Liston v Tablelands Regional Council; Pensini v Tablelands Regional Council
[2013] QPEC 76
•29 November 2013
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Liston v Tablelands Regional Council & Anor; Pensini v Tablelands Regional Council & Anor [2013] QPEC 76
PARTIES:
MALCOLM JAMES LISTON
(appellant)
v
TABLELANDS REGIONAL COUNCIL
(respondents)
and
BEANTREE PTY LTD
(ACN 122 803 105)(co-respondent)
NOEL PETER PENSINI AND LOUISE PENSINI
(appellants)
v
TABLELANDS REGIONAL COUNCIL
(respondent)
and
BEANTREE PTY LTD
(ACN 122 803 105)(co-respondent)
FILE NO/S:
46/12 and 854/12
DIVISION:
PROCEEDING:
Appeals
ORIGINATING COURT:
Planning and Environment Court, Cairns
Planning and Environment Court, Brisbane
DELIVERED ON:
29 November 2013
DELIVERED AT:
Brisbane
HEARING DATE:
8 November 2013, 11-15 November 2013 and 25 November 2013
JUDGE:
Everson DCJ
ORDER:
The appeals are allowed
CATCHWORDS:
PLANNING AND ENVIRONMENT – PLANNING SCHEMES – CONSTRUCTION OF PLANNING SCHEMES – Whether compromise of provisions seeking to protect GQAL and restrict rural residential development – Whether sufficient planning grounds to approve development despite conflict
COUNSEL:
Mr Job for the appellants Pensini
Mr Rebetzke for the respondent
Mr Hughes QC and Ms Fantin for the co-respondent
SOLICITORS:
Anderssen Lawyers Pty Ltd for the appellants Pensini
p&e Law for the respondent
All About Law for the co-respondent
Introduction
These are submitter appeals against the decision of the respondent to approve an application for a Preliminary Approval for Material Change of Use (Overriding the Planning Scheme – Development Consistent with the Rural Planning Area) and a Development Permit for Reconfiguring a Lot (2 Lots into 54 Lots) made in respect of land situated at Tinaroo Falls Dam Road near Atherton and described as Lot 1 on RP723061 and Lot 540 on NR6720 (“the land”).
The proposed development seeks to create 53 rural residential lots having an area of between 3,300m2 and 6,630m2 on rural land which has been used for agricultural purposes in the past. It is mapped as good quality agricultural land (“GQAL”) and contains some of the best agricultural soils in Australia. The effect of the proposed development will be to alienate the land for agricultural purposes in circumstances where provisions of the respondent’s planning scheme and subsequent planning controls which apply to it seek to preserve it as agricultural land.
The co-respondent argues that the land is compromised for agricultural uses and ideally situated for rural residential development. The co-respondent argues that there is the requisite need for the proposed development which justifies the loss of the land as GQAL.
The site of the Proposed Development
The proposed development has a site area of 25.95 hectares and a frontage to Tinaroo Falls Dam Road to the west of about 311 metres. It is approximately 2.7 kilometres north-east of the Atherton CBD. To the north the land adjoins a 15 hectare block currently used for cultivation of grass, maize and peanuts. This block is triangular in shape and bounded on one side by Tinaroo Falls Dam Road and on the other side by the Atherton Aerodrome. The Atherton Aerodrome also adjoins the land to the east. It is a small facility that provides general aviation services to the local area. To the south the land adjoins the Mountain View Estate which is a long standing rural residential subdivision with allotment sizes in the order of 4,000m2. The Mountain View Estate is outside the urban footprint of Atherton and surrounded by rural land and the Atherton Aerodrome. With the exception of the aerodrome and the Mountain View Estate all of the adjoining land is rural land as is the land on the opposite side of the aerodrome and Tinaroo Falls Dam Road.
The Proposed Development
The 53 rural residential lots are proposed to be constructed in five stages. They will all be connected to reticulated water. Along the northern boundary of the land a 40 metre wide agricultural buffer incorporating a drainage easement is planned to shield the proposed development from agricultural activities on the adjoining site. A 75 metre wide drainage reserve will be located on the eastern boundary with the aerodrome which incorporates a 20 metre wide common taxiway which is planned to provide direct access to the aerodrome. Eight of the proposed lots will have direct access to the taxiway with a view to enabling aviation enthusiasts to store their aircraft in hangars on these lots. It is of note that approximately 10 lots in the adjoining Mountain View Estate also have direct access to the aerodrome conferring a similar benefit to aviation enthusiasts.
The assessment regime
Both appeals were commenced pursuant to s 4.1.28 of the now repealed Integrated Planning Act1997 (“IPA”). Therefore, pursuant to s 819(2) of the Sustainable Planning Act 2009 (“SPA”) the court must hear and decide the appeals as if SPA had not commenced.
It is for the co-respondent to establish that the appeals should be refused[1].
[1]IPA s 4.1.50.
The appeals are by way of hearing anew in circumstances where the court must decide the appeals based on the laws and policies applying when applications were made, but may give weight to any new laws and policies the court considers appropriate[2]. It is significant that the decision of the court must not:
“(a)compromise the achievement of the desired environmental outcomes for the planning scheme area; or
(b)conflict with the planning scheme, unless there are sufficient grounds to justify the decision despite the conflict”[3].
[2]IPA s 4.1.52.
[3]IPA s 3.5.14(2).
The term “the grounds” is defined as meaning “matters of public interest” and not including “the personal circumstances of an applicant, owner or interested party”[4].
[4]IPA Schedule 10.
Significantly, pursuant to s 3.5.5 of IPA I must have regard to a number of things including not only the statutory planning controls which apply to the proposed development but also “any development approval for, and any lawful use of, premises the subject of the application or adjacent premises”[5].
[5]IPA s 3.5.5(2)(d).
The disputed issues
Mr Liston does not press his appeal. Mr and Mrs Pensini contend that:
(a) The proposed development conflicts with the Atherton Shire Planning Scheme 2002 (“the planning scheme”) as it is in conflict with the objectives which intend that GQAL be protected and that rural residential development occur in areas which are planned for that purpose;
(b) There are not sufficient grounds to justify approval of the proposed development despite that conflict;
(c) The proposed development conflicts with and does not further the outcomes of the Far North Queensland Regional Plan 2009-2031 (‘FNQRP”), to which substantial weight should be given;
(d) The proposed development would conflict with, and cut across the implementation of the respondent’s draft planning scheme;
(e) There is no relevant need for the proposed development; and
(f) The proposed development is contrary to reasonable expectation.
Relevant provisions of the planning scheme
The planning scheme took effect on 24 June 2002 in circumstances where the relevant minister identified that State Planning Policy 1/92 – Development and Conservation of Agricultural Land (“SPP1/92”) had been appropriately reflected in the planning scheme.
The planning scheme was stated as setting forth “Council’s intentions for the development of sustainable communities over the next fifteen years within the Shire of Atherton”[6]. The land was included in the Rural District and in the Rural Planning Area (where GQAL)[7]. There is running through the planning scheme a clear planning intent that GQAL is to be conserved and protected from incompatible development. In the Desired Environmental Outcomes, DEO 3.1 seeks a “strong diverse and sustainable economy” achieved through, inter alia “the conservation and sustainable use” of GQAL consistent with SPP1/92[8]. DEO 3.2 which addresses the desired settlement pattern seeks, inter alia an “orderly, cohesive and legible pattern of development” be established that “minimises the loss and prevents the fragmentation of” GQAL[9].
[6]Planning scheme p2.
[7]Exhibit 2 JER – Town Planning, para 52.
[8]Planning scheme p8.
[9]Ibid p9.
The Structure Plan sets out “the preferred settlement pattern for the Shire”[10]. Amongst other things it states:
“Future development in Atherton must achieve consolidation of the urban area to avoid the costs of inefficient provision of under-utilised infrastructure, the loss of Good Quality Agricultural Land and to the landscape values of the town and its environs”[11].
[10]Ibid p12.
[11]Ibid p13.
The provisions of the planning scheme which, on the co-respondent’s case, allow for the proposed development are within the parts of it which address the Rural Planning Area. In the intent at para 2.2.1 it is stated:
“There is some potential for Rural Residential subdivision in the Rural Planning Area subject to meeting certain criteria. Preferred locations for such developments are adjacent to existing key Rural Residential nodes as shown on the Structure Plan Map”[12].
[12]Ibid p18.
The Structure Plan Map shows the adjoining Mountain View Estate as designated Rural Residential but the land and, indeed all the land around it as being within the Rural Areas designation.
At para 2.2.2 Rural Objective 1 is:
“To recognise the economic, social and historical significance of the primary industries in the Shire and, specifically, to protect Good Quality Agricultural Land (GQAL) from alienation as a consequence of development”.
Thereafter the Assessment Criteria relevantly state that the proposal should conserve and protect GQAL “unless an over-riding, long term community benefit is demonstrated having regard for State Planning Policy 1/92…”[13]. Not surprisingly this provision of the planning scheme is relied upon by both the respondent and co-respondent to justify in seeking the proposed development.
[13]Ibid p18.
The respondent and the co-respondent also find support for the proposed development in Rural Objective 4 at para 2.2.5 which states:
“To ensure that future rural residential subdivision in the Rural Planning Area occurs only in response to genuine community need.
Assessment Criteria
Whether a proposal:
a) satisfies Rural Objective 1b)is in response to a demonstrated community need, evidenced by:
the take-up rate of lots for permanent housing during the previous three years in the vicinity of the site and in the Shire as a whole
the rate at which existing rural residential lots in the vicinity have been developed with housing for permanent condition
the number of vacant lots in the vicinity of ht site and in the Shire as a whole
c)can be efficiently and effectively serviced, having regard for the capacity of existing services and the likely need for additional services to meet the requirements of the future population.
d)has regard for the different rates of demand that exist across the Shire
e)demonstrates unique characteristics and offers a type of residential living not otherwise available in the Shire.” [14]
[14]Ibid p19.
Finally support for the proposed development is allegedly to be found in Rural Objective 5 which is in the following terms:
“To ensure future rural residential use in the Rural Planning Area is appropriately located to minimise adverse impacts.
Assessment Criteria
In the case of a proposal for a rural residential subdivision outside the Rural Residential Planning Area, the following matters are to be addressed:(a)potential impacts on the environmental and conservation values
(b)impacts on scenic amenity and rural landscape values
(c)impacts on existing and future rural industries including extractive industries
(d)logical and natural boundaries to clearly contain the subdivision
(e)all weather access to urban centres”[15].
[15]Ibid.
To underline the appropriateness of the land from a rural residential perspective the co-respondent further emphasises its compliance with the statement in the Structure Plan that any new Rural Residential Areas “will require frontage to a sealed road and connection to a main road via a sealed road” and a reticulated water supply[16].
[16]Ibid p15.
Relevant provisions of the Far North Queensland Regional Plan
The development application giving rise to the proposed development was lodged on 7 April 2008[17]. The FNQRP came into force on 13 February 2009. It is the pre-eminent plan for the FNQ region, which takes in the respondent’s local government area, and it takes precedence over all other planning instruments[18]. It is intended to provide a framework for “the management and development of FNQ for more than 20 years”[19] as was the case with the planning scheme there is a clear theme running through the FNQRP that GQAL should be preserved and rural residential development confined.
[17]Exhibit 43, p2.
[18]FNQRP, p5.
[19]Ibid, release notes.
The land is within the Regional Landscape and Rural Production Area (“RLRPA”) under the FNQRP[20]. The intent for the RLRPA is to protect these areas “from encroachment by inappropriate development, particularly urban or rural residential development”[21]. This is consistent with other provisions in the FNQRP which include that GQAL is “protected for on-going and future agricultural production”[22] and “only utilised where there is an overriding need”[23]. In respect of rural residential development the FNQRP expressly states that future demand for rural residential housing is to be provided “from within the existing stock of land zoned for this purpose”[24].
[20]Exhibit 2, JER – Town Planning, para 54.
[21]Ibid p31.
[22]Ibid p52.
[23]Ibid p53.
[24]Ibid p88.
Relevant provisions of the draft planning scheme
The respondent’s draft planning scheme was on public display from 15 April 2013 to 12 June 2013[25]. In the introduction to the draft planning scheme it is stated that it seeks to advance “state and regional strategies”, including the FNQRP “through more detailed local responses, taking into account the local context” and that it has been prepared with a 10 year horizon but will be reviewed periodically “to ensure that it responds appropriately to the changes of the community at a local, regional and state level”[26]. Consistently with the planning scheme and the FNQRP, GQAL is protected and rural residential development is constrained. For example at para 3.3.13.1 the following specific outcome is stated for rural residential areas:
“No further subdivision occurs within rural residential areas included in the Regional Landscape and Rural Production Area of the Far North Queensland Regional Plan 2009-2031 or constrained by a lack of infrastructure, environmental constraints or inappropriate location”[27].
[25]Exhibit 2, JER - Town Planners, p16.
[26]Exhibit 11, pA2.
[27]Exhibit 11, pSF9.
As part of the planning a review process the respondent commissioned and on 16 December 2009 adopted the Atherton Urban Growth Study[28]. The growth study recommended that an area of approximately 42 hectares to the east of Atherton which is currently designated for rural residential development and not far from the land, be included within the Urban Footprint of the FNQRP which would permit more intensive development of this area[29]. This area was described as Halloran’s Hill in the course of the evidence and the above recommendation is reflected in the mapping in the draft planning scheme[30].
[28]Exhibit 2, JER – Town Planning, para 39.
[29]Exhibit 13, p150.
[30]Exhibit 11A.
Conflicts with the Planning Scheme
When considering whether or not the proposed development is in conflict with the planning scheme the following passage is instructive:
“It is established law that planning schemes are not drawn with the precision of an Act of Parliament and should be construed broadly and in a way which best achieves their apparent purpose”[31].
[31]Tully Sugar Limited v Cassowary Coast Regional Council & Anor [2010] QPEC 41 at par [16].
The starting point is whether the proposed development is consistent with Rural Objective 1 because the co-respondent has demonstrated and “over-ridding, long term community benefit having regard to SPP1/92.” In the planning guidelines relating to SPP1/92 it states that each proposal to be “assessed on its merits to determine the degree of community advantage”[32]. On behalf of the co-respondent it is submitted that there is an over-ridding long term community benefit demonstrated by providing housing for an additional 53 families close to Atherton as opposed to continuing to use the land for agricultural purposes which are limited because it is not irrigated and it is constrained because of the adjoining Mountain View Estate.
[32]SPP1/92, Planning Guidelines, para 4.15.
As a starting point it is necessary to assess the value of the land for agricultural purposes. In this regard to suitably qualified experts Dr Matthew and Mr Thompson gave evidence. They both agreed that the land is classified as being of the highest quality GQAL, namely Agricultural Land Class A.[33] Mr Thompson expressed the view that the land was not constrained to any significant extent and despite the lack of an irrigation entitlement, it was suitable for dry land farming.[34] Dr Matthew conceded that this was the case provided best practice management was utilised.[35] The absence of any significant buffer to residences in the adjoining Mountain View Estate was the subject of some conjecture. I am of the view that prevailing wind conditions are such, that with good farming practices, an adequate buffer can be provided without the loss of significant productive farm land. I am of the view that the land remains suitable for dry land farming despite the absence of an irrigation entitlement. I also accept the evidence of Dr Matthew that any expansion of Atherton indo adjacent areas will in all likelihood result in the loss of GQAL.[36]
[33]Exhibit 15, para 20 and T4-98, l15-20.
[34]Ibid para 23.
[35]T4-74, l40-43.
[36]Exhibit 30.
The other parameter that needs to be assessed is the question of need and this is directly the subject of Rural Objective 4. Firstly evidence was given by two real estate agents, Ms Black and Mr Gava. They each gave evidence of the desirability of the lots the subject of the proposed development and of a particular market for such lots close to the Atherton township. Significant time was taken differentiating the proposed development from other rural residential land within the former Shire of Atherton boundaries. I accept that should the lots the subject of the prospective development come onto the market they will be sold. Indeed Mr Ovenden the planner engaged by the Pensinis conceded as much in the course of cross-examination[37].
[37]T6-88, l29-31.
The question of need is more complex and was the subject of further evidence by two suitably qualified economists, Mr Duane and Mr Brown. Mr Brown estimated that there was currently between 14 and 16 years of supply of appropriately designated rural residential land within the boundaries of the former Atherton Shire[38]. Mr Duane was of the view that there was between 11 and 13 years of supply of appropriately designated rural residential land within the boundaries of the former Atherton Shire[39]. Mr Brown was reluctant to discount his estimate for contingencies such as that land that was appropriately designated would not be used within the foreseeable future rural residential development because the owners did not wish to subdivide their blocks or cease farming activities they currently carried on. In this regard I prefer the estimate of Mr Duane. However both estimates specifically exclude the rural residential land which is currently available in the nearby Halloran’s Hill area. Mr Schomburgk, the town planner engaged by the co-respondent rightly conceded under cross-examination that this land is currently available for rural residential development and that it was reasonable to include it in the stock of rural residential land for the purposes of this exercise[40]. He conservatively estimated that a further 72 hectares of rural residential land was therefore available in this location which had not been taken into account by the economists[41].
[38]Exhibit 14, para 35.
[39]T3-46, l10.
[40]T5-84, l10-25.
[41]T5-86, l20-21.
In the analysis of the various locations where prospective Rural Residential Lots could be developed, I accept evidence which suggests that land at Wongabel to the south of the Atherton CBD is sufficiently different in its characteristics as not to be directly comparable with the proposed development. I also accept that land at Barrine is too distant to be directly comparable and that land at both Tinaroo and Barrine do not have the benefit of being on school bus routes which further differentiates them in terms of their desirability to prospective residents of the former Atherton Shire. Conversely I am satisfied that there is significant land in the vicinity of Tolga which is about 6 kilometres form the Atherton township[42] and the Rangeview Estate which is just outside Toga and this land will be available for rural residential development in the near future. There is also a significant amount of appropriately designated land currently available at Halloran’s Hill.
[42]Exhibit 12, para 34.
The evidence before me suggests that the availability of rural residential lots within the former Atherton Shire is sufficient to meet the long term planning need which the planning scheme envisaged. It is also consistent with the 10 year horizon contemplated in the draft planning scheme. In terms of Objective 4 itself there does not appear to be a genuine community need for the proposed development.
So far as the assessment criteria in a Rural Objective 4 are concerned I am of the view that the proposed development does not satisfy Rural Objective 1 because there is no over-riding, long term community benefit in alienating GQAL, which is viable for ongoing dry land farming for the benefit of future generations, to accommodate an additional 53 families who could be accommodated within areas already designated for rural residential development near the Atherton CBD such as at Halloran’s Hill or Tolga. I am further of the view that the proposed development is not in response to a demonstrated community need evidenced by any of the factors set out in Assessment Criterion (b). An analysis of vacant land sales of rural residential land undertaken by Mr Brown[43] does not suggest that there is a demonstrated community need having regard to the take up rate of lots for permanent housing during the previous three years in the vicinity of the land or in the former shire as a whole. There is nothing about the rate at which existing rural residential lots in the vicinity of the Atherton CBD have been developed or the number of vacant lots in the former shire as a whole which suggests that the proposed development is in response to a demonstrated community need. Turning to Assessment Criterion (c) I accept that the proposed development can be efficiently and effectively serviced. So far as Assessment Criterion (d) is concerned the different rates of demand for rural residential land which exist across the former shire do not demonstrate the requisite degree of need for the proposed development. In considering Assessment Criterion (e) I note that considerable time in the course of the hearing of the appeal was taken up with discussion of the attractiveness of the proposed development to aviation enthusiasts because of the prospect of some lots providing facilities for storing aircraft which can then access the adjacent aerodrome. The same opportunity is available to residents of the adjoining Mountain View Estate and to this extent the proposal does not demonstrate unique characteristics or offer a type of residential living not otherwise available in the former shire.
[43]Exhibit 14, para 34, Table 4.
Turning to Rural Objective 5, it is clear that the proposed development will have impacts on scenic amenity for adjoining residents of the Mountain View Estate. Furthermore the development of 53 rural residential lots on vacant gently sloping farm land will clearly have an impact on rural landscape values in the vicinity of the land.
I am therefore of the view that the proposed development is significantly in conflict with the DEO 3.1 and DEO 3.2 it is also seriously in conflict with the Structure Plan. It does not comply with the relevant provisions relating to the Rural Planning Area discussed above.
Grounds
In Lockyer Valley Regional Council v Westlink Pty Ltd & Ors[44] the Court of Appeal endorsed the three stage test which had previously been propounded in Weightman v Gold Coast City Council[45]. The Weightman test requires me to:
[44][2002] QCA 370
[45][2003] 2 QdR 441.
“1. examine the nature and extent of the conflict;
2.determine whether there are any planning grounds which are relevant to the part of the application which is in conflict with the planning scheme and if the conflict can be justified on those planning grounds;
3.determine whether the planning grounds in favour of the application as a whole are, on balance sufficient to justify approving the application notwithstanding the conflict”[46].
In Westlink Holmes JA in endorsing the above approach stated: “The importance of the ground must depend on what it is, not where it falls in the three-step approach in Weightman”[47].
[46]Ibid p453.
[47]Westlink, OPSIT at para [21].
The respondent and the co-respondent nominate a number of grounds which they submit justify approving the proposed development despite the conflicts with the planning scheme identified above.
Firstly they submit that there is a demonstrated genuine community need for the proposed development which will provide a choice for rural residential living close to Atherton in circumstances where it is desirable to maintain a greater supply of rural residential land in close proximity to Atherton than is currently available. I have already found that there is sufficient suitably designated land in the vicinity available for rural residential development. There is therefore not a demonstrated genuine community need for the proposed development nor is there a need to increase the supply of rural residential land in the close proximity to the Atherton township. The absence of the requisite level of need arises in the context of significant conflict with the provisions of the planning scheme intended to preserve GQAL and restrict rural residential development which have been identified above.
Secondly it is submitted that the land is significantly compromised for agricultural use because of the unbuffered adjacent Mountain View Estate and the lack of an irrigation entitlement and the proposed development will remove any potential land use conflicts by creating a buffer between rural residential development and adjoining agricultural uses. In this regard I have already found that the land is not significantly compromised for agricultural use and utilising good farming practices remains viable for dry land farming. The residents of Mountain View Estate have chosen to live adjacent to unbuffered agricultural land in circumstances where prevailing wind conditions reduce potential land use conflicts. This ground does not justify approval of the proposed development given the GQAL status of the land.
Thirdly it is submitted that the site is a logical location for an expansion of rural residential development given the presence of the Mountain View Estate to the south and the fact that it is bounded also by Tineroo Falls Dam Road and the aerodrome. It is further submitted that an expansion of Atherton will in all likelihood result in some loss of GQAL and the land, having no irrigation entitlement, is more suitable for rural residential development than land with an irrigation entitlement which is rendered more fertile as a consequence. This ground ignores the fact that there is adequate land in the vicinity designated for rural residential development and that there is no need to further reduce GQAL for this purpose at the present time. To the extent that the prospective loss of rural residential land at Halloran Hill is relied upon, this does not appear to be relevant as it remains presently available until the draft planning scheme comes into force.
The respondent and the co-respondent further submit that the proposed development will result in the dedication of a significant drainage reserve and also improve drainage in the locality. This submission ignores the fact that the drainage design is to achieve a “no worsening of flows” for the land[48]. It is insufficient to justify the conflicts with the planning scheme in any event.
[48]Exhibit 8, p24.
Finally, it is submitted that the proposed development will satisfy a need for rural residential development in the vicinity with no negative or adverse impacts and provide and opportunity to aviation enthusiasts to build a house in close proximity to the aerodrome. These grounds do not justify the proposed development in light of the significant conflicts with the planning scheme identified above. So far as aviation enthusiasts are concerned, these are an extremely small group and the preservation of GQAL is something which benefits the community as a whole.
There are very few planning grounds in favour of the proposed development as a whole. Any benefit which may accrue to a small proportion of the community seeking to live in a rural residential estate in this particular location needs to be weighed against the long term benefit to the community as a whole associated with the preservation of GQAL. Not only is there an adequate supply of rural residential land within the shire, but there is also a clear planning strategy to restrict rural residential development and preserve GQAL. The planning grounds in favour of the application as a whole are therefore, on balance, insufficient to justify the proposed development in light of the significant conflict with this strategy which runs through the planning scheme.
Conflicts with the Far North Queensland Regional Plan
As noted above the FNQRP was not in force when the development application giving rise to the proposed development was lodged. It came into force the following year and has now been in force for over four years. It is the pre-eminent plan for the FNQ region and the respondent is required to amend its planning scheme to reflect it. I am therefore of the view that it should be given substantial weight in the determination of this appeal. The proposed development finds no support in the FNQRP. It is in extreme conflict with it and in particular para 3.13.1 quoted above.
Conflicts with the draft planning scheme
Following as it does the FNQRP the drafts planning scheme is equally unsupportive of the proposed development. Any attempt to leverage the proposed development of the more intensive use of the land at Halloran’s Hill for urban purposes ignores the reality of the forward planning intent for the subject site which is that it remain rural land and not developed for rural residential purposes. The draft planning scheme has already been on public notification and should be given weight in accordance with the Coty principle. The proposed development would substantially cut across the intended restrictions on rural residential development where there is GQAL. The Mountain View Estate is an island of rural residential development which as existed since the 1970’s. The draft planning scheme seeks to confine it, not expand it.
Reasonable Expectation
I accept the evidence of Mr Ovenden, that the community would have a reasonable expectation that the land would not be developed for rural residential purposes given the strong policy of restricting residential development and preserving GQAL which was evident in the planning scheme, which continues through the FNQRP and which is evident in the draft planning scheme. The interface between the land and the Mountain View Estate has existed since the early 1970’s in circumstances where the land and surrounding land has been cropped for many years[49]. The proposal is therefore contrary to the reasonable expectation of the community.
[49]Exhibit 16, para 3.5.1.
Conclusion
The proposed development is in serious conflict with the provisions of the planning scheme which seek to protect GQAL and restrict rural residential development. The grounds put forward by the respondent and the co-respondent to justify the proposed development focus upon its desirability for rural residential development in circumstances where insufficient need has been demonstrated to justify the proposed development given the significant conflict with the provisions of the planning scheme dealing with GQAL and rural residential development. The land is viable for dry land farming and with appropriate management practices will continue to be so into the future. The proposed development is also in serious conflict with the FNQRP which should be given significant weight given its status and the period for which it has been in force. The proposed development would cut across the implementation of the draft planning scheme and is contrary to reasonable expectation which is the result of the consistent application of policy in respect of GQAL and rural residential development in the planning scheme, the FNQRP and the draft planning scheme.
It is not the role of the court to interfere with the planning strategies evident in the relevant planning instruments in circumstances where there is already a sufficient supply of rural residential land near Atherton and a supply which accords with the intent of the planning instruments which can be reviewed as part of the statutory planning process as contemplated by them.
I therefore allow the appeals.
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