots were in the stage 3 area of the original staged rezoning proposal. The balance of the subject land, the original stages 2 and 4 was assessed as low to moderate risk. The report recommended further subsurface investigation including bore holes, ground water monitoring and numerical modelling to more accurately define the extent of land slip risk for stage 2. It said these future works would also allow geotechnical design recommendations to be incorporated into the documentation for operational works. It discussed remediation procedures for high risk areas and provided general guidelines for subdivisional works. It indicated that individual lot classifications and slope stability risk assessment should be carried out by an experienced geotechnical engineer prior to building design.
On 30th July 2002 Maroochy issued an acknowledgement notice pursuant to section 3.2.3 of IPA acknowledging the application as under the superseded planning scheme.
On 27th August 2002 Maroochy issued an information request. Amongst other things it required Keristar to demonstrate to its satisfaction that the land could be appropriately developed and managed in the long term to minimise the risk of land instability. It also required a revised geotechnical report providing more comprehensive design guidelines and limitations that were to be applied to earth works in retaining structures and other site elements such as road ways, drainage, footpaths, and underground services.
On 12th December 2002 Keristar responded to the information request. Regarding slope stability it referred to Condition 6 (a) (i) & (ii) of Maroochy’s approval of the material change of use application. It provided a revised report from Golder Associates dated September 2002 and indicated it did not intend to provide further information.
In May 2003 a meeting apparently took place between the parties. Its outcome appears to be the subject of a letter from Keristar’s solicitors to Maroochy dated 6th May 2003 (see behind tab 24 in Exhibit 1). The letter records that Keristar believed all relevant reports had been provided and that it was neither reasonable nor relevant to impose any further geotechnical conditions at this stage. It asserted that the appropriate place for further detailed geotechnical consideration was when a building application was lodged.
THE LAND
The subject land is in the Coolum area and comprises the upper part of the western slope of a prominent ridge running generally north-south. Stage one of the original rezoning application has been developed although not all lots have been built on. Stage one comprised the lower and for the most part the less steep part of Lots 13 and 14. Stages 2, 3 and 4 the subject of this appeal contain for the most part the highest and the steepest of this western slope. Slopes in the northern part of the subject land are in the order of 25 degrees or 47%. In the south-east part slopes are generally between 17 and 20 degrees, reducing in some places to 12 degrees. In the south-west part of the subject land there are artesian conditions, deep soils and proven land slip areas. Land slip has occurred elsewhere in stage one. In the northern and the south-east parts of the subject land there are concave or amphitheatre areas. The subject land is visually prominent from part of the motorway and elsewhere to the west. In its present state its vegetation cover is patchy. There is residential development on western-slopes to its north and south which is visible from part of the motorway and elsewhere to the west.
THE ISSUES
By letter dated 18th June 2003 Maroochy advised Keristar’s solicitors that it had resolved to take the position in the appeal that the application should be refused on the following grounds:
(a) “The physical characteristics of the land render it inappropriate for the approval sought because of land instability, such characteristics including:
(i) steepness (including slopes of between 25% - 50%)
(ii) unfavourable topographic shapes rendering the land vulnerable to land slip (including concave or amphitheatre topography)
(iii) the presence of deep clay soil profile which is vulnerable to land slip
(iv) the presence of weaker soil layers at depth
(v) the presence of undesirable artesian ground water conditions
(b) the characteristics of the subject land involve a serious possibility that land slip or partial land slip in one area (for example initially within one allotment only) will almost certainly ultimately involve impact on other allotments
(c) approval of development involving the prospect of land slip (affecting individual allotments) or multiple allotments is the antithesis of good town planning
(d) the respondent council should not and cannot be obliged to accept responsibility for the dangers associated with development on such land which involves unacceptable risk of instability and impacts upon public safety and risk of personal and property damage.
(e) Approval of the proposed development application is in conflict with numerous provisions of the relevant planning documents with respect to land stability.”
On 7th July 2003 Maroochy raised additional issues in the appeal namely application of state planning policy 1 of 2003, potential destabilisation associated with development and visual amenity. In August 2003, in response to a request by Keristar, Maroochy provided further particulars of it s reasons for refusal.
Keristar notice of appeal asserted that the application should be approved because
(1) the subject land was appropriately zone for residential purposes following a decision of the respondent at its meeting held on the 23rd June 1993
(2) certain variations had since been made to the rezoning approval but the land remained approved for residential use in accordance with the most recent decision of the appellant made on the 27th April 1999
(3) the plans for reconfiguration were generally in accordance with those approved by former rezoning/material change of use approvals
(4) The proposed reconfiguration complied with the relevant provisions of the respondents planning scheme or to the extent that it did not comply could be appropriately conditioned.
Reduced to essentials the issues in the appeal are land stability and visual amenity. Maroochy’s position regarding land stability was that on the geotechnical evidence presently available, approval of the submitted reconfiguration application was inappropriate. Relevant, were the physical characteristics of the subject land:
(i) steepness
(ii) concave or amphitheatre topography
(iii) deep clay soil profile vulnerable to land slip
(iv) weaker soil layers at depth
(v) undesirable artesian ground water conditions
(vi) the presence of bowed trees and irregularly orientated trees indicating possible land creep;
(vii) hummocky and uneven topography indicating possible land slip and existing failure scarps.
Maroochy’s position regarding visual amenity was that the proposed development particularly at the operational works stage would involve an unacceptable impact. However, by the conclusion of the hearing it was conceded that the visual amenity issue alone would not be sufficient to refuse the application.
Keristar’s position was that there was sufficient geotechnical information provided to Maroochy for approval of the plan of reconfiguration. Such an approval could be appropriately conditioned. Further investigation would occur at operational works stage and even further investigation may occur at building stage. If at operational works stage investigation revealed that a part of the land could not be made suitable for residential sub-division the subdivision plan may be altered.
THE LAW
Keristar as the applicant is required to establish the appeal be upheld.
In Balmford v Albert Shire Council (1998) 2 QR 125, Albert Shire Council was exposed to liability and damages arising out of a negligent grant of subdivision approval and approval to carry out building works. Pursuant to section 34 (12) (g) of the Local Government Act 1936 (the Act in force at the material time) in respect of an application for approval of subdivision of land the local authority was required to take into account “whether the land or any part thereof… is not fit to be used for residential purposes”. The land in question was steep land.
IPA was in force when the material change of use application was made. When the application the subject of the appeal was made it was made and accepted by Maroochy as a development application (superseded planning scheme) (schedule 10 IPA). The consequence of that is that the appeal must be considered as if the application were made under Maroochy’s Town Planning Scheme and Strategic Plan in force prior to Maroochy 2000. Pursuant to sections 6.1.1 and 6.1.3 IPA that scheme and plan comprise a transitional planning scheme for the purposes of the application. Whilst such an application is processed under IPA - section 6.1.28 IPA, section 6.1.29 IPA provides that the relevant material for assessing the application does not include sections 3.5.4 or 3.5.5 IPA but comprises, amongst other things, the common material, the transitional planning scheme, state planning policies and the matters set out in section 5.1 (3) of the P&E Act. Section 6.1.30 IPA provides that sections 3.5.13 and 3.5.14 IPA do not apply for deciding the application. Rather the person assessing the application must decide the application under sections 5.1(6) and (6A) of the P&E Act.
The relevant material then in considering the application for reconfiguration included the proposed use of the created allotments, whether any of the proposed allotments would be unsuitable for use because of existing or possible slip or erosion, the size shape and utility of each of the proposed allotments, the proposed method of disposal of drainage and whether this would have a detrimental effect upon neighbouring lands, the provisions of the planning scheme which regulated the subdivision of land and such other matters having regard to the nature of the application as were relevant. The person assessing the application was required to either approve the application, approve it subject to conditions or refuse to approve it. It must be refused if it conflicted with any relevant strategic plan and there were not sufficient planning grounds to justify approving it despite the conflict.
Maroochy’s Transitional Planning Scheme (the Scheme) used zoning as a method of development control. Section 5 (2) of the scheme provided that the inclusion of land in a particular zone, for instance a residential zone under the plan, did not imply that all of the land was “either capable of being subdivided or is suitable for subdivision for purposes or uses permitted by this town planning scheme”.
It was contended for Keristar that section 5(2) of the Scheme referred only to the zoning existing at the commencement of the scheme, not to land rezoned after the scheme had commenced. I reject that contention. The subsection in terms does not say that. It could have done so if that was what was intended. Rezoning by amendment of a planning scheme was a common occurrence at the time the scheme commenced. Moreover both the legislation in force at that time and the Scheme itself made provision for relevant matters to be assessed at the time of decision on a subdivision application.
Chapter 36 of the Scheme was its subdivision of land chapter. Section 7 thereof provided for reasons why a subdivision application may be refused. Amongst other things it provided that it was a sufficient reason for refusing approval if
“(h) the applicant has not offered to make adequate provision for –
(vi) the case of land known to be suspected to be of unstable geological nature, to cause a professional investigation and testing of such land without any cost to the council.
The onus of proof shall lie on the applicant that such land is capable of, or under certain conditions could be made capable of, bearing proper conveniences without causing danger or damage to any person or property”
The strategic plan part of the Scheme came into force in 1996. In its chapter on urban development it indicated that land so designated identified areas suitable for residential development of varying densities but it sounded a warning note. Objective 3.4 was to ensure that the physical environment could sustain urban and rural residential development. It went on to point out that because the shires urban areas comprised significant areas of steep or slip prone land, potential existed for inadequate drainage, slope retention and site planning to compromise the conditions of development below and to scar visually prominent features of the landscape. It said “implementation criteria are intended to ensure sound planning prevents or minimises potential problems”. Thus implementation criteria for objective 3.4 provided in paragraph 4 that all “applications are to address the possibility of impacts relating to steep or slip prone land in accordance with the provision of section 18” of the strategic plan.
Section 18 dealt with slope and geological stability. Key issues included, in urban areas, conventional residential development on steep or unstable lands, the risk of structural failure, soil erosion and drainage issues with adjoining land owners, management issues associated with inappropriate development on overly steep or unstable land and the importance of land use controls in mitigating such impacts. The loading of steep and unstable land with water from storm water runoff and/or effluent disposal may increase the risk of landslip. Objective 18.1 was to encourage activities appropriate to the slope of the land which meant that in urban areas recognition would be given to the limitations of slope particularly on allotment size and dimensions. It indicated this would have important implications for the standards and performance criteria adopted for the subdivision of land and forms and design of urban development in such areas. Implementation criteria 2 indicated that in assessing a proposal on land steeper than 25% (8 degrees)
“due regard shall be given to (amongst other things):
· the probability of soil erosion and land slip;
· the potential for structural failure;
· the likely impact of drainage on adjoining properties;
· the potential for visual scarring”
Implementation criteria 4 provided “if after assessing any proposal on steep land, council is not satisfied that the land can be appropriately managed it may refuse the application”.
Section 7 of the Strategic Plan related to visual amenity. Key issues included the visual quality, scale and character of the built environment to natural elements such as hills, vegetation, the importance of major roads - the sunshine motorway. Objective 7.5 was to minimise visual scarring of significant natural elements. The objective addressed the prospect that development, land clearing, work associated with infrastructure, had the potential to visibly sear prominent landscapes. Implementation criteria referred to applications relating to works on steep, distinctively vegetated and highly visible sites. An applicant could be required to undertake a landscape sensitivity analysis to determine the nature of the works that may be sustained without longer term scarring.
State planning policy 1 of 2003 came into operation on 1st September 2003 and took effect immediately. Relevantly the policy applied to assessment of reconfiguration for residential development in natural hazard management areas for landslide. It applied to Maroochy’s local authority area and to assessment of development under a transitional planning scheme. The subject land is a natural hazard management area for landslip because it contains slopes of 15% or greater and because there have been land slip events in the vicinity. Under the policy an unacceptable risk is a situation where people or property are exposed to a predictable hazard event that may result in a serious injury, loss of life, failure of community infrastructure, or property damage that would make a dwelling unfit for habitation.
Section 4.1.52(2)(a) IPA has the effect that the appeal must be decided on the policies applying when the application was made but that weight may be given to any new policies the court considers appropriate.
State planning policy 1 of 2003 came into operation very shortly before the hearing of the appeal. For deciding the appeal the only bearing it will have is its general confirmation of what already existed in Maroochy’s scheme regarding steep and/or slip prone land.
VISUAL AMENITY
Mr O’Brien, an architect and landscape architect, gave evidence in Keristar’s case. He dealt with the question of visual amenity. I do not find visual amenity a decisive issue in the appeal. Mr O’Brien’s recommendations for planting and landscaping are in my view worthy of implementation in any subdivision on the subject land. In particular his suggestion for two stage rock walls in any area where depth of cut must exceed 4 metres together with appropriate plantings will reduce the visual impact of the wall and will in my view provide an attractive landscape mosaic. Generally I agree with Mr O’Brien’s conclusions in section 7.01 and 7.03-7.07 of his report exhibit 4.
THE ISSUE OF LAND SLIP
A rain fall record for the last one hundred years for Maroochydore became exhibit 22. It indicated that in terms of long term rain fall averages the year 1999 was an atypical wet year both in total rainfall and the number of wet days.
Both Mr Amaral, a geotechnical engineer, who gave evidence for Maroochy, and Mr Hurley, a geotechnical engineer, who gave evidence for Keristar, acknowledged the coincidence of ground water and land slip. Mr Hurley refers to it in a report he authored exhibit 16 as a causative factor in a land slip in August 1999 in the general area of proposed lots 78, 79 and 80 at the southern part of the subject land. He also refers to it in exhibit 15 a report on a land slip in May 2000 at 43 Seamist Court, a relatively gently sloping block of land to the north west of the subject land. There is evidence of land slip in the vicinity of proposed lots 85, 86, 87, and 88 which are at the southern part of the subject land. In stage one of Keristar’s development (which mostly comprised less steep land) a land slip occurred in November 1999 in lots 23 and 24 Jasper Court. Exhibit 19 is a report of Mr Hurley about this slip. He reported that “a complex hydrological regime causing significant ground water flow” was a factor along with the type of soils in the area. Another land slip occurred in lots 37 and 38 of stage one in approximately October 1999. It is dealt with in a report by Mr Hurley – exhibit 17. It describes seepage evident at the interface of sandy clay and cobbles and stiff to hard sandy clay associated with the interface contact. This was considered to be one of the triggers of the slip. There are also other indicators on the subject land of possible land slip, in particular bowed trees and hummocky terrain.
There has been more extensive geotechnichal investigation at the southern part of the subject land than elsewhere. It has revealed deep soils and in one bore hole artesian conditions. There is no dispute that remediation work (if practicably possible) will be required in this area. Remediation proposed is detailed by Mr Hurley. Its effectiveness is doubted by Mr Amaral, at least, based upon the current level of investigation. During 2002-2003 more test pits and boreholes were put into this area. On the remainder of the subject land, apart from some test pits in areas where roads are proposed to be cut into the slope and associated retaining walls are to be constructed, there has been a lesser level of investigation. Much of this area is the steeper land with slopes from 18 – 25 degrees. At this stage, there is more limited test information about soil depth and type and ground water, including whether there are artesian conditions across this part of the subject land.
Mr Hurley considered the development could be adequately managed and could safely proceed on the current state of knowledge about the geology of the subject land. Mr Amaral considered otherwise. In his opinion there was, at present, insufficient investigatory data.
Mr Covington, a civil engineer, gave evidence in Keristar’s case about construction during operational works. His evidence was positive for the proposed development.
Mr Sutherland, an environmental scientist specialising in soil and water sciences gave evidence in Maroochy’s case. His investigations on the subject land considered management and auditing of erosion, storm water control and hydrology during construction of the subdivision and thereafter when individual owners owned lots. He arranged for a number of shallow boreholes across the subject land, 12 in all. These confirmed as both Mr Hurley and Mr Amaral said, that soils across the subject land were variable. In a number of areas Mr Sutherland found the soils to be dispersive, meaning that if infiltrated with water they moved into suspension. His conclusions were that the subject land was a difficult site for the sort of urban subdivision contemplated by the plan of reconfiguration. There was a significant risk of soil erosion associated with construction of the proposed subdivision which required “extremely rigid and vigilant ongoing monitoring and control”. Inter allotment drainage, individual allotment drainage and potential water pipe failure all posed a risk of hydrologically loading erosive and unstable soil. Whilst not expressing an opinion development should not proceed, he described the site in cross examination as a “very challenging site”. He acknowledged that ‘hardening’ the subject land by roads, houses and drainage could have a benefit in terms of keeping water out of the soil. However that also introduced the risk of water loss into the soil from the water reticulation system and additionally owners of lots altering their land and introducing water into the soil by watering their land.
Both Mr Hurley and Mr Amaral are experienced geotechnical specialists. Mr Hurley who works for Golders has been associated with the subject land since 1998. Golders has been associated with development of stage one of the subject land since prior to the staged rezoning application. Mr Amaral once a director of Golders was commissioned by Maroochy to review the level of geotechnical investigation of the subject land to-date and the position Maroochy has taken about the need for further investigation.
Mr Hurley provided a hazard and risk assessment in terms of land slip (see exhibit 6 - figure 2 & 3). It was consistent with that provided in Golders report which accompanied the reconfiguration application of May 2002. Land at the south and southwest of the subject land, lots 72-86 he regarded as high hazard and high risk, lots 118-123 immediately to the north of lots 82-85 he regarded as very low hazard and low to very low risk. To their east lots 96-98 he regarded as moderate hazard and moderate risk. Lots 88-95 to the southeast of the subject land and the 50 or more lots in the northern part of the subject land he regarded as low hazard and moderate to low risk.
Mr Amaral did not entirely agree with Mr Hurley’s assessment. He thought some of it may be correct. For him there was insufficient investigatory data. Lots 160-164 at the ridge top he considered could be categorised as low risk on present information. Lots 72 - 86 he agreed were high risk. He did not agree that lots 118-123 were very low risk. He considered the area to be the toe of a complex series of movements that had already occurred which combined with deep soils meant it was not an area of very low risk. Lots 96-98 he considered to be an area of high risk of land slip based on bowed trees, hummocky land and the known artesian conditions. As to the balance of the lots which Mr Hurley regarded as moderate to low risk he agreed regarding some but not others. Lots 154-136 which were on the steepest part of the subject land he considered had no sufficient investigatory data. Lots 131 and 132 located on a sub ridge he thought may be okay. Lots 124-130 and lot 105 appeared as if they could have deep soil and had quite a steep slope, for instance borehole 6 in 2003 showed 11 metres of soil on proposed lot 128. Lot 102-104, 109-117 were on a well drained ridge and he agreed with Mr Hurley’s assessment.
I have not by any means set out all the detail of Mr Hurley’s and Mr Amaral’s evidence about the proposed lots. Sufficient has been set out however, to demonstrate the level of disagreement between them.
A development permit authorises assessable development to occur to the extent stated and subject to the conditions in the permit; section 3.1.5(3) IPA.
Before a plan of reconfiguration such as that contemplated here may be registered under the Land Title Act 1994 it must have been approved by Maroochy; section 50(g) Land Title Act 1994.
If a reconfiguration proposed to be effected by a plan of reconfiguration is authorised by a development permit then the plan must be given to the local authority for its approval before the end of the currency period of the development permit. Provided the conditions of the development permit about the reconfiguration have been complied with and for a reconfiguration that requires operational works the conditions of the development permit for operational works have been complied with, the local government must approve the plan; section 3.7.2 IPA.
There will have to be a development permit for operational works but as yet there is no application for one. Operational works may be expected to proceed based upon the proposed layout of the reconfiguration plan which accompanied the application for a development permit for configuration.
Of fundamental importance is the creation of lots that may be safely used for the development for which they were created. That includes the associated earthworks, and ultimately the construction of dwellings which will not, because of slope instability, be a danger to person or property. It is essential that before Maroochy approves a plan of reconfiguration for the subject land it be demonstrated that the lots to be created by registration of the plan of subdivision are capable of safely sustaining dwellings constructed upon them without danger to person or property.
There will of course be many occasions when land in respect of which there is an application to reconfigure has no feature which raises a potential for land slip. There will be other occasions when because of slope, varied soil types and profiles, surface features, history of landslip in the area the assessing authority must consider land slip as a significant factor.
Mr Reynolds, a town planner who gave evidence in Keristar’s case, expressed the opinion that the appropriateness of the lot layout shown on a plan of reconfiguration accompanying an application for a development permit for reconfiguration could be left until the operational works stage and if as a result of investigation at that stage lots could not be certified as suitable for residential subdivision they may remain vacant as parkland or some such and the plan of reconfiguration amended. Mr Brown, a town planner, who gave evidence in Maroochy’s case expressed a contrary opinion. I prefer the opinion of Mr Brown in this case.
The issuing of a development permit for a plan of reconfiguration is not a meaningless step by a local authority. It signifies that the local authority is satisfied the land is suitable for urban subdivision generally in accordance with the plan accompanying the application, albeit as operational works proceed some adjustment may be seen as necessary or desirable. As some witnesses said in their evidence, the development permit creates expectations. Moreover the proposed plan for reconfiguration signposts relevant operational works.
In the case of land where there are a number of indications of land slip risk and resulting potential damage to person or property, I do not consider it unreasonable for a local authority to require, prior to issue of the development permit for reconfiguration for urban development, investigations sufficient to satisfy it to a reasonable level of satisfaction that a reconfiguration generally in accordance with the plan accompanying the application will result in developed lots without risk or damage to person or property from land slip. I do not regard it as a generally desirable approach to issue a development permit for a plan of reconfiguration of land for urban development if it is not possible to achieve a reasonable level of satisfaction that the proposed reconfiguration will be capable of achieving fruition largely according to what is proposed.
In the final analysis I accept and intend to act upon Mr Amaral’s evidence. There is insufficient site investigation to approve the proposed reconfiguration of the subject land. If it be the case further investigations show that some proposed lots cannot safely be developed for residential use the design of the reconfiguration may be adjusted. Operational works such as drainage, roads and associated batters and retaining walls may have to alter accordingly.
Keristar has not established that the appeal should be upheld.
The appeal is dismissed.
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