Law v Beaudesert Shire Council

[2000] QPEC 22

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Law v Beaudesert Shire Council & Ors [2000] QPE 022

PARTIES:

MICHAEL GRAHAM LAW

BEAUDESERT SHIRE COUNCIL

ADRIAN JAMES CARDELL AND OTHERS

FILE NO/S:

Appeal No. 4077 of 1999

DELIVERED ON:

23 March 2000

DELIVERED AT:

Brisbane

HEARING DATES:

16 March 2000

JUDGE:

Skoien S.J.D.C.

ORDER:

Appeal to proceed without necessity for re-advertisement of application. 

CATCHWORDS:

Modification of application, whether minor; whether further objection would have been forthcoming.

COUNSEL:

Hinson S.C. for appellant
Hughes for respondent
Mr. Cardell and Miss Langslow (respondents by election) in person

SOLICITORS:

Connor O’Meara for appellant
Corrs Chambers Westgarth for respondent

1. This application arises out of the Council’s decision to agree, subject to conditions, to an application by Law to re-zone land on Mt. Tamborine from the Rural zone to a Special Facilities Zone.  Law appealed against some of the conditions.

1. The application as advertised and considered by the Council was to permit (relevantly) the building of a restaurant, function room, theatre, and accommodation units.  The site borders the Palm Grove National Park, which contains ecologically important rainforest and the site itself has an area of rainforest.

1. The application proposed a viewing tower attached to the main building, to allow visitors to the complex to have views of and over the rainforest.  It also proposed a boardwalk to be built forming a loop, to permit visitors to walk through the rainforest which exists on the site.  One of the conditions imposed by the Council was to limit the height of the viewing tower to below the rainforest canopy.

1. Since then Law has proposed some changes to the proposal of which one is controversial and has led to this application.  That proposed change is to delete the viewing tower, to reduce the length of the boardwalk (by about 95 metres) and to build an elevated viewing platform at the point of the boardwalk most remote from the main building and closest to the National Park.

1. The application to the Council and the appeal fell to be determined under the provisions of the now repealed Local Government (Planning and Environment) Act 1990. The question before me is whether the proposed modification to the application constituted by the amended viewing platform/boardwalk has to be re-advertised for public reaction and possible objection. The effect of the relevant parts of s.4.15(2) of the Act is that re-advertisement is not needed if the Court is of the opinion:-

(a)        that the modification is of a minor nature; and

(b)        the modification would not adversely affect any person to a degree which would, if the circumstances allowed, cause that person to make an objection.

1. Section 4.15(3) states that a proposed modification is of a minor nature if:-

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

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

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

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

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

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

(ii)       specified in the relevant application

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

1. The proposed use to be made of the land (paragraph (a)) is not varied by the proposed modification.  The relevant use which was originally proposed, advertised and described in the Environmental Impact Statement was to provide an introduction to the rainforest for visitors to the site by permitting them to walk through the forest and look at it closely.  That is also the use which the modified viewing platform/boardwalk will permit.

1. It was agreed by all who appeared before me that paragraphs (b), (c), (d) and (e) have no application.

1. In my view the amenity or likely future amenity of the locality (paragraph (f)) would not be adversely affected by the proposed modification.  The originally proposed viewing tower was to stand taller than the forest canopy.  It would have been clearly visible from many places. The proposed viewing platform is to be below canopy height and will be visible (barely it seems) from one nearby site only.  I think it unlikely that the modified boardwalk and viewing platform will attract greater numbers of visitors to the park than would have been the case under the original proposal.

1. If one extends the concept of amenity in this case to include the degree to which the flora and fauna on the site will be adversely affected (as I am prepared to for present purposes) then the evidence, on the balance of probabilities, favours the modification. In the opinion of Mr. Buch, the ranger in charge of the Tamborine National Park whom I regard as an expert in this field, the adverse effect of the modified proposal will be less than the original proposal.  That is also the view of Mr. Vann, the appellant’s consultant town planner.

1. Mr. Cardell and Miss Langslow (respondents by election) raised the question whether the modified boardwalk and the viewing platform which now will be higher structures than were contemplated before, might require supports and foundations of greater intrusiveness than the originally proposed boardwalk.  There are two answers to that in the context of this application.  First, there is no evidence that any necessary foundations need be of a substantial or intensive nature.  Second, the question tends to blur the distinction between the questions which I must answer (the two laid down in s.4.15(2)) and the question which must ultimately be answered by the judge who hears the appeal.  That question will be whether the boardwalk with whatever viewing facilities it incorporates should be permitted at all, taking into account the likely effect on the ecology.

1. In my opinion the modification is, within the meaning of s.4.15(3), of a minor nature.  The sole remaining question is whether it would create an adverse effect on any person (not now an objector) to a degree which might have caused that person to object.

1. The only evidence of an actual adverse effect to any person is to the occupants of the Martin land who are likely to be able to catch a glimpse of the proposed viewing platform.  But they, or one of them at least, is already an objector.  So the question is, would other people who did not object to the original proposal have been likely to have objected to the proposed modified one?

1. First, I note that the original proposal elicited objections from “three organisations and over 20 individuals”.  No other organisations or individuals who might have objected were identified by evidence or in argument, so the question must be answered on the probabilities, viewed objectively.

1. The original proposal was duly advertised and those interested could view the plans for the proposed development and supporting documents, which included the Environmental Impact Statement.  Anyone who inspected the file would have been aware that it was proposed to build a facility to allow visitors to the site to experience the rainforest environment by, relevantly, walking through it on a raised boardwalk.  I am confident that that information elicited many of the objections which were received. It seems to me that the new proposal, which is to make the boardwalk shorter and designed carefully to disturb as few trees as possible (even though the boardwalk is now to lead up to a viewing platform of about 20 metres in height but below the forest canopy) would be more likely to assuage the fears of the environmentally conscious, than to prompt further objections.  So in any opinion the modification does not offend s.4.15(2)(b).

1. Mr. Cardell raised the difficulty that arises for potential objectors because the application is for a development in concept form only.  That can, and often does, vex councils, the court and others concerned with applications and appeals but in truth it cannot be otherwise.  It would be unfair and unrealistic to expect an applicant, in effect, to support the application with working drawings.  All the applicant can be asked to do is to provide conceptual plans.  But of course that concept must be certain enough and detailed enough that what the council, or this court on appeal, is asked to approve departs from it only in a minor way and only when that variation would not have spurred non-objectors into objecting.  See Ecovale Pty. Ltd. v. Council of the City of Gold Coast (1998) 104 LGERA 341. In my opinion this application falls into that category.

1. The appeal may proceed with the proposal in its modified form.