Kettering Pty Ltd v. Noosa Shire Council
[2007] QPEC 61
•25 July 2007
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Kettering Pty Ltd v Noosa Shire Council [2007] QPEC 061
PARTIES:
KETTERING PTY LTD
ACN 010 014 150Appellant
and
NOOSA SHIRE COUNCIL
Respondent
FILE NO/S:
Planning and Environment Appeal No 176 of 1995
DIVISION:
Appellate
PROCEEDING:
Determination of “highest and best use” of appellant’s site if Noosa Hill Development Control Plan had not come into effect in underlying appeal against Council’s refusal of compensation for alleged “injurious affection”
ORIGINATING COURT:
Planning and Environment Court, Brisbane
DELIVERED ON:
25 July 2007
DELIVERED AT:
Brisbane
HEARING DATE:
3, 8-11, 30 May 2007
JUDGE:
Robin QC DCJ
ORDER:
The highest and best use in the “before” case has not been shown to differ from the highest and best use in the “after” case, agreed by the parties to be represented by the court’s order in Leighton Properties (Brisbane) Pty Ltd v Noosa Shire Council and Others, 3651 of 2000, 21 June 2001
CATCHWORDS:
Local Government (Planning and Environment) Act 1990 s 3.5(8) – court required to determine “highest and best use” (rather than market value) of appellant’s land if the Noosa Hill Development Control Plan (DCP) had not come into effect on 21 September 1991 – land occupies a prominent position on Noosa Hill, the scenic backdrop to Noosa village – respondent Council admitted that the highest and best use “immediately after the coming into operation” of the DCP was indicated by the court’s order embodying compromise of an appeal not involving the same parties – not precluded from challenging use of that development approval as a “starting point” for making the determination now required – whether DCP effected a “paradigm shift” in according visual amenity aspects greater significance than they enjoyed under the existing Strategic Plan (which the DCP did not purport to over-ride) – Council contended not, relying inter alia on the Draft Hastings Street DCP (which did not extend to the site – and had been repealed) and provisions/policies and site-specific requisitions regarding environmental impact statement(s) – appellant did not show visual impacts of the incrementally greater development in its “before case” would have been regarded as acceptable in 1991 absent the DCP – traffic issues raised by additional “occupancies” contended for – visual aspects relatively unimportant for six so-called “creek-side villas” which, however, would have given rise to other environmental and contamination issues in 1991
COUNSEL:
M Hinson SC and R Litster for Appellant
C Hughes SC and T Trotter for RespondentSOLICITORS:
Hopgood Ganim for Appellant
Wakefield Sykes for Respondent
The underlying proceeding is Kettering’s appeal filed 27 April 1995 against the Council’s decision of 23 March 1995 (notified by letter dated 10 April 1995) rejecting Kettering’s claim for compensation for the injurious affection of its interest in Lot 1 on Registered Plan 136508 County of March, Parish of Weyba by reason of the coming into force of the Noosa Hill Development Control Plan on 21 September 1991. Lot 1 is known as the “banana plantation” in deference to a past use; it comprises the bulk of Noosa Hill, which provides an attractive vegetated backdrop to the “village” of Noosa centred on Hastings Street for observers located there, on the adjacent beach and at places further afield, such as the North Shore and the approaches to Noosa Heads via the bridges crossing the Noosa River.
By s 3.5(1) of the Local Government (Planning and Environment) Act 1990, subject to compliance with the section, there is an entitlement to obtain from the local authority compensation in respect of “injurious affection”:
“3.5(1) Where a person—
(a) has an interest in premises within a planning scheme area and the interest is injuriously affected—
(i)by the coming into force of any provision contained in a planning scheme; or
(ii)by any prohibition or restriction imposed by the planning scheme; or
(b)…”
By subsection (8), subject to defined matters:
“(a) the amount of compensation is (subject to paragraphs (b), (c) and (d)) to be an amount equal to the difference between the market value of the interest immediately after the time of the coming into operation of the provision of the planning scheme by virtue of the operation whereof the claim for compensation arose and what would have been the market value of that interest if the provision had not come into operation;
…”
Although s 3.5(8)(a) requires a comparison of market values at the same point in time (which have been called the “affected” and “unaffected” valuations or the “after” and “before” cases), the court is presently concerned in a preliminary hearing pursuant to an order of 9 December 2005 whereby it was:
“ORDERED THAT:
1. With regard to the assessment, pursuant to Section 3.5(8) of the Local Government (Planning and Environment) Act, of compensation payable (if any), in terms of the highest and best use of Lot 1 on RP136508 (“the subject land”) relevant to a determination of market values, there will be a preliminary hearing with respect to the following questions:
(a)whether immediately after the time of the coming into operation of the Noosa Hill Development Control Plan on 21 September 1991 the highest and the best use of the appellant’s fee simple interest in Lot 1 on RP 136508 (“the subject land’) should be determined by reference to:
(i)the development approved by order of the Planning and Environment Court made on 21 June 2004 [sic] in Appeal No. 3651 of 2000; or alternatively
(ii)some other potential development, and if so what potential development;
(b)whether, had the said DCP not come into operation, the highest and best use of the subject land should be determined by reference to:
(i)the “before” development potential relevantly described in the letter of Hopgood Ganim Lawyers to Mr Wakefield Sykes dated 13 September 2005[1]; or alternatively
(ii)some other potential development, and if so what potential development;
2.Any determination in respect of the questions in paragraph 1 does not preclude the subsequent consideration of other relevant valuation issues including the risks associated with achieving such development potential.”
[1] The letter reads, in part:
“The ‘after’ case
7. This particular compensation appeal is somewhat unique inasmuch as:
(a)a relevant application for development of the relevant land was appealed to the Court and after an extended (but incomplete) hearing was ultimately resolved by agreement; and
(b)there is a resulting development which has already been constructed.
8. Agreement as to the form of that development involved a long and complex process which considered the location, height, built form and colours of buildings which could be developed on the site without conflicting with the Noosa Hill Development Control Plan (‘NHDCP’).
9. During that process, physical constraints were analysed, to establish the location or footprint for development for the whole site, and in particular with respect to components conveniently described as:
(a)Bayview Street houses;
(b)Morwong Villas;
(c)the Resort; and
(d)Creek-side Villas.
10. It is apparent from that process that a critical way in which the NHDCP affected our client’s land related to visual amenity. In effect, the DCP elevated concern for visual amenity to a primary constraint on development.
11. By way of example, the concern expressed in the NHDCP for matters of visual amenity from nominated vantage points was a fundamental reason for limiting the number of development sites on Bayview Road to six (as shown on Diagram 2 enclosed).
12. Further, concerns for matters of visual amenity expressed in the NHDCP determined the space between, and grouping of, the Morwong Villas.
13. The approved Resort (as shown on Diagram 3 enclosed) was also constrained by concerns for matters of visual amenity expressed in the NHDCP which resulted, inter alia, in reduction of building heights and the removal of the western Creek-side Villas.
14. For those reasons, it is both logical and reasonable to adopt the current approved development as the relevant “after” case by reference to which the market value of our client’s interest in the relevant land immediately after the coming into force of the NHDCP should be calculated.
The ‘before’ case
15. It is our client’s position that Diagram 1a enclosed depicts the form of development on the site which a prudent and informed person would have considered to be achievable before the commencement of the NHDCP, having regard to natural constraints and the surrounding built form then existing or approved.
16. By reference to Diagram 1a, it will be our client’s case that in the following respects development in addition to the existing approved development would have been achievable.
Bayview Houses
17. But for the constraints imposed by the NHDCP, twelve houses could have been built on Bayview Road rather than the six houses which were ultimately approved and which have now been constructed (see Plan 1B enclosed). Such development would essentially infill, matching the houses on the other side of the street.
Morwong Villas
18. But for the constraints imposed by the NHDCP, two additional units, shown superimposed on Diagram 2, could also have been built.
Resort
19. But for the constraints imposed by the NHDCP:
(a)each of buildings R1 to R9 would have comprised four levels for as shown on Diagram 4 enclosed;
(b)thirty nine additional resort units would have resulted.
Creek-side Villas
20. But for the constraints imposed by the NHDCP, an additional six villas could have been built on the western side of the ephemeral creek.
Summary
21. In summary, our client’s position is that before the NHDCP:
(a)six additional Bayview houses shown in Diagram 1b;
(b)two additional Morwong Villas shown on Diagram 2; and
(c)thirty nine additional Resort units;
(d)six additional Creek-side villas on the western side of the creek;
would have been achievable.”
That order was made on Kettering’s application against the Council’s opposition. There was no appeal. Kettering’s intention was and remains that valuation questions will be determined at some future time, in the light of the answers to 1(a) and (b). With respect to (a), there is nothing to be decided, as the respondent by its points of defence delivered pursuant to the same order admits Kettering’s assertion to the effect of (a)(i). The assertions in Hopgood Gamin’s letter set out in footnote 1 (especially in paras 11 to 13, in relation to how the after case was arrived at) were not established as facts in this appeal.
I confess to considerable difficulty with the notion of determining “highest and best use” without valuation material. (For practical purposes, there was none, apart from some from quantity surveyors bearing on limited issues to do with providing lifts to higher buildings with the same “footprint” and additional basement parking.) It appeared to be common ground that the highest and best use would be the one generating the greatest return from the site. Determining that without any valuation material strikes me as somewhat problematic. It seemed appropriate to proceed on the assumption that more intensive development, in particular by construction of additional houses, villas, units and the like in particular categories would indicate a higher and better use – this being a presumption or provisional conclusion that might be falsified by a valuation exercise taking into account market factors, the costs of providing the additional components in relation to the likely return and the like. The 2001 approval covers:
(a) 6 detached houses on Bayview Road;
(b) 22 attached houses (villas) on Morwong Drive;
(c) 9 resort residential buildings;
(d) a resort central facilities building;
(e) a resort activities building;
(f) 6 poolside villas;
(g) 12 forest villas;
(h) 2 detached houses in Angler Street.
Kettering argues that, but for the DCP, there could have been expected a “modest (hypothetical) addition”:
(a) 6 additional detached houses on Bayview Road;
(b) 2 additional villas on Morwong Drive;
(c) additional storeys on the resort residential buildings creating 39 additional units;
(d) 6 additional creekside villas.
It did not propose any other highest and best use.
In relation to highest and best use, there is little point in repeating views expressed at earlier stages in this saga at [2006] QPEC 24 [5] to [6] and [2006] QPEC 100 as to considerations of value based on alternative modes of development of a site having something to do with which among feasible uses may be “the best and highest or most profitable” (per Else-Mitchell J in Matford Nominees [1973] 2 NSWLR 58, 59-60). The expression “highest and best use” seems to have gained currency because valuers use it, although other terms might be available if it (for some reason) is thought necessary to depart from “market value” as found in the legislation. In Gallagher v Brisbane City Council [1975] 2 QLCR 368, the Land Appeal Court said at 380-81:
“This is a compensation case, following on compulsory acquisition of the subject land, and we commence with the basic proposition that what has to be determined in such a case is, ‘the value of the land to the owner as it existed at the date of the taking, not the value to the taker – and this value to the owner consists in all the advantages which the land possesses, present or future, but it is the present value alone of such advantages that falls to be determined;’ Cedar Rapids Manufacturing and Power Co v Lacoste (1914) AC 569 per Lord Dunedin at p 576. This principle has been discussed and developed in numerous cases, but for our purposes in the subject case, we think Lord Dunedin’s statement above sufficient at this stage, with the substitution of the words ‘highest and best use’ for the words ‘all advantages’ – again for our purposes in this case, and recognising that in some cases there may be in addition some special value to the owner, not existing in this case. We have substituted the words ‘highest and best use’ because these words occur frequently in the valuation evidence. We could perhaps also use the words ‘potential of the land’. Now, while the zoning of land pursuant to a town plan will always affect the highest and best use of land at a particular date, and to that extent the value, it does not create that highest and best use. It may facilitate the immediate realisation of that highest and best use or, at the other end of the scale, it may totally prevent such realisation. In between these two, zoning may work to postpone, or defer, full or any realisation of the value of the highest and best use, until some intermediate action is taken and completed. But, in our view, the highest and best use remains the same throughout, and, on the basis that the highest and best use on resumption date is different from the permitted use as of right of the land under the zoning on that date, the dispossessed owner is entitled to receive the present value of that highest and best use of the land on resumption date, so long as such present value exceeds the permitted use as of right value on that date, where the zoning provisions prevent the immediate realisation of the highest and best use value. The present value on resumption date, of its highest and best use value probably would never be less than its permitted use as of right value, but it could conceivably be no more than this, if the highest and best use is a prohibited use under the zoning tables, and if on the facts there would be no likelihood for a rezoning. We do not say this would be the situation, but it could be. But if the highest and best use on the said date is a permitted use by consent, the view we hold is that only in exceptional circumstances, if at all, would its present value not exceed, to some extent, its permitted use as of right value.”
Reference might also be made to Trandos v Western Australian Planning Commission (2001) 117 LGERA 257, affirming (2000) 107 LGERA 11, by which Kettering set considerable store as an instance of the preliminary hearing procedure adopted, which separated determination of highest and best use from any determination of valuation. At first instance at [4] Heenan J said:
“[4] The phrase ‘highest and best use’ does not appear in the Act nor, as far as I am aware, in other legislation. I have been unable to discover its precise origin, but over the past 30 years or more the phrase has been applied in many Australian cases dealing with compensation to the landowner for compulsory acquisition of his land. In Adelaide Clinic Holdings Pty Ltd v Minister for Water Resources (1988) 65 LGRA 410 at 415 Jacobs J said, ‘… the highest and best use means exactly what it says – the most advantageous use of the subject land having regard to planning and all other relevant factors affecting its present and future potential’.” – as quoted on appeal at p 276.
By an amendment to the Metropolitan Region Scheme, half of the appellants’ land was reserved for public purposes. As it was put by Anderson J (whose judgment the other members of the court agreed in) at 262, the appellants’ claim for compensation for injurious affection:
“was particularised and according to the particulars the value of the land was to be assessed firstly on the basis that its highest and best use was as a service station, fast food and convention/function centre; alternatively its highest and best use was as ‘a small lot subdivision or a retirement village’; and in the third alternative, its highest and best use was one of its past uses; namely, a fully developed poultry farm…
Whatever might be determined to be the highest and best use of the land, there was likely to be dispute as to its value.
The parties decided that the issue of highest and best use should be tried as preliminary issues:
‘(a)What highest and best use the Premises … potentially had as at 16 January 1996 (the date of election to purchase by the defendant) assuming that the Premises had not been reserved for public purposes under the Metropolitan Region Scheme?
(b)What uses other than the highest and best use the Premises had or potentially had as at 6 January 1996 … assuming the Premises had not been reserved for public purposes …
(c)What zoning under the Metropolitan Region Scheme and relevant Town Planning Scheme of the local authority would have been consistent with proper planning to accommodate each such use?
(d)What would have been the highest and best zoning or potential zoning of the premises under the Metropolitan Region Scheme and the Town Planning Scheme as at 16 January 1996 if the land had not been reserved under the Metropolitan Region Scheme?’ ”
The contending uses in Trandos were disparate, in contrast to the present situation.
The parties in Trandos agreed that certain matters should be determined as preliminary issues. As to them Heenan J reported:
“The preliminary issues in the order of 17 June 1998 and my answers to the questions posed by them are as follows:
Issue (a)
What the highest and best use lot 66 potentially had as at 16 January 1996 assuming that it had not been reserved for public purpose under the Metropolitan Region Scheme (‘the MRS’)?Answer
Low traffic generating and low visual amenity impact tourist related and recreational purposes (such as conventional restaurant and function centre not dependent on passing trade, caravan park, camping ground or other low key tourist accommodation) which are complementary to, and capable of being integrated with, the adjacent Yellagonga Regional Park.
This use would have been subject to the proper traffic and access arrangements and public amenity considerations (in terms of both the view from Yellagonga Regional Park to the land and from the adjoining roads).
Issue (b)
What uses other than the highest and best use lot 66 had or potentially had as at 16 January 1996 assuming lot 66 had not been reserved for public purposes under the MRS?
Answer
The land had potential for rural pursuits, special residential (ie 2,000-4,000 sq m) or residential development to a density of not more than R20.
Issue (c)
What zonings under the MRS and relevant Town Planning Scheme (‘the TPS’) of the Local Authority would have been consistent with proper planning to accommodate each such use?
Answer
In respect of rural pursuits, ‘Rural’ under the MRS and the TPS.
In respect of special residential development, ‘Urban’ or ‘Rural’ under the MRS and ‘Special Residential’ under the TPS.
In respect of R20 residential development, ‘Urban’ under the MRS and ‘Residential Development R20’ under the TPS.
Issue (d)
What would have been the highest and best zoning or potential zoning of lot 66 under the MRS and the TPS as at 16 January 1996 if lot 66 had not been reserved under the MRS?
Answer‘Rural’ with the potential for ‘Urban Deferred’ or ‘Urban’ under the MRS and ‘Rural’ with the potential for ‘Special Purpose (Tourism/Recreation)’ or ‘Residential Development’
under the TPS.”
Heenan J was determining the highest and best use in the equivalent of the “before” case here. The “after” case is no longer contentious. Kettering asserted and the Council admitted that it was represented by the development approved by the court (endorsing an agreement reached by the parties after a hearing of the appeal had been under way for some months) in Leighton Properties (Brisbane) Pty Ltd and Adnam Pty Ltd v Noosa Shire Council, No 3651 of 2000, 21 June 2001. It was not involved as a party in that appeal, having disposed of its interest in the land.
Kettering’s compensation claim was based on the proposition that prior to the coming into force of the DCP on 21 September 1991, Lot 1 “could reasonably have been expected to be rezoned and subdivided so as to yield 73 house lots and 132 building units or group title units. Because of the gazettal of the Development Control Plan, the yield is reduced to 24 house sites and 75 units”. When the claim was rejected, Kettering appealed to the court. On a preliminary issue as to whether s 3.5(4) and (5) of the Act operated to preclude payment of compensation if Kettering’s claim was based on the second of these two options which Kettering asserted were open to it, but for the DCP of proceeding:
“(a)by obtaining town planning consent for ‘group housing development’. Such a consent would have enabled development of both attached and detached dwellings; or
(b)rezoning from the Rural Pursuits Zone to another zone where land could be subdivided into smaller allotments for dwelling houses”
Senior Judge Skoien determined that s 3.5(4)(d) and s 3.5(5) did not foreclose option (b). The Court of Appeal (Kettering Pty Ltd v Noosa Shire Council [2002] QCA 16) determined that s 3.5(4)(d) excluded compensation for injurious affection because of the DCP’s coming into force.
The High Court (Kettering Pty Ltd v Noosa Shire Council [2004] HCA 33; (2004) 78 ALJR 1022) disagreed with that approach (and with a further order of the Court of Appeal which had the effect of precluding Kettering’s proceeding to seek compensation based on Option (a)). At 1028 the High Court said:
“The DCP had no prohibitory effect upon the appellant’s use of the land. Its effect, although no doubt significantly so, was no more than influential. The respondent submits however that this means that its effect was at least restrictive, and therefore that it falls within the alternative limb of the exception contained in s 3.5.4(d), as a provision of a planning scheme which, by its operation, restricts the use of land”
and went on to note (1029):
“… the particularity and limited nature of the subject matter with which s 3.5(4)(d) is concerned: the prohibition on the use of land, or the restriction on use of buildings or other structures, for particular purposes. The effect of the DCP here is upon the potential of the land for subdivision, and greater intensity of use, and not of use for a particular purpose.”
These matters are noted, lest it be thought that the appellate court determinations in some way govern the outcome of the present hearing. Those decisions were concerned only with a discrete argument raised by the Council in an attempt to defeat the compensation claim in a particular respect; that attempt failed. The Council now stands accused of changing its ground to rely on points that might not have been revealed as contentious before, of resiling from its earlier apparent acknowledgment that the DCP was restrictive.
I do not accept the charge that the Council has impermissibly departed from its points of defence. Kettering argued that by its concession as to the highest and best use in the “after” case, the Council had debarred itself from departing from the proposition, not just in respect of the “after” case as such, but generally, so that it was bound to accept the “after” case as the starting point for identifying the highest and best use in the “before” case. One of the main points of contention between the parties was whether the highest and best use, market value, potential (or whatever it be) of Lot 1 immediately before 21 September 1991 (assuming that the imminence of the DCP had no effect) should be assessed as a “stand alone” matter (the Council’s contention) or whether the starting point is the highest and best use for the “after” case, as established (given the parties’ agreement) by the order of 21 June 2001, nearly a decade on.
The Council relied on the approach indicated in Housing Commission of New South Wales v Falconer [1981] 1 NSWLR 547 at 557-58:
“The question then arises whether Ash J was entitled to have regard to the evidence of the increase in costs between 1974 on the one hand and 1977 and 1981 when stages 1 and 2 of the new buildings were or were to be built, on the other hand. This question has to be considered in the light of the principle that this compensation has to be assessed by reference to what additional amount a prudent purchaser in the position of the owner would have found it worth his while to pay sooner than fail to obtain the land. There thus has to be considered not what a prudent purchaser in the position of the owner would pay after he had obtained a knowledge of all the circumstances that in fact occurred after the date of resumption, but what a person in his position would pay in the light of knowledge available at the time of the resumption. However, having affirmed this position, the decided cases dissolve into uncertainty. This Court, in Gosford Shire Council v Green (Court of Appeal, 11th July, 1980 unreported), took the view, in relation to a question, to which s 124 applied, that regard could not be had to events that took place after resumption. There a question arose, inter alia, as to the effect on the value of land retained by the plaintiff of the construction on the resumed land of a parking station and access roads. There was evidence that the parking station which was in fact built differed in some respects from that which a purchaser at the time of the resumption would have expected to be built. This question was asked in the stated case:
‘Was I justified in law in assuming, for the purpose of considering the question of enhancement, that the knowledge of the hypothetical parties to an assumed sale of the plaintiff’s remaining land was limited to the knowledge of a prudent purchaser at the date of resumption?’
The Court held that the answer to this question was ‘Yes’. Reynolds JA said that there was no question of preferring actuality to prophecy. There was, however, no evidence in the case to suggest that a change of plans might have been contemplated by a hypothetical purchaser at the time of resumption.
However there are many decisions, including decisions of the High Court, in which it has been held that evidence of future events is admissible not to prove a hindsight, but to confirm a foresight …”
Kettering claimed support for the hindsight approach from Bingham v Cumberland County Council (1954) 20 LGR 1, in which Sugerman J said:
“Two valuations of the ‘market value’ of the estate or interest in question must be made, and the prima facie measure of compensation is to be obtained by subtracting the amount of the first valuation from the amount of the second valuation. Both valuations are to be made at the same time, which, confining the matter to what is here relevant, is the first point of time at which the provision in question became operative or the restriction in question was imposed. The first valuation has regard to the actual circumstances, namely that the prescribed scheme was in operation and that therefore the provisions or restrictions out of which the claim for compensation arose was in operation or was effective. This valuation must, therefore, have due regard to the effect of these matters upon ‘market value’. The second valuation is to be based on a state of affairs partly actual and partly hypothetical. The hypothesis required is that the provision or the restriction out of which the claim for compensation arose had not come into operation or had not been imposed”
and at 17:
“I have earlier in these reasons referred to the second ‘market value’ as based upon a state of affairs partly actual and partly hypothetical, but in view of the associations of the latter expression it is perhaps better to refer to this market value as a suppositious market value. Even in the sense in which one may speak of a market for land, there could have been no actual market for the subject land (once the scheme came into operation) to which this ‘market value’ belonged, since the ascertainment of its amount requires the supposition that the relevant provisions had not come into operation and the relevant restrictions had not been imposed.”
and at 18
“In some cases it might be possible to start with an established unaffected ‘market value’; derived as I have earlier suggested, and to reason from that to the effect of the provisions and restrictions, and in others to start with an affected ‘market value’, derived from a study of sales, and to reason from that to what would be the effect of the absence of the relevant provisions and restrictions.”
At p 19 Sugerman J began his analysis by starting with “the affected ‘market value’ of the subject property” which had been estimated by valuers on both sides at ₤1,000. His Honour was doubtful for reasons he proceeded to express that the figure “truly represents the affected market value”. Kettering’s point is that he went on to determine the unaffected market value using the affected market value as his starting point – and that that same methodology should be used where it is not values being determined, but, rather, highest and best use after and before. The factual context here is far more complex than that in Bingham, where there was nothing equivalent to the amount of time that elapsed between 1991, where the court must imagine itself, and 2001, when the “after” case was arrived at by negotiations engaged in by other parties. The oddity of treating hypothetical vendors and purchasers in 1991 as contemplating the outcome devised in 2001 seems manifest. For what it is worth, none of the various scenarios hitherto propounded by Kettering as its “before” case bears much resemblance to the agreed “after” case. There is little, if anything, in the evidence to suggest that anyone in 1991 (or indeed when this appeal was started) foresaw the “after” case as a realistic way of developing the site, still less any expanded version of it.
The broad structure of the Council’s case at the hearing was to demonstrate the caution that consultants in various relevant fields of expertise would have urged upon a potential purchaser. These related to flora and fauna issues, contamination of the site (attributable to cultivation of bananas), traffic considerations (to do with such road frontages as the site possesses being to roads which are narrow and/or steep in ways such that contributions of further land from the site cannot alleviate them), “engineering”-type matters to do with constructing various components of the development including additional buildings, larger buildings, additional underground parking and lifts that might be required by the increments to the “after” case which Kettering claims are precluded by the DCP and planning considerations. These last concentrate on the aspect of visual amenity, notably that available to persons taking in the vista of Noosa Hill (essentially Lot 1) from various locations.
The land, slightly shy of 20 hectares, is located to the south-east of the western part of Hastings Street where the tourist hub of Noosa is located. It abuts Halse Lodge and is conveniently located to Hastings Street, especially for pedestrian access. It may have enjoyed a frontage to an unformed part of Hastings Street to the north; this part is not connected to the tourist hub and provides no vehicular access to the site. On that side (the north-west corner) there is a frontage to Morwong Drive, which runs east from (lower) Hastings Street. There is an extensive frontage to Bayview Road, which serves to truncate the north-eastern corner of the site; Bayview Road is boomerang shaped, and runs roughly parallel to Morwong Drive, ending close to (it does not give access to) Laguna Lookout, which is a much visited part of Noosa National Park occupying an indentation in the eastern boundary of the site. Bayview Road is steep and narrow, totally unsuited to carrying any significant amount of vehicular traffic. The site is land-locked on its long boundaries otherwise, except for access from the south at two points from another narrow road (whatever its status in the road hierarchy might be), Viewland Drive, which runs to the east from Noosa Drive. One point of access to Viewland Drive (a point separated from Noosa Drive by intensive residential development) is across a strip of land which would appear to have had the potential to be the third last of a series of residential blocks proceeding up the hill, but was retained for access purposes. The other “Viewland Drive” access is at the end of Angler Street further to the west (separated by some 11 house blocks). Entry to Angler Street is via Viewland Drive. Bayview Road and the area adjacent Laguna Lookout (part of Noosa National Park, accessed by a continuation within the Park of Viewland Drive) mark the highest parts of the site where it has been suggested development might possibly occur. Morwong Drive is the access with least elevation.
There has been approved development including six houses along the lower (northern) part of Bayview Road (although there is one gap where physically an additional house might have been included). Kettering’s case is that but for the DCP coming into operation, approval could have been obtained for an additional six houses on Bayview Road (for practical purposes, one in the “gap” within the approved six and five further up the hill, extending to the lookout). Approval was given in 2001 for 23 Morwong villas or “houses”. Kettering says that there could have been two more “villas” additional to those approved and satisfactorily completed in the north-western part of the site near the Morwong Drive access. A diagram attached to the points of claim indicates that was to be achieved in this way: “Single storey A6 and space to be replaced with two townhouses” in the area of WB and use of “space for an extra unit” between X block and T block. There was a claim for “an additional 39 resort units” to be provided by increasing the height of eight of the nine buildings of units approved by one storey (in the case of building R1 by two storeys) to produce four storeys of units. These buildings surround the principal resort building; all of them are located in a flatter and less externally visible part of the site identified as suitable for the most intensive development in the DCP. Finally, Kettering asserts that but for the DCP, a developer could have constructed “an additional six creekside villas” in a location depicted in a diagram attached to the points of claim. The creek flows only intermittently, in times of run-off, but is an attractive location giving the impression of rainforest. It flows from the National Park through the site to the Noosa River (in the last part via a pipe or culvert under a road) and represents a link for fauna moving from or to the National Park.
One way in which the DCP was characterised in Kettering’s case was as a “paradigm shift” whereby visual amenity is elevated by it to become “the most important consideration” (per Mr Hinson SC at Transcript p 792), whereas there had not been any primary consideration before. Much was made of the shift from the existing Strategic Plan whose cover is emblazoned with the slogan “Noosa Shire, a land of opportunity” (consistently with “extensive potential” for tourist growth ascribed to the site) to new restrictions asssertedly introduced in the DCP.
The Noosa Hill DCP
The DCP was gazetted on 21 September 1991. The relevant Order in Council notified “approval of the amendment of the Town Planning Scheme set out in the Schedule”, in which schedule one finds the Town Planning Scheme for the Shire of Noosa published in the Gazette on 15 December 1990 “amended by including the following provisions relating to Development Control Plan No. 1 – Noosa Hill, as part of the abovementioned scheme”. Sheet 1 DCP 1 maps the area affected. The DCP is described as “an integral part of the Planning Scheme [which] … will be used in conjunction with, and is supplementary” to it. The DCP differs from many such instruments which are given primacy over general provisions of planning schemes. One then comes immediately to the statement that:
“The Plan seeks to maintain the natural beauty of Noosa Hill by ensuring that any development in the area is integrated with the existing environment”
- followed by the introduction:
“Noosa Heads is an area of great attraction to resident and tourist alike. An important element of attraction is the range of hills in which the Hastings Street tourist precinct nestles, known as Noosa Hill. Resident and tourist perception of the Noosa Heads area as an area of relatively unspoilt beachfront is due in no small part to these vegetated hillsides which form the visual backdrop to the area. The maintenance of the area’s attraction as a place to live and visit is crucial for the well being of the Shire’s economy.
Most of the area contained within the Development Control Plan boundaries is private freehold land, parts of which are committed to urban development. Thus there is significant potential for urban development to irrevocably scar the visual backdrop. At the same time, sensitive development which is integrated with the natural environment can significantly reduce such impacts. Accordingly, the aim of this Development Control Plan is:-
‘To maintain the natural beauty of Noosa Hill and to ensure that any future development is integrated with the existing environment’.”
Four groups of objectives are set out:
“(1)Visual Amenity Objectives
(a) To maintain the natural appeal and landscape character of Noosa Hill.
(b) To encourage landscape treatments which are consistent with the existing natural environment of Noosa Hill.
(c) To restrict development, were possible, in areas of high elevation and visibility.
(2) Physical Design Objectives
(a)To ensure that any development is sympathetic to existing topography and landform.
(b)To ensure that development form is consistent with the character of Noosa Hill by exercising controls on development form and aesthetic treatments.
(c)To ensure that any urban development which occurs within the Development Control Plan area is confined to areas which are stable and do not feature excessive slope.
(3) Land Use Objectives
(a)To discourage expansion of unit zones within areas of existing urban allotments.
(b)To ensure appropriate levels of development within uncommitted areas which are consistent with the limitations of access.
(4) Traffic Objectives
(a)To ensure that the capacity of constrained roads in the Development Control Plan area is not exceeded.
(b)To ensure that traffic impacts do not have detrimental effects on residential amenity.”
It is next recorded that there are three precincts noted on Sheet 1, the first of which is Primary Committed, with the following intent:
“This precinct comprises that land which may be regarded as being critically located in terms of potential impacts upon visual amenity. The land forms the immediate backdrop to the Hastings Street tourist precinct and is generally very steep and subdivided into allotments of an urban scale.
The broad intent of the precinct is to preserve existing substantial vegetation, to the exclusion of development if necessary, and to ensure that any development is integrated with the existing natural environment and character of the area.”
Implementation provisions (a) to (j) follow, some with up to five subparagraphs.
Precinct 2 – Primary Uncommitted covers Kettering’s site and is dealt with in greater detail and at greater length; it is divided into four sub-precincts. Before considering the detail, I note the intent of the remaining precinct, Precinct 3 – Secondary Committed:
“This precinct comprises land which forms an integral part of the character of Noosa Hill, whilst also accommodating the major component of residential development within the Development Control Plan area. The land is less critically located than either of the primary precincts.
It is intended to maintain the existing character of development within this precinct, by ensuring that any development is consistent with such character and is integrated with the existing vegetation of the area. Proposals which do not feature development set within existing trees or which will have significant visual impacts, particularly along Park Road and Noosa Drive, are unlikely to be favourably considered by Council.”
Miscellaneous provisions affecting all precincts follow. The importance of visual impacts is clear:
“(1)In determining an application for rezoning, consent or permitted development subject to conditions, Council will also give consideration to:-
(a) The visual impacts of the proposed development on the various vantage points specified in the Planning Study of this Development Control Plan;
(b) The visual impacts of the proposed development from land and roads in the vicinity of the subject site;
(c) The appearance and character of the proposed development;
(d) The measures proposed to reduce visual impacts;
(e) The extent of any proposed works involving the removal of vegetation;
(f) The extent of any impacts caused through the construction of infrastructural services required by the proposed development;
(g) The nature and extent of earthworks and proposed revegetation measures; and
(h) The details of proposed landscaping, external structural materials and colours proposed to be utilised in the development.
(2) Council may require that any application for rezoning, consent or permitted development subject to conditions be accompanied by a report addressing the likely visual impacts of any development. The report shall address those issues referred to in paragraphs (a) to (h) above.
…
(11) Council encourages the use of colours which integrate with the natural environment and may require the use of muted earth tones of browns, greens, ochres, greys, etc.
(12) Council encourages the use of:-
(a)Rooflines which parallel the slope of the site;
(b)Pitches in roofs;
(c)Clustering of buildings to maintain corridors of vegetation and more extensive areas of open space;
(d)The minimisation of cutting and filling to reduce impacts upon the landform;
(e)Cuts being located behind buildings or below roadways or driveways to lessen the impact; and
(f)The stepping and terracing of buildings on slopes with both the horizontal and vertical planes.”
The intervening paragraphs relate to landscaping, geotechnical issues in steep areas, water supply, sewerage and drainage, underground reticulation of electricity, Council’s entitlement to require developers to retain a Registered Architect, Landscape Architect, etc. and provisions about excavations and cut or fill. The emphasis placed on visual matters is pervasive, undeniable.
The Council asserts that the DCP, properly construed, is not restrictive, but, rather, facilitates development, in part by admitting possible new or confirming existing opportunities. It may be noted that the “after” case bears out the assertion that internal boundaries of the various sub-precincts were not fixed: in particular there has been very great enlargement of Sub-precinct C. Although replete with limits as to densities, heights and the like, the provisions relating to Precinct 2 may be seen as facilitating development within those limits. Those provisions (with italics and underlining to mark passages emphasised by Kettering) are:
“This precinct again comprises land which is generally critically located in terms of potential impact upon visual amenity. The land forms the distant backdrop to the Hastings Street tourist precinct, but as compared to that land included in Precinct 1, Precinct 2 land is visible from other points such as Noosa Spit, Noosa Sound, Noosaville, Mount Tinbeerwah, the North Shore, etc. The land in general is very steep and is not committed to any form of urban development.
To facilitate the implementation of planning controls within Precinct 2, the precinct has been divided into four sub-precincts. The precise internal boundaries of the various sub-precincts have not been defined in this Development Control Plan and are subject to Council’s consideration of detailed site survey data, including vegetation and gradient analysis. It is envisaged that any proposal for development for residential purposes within relevant sub-precincts of Precinct 2 will be subject to an application for rezoning to the Special Residential Zone. The implementation criteria for the various sub-precincts are based upon the area of the particular sub-precinct, as determined by the Council.
Any application for rezoning and any subsequent application for consent, permitted development subject to conditions or subdivision will be assessed upon the basis of compliance with the aim and objectives of this Development Control Plan and the intents for the various sub-precincts. To assist with determination of such applications, performance standards are included in the implementation criteria as a means of offering some guide to Council, landowners and developers as to the level of development which may be achieved. Where Council is satisfied that strict compliance with the aim, objectives and intents will be achieved by development envisaged under an application for rezoning, consent, permitted development subject to conditions or subdivision, the performance criteria contained in the implementation provisions may be varied.
To facilitate the implementation of the intent and implementation clauses of the various sub-precincts described below, applications within the Rural Pursuits Zone for consent, permitted development subject to conditions or subdivision which do not strictly accord with the objectives of this Development Control Plan and which do not facilitate the intents for the various sub-precincts would be unlikely to be favourably considered by Council.
Because of the interrelationship of sub-precinct D with sub-precincts A, B and C, it is necessary to consider any development proposal in the context of the intent and implementation criteria for all of the relevant sub-precincts.
(1) Sub-precinct A
Intent
This sub-precinct comprises three small parcels of land having access from Bayview Road, Angler Street and Viewland Drive respectively. It is intended to permit limited development of the sites of an intensity equivalent to that of conventional dwelling house development. Conventional subdivision will not be practical in these locations because of the significant constraints which exist over the land. It is envisaged that group housing developments may comprise the most appropriate development form.
Each parcel features significant existing tree cover and any development on the land should be designed to integrate with the existing vegetation and slopes. Access difficulties are present because of the slopes on the site and careful assessment of the visual impact of accessways, together with potential impacts upon residential amenity, will be required.
Implementation
(a) Dwelling unit density shall not exceed one (1) per six hundred (600) sq. metres.
(b) Building height shall not exceed two (2) storeys or existing tree height, whichever is the lesser.
(c) Council in considering applications for development shall also have regard to the performance criteria contained within clause 36 of Division 2 of Part F of the Planning Scheme as it pertains to unit development within the Residential Low Density Zone.
(d) Any development shall be integrated with existing vegetation and slopes upon the site and buildings, accessways and associated functions shall be so located as to maximise the retention of existing trees.
(e) Any application for rezoning, consent, permitted development subject to conditions or subdivision within this sub-precinct shall be accompanied by a detailed site survey including vegetation analysis (location, species and existing height) and contour information.
(2) Sub-precinct B
Intent
This sub-precinct comprises two parcels of land off Morwong Drive. It is intended to permit limited development in this sub-precinct which has regard to the limitations of access along Morwong Drive and the site’s inclusion in the critical areas of visibility as referred to in the Planning Study of this Development Control Plan. Accordingly, density and building height will be critical factors in assessing proposals in the area.
As with sub-precinct A, sub-precinct B is not suited to conventional residential subdivision, however there is potential for development of multiple dwellings, accommodation buildings and group housing developments. The revegetation of existing slopes within the sub-precinct together with the retention of the existing trees which are both peripheral to and within the sub-precinct, will be important factors in reducing the impact of building form. Building height should not generally exceed one storey, however in locations which are buffered, e.g. immediately adjacent to existing trees on the western part of the sub-precinct, heights of two storeys may be acceptable.
Implementation
(a) Densities shall not exceed one (1) dwelling unit, accommodation unit or lot per six hundred (600) sq. metres.
(b) Building height shall not generally exceed one (1) storey, provided that where it is demonstrated to Council’s satisfaction that the development form will not be visually intrusive from the vantage points specified in the Planning Study of this Development Control Plan, Council may permit building heights of up to two (2) storeys.
(c) Council in considering applications for development shall also have regard to the performance criteria contained within clause 36 of Division 2 of Part F of the Planning Scheme as it pertains to unit developments within the Residential Low Density Zone.
(d) Any development is to be set within the existing trees which traverse the sub-precinct and landscape corridors between buildings are to be created.
(e) Any applications for rezoning, consent, permitted development subject to conditions or subdivision within this sub-precinct shall be accompanied by a detailed site survey including vegetation analysis (location, species and existing height) and contour information.
(f) The existing canopy of trees over Morwong Drive is to be retained and this requirement may constrain full construction of Morwong Drive and hence constrain its ultimate capacity.
(3)Sub-precinct C
Intent
This sub-precinct will feature the most intensive of development forms within Precinct 2. The land is suited to conventional subdivision as well as development for unit accommodation consisting of multiple dwellings, accommodation buildings and group housing developments. The most significant constraint affecting the land is the limitation on access. Two access points are available. The northern point comprises a connection to Morwong Drive which could result in excessive demands upon that road. The southern point connecting to Angler Street or Viewland Drive would involve a steep and circuitous route.
Part of the sub-precinct extends over Lot 27 on RP89506, Parish of Weyba, County of March which has access to Edgar Bennett Avenue. Access from this street would create significant impacts upon the dune system as well as upon the existing vegetation on the site. In addition to access and vegetation constraints, the land is also prone to inundation due to drainage flows from the water course through the site. Further, the watercourse and immediate surrounds are sensitive to development impacts. If these constraints cannot be overcome, the only practical means of developing the area is considered to be in conjunction with the development of the balance part of sub-precinct C.
Accordingly, density over the sub-precinct is limited and may be further constrained following investigation of access and drainage constraints.
Implementation
(a) Population density shall not exceed sixty (60) persons per hectare, provided that where Council considers that such densities will create inappropriate impacts relating to access, Council may determine that a lesser density shall apply.
(b) Where Council is satisfied that the proposed development accords with the objectives of this Development Control Plan, building height in storeys to a maximum of three (3) storeys may be permitted.
(c) Council in considering applications for development shall also have regard to the performance criteria contained within clause 36 of Division 2 of Part F of the Planning Scheme as it pertains to unit developments within the Residential Low Density Zone.
(d) Building height in metres shall not exceed ten (10) metres, provided that Council may modify this requirement to a maximum of twelve (12) metres in respect of roof pitches and the like.
(e) Landscape corridors are to be established within the sub-precinct to integrate with peripheral vegetation and any existing trees within the sub-precinct.
(f) Any application for rezoning, consent, permitted development subject to conditions or subdivision within this sub-precinct shall be accompanied by a detailed site survey including vegetation analysis (location, species and existing height) and contour information.
(4) Sub-precinct D
Intent
It is intended that sub-precinct D be retained for open space purposes in recognition of:-
(a) The sub-precinct’s critical location in visual terms;
(b) Physical constraints throughout most of the sub-precinct; and
(c) Part of the sub-precinct’s function as a buffer to Noosa National Park.
A number of options exist concerning the future tenure and ownership of this sub-precinct, including:-
(i) Freehold land in private ownership;
(ii) Common area under the control of a Body Corporate;
(iii) Crown Reserve with Council as trustee;
(iv) Reserve for National Park under the control of the Queensland National Parks and Wildlife Service;
(v) An appropriate combination of the above.
Existing vegetation in the sub-precinct will be reinforced or supplemented by additional planting to promote the re-establishment of a native forest environment and will be removed in the case of exotic species.
Where vehicle or pedestrian accesses through this sub-precinct are proposed, detailed assessment of the potential for impact will be required.
Implementation
(a) The achievement of the various intents for sub-precinct D will be primarily linked to the processing of planning applications and subsequent development over the adjacent sub-precincts A, B, or C as the case may be. Alternatively, such intents may be achieved through the process of acquisition.
(b) In determining applications for development over the whole or parts of Precinct 2, Council will:-
(i)Indicate, as part of any decision, those parts of sub-precinct D land which, in the opinion of Council, form a nexus with the development proposal and in this regard shall have consideration to submissions made by the applicant. The applicant is encouraged to seek Council’s opinion on the matter, prior to submissions of an application for rezoning, via an application for consideration in principle;
(ii)Only approve such applications, if sub-precinct D land referred to in (i) above is proposed to be:-
(A) Zoned for open space purposes;
(B) Used for the purposes of common area under the control of a Body Corporate; or
(C) Zoned and used by way of a combination of (A) and (B) above; and
(iii)Consider matters including the following in setting of conditions of approvals:-
(A) The proposed tenure of sub-precinct D land and whether it is proposed to comprise common area under the control of a Body Corporate;
(B) Whether to impose conditions regarding the dedication of part or parts of sub-precinct D land for open space purposes;
(C) Whether the owner or developer proposes to dedicate such land to the Crown for open space or drainage purposes at no cost;
(D) Section 5.6 of the Local Government (Planning and Environment) Act 1990-1991 relating to the dedication of land for park purposes;
(E) The extent of the site constrained by stormwater drainage and the proposed means of on-site and off-site drainage, including consideration of upstream drainage requirements; and
(F) Whether to require the revegetation of the whole or part of the cleared areas of sub-precinct D and the associate removal of exotic species.
(c)Where Council imposes a condition requiring dedication of land to the Crown for open space purposes and such dedication is in excess of land lawfully required for open space or drainage purposes and the land is not proposed to be freely given by the owner or developer as the case may be, Council acknowledges that the process of acquisition may apply in respect of such excess dedication.
(d)Favourable consideration will be given to proposed access routes through sub-precinct D, where such access routes comprise:-
(i) A single vehicular route from Viewland Drive, which serves that part of sub-precinct A located off Viewland Drive or sub-precinct C; and
(ii) A single vehicular route from Morwong Drive, which serves sub-precinct B and sub-precinct C.
(e)The provision of pedestrian walkway systems through sub-precinct D, in conjunction with the development of other sub-precincts, may be favourably considered by Council.
(f)Any vehicular or pedestrian accessway constructed through sub-precinct D, is to be located such that there is minimal impact upon existing vegetation. The restoration of any such areas by the provision of additional planting shall be required as part of any approval.”
The DCP contains supporting information, including the following (page 4), the concluding sentence of which, in Kettering’s submission, exposes what the Council, as planning authority, was about:
In respect of the creekside villas, the Council could not rely on visual amenity considerations assessed in pre-September 1991 terms as a potent factor telling against approval, given the invisibility of the proposed villas off the site, for the most part. The Council was driven to rely on other issues in respect of the creekside villas, namely ecological issues, contamination and traffic, albeit the additional contribution of six villas, considered on its own, would be of little moment. Regarding contamination, Dr Pillsworth’s evidence was compelling. In 1991, with the introduction to Parliament of the Contaminated Land Act of 11 September 1991, which those interested knew was imminent, there was huge concern in the market about contaminated land. Section 8.3A of the Local Government (Planning and Environment) Act 1990 and Regulation 18(c) of the Local Government (Planning and Environment) Regulation 1991 were already in force. There was then no expertise in cleaning up contamination. I agree with the Council’s argument that, when feasible uses as judged in 1991 terms come to be assessed, it is not open to assume knowledge of the techniques and/or services for dealing with contamination which may exist now. As the 2001 appeal demonstrated, in that year there were parts of the site where arsenic concentrations (a legacy of the banana plantation activities) were at levels constituting extreme health risks. Given the rate at which arsenic dissipates, levels in 1991 would have been much more concerning. The likelihood is that the creek lines were contaminated, arsenic being carried by stormwater flows from banana plantations on the higher terraced slopes. Not only is it likely there would have been a daunting impact of these matters on the mind of a potential purchaser faced in 1991 with having to clean up the site (a presently irrelevant consideration perhaps), but, more important, the Council (or court on appeal) would be assessed by that purchaser to be unlikely, in view of health risks, to approve use for human habitation close to the creek.
Evidence about ecological issues and the values represented by the creek which might have commanded protection in 1991 was given by Professor Rogers and Dr Watson for the Council and by Mr Chenoweth for Kettering. The DCP aside, I think it likely that a 20 metre setback from the creek in this sensitive area would have been called for, rather than 10 metres only. Further, I think the view would have been acted on that development would have been allowed on one side of the creek only, rather than both. There was proper concern about impacts on flora if development were allowed near the creek. The main feature to emerge from the ecologists’ evidence is that there was nothing about the DCP which changed matters. In other words, their recommendations, either against or for very restrictive controls of development, were unaffected by the coming into effect of the DCP. Reference was made to the cases of Walker, Clarke and Storrer as indicating the extraordinary techniques resorted to to protect vegetation in this part of Noosa[5]. The evidence at p 502 notes the creek as the area where the most diverse fauna had been recorded, in particular insectivorous bats, swamp crayfish and a range of fruit eating birds. Kettering has not shown any likelihood of six (or any number of) additional creekside villas being approved prior to 21 September 1991, or of a prudent, informed potential purchaser harbouring more sanguine expectations.
[5]“History of the Sites
The sites and an adjacent site have had an unusual history of litigation largely related to the particular problems caused by the Sand Dune Problem Area. That history is recorded in Walker v. Noosa Shire Council (1982) Q.P.L.R. 400; Walker v. Noosa Shire Council (1983) Qd.R. 86; Walker v. Noosa Shire Council (1984) Q.P.L.R. 249; Walker v. Noosa Shire Council (1985) 1 Qd.R. 387; Walker v. Noosa Shire Council (1985) Q.P.L.R. 258; Clarke v. Noosa Shire Council (1985) Q.P.L.R. 265 and Clarke v. Noosa Shire Council (1989) 1 Qd.R. 369.”
Per Senior Judge Skoien in Clarke v Noosa Shire Council; Storrer v The Council of the Shire of Noosa [1989] QPLR 261 at 261-62. His Honour’s comments at 262-63 regarding visual amenity in the general area were not specifically adverted to by the parties in this appeal but may be seen as accepting the importance of this “scenic backdrop” (as he described it) before the era of the Noosa Hill DCP
It is unnecessary to examine in any details the ecologists’ evidence regarding the additional Bayview Road houses contended for. However, the importance of the land they would occupy as a link for fauna, particularly koalas moving about the National Park is important. Dr Watson’s evidence establishes that an informed purchaser in 1991 would have harboured concerns in this regard. Both visual and fauna corridor considerations affect the Morwong villas picture. Essentially, Kettering’s case is that two gaps preserved in 2001 (presumably for either or both of those reasons) should be filled in with a house/villa. I have not been persuaded that but for the DCP, it was likely the Council (or court on appeal) would give the approval contended for, in respect of either of the gaps, or that our putative, properly advised purchaser in 1991 lacking foresight of what was approved in 2001, would have been inclined to risk money on the possibility.
In similar vein, traffic considerations were essentially the same with or without the DCP taken into consideration. The traffic situation is so dire that, in the 2001 approval, arrangements were put in place to preclude access via Viewland Drive at night (to protect the amenity of residents of the area) and to preclude the use of Morwong Drive during the day (to prevent exacerbation of traffic problems around Hastings Street). Although conflicting views of Mr Beard (for the Council) and Mr Holland (for Kettering) were placed before the court, in the end it is impossible to feel any degree of satisfaction that, in view of legitimate traffic concerns which the pre-1991 planning instruments recognised, the 53 additional units of accommodation, or any of them, would have been approved (or would have been expected by those in the market to be approved) in 1991. As Mr Beard put it (page 454), “all the additional traffic generation is undesirable and the balancing exercise comes down to … we really don’t want any extra traffic but we do have these designations in the planning scheme, so there’s going to be some development, how much is enough?”
The court was informed that this appeal does not represent the only claim of Kettering for compensation for injurious affection flowing from changes to the planning scheme for the Shire of Noosa. The court did not hear (nor was there any need that it hear) details of the other claim alluded to by Mr Hinson SC.
Mr Hinson referred the court to cases such as Indooroopilly Golf Club v Brisbane City Council [1982] QPLR 13, particularly at 21-22, and similar judicial statements sympathetic to the entitlement of landowners to make the most advantageous or profitable use of their properties. For better or worse, our system is that land use is controlled, and fairly strictly. It is galling for any proprietor whose activities are constrained to observe the greater fortunes of others in a system in which the benefit of favourable planning scheme changes or planning decisions goes to the private owner, while the less favoured property owner often has no redress; such avenues as are available for obtaining compensation for “injurious affection” attributable to planning scheme changes tend to incorporate requirements and conditions which may be difficult to satisfy.
‘The Strategic Plan for the Shire of Noosa is a forward planning document and in general considers preferred dominant land use categories. The purpose of the Strategic Plan and statement of objectives is to convert the principal broad aims of the Shire into practical guidelines to be used in the control of development within the Shire. Being a document based on broad guidelines it is not unusual to have submissions made by opposing parties which allege that the proposal at the one time is in conformity with and at variance to a Strategic Plan and Strategic Plan Map. The Strategic Plan is of considerable importance in determining the planning strategies which have been adopted by the Respondent. The supporting information being Part B of the Strategic Plan is some indication of the planning philosophy which lies behind the expression of the strategies which appear in Part A of the Strategic Plan.
The designation of the symbol of the Strategic Plan Map of tourist facility growth area is indicative only and not site specific. The size of the symbol is of no significance in relation to the extent or form of development which may be considered reasonable in the circumstances. The evidence of Mr Weychardt, a town planner for the Respondent, establishes that the designation of the tourist facility growth area on the Strategic Plan Map was included thereon with the Leisuremark proposal in view. That evidence does not carry any implication as to the manner in which the rezoning of the subject land should be determined.
…
Whilst the Strategic Plan, as is appropriate and as is consistent with the existing zoning, envisages some form of tourist development on the North Shore, including potentially the subject land, it does not provide for, recognize, or encourage necessarily a development of any scale or size. The description of the tourist facility growth area identifies such area as having significant and extensive potential for growth. A significant qualification is imposed in that further investigation would be required to ascertain the form of development which is suitable at these locations. The location of a tourist facility growth area on the North Shore area which covers part of the subject land acknowledges that the general area is considered to have significant and extensive potential for growth. It does not indicate that the growth will be such that the area will become a significant tourist facility precinct. Within the reference to that term in Objective 3(2) of Part A of the Strategic Plan, the qualification that further investigation would be required to ascertain the form of development which is suitable at these locations is some indication that the type, scale and size of the development is of significance, if such development were to be considered within the tourist facility growth area. The fact that the tourist facility growth area overlies the designation which applies to a substantial part of the North Shore area, namely rural, is of some significance, in that it is indicative that the type of facility that is proposed should be one that would be compatible with and at harmony with a rural area.’
Here, the symbol relates to Lot 1, but, conformably with Judge Row’s approach, not necessarily every part of it. Council also relied on decisions of Judge Row to indicate that it was clear to all ‘that conflict with a Strategic Plan in 1991 was a very strong ground for refusing an application’: Van Glow Pty Ltd v Council of the Shire of Albert [1991] QPLR 68, 71 G; Thomas Holdings Pty Ltd v Gold Coast City Council [1991] QPLR 32, 36 D and Bowden v Brisbane City Council [1991] QPLR 271, 281 D.”
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