MacAdam v Moreton Bay Regional Council

Case •

[2012] QPEC 38

•

28 May 2012

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

MacAdam v Moreton Bay Regional Council & Anor [2012] QPEC 38

PARTIES:

ALISTER IAN MACADAM
(Appellant)

AND

MORETON BAY REGIONAL COUNCIL
(Respondent)

AND

TRASK DEVELOPMENT CORPORATION NO. 6 PTY LTD
(Co-respondent)

FILE NO/S:

1166/2011

PROCEEDING:

Hearing of an appeal

ORIGINATING COURT:

Planning and Environment Court, Brisbane

DELIVERED ON:

28 May 2012

DELIVERED AT:

Brisbane

HEARING DATE:

26, 27, 28, 29 March and 2 April 2012

JUDGE:

RS Jones DCJ

ORDER:

1.   The co-respondent’s failure to comply with the public notification requirements of the Integrated Planning Act 1999 is excused.

2.   I will hear from the parties as to the future conduct of the appeal.

CATCHWORDS:

PLANNING AND ENVIRONMENT – proposed residential development adjacent to rural residential land – where appellants operate an orchard on two rural residential lots – where proposed residential development adjoins southern boundary – whether higher density residential subdivision likely to threaten the ongoing operation of existing orchard – whether proposed residential subdivision threatens good quality agricultural land – whether proposed residential subdivision is sufficiently buffered and separated from existing orchard use – whether adequate provision made for park and/or nature reserves – whether proposed development results in conflict with the planning scheme.

Integrated Planning Act 1999 (Qld), ss 3.2.8, 4.1.5A, 4.1.50(2), 6.1.3,
Local Government (Planning and Environment) Act 1990 (Qld), ss 4.11, 4.11(1), 4.11(3), 4.4(5A)
Sustainable Planning Act 2009 (Qld), ss 380, 819

Daley v Redland Shire Council (2005) QPEC 41, approved
Metroplex Management Pty Ltd v Brisbane City Council & Ors (2009) QPEC 110, cited
Webster v Caboolture Shire Council (2008) QPEC 82, cited
Woolworths Ltd v Maryborough City Council (No. 2) [2005] QCA 262; (2006) 1 Qd R 273, applied

COUNSEL:

Mr J. Given for the co-respondent

Mr A. Skoien for the respondent

Mr A. MacAdam appeared in person

SOLICITORS:

Hallett Legal, solicitors for the co-respondent

Legal Services Branch of Moreton Bay Regional Council for the respondent

Mr A. MacAdam appeared in person

Background

  1. This proceeding is concerned with an appeal by Mr MacAdam, against the decision of the respondent council to approve a proposed residential development by the co‑respondent, Trask Development Corporation No. 6 Pty Ltd. 

  1. The co‑respondent intends to subdivide land located on the north-eastern corner of Paradise Road and Lagoon Road, Burpengary, to create 36 residential allotments varying in size from 400 m2 to 1930 m2.  Apart from the two larger allotments, which have been designed to incorporate existing residential dwellings, the lot sizes range from 400 m2 to about 900 m2 and, accordingly, the subdivision will have all the appearances of a typical residential subdivision.  A hatchet-shaped area of land of 1363 m2 is designated as “Park” in the south-eastern corner of the subject land.

  1. The co‑respondent’s development application was lodged with the respondent on or about 11 December 2007.  The co‑respondent requested that the application be assessed against the respondent’s superseded planning scheme.  That request was agreed to.

  1. Notwithstanding the repeal of the Integrated Planning Act 1997 (“IPA”) by the introduction of the Sustainable Planning Act 2009 (“SPA”) on 18 December 2009, this appeal is to be heard and determined as if the IPA had not been repealed.[1]

    [1]Section 819 of the SPA.

  1. Despite the fact that the appellant instigated this appeal, pursuant to s 4.1.50(2) of the IPA, the co‑respondent bears the onus of proving that the appeal should be dismissed.

  1. The appellant and his wife are the registered proprietors of two rural residential blocks, Lots 5 and 17, located to the north of the subject land.  Four of the proposed residential allotments adjoin the southern boundary of the southern-most rural residential block, Lot 17.  To the east of the proposed development, the southern boundary of the appellant’s land adjoins three smaller rural residential allotments that front Paradise Road.  To the west, on the opposite side of Lagoon Road, is a residential subdivision known locally as “Lagoon Road West”.  A small parcel of native timber is located on the north-western corner of Lagoon Road and Paradise Road.  Adjoining the northern boundary of the northern‑most of the appellant’s rural residential blocks, Lot 5, is another proposed residential subdivision known as the “Grape Farm”.  Although approved for development, no meaningful work has occurred on that site.  To the east of the appellant’s land are areas of native scrub and a large aquatic centre under the control of the respondent.  An area of approximately 8,000 m2 was subdivided out of the appellant’s northern rural residential block and sold to his uncle and aunt.

  1. The appellant and his wife have operated an orchard on their land for more than two decades.  The orchard trees are predominantly located on the appellant’s northern block.  However, various orchard trees are also scattered through the western section of the appellant’s southern block.  The appellant’s residence is located on the southern block, as is the orchard’s nursery and machinery shed.[2]

    [2]See generally Exhibit 1, Document 1.

  1. While the major part of the orchard operations of the appellant and his wife are located on the northern block, it is not in dispute that activities directly related to the orchard business are carried out on the southern block.  Particularly in or about the location of the nursery and machinery shed.  These activities include the spraying of mature orchard trees and seedlings and the use of chainsaws and other farm plant and equipment, including large compressors.

  1. It is fair to say that at the centre of the appellant’s concerns about the proposal is that encroaching residential development threatens the long‑term future of the orchard and the ongoing use of good quality agricultural land for farming purposes.

The grounds of appeal

  1. The notice of appeal contained 29 grounds of appeal.  Prior to, and during the course of, the hearing a number of the grounds were abandoned.[3]  By reference to the parties’ written submission and, in particular, those of the appellant, the live issues in this appeal were:

    [3]Grounds 1, 2, 3, 4, 5, 6, 7, 8 (in part only), 11 (in part only), 14, 18, 19, 21, 22, 23, and 28.

(i)          public notification      

(ii)         whether the proposed park dedication was sufficient;

(iii)        various environmental issues and, in particular, the alleged need to provide a koala habitat area;

(iv)       alleged conflicts with the respondent’s planning scheme;

(v)         whether there was sufficient need to justify approval of the development; and

(vi)        good quality agricultural land – appropriate buffers between residential development and legitimate farming operations – the reasonable expectations of the appellant.

  1. A number of these issues overlap to varying degrees, however, I consider it to be a fair representation of the real issues in the appeal.

Public notification

  1. Before turning to the substantive issues raised in the appeal, it is necessary to determine whether the co-respondent had complied with the public notification requirements of the IPA.

  1. That the co-respondent had satisfied the statutory public notification requirements was not challenged by the respondent.  And, save for issues raised by the appellant concerning the respondent’s failure to maintain all relevant documents on its file made available for public inspection, the appellant did not otherwise challenge the co-respondent’s evidence and submissions on the matter.

The alleged non-compliance

  1. Ground 8 of the appellant’s notice of appeal asserts:

“The Respondent Council has no power to decide the application in that proper procedures of the Integrated Planning Act 1997 (Qld) and associated requirements in relation to the public notification of the development application have not been complied with.

Particulars:

The respondent failed to display either in paper based form or on its PD Online site the adverse response of the then Environment Protection Agency, (now the department of Environment and Resources Management), a referral agency.”

  1. The appellant gave evidence to the effect that when he searched the respondent’s public file for inspection, the response from the then Environmental Protection Agency (EPA) was not on it.  An officer of the respondent gave evidence about the usual practices concerning the maintenance of development files available for public inspection.  Her evidence was to the effect that all relevant documents, including the EPA response, would, in the ordinary course of business, be placed and maintained on the file.  The officer also gave evidence to the effect that there was no reason that she was aware of which would suggest that the respondent’s usual practices would not have been adopted in this case.

  1. However, quite appropriately, the officer could not say that at all material times the EPA response was in fact on the file.  On the other hand, the appellant was adamant that on more than one occasion when he inspected the file, the EPA response was not there.  On balance, I accept his evidence about that.

  1. The appellant asserted that he and other interested parties were prejudiced by not having the EPA response available to them at the time they were making their submissions to the respondent.  According to the appellant, access to the EPA response would have given him and others more “clout” with the respondent and politicians.  According to the appellant, the respondent was inclined to dismiss individual lay persons, but more inclined to listen when they were armed with supporting material from a relevant statutory authority.  During the appellant’s final submissions, he relevantly said:[4]

“So, your Honour, what the big disadvantage that we’ve suffered, we’re trying to get the council to do their job.  We don’t – we shouldn’t be required to spend the money and if we’d have had access to that material before the decision was made, we would have the option of making further submissions to the officers but, most particularly, as we – well, as can be done and you might say it’s evidence from the Bar table, as we’ve done in the past, we’ve gone and lobbied councillors and said this is not [just] us. … Well, your Honour, the evidence that is before you in those minutes and, my submission to you, that that submission on page 2360 in no way deals in a professional manner with the EPA report and, indeed, my and other people’s submissions to the council.”

[4]T5-72 LL 28-52.

  1. The reference to page 2360 is a reference to the extracts from the respondent’s coordination committee meeting dated 5 October 2010.[5]  The EPA response[6] identifies various flora species, the proximity of the subject land to wetland areas and the existence of koalas and the wallum froglet.  It is, however, also clear from those minutes that, in his meeting with the council, the appellant was able to identify what he contended to be the dominant tree species (albeit by their more generic names), that the subject land was an existing koala corridor and that the locality was a known habitat for endangered species, including the wallum froglet and koalas. 

    [5]Exhibit 18.

    [6]Exhibit 1, pp 70-71.

  1. In circumstances where the appellant was able to clearly articulate his environmental concerns, it is difficult to conceive how the EPA report would have added any further material weight to his cause. That is particularly so in circumstances where the proposed development was consistent with the respondent’s planning scheme, was supported by a detailed ecological assessment report and the EPA did not oppose the development subject to suitable buffers and stormwater management.

  1. Therefore, while I accept that there probably was a failure on the part of the assessment manager to fully comply with the public scrutiny requirements of s 3.2.8 of the IPA, the evidence establishes that no material prejudice has been suffered by the appellant or any other interested member of the public.

  1. Section 820 of SPA[7] provides that in an appeal such as this, the court may deal with non‑compliance in the way it considers appropriate.

    [7]Section 4.1.5A of the IPA provided similar (but not identical) excusatory powers.

  1. In circumstances where no material prejudice exists, it would not be appropriate to effectively return this development application back to the public notice phase.  The non‑compliance should be excused.

Park

  1. A hatchet-shaped block containing an area of 1363m2 is designated as park within the proposed development.  This area is located at the south-eastern corner of the subject land and has access to the north, via a yet-to-be constructed road and, to the south via a narrow hatchet access to Paradise Road.  In truth, the majority of this parcel will be utilised for stormwater detention.  The appellant was probably correct when he stated that this area would be unlikely to be suitable for any meaningful recreational activities.  Mr Ovenden, the town planner relied on by the respondent, gave evidence that expansion of this park to the east was likely when further subdivision occurred along Paradise Road to the east.  That may be so, but there is no evidence that that land will be developed in the foreseeable future and there are also topographical issues which may make an expansion to the east impractical.

  1. In support of his argument that 10 per cent of fair-average land ought to be dedicated as park, the appellant contended that:[8]

    [8]Appellant’s written submissions, p 2.

(i)          the proposed so‑called “park” does not provide any meaningful recreation area;

(ii)         to allow the co‑respondent to dedicate such a limited area for park would be to give it an unfair advantage when compared to other developments in the area.  And, in particular, when compared to the area required to be dedicated for park in the Lagoon Road West development;

(iii)        the payment of a financial contribution in lieu of dedicating 10 per cent of fair-average quality land would result in a “boon” to the co‑respondent “for which the residents, particular [sic] those on small blocks will bear the cost.”

  1. None of these matters justify the requirement that the co‑respondent dedicate 10 per cent of fair-average land.

  1. Pursuant to Clause 20 of Part 4 of Chapter 33 of the superseded planning scheme, the respondent had the discretion to accept a financial contribution in lieu of park dedication.[9]  The appellant accepts that such a discretion exists, but contended to the effect that the discretion miscarried by virtue of the matters referred to above.  In particular, the appellant contended that when the respondent considered his submissions on this issue, it proceeded upon a mistake of fact.  The respondent’s response is recorded in its coordination committee meeting minutes dated 5 October 2010,[10] where it is recorded in part:

“The Superseded Planning Scheme requires a 10% land dedication for Park or the payment of a monetary contribution for all developments where lots are being created.  It is noted that the current Caboolture Shire Plan does not identify ‘trunk’ park on the subject site however, the sports and recreation facility containing the ‘Aquatic Centre’ located in proximity, is identified as an existing and future trunk infrastructure.  In addition a conservation estate is located opposite the site on Lagoon Road.

The proposed development includes 1363m2 of Park, although the majority of the Park will be utilised for stormwater detention.  A full land dedication is not considered appropriate in this instance given the extensive open space and the recreational opportunities available in proximity to the site.  It is more appropriate to take a monetary contribution that can be used to improve park facilities in the locality.  In accordance with the Open Space Planning Policy, a monetary contribution will be required, with a partial credit applicable for the proposed park.” (emphasis added)

[9]Exhibit 1, p 497.

[10]Exhibit 18, p 10/2360.

  1. The appellant contended that the respondent, when it made that decision, failed to appreciate that those areas identified for “open space and recreational opportunities”, which lie to the west, south and east of the subject land, are for the most part heavily timbered and provide no opportunity for sporting activities such as cricket, football, etc.

  1. It might be true that the existing open space close to the subject land is not suitable for sporting activities but that is not a significant negative outcome in the circumstances of this appeal.  The existing and planned open space areas will provide adequate parkland areas in the vicinity.  Mr Bews for the appellant, Mr Fingliss for the co‑respondent, and Mr Ovenden for the respondent, agreed that there is sufficient parkland planned for the locality and a condition requiring a monetary contribution was a reasonable and relevant requirement of the proposed development.[11]

    [11]Joint Experts Report, Exhibit 1, pp 672-673, at para 6.5.1 and 7.0.1. 

  1. While the appellant was correct when he submitted that the adequacy of parkland in a locality is not the sole province of experts and that long-term residents would also be able to provide probative evidence on the issue, in the circumstances of this case, I find the unanimous evidence of the three town planners compelling.

  1. There is no basis for concluding that the respondent should not have accepted a monetary contribution in lieu of more park area.

Environmental issues

  1. The appellant contended that if the court was to conclude that the co‑respondent was not required to dedicate 10 per cent of fair-average land then, in the alternative, a development condition ought be imposed requiring the co‑respondent to retain as much native vegetation over the site as possible.  Under the heading “The Trees”, the appellant in his written submissions stated:[12]

“Seek a condition identical with condition 14(a)(v) for Lot 11 – Retention of significant indigenous vegetation where possible, Exhibit 15 and MBRC Booklet Habitat Trees, Exhibit 8.”

[12]At p 2.

  1. The condition to which the appellant refers is one that required that developer to retain significant indigenous vegetation where possible.  That proposed development is immediately to the north of the appellant’s land and known as the “Grape Farm”.  While the subdivision has been approved, it has yet, for reasons unknown, to be developed.

  1. I am prepared to accept that the vegetation over the Grape Farm site would be very similar to the native vegetation on the appellant’s land and on the subject land.  I also accept the appellant’s evidence that koalas have been seen from time to time throughout these areas.

  1. On 22 April 2008, the then EPA, acting as an advice agency under the Integrated Planning Act 1997, provided advice that the subject proposed development is situated in an area dominated by various flora species and was proximate to wetland areas of significance.  It was reported that:[13]

    [13]Exhibit 1, p 71.

“The wetland is State significant under the Biodiversity Planning Assessment 3.5 (BPA) and is core habitat for species including the wallum froglet … and the koala, and is also non-core habitat for the acid frogs …”

The EPA report went on:

“Issue

Any development in this locality would need to ensure that any edge effects of the surrounding RE is mitigated through an adequate vegetated buffer.  The Caboolture Shire Plan 2005 requires a 20m butter between development and significant vegetation, which the EPA supports.  Any clearing of native vegetation is not supported.

A stormwater management plan has not been submitted.  Any stormwater leaving the site in the construction and operation phase of the development would need to ensure compliance with Environmental Protection Policy (Water) 1997.

Recommendations
Approval would require,

·     A 20m buffer between the development and the RE to the south.

·     A stormwater management plan … .” (emphasis added)

  1. The co‑respondent provided an acceptable stormwater management plan during the approval process.  The “RE to the south” is a reference to the designated and preserved habitat area opposite the subject land to the south of Paradise Road.  It is uncontroversial that the Paradise Road reserve, which is only partly cleared, together with development setbacks on those proposed lots fronting Paradise Road, would provide a 20m buffer between development and that environmental reserve. 

  1. In response to the environmental issues associated with the proposed development, the co‑respondent had prepared and delivered to the respondent an ecological assessment report which, after what appears to be an extensive analysis, concluded:[14]

“The proposed layout is consistent with Moreton Bay Regional Council’s envisaged land use intent.  Vegetation located outside of the proposed park area will not be able to be retained due to the proposed allotment sizes and the necessary exclusion zones which will be required to retain such trees.  Currently the site provides a small portion of foraging habitat for common endemic and exotic fauna species.  The loss of the site’s current vegetation will have an insignificant impact on local fauna.  The loss of this vegetation will further severe the fragmented connectivity between areas to the south and north of the site along Lagoon Road.  Coupled with the approved development to the west there will be little scope to provide a connective link within these areas.

The boundary fencing currently excludes large terrestrial mammals such as macropods and koalas from accessing the site’s habitat features.  Given this, there will effectively be no further habitat lost for such species.”

[14]Exhibit 1, p 532.

  1. The conclusions reached in this report are, at least to an extent, corroborated by other documents.  For example, the subject land is not identified within any koala conservation area[15] and is not included in any areas identified as containing vegetation of real significance.[16]  Further, the subject land is not identified as a “nature conservation” area within the then Caboolture Shire Council’s Strategic Plan.[17]

    [15]Exhibit 1, Document 5.3.

    [16]Exhibit 1, Documents 6.1, 6.2, and 6.3.

    [17]Exhibit 1, Document 6.4 at p 450.

  1. The respondent, after having regard to the ecological assessment report provided by the co‑respondent and other material, determined that environmental concerns and, in particular, clearing of the site was not a sufficient ground for refusing the application.  However, the respondent did recognise that conditions ought be imposed to regulate the clearing.  In its coordination committee meeting of 5 October 2010, the respondent concluded:[18]

“Conditions of any approval would recommend that fauna spotter/catchers be employed during the clearing of vegetation and temporary exclusion fencing be utilised to delineate the vegetation to be removed.”

[18]Exhibit 18, p 10/2360.

  1. These recommendations were taken up in the respondent’s negotiated decision notice in Conditions 20 and 21.[19]

    [19]Exhibit 1, p 246.

  1. While I accept that the vegetation over the subject land is capable of providing a habitat for koalas from time to time (despite boundary fencing) the evidence to which I have referred, which was largely uncontradicted save for the appellant’s sightings of koalas, supports the conclusions reached by the respondent.  That the conditions imposed over the proposed use are not in identical terms to those imposed on the Grape Farm development is of no real significance.  Each case has to be treated on its own merits and there is no reason to conclude that the conditions imposed are not adequate.

  1. In this regard, it is also of some relevance that the conditions imposed on the Grape Farm development were the result of negotiations between the developer, the respondent and the appellant in this case and his wife, Margaret Leanne Hawes.  As I understand it, the respondent did not originally require a clearing condition of the type prescribed in the consent judgment of 12 September 2008.[20]

    [20]Exhibit 15.

Alleged conflicts with the planning scheme

  1. A number of matters raised by the appellant overlap with, or are also relevant to, this aspect of the appeal.  However, where they have been given significant emphasis by the appellant (i.e., parks, environmental issues, good quality agricultural land and buffers) they have been dealt with individually.

  1. Under the respondent’s superseded planning scheme, the subject land was included in the Rural Residential Zone and, under the superseded Strategic Land Use Plan, was designated for residential uses.[21]  Under the South-East Queensland Regional Plan, the subject land was included within the urban footprint.

    [21]Exhibit 1, p 520.

  1. The relevant planning documents make it sufficiently clear that the subject land and its immediate environs were earmarked for future small lot residential development.  This was recognised by all of the town planners called, including Mr Bews, the town planner relied on by the appellant.  In the joint report of the three town planners, after considering all of the relevant planning documents, they concluded under the heading “Summary of Areas of Agreement and Disagreement” that: [22]

    [22]Exhibit 1, pp 672-673.

“There is agreement between the experts in the following areas:

·The proposal is consistent with the provisions of the Strategic Land Use Plan and Development Control Plan No. 2 of the Superseded Planning scheme;

·…

·The disagreement arises principally with respect to the interface between the proposed subdivision and the existing and potentially expanded operation of the appellant’ orchard on adjacent land to the north.”

  1. The opinions expressed by the town planners in their respective reports and joint report were consistent with their evidence in the witness box.  I agree with their conclusion that the proposed development is not in conflict with the respondent’s superseded planning scheme.  For there to be a genuine conflict with the planning scheme, there must be some real and identifiable variance or disagreement with it.[23]  That is not the case here.

    [23]Woolworths Ltd v Maryborough City Council (No. 2) (2006) 1 Qd R 273; also Webster v Caboolture Shire Council (2008) QPEC 82 at [110].

Need

  1. The respondent’s superseded planning scheme is a transitional scheme within the meaning of s 6.1.3 of the IPA and, accordingly, the subject development application had to be assessed under the assessment regime prescribed under the Local Government (Planning and Environment) Act 1990. Relevantly, pursuant to s 4.11 of that Act (involving as it does an application for both rezoning and subdivision), the application must be refused if it conflicts with any relevant strategic plan or development control plan and there are no sufficient planning grounds to justify approving the application despite the conflict.[24]

    [24]Sections 4.11(1), 4.11(3), 4.4(5A) of the Local Government (Planning and Environment) Act 1990.

  1. In circumstances where I have found that the proposed development does not conflict with any relevant strategic plan or development control plan, the question of need does not arise.  However, as the appellant has placed some emphasis on the issue, I consider it appropriate to deal with it, albeit briefly.

  1. The appellant contended that there is no need for any further residential land in the subject locality.  In this regard, he pointed to earlier advice by the respondent and to the slow rate of building on the Lagoon Road West subdivision and the lack of any development activity on the Grape Farm site.

  1. As to the first of these matters, on or about 10 June 2005, the then Caboolture Shire Council advised Jones Flint and Pike, a firm then retained by the appellant, that an analysis of residential land did not identify a need to make his land available for urban residential development within “the life of the shire plan”.  As I understand it, that was 2016.  That response came about as a result of an application made on behalf of the appellant, contending that the future growth needs of the shire required his land to be identified and designated within the strategic plan as urban residential land.[25]  Given the passage of time since 2005, the then Caboolture Shire Council’s opinions about population growth cannot be given much weight.

    [25]Exhibit 4, pp 36-37.

  1. As to the other anecdotal evidence relied on by the appellant, it is simply unclear as to the underlying reasons for lack of progress.  On the other hand, Mr Ovenden, the town planner relied on by the respondent, was adamant that there was a need for smaller residential land in the subject location.[26]  I accept his evidence on this issue.

    [26]T4-22 LL 20-45.

Appropriate buffers, good quality agricultural land and the appellant’s legitimate expectations

  1. I have linked these issues because that is essentially the way the appellant conducted his case and presented his final written submissions.

  1. According to the appellant, a buffer of in the order of 30‑40 metres needs to be provided along the northern boundary of the proposed development to provide a sufficient separation between his orchard activities and residential development.  The current buffer condition requires the co‑respondent to provide a 3-metre wide buffer (which is to be heavily vegetated) and a 1.8m high solid timber fence.  It was accepted by Mr Given, counsel for the co‑respondent, that, consistent with other buffers in the area, it would also be appropriate that the three metre buffer be mounded to a height of one metre.

  1. According to the appellant, the proposed buffer is not wide enough and, almost inevitably, complaints will be made about his farming activities and pressure brought for him and his wife to close down their orchard business.  It is of significance to the co‑respondent that a buffer in the order of that contended for by the appellant could result in the loss of four residential allotments.

  1. In support of his case, the appellant contended that his land was good quality agricultural land (GQAL) for the purposes of State Planning Policy 1/92 (“SPP1/92”)[27] and its associated Planning Guidelines: The Identification of Good Quality Agricultural Land (“the Identification Guidelines”)[28] and Planning Guidelines: Separating Agricultural and Residential Land Uses (“the Separation Guidelines”).[29]  And, as a consequence, consistent with the separation guidelines, a vegetation buffer of in the order of 30‑40 metres was required.  A buffer of 40 metres is recommended under the Separation Guidelines as being a minimum requirement.[30] 

    [27]Exhibit 4, p 43.

    [28]Exhibit 14.

    [29]Exhibit 1, p 727.

    [30]Exhibit 1, p 741, para 3.10.

  1. It is uncontroversial that in the event of conflict between SPP1/92 and the guidelines, the former prevails.

  1. When the appellant initially raised this issue with the respondent, it was rejected on the basis that his land was not GQAL for the purposes of SPP1/92.[31]  This decision is consistent with the then Caboolture Shire Council’s GQAL Overlay Map,[32] which excluded the appellant’s land and other smaller lots in the vicinity, including the subject land, from designated arable and limited arable land use areas.

    [31]Exhibit 18, p 10/2359-60.

    [32]Exhibit 1, p 451.

  1. The evidence, however, makes it tolerably clear that, but for the deliberate policy decision to exclude this area of land from that overlay map, it would likely have been classified GQAL.  To put it another way, there is no basis for concluding that the appellant’s land did not satisfy the definition of GQAL in paragraph 2.1 of the Identification Guidelines.

  1. It is also clear from the relevant GQAL documents that SPP1/92 is concerned not only with protecting GQAL from being destroyed by urban development (e.g. subdivision) but also with protecting existing rural uses from the threat of being forced to close because of the spread of urban development.[33]

    [33]E.g. Separation Guidelines, Exhibit 1, pp 732-733, paras 1.3, 1.5, 1.6, 1.8 and 1.11.

  1. Regardless of the commercial viability of the orchard business, there is no doubt that the appellant and his wife run a bona fide agricultural activity, which includes the use of sprays and various plant and equipment.  The evidence is that the bulk of these activities tend to occur on the northern part of the appellant’s land (Lot 5) where the main orchard is located but, nonetheless, they also occur on the southern part of his land (Lot 17).  Particularly in the vicinity of the nursery and the machinery shed which are located very close to the common boundary with the subject land.

  1. It is also clear that the appellant uses best practices in the use of herbicide and insecticide sprays.  However, as the Planning Guidelines recognise,[34] people’s concerns about the use of agricultural sprays are as much to do with perceptions of risk to health as reality.

    [34]At para 1.11.

  1. Prima facie, SPP1/92 and the Planning Guidelines tend to support the appellant’s argument that a buffer of 30-40 metres is appropriate.

  1. However, the Planning Guidelines recognise that, in certain circumstances, the future development of land should be assessed on its respective town planning merits, without reference to agricultural issues.  The guidelines relevantly provide:[35]

    [35]Exhibit 14, paras 4.2 and 4.4.

“Assessing Planning Applications

…

Land committed for non-rural development or sub-division

4.2There will be instances where the subject land is effectively committed for development or subdivision by the planning scheme.  Such a commitment would comprise the following:

·     an unequivocal inclusion of the site in an area depicted for non-rural uses in a strategic plan or DCP, where development approval is not contingent upon consideration of the agricultural land quality; or

·     the inclusion of the subject land in a zone which permits non‑rural uses ‘as-of-right’; or

·     a sub-division proposal which exceeds or meets the minimum lot size prescribed by the Planning Scheme for the zone, and there is no discretion to raise the minimum size.

…

·     any proposal on sites ‘committed’ as defined above should normally be considered on their planning merits without reference to the agricultural issues.  In these circumstances, an agricultural land quality assessment would clearly be unnecessary.”

The reference to non‑rural uses includes for the purposes of the Planning Guidelines rural residential land use.

  1. The appellant contended that his land had, at no material time, been “committed” for the purposes of the Planning Guidelines.  In this regard, he contended to the effect that over many years the respondent and its predecessor has had various plans and policies for his land (and the more immediately surrounding land), but none of those plans or policies amounted to a commitment for the purposes of the guidelines.[36]

    [36]T5-48 – T5-55.

  1. With all due respect to the appellant, the evidence is quite clear that for a number of years his land and surrounding smaller parcels of land, including the subject, have been earmarked for higher density residential development.

  1. Under the superseded planning scheme, the appellant’s land was zoned rural residential: a use considered not to be a rural use for the purposes of the Planning Guidelines.  The subdivision of rural residential blocks into smaller rural residential style blocks was not supported by the respondent’s predecessor under the Preferred Dominant Land Use of its Development Control Plan.  The appellant’s land was also identified for residential development in the then council’s Strategic Plan Preferred Dominant Land Use Intent[37] and was included in the urban footprint of the 2009 South-East Queensland Regional Plan.  There is ample evidence to support the opinion of Mr Bews that:[38]

“Mr Bews agrees that the site’s Rural Residential Restricted preferred dominant land use clearly indicates a planning intent that the land is not to be developed for further rural residential development.  He concurs that the planning intent is for the site to be developed in the future for residential purposes in line with Strategic Land Use Plan’s preferred dominant land use intent.”

Mr Bews’ opinion was consistent with the evidence of the other town planners.[39]

[37]See Exhibit 1, pp 520 and 679.

[38]Joint Experts Report, Exhibit 1, pp 668-669.

[39]Joint Experts Report, Exhibit 1, pp 668-669.    

  1. The evidence on these issues leads me to conclude that the respondent and indeed the three town planners in this case were correct in determining that the operation and effect of the Separation Guidelines were not directly relevant to this appeal. 

  1. This conclusion raises no issues of conflict between the application of SPP1/92 and the various guidelines to which I have referred.

  1. That the Separation Guidelines do not apply of course does not mean that no buffer is required between the appellant’s land and the proposed development.  The question to be decided is just what sort of buffer is appropriate in this case.  In this regard, I accept that the appellant’s activities could create a nuisance from time to time for the residents of those lots closest to his southern boundary and that the appellant’s use of his land is a lawful one that could be expanded or indeed converted into a more intensive form of agricultural use.

  1. It is more likely than not that when the respondent was considering an appropriate buffer between the appellant’s land and the proposed development, it proceeded on the basis that “no existing commercial agricultural activities” were conducted on the appellant’s land.[40]  That was an error on its part.

    [40]Exhibit 18, p 10/2359.

  1. Mr Ovenden expressed the view that most, if not all, of the activities carried out by the appellant were typical of what occurred in rural residential subdivisions throughout south-east Queensland.  While there might be some merit in this observation, it was not supported by reference to any actual examples.  On balance, while I consider the activities carried out by the appellant and/or his wife would occur from time to time on many rural residential blocks, it is likely to be more intense than is typically the case.

  1. None of the town planners fully appreciated the level of agricultural activities being carried out on the appellant’s southern block, even Mr Bews.  However, Mr Ovenden and Mr Bews did recognise that more intensive agricultural uses, including expanding the existing orchard, was a relevant matter to be considered in regard to determining an appropriate buffer.[41]

    [41]Exhibit 1, Joint Experts Report, p 670, para 6.2.10 (Mr Ovenden), para 6.2.8 (Mr Bews).

  1. In the town planners’ joint report, Mr Bews expressed the opinion that, in addition to the proposed 3 metre vegetated and fenced buffer, a further permanent or temporary buffer ought be provided.[42]  As I understand it, this would be achieved by effectively sterilising proposed Lots 25, 26, 27 and 28 from development until such time as the appellant’s land was developed for residential purposes.

    [42]Exhibit 1, Joint Experts Report, p 670, paras 6.2.8-6.2.9.

  1. In court, Mr Bews agreed that the proposed buffer would provide a satisfactory separation, given the appellant’s present level of use.[43]  However, it was sufficiently apparent that he was still concerned that, in the event that the appellant (or anyone else) exercised their lawful right to expand the existing use or introduce a more intensive use, the existing buffer might not be sufficient.  It would, according to Mr Bews, be a matter “that would need to be explored further.”[44]

    [43]T2-87 LL 12‑20; T3-3 LL 40‑50.

    [44]T2-87 LL 25-32.

  1. Perhaps, initially on the mistaken belief that SPP1/92 and the Separation Guidelines applied in this case, Mr Fingliss was also initially of the opinion that a temporary buffer was appropriate.[45]

    [45]Exhibit 1, Joint Experts Report, p 689, paras 6.2.1-6.2.3.

  1. During cross-examination by the appellant, Mr Fingliss expressed the opinion that the buffer between the appellant’s northern bock and the proposed Grape Farm development of 40 metres was appropriate.  That was because that was where the substantive part of the appellant’s orchard was situated.  Mr Fingliss did not agree that a similar buffer was required on the subject land at the appellant’s current level of use.[46]  However, he seemed to accept that it might be appropriate to consider some form of temporary buffer to accommodate “reasonable expansion” of the existing use.[47]

    [46]T3-69 LL 1-15.

    [47]T3-73 LL 10-20.

  1. Mr Ovenden in the joint report and his later report expressed the opinion that the respondent’s buffer requirements were appropriate to accommodate the appellant’s existing use of the land and any further expansion.[48]  Mr Ovenden reached that conclusion on the presumption that the appellant’s southern block would continue to “effectively operate as a buffer”.

    [48]Exhibit 1, Joint Experts Report, pp 670-671, paras 6.2.10-6.2.13; also Exhibit 1, p 854, para 2.6.1.

  1. Mr Ovenden’s opinion did not alter during cross‑examination.  However, on balance, I consider that his approach failed to have sufficient regard to the extent of the existing agricultural use on Lot 17 and the potential to expand and intensify the level of agricultural activity taking place on the appellant’s land.

  1. That the proposed buffer is probably sufficient to ameliorate the existing level of use is not a sufficient answer in my opinion.  This became apparent during the oral testimony of Messrs Bews and Fingliss in particular.  In fact, when the whole of the town planning evidence is looked at objectively, it was not particularly compelling on this issue.

  1. That such a situation arose was not entirely surprising.  In their joint report, all of the town planners stated that the determination of an appropriate buffer was a matter more appropriately addressed by “another” or “other” expert.[49]  Mr Bews maintained that position in his later report[50] and Mr Fingliss gave evidence that while there may be some need for a temporary buffer, he could not comment on what would be an appropriate width and size.[51]

    [49]Exhibit 1, Joint Experts Report, p 669, para 6.2.3 (Mr Fingliss); p 671, para 6.2.13 (Mr Ovenden); p 670, para 6.2.9 (Mr Bews).

    [50]Exhibit 1, p 781, 3rd para.

    [51]T3-73 LL 10-20.

  1. It should be made clear that the reference to another expert in this context is not a reference to the risk of bushfires.  Bushfire risk was dealt with as a discrete issue by the town planners.[52]  The reference to the need for further expert advice was in respect of the potential adverse impacts on residential amenity caused by the appellant’s agricultural activities.[53]

    [52]Exhibit 1, Joint Experts Report, p 672.

    [53]Exhibit 1, Joint Experts Report, p 669, paras 6.2.1-6.2.3 (Mr Fingliss); p 670 paras 6.2.7-6.2.9 (Mr Bews); p 671, para 6.2.13 (Mr Ovenden).

  1. Unfortunately, no other expert witness was called by the respondent or co-respondent to fill this evidentiary gap.

  1. While not conclusive on the matter, the evidence of Messrs Bews and Fingliss strongly suggests that there is a risk that the proposed buffer may not be adequate.  Mr Ovenden’s support for the proposed buffer is, in my respectful opinion, overly optimistic.

  1. As I have said, Mr Fingliss could not say what would be an appropriate width and size of a suitable buffer.  Mr Bews in his report stated:[54]

“Whilst it is ultimately a matter for the court, in my opinion, the proposal should include reasonable and relevant conditions to assess the need for a buffer or alternatively include a sub stage [Lots 25, 26, 27 and 28] as a temporary buffer until the appellant’s land is developed for urban purposes.”

[54]Exhibit 1, p 782.

  1. What Mr Bews meant by “… reasonable and relevant conditions to assess the need for a buffer …” was not made clear.

  1. However, the evidence is sufficient to establish that it would not be reasonable to require the co‑respondent to designate the whole of that area occupied by proposed Lots 25-28 as a buffer.   Nor would it be reasonable to effectively freeze the sale of those lots until the appellant’s land is developed for residential purposes.  On the appellant’s evidence, that could be decades.  In this context, the maintenance issues raised by Mr Ovenden are also relevant.[55]

    [55]Exhibit 1, p 855, para 2.6.4 and T4-81 LL 15-25.

  1. That an effective 30‑40 metre buffer has been provided on the Grape Farm to separate the appellant’s orchard[56] is of no real probative value.  The “Park Stage 2” located in the south-western corner of the Grape Farm site separates future residential development from the most intensive use of the appellant’s land.  The evidence also makes it tolerably clear that the appellant’s southern block (Lot 17) is unlikely to be developed to the same level of intensity as Lot 5 in the foreseeable future, notwithstanding access to a supply of water from the aquatic centre to the east. 

    [56]See Exhibit 1, p 409.

  1. It is also relevant in this regard that the respondent did not originally require a buffer of the magnitude now proposed on the Grape Farm site.  Where two residential lots were to be located near the orchard on Lot 5,[57] a buffer of about 20 metres was required, being approximately 20 metres of proposed road (Figtree Court), including a 1.8 metre solid timber fence on the southern boundary of the proposed road.[58]

    [57]Lots 1 and 14, see Exhibit 1, p 381.

    [58]See Exhibit 1, pp 337 and 381.

  1. The proposed buffer described as “Park Stage 2” on the Grape Farm site is the result of a negotiated compromise between the parties involved in appeal BD 688/2007.[59]  As the appellant acknowledged, the inclusion of that “park” area was an incentive for him (and others) to withdraw their opposition to the proposed development.[60]

    [59]Exhibit 1, p 382.

    [60]T2-71 LL 10-20.

  1. For the reasons given, while I am satisfied that the development application should not be refused, I am not satisfied on the evidence as it presently stands that the proposed buffer along the northern boundary is adequate.  However, the evidence of the town planners, particularly that of Messrs Bews and Fingliss, leads me to conclude that with the advice of the expert (not yet identified) they had in mind when they wrote their reports and gave evidence, the uncertainty surrounding the adequacy of the proposed buffer could be readily resolved.  Apart from my concerns about the proposed buffer, there are no grounds for upholding the appeal.

  1. During final submissions I was referred to the judgment of Robin QC DCJ in Daley v Redland Shire Council & Anor.[61]  While it had no direct relevance to this case, I respectfully consider there to be merit in the practical way his Honour dealt with the remaining uncertainty in that case.[62]  Accordingly, the parties are invited to consider these reasons and to approach the court in the future to finally resolve the remaining issue of the buffer along the northern boundary of the proposal.  If consensus between the parties is not able to be achieved, I will hear from the parties as to the future conduct of the appeal.

    [61][2005] QPEC 41.

    [62]At paras [40]-[43]. See also Metroplex Management Pty Ltd v Brisbane City Council (2009) QPEC 110 per Rackemann DCJ.

  1. For the reasons given, the orders of the court issue:

1.The co-respondent’s failure to comply with the public notification requirements of the Integrated Planning Act 1999 is excused.

I will hear from the parties as to the future conduct of the appeal.2.   


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Daley v Redland Shire Council [2005] QPEC 41