Mantle v Sunshine Coast Regional Council
[2015] QPEC 30
•17 July 2015
PLANNING AND ENVIRONMENT
COURT OF QUEENSLAND
CITATION:
Mantle v Sunshine Coast Regional Council [2015] QPEC 30
PARTIES:
GODFREY NORMAN MANTLE AND DEBORAH MANTLE
(appellant)v
SUNSHINE COAST REGIONAL COUNCIL
(respondent)FILE NO/S:
4676/12
PROCEEDING:
Appeal
ORIGINATING COURT:
Brisbane
DELIVERED ON:
17 July 2015
DELIVERED AT:
Brisbane
HEARING DATE:
28 May 2015
JUDGE:
Rackemann DCJ
ORDER:
Appeal allowed
CATCHWORDS:
PLANNING AND ENVIRONMENT – appeal against refusal of request to extend a development approval – where approval was dated, but had recently been changed to achieve consistency with current laws and policies – where changes in ownership of properties in locality – weight to be given to likelihood of further submission rights being exercised if a further application was required.
COUNSEL:
D Gore QC & B Job for the appellant
M Batty for the respondent
SOLICITORS:
Norton Rose Fulbright for the appellant
Sunshine Coast Council Legal for the respondent
This appeal is against the Council’s refusal of a request to extend the relevant period of a development approval for a tourist accommodation facility at Tidswell Road on a site, much of which is cleared, on the shores of Lake Weyba. The approved site plan depicts 24 accommodation units scattered across the eastern portion of the land; a reception building incorporating a restaurant and spa; a manager’s residence and other ancillary facilities. A community management scheme is contemplated.
Conditions of the approved development required, amongst other things:
(a)the number of guests at any one time are not to exceed 108;
(b)a 100m buffer strip adjoining the lake is to be dedicated and replanted with locally endemic species;
(c)landscaping and maintenance of the site and buffer;
(d)existing vegetation of significance within the "Endangered RE 12.5.3" is to be retained; where retention is not possible, further consultation is required;
(e)on-site sewerage treatment and disposal is to be undertaken in accordance with a 2002 Gilbert and Sutherland report;
(f)roadworks, involving the construction of Tidwell Road to the site, including the intersection with Eumeralla Road are required before commencement of the use; and
(g)the construction and operational phases of the proposal are to be the subject of an approved Environmental Management Plan.
The development approval is quite dated. It was granted by order of this court on 16 August 2004 as a consequence of the resolution of 2 submitter appeals. Its life has previously been extended by reason of an order of this court on 17 June 2010. A further extension is now sought.
Section 388 of the Sustainable Planning Act (SPA) provides that the assessment manager must only have regard to the following:
(a)the consistency of the approval, including its conditions, with the current laws and policies applying to the development, including, for example, the amount and type of infrastructure contributions, or charges payable under chapter 8, parts 2 and 3; and
(b)the community's current awareness of the development approval; and
(c)whether, if the request were refused –
(i)further rights to make a submission may be available for a further development application; and
(ii)the likely extent to which those rights may be available for a further development application; and
(d)the views of any concurrence agency for the approval given under section 385.
As for (d), the Department of Environment and Heritage Protection advised, by letter dated 29 June 2012, that it had no objection to the extension.
The request for an extension was refused by the Council. Its reasons for refusal were notified in the course of the appeal and may be summarised as follows:
(a)the extent of compliance with SEQ Koala Conservation State Planning Regulatory Provisions - in particular Division 7 - Development in a Koala Assessment Development Area; and SPP3/11 Part C, Sections 2 and 3 and Annexure 2;
(b)compliance with the general land use and development codes in Maroochy Plan 2000 relating to development in bushfire areas;
(c)the precinct intent in Maroochy Plan 2000 for Planning Area No. 25 Northern Coastal Plains within Precinct 6 - Lake Weyba Catchment Area (Water Resource Catchment Area). Particulars were later provided which referred to a concern that the existing conditions did not adequately address the environmental values of the site, in particular areas of remnant vegetation and "of concern" regional ecosystems, and an area of essential habitat;
(d)the existence of potential Acid Sulphate Soils; and
(e)community awareness of the approval. By way of particulars, mapping was provided depicting property sales around the land since 1999, and correspondence from "Friends of Lake Weyba Inc" dated 29 August 2013 was referred to.
Upon receipt of those grounds, the appellant entered into negotiations with the Council seeking to address the grounds summarised in paragraphs (a) to (d) inclusive. This ultimately resulted in the approval being changed, by order of this court of 22 August 2014. That change saw the replacement of one condition (condition 33, relating to acid sulphate soils) and the addition of others (conditions 37 to 40).
New Condition 37 requires compliance with Division 7 of the SEQ Koala Conservation State Planning Regulatory Provisions 201 0; and the submission to Council for approval of, and the subsequent implementation of, a Koala Management Plan designed to ensure compliance with Division 7.
New Condition 38 requires compliance with the Code for development in bushfire areas of Maroochy Plan 2000. That, in turn, required a Bushfire Management Plan to be prepared in accordance with Planning Scheme Policy 13, and implemented.
[10]New Condition 39 requires the development to minimise disturbance to old growth hollow-bearing trees (Habitat Trees) on the site. That required a Habitat Tree Management Plan to be submitted to the Council for approval at the same time as applications for operational works. It is required to contain a detailed site survey and assessment of each Habitat Tree; identify the Habitat Trees to be retained and removed, including justification for removal; specify measures to protect Habitat Trees in accordance with the applicable Australian Standard; and specify measures to protect native fauna from harm during the removal of any Habitat Tree.
[11]Condition 40 requires development to be carried out in a manner that ensures the protection of the core and seasonal native acid frog habitats.
[12]The effect of those changes was to impose further obligations, to address contemporary standards and controls. Mr Delany, a consultant ecologist deposed that:
“I consider the approved development, including the conditions of approval, as one which is appropriate for the subject site and the locality from an ecological perspective. In particular:
(a)it is a very low density proposal, with only 24 small accommodation units, and associated facilities, selectively positioned over an approximately 40 hectare site;
(b)the site, and particularly that part which is to be developed, is already substantially cleared;
(c)it will achieve the dedication of a 100 metre wide buffer to Lake Weyba, which is to be planted with endemic species and maintained;
(d)clearance of Koala habitat trees would be minimal and offsets would be provided;
(e)extensive landscaping using endemic species is proposed;
(f)appropriate conditions of approval are included with respect to water quality management, including on-site effluent treatment and disposal and the management of acid sulphate soils;
(g)the proposal is to be the subject of a body corporate arrangement which affords an opportunity to ensure that the conditions of approval are respected, and typically results in superior outcomes with respect to the ongoing maintenance of the site compared to a standard residential sub-division or continuation of existing rural pursuits;
(h)the proposal would result in a cessation of livestock grazing, including in particular within sensitive areas adjacent to the Lake Weyba foreshore.
I consider that the implementation of the approved development, with the conditions imposed upon it, would represent a superior ecological outcome than leaving the land in its present state or using it for limited agricultural activities such as grazing.”
[13]An overlay of the conceptual layout for the approved development and areas of significant vegetation confirms that the majority of the development is not situated within, or immediately adjacent to, mapped Nature Conversation Management Areas or Remnant Vegetation Areas. Although the location of some infrastructure will require minor adjustment after detailed design, that is as contemplated by the conditions of the approval.
[14]Mr Delaney has also considered parts of Maroochy Plan 2000 and the Sunshine Coast 2014 Planning Scheme relevant to his field of expertise. There are no material differences between the two in mapping or Code requirements. In his view the conditions of approval appropriately respond to the requirements of the respective Codes, and provide flexibility to adjust the development at the detailed design stage.
[15]The Council is satisfied that the approval, if changed, is consistent with its current laws and policies. It no longer opposes the requested extension. The matter is, however, ultimately one for the Court.
[16]The previous extension was granted during the currency of Maroochy Plan 2000. The subject request to extend was also made under Maroochy Plan 2000. The Sunshine Coast Planning Scheme 2014 commenced in May 2014.
[17]In his second Affidavit, Mr Catchlove, the appellant’s consultant planner, identifies the Planning Scheme provisions which applied to the land and the subject development under Maroochy Plan 2000 and the Sunshine Coast Planning Scheme 2014. Reference to those various provisions confirms that restricted forms of development on the land are contemplated by both Schemes, provided environmental and visual amenity issues are appropriately addressed. Each has Codes which are intended to ensure that appropriate consideration is given to environmental issues, bushfire, acid sulphate soils, and flooding. Mr Catchlove observed that mapping within the 2014 Scheme indicates that no development is proposed within mapped flooding and inundation areas, with the exception of an existing access.
[18]In terms of visual amenity, Mr Catchlove notes that the part of the land which is proposed to be developed is some 560m from the Tidswell Road frontage. Further, the area to be developed sits over a slight ridge, and the land is vegetated in parts to the west of the proposed development area. In those circumstances, he is of the opinion that the proposal is most unlikely to be visible from the road. Additionally, the road has only very low traffic volumes, and so Mr Catchlove considers that the development site is not prominent in any event. Further, the 100m vegetated buffer along the Lake is such as to appropriately mitigate any visual impact of view from the Lake.
[19]On the material before me, I am satisfied that, as changed, the approval now addresses the issue of consistency with current laws and policies. Section 388(1)(d) has already been referred to. The remaining considerations relate to the community’s awareness of the development approval, whether a similar development application would afford submission rights and the likely extent of which those rights may be exercised.
[20]The original development application required impact assessment, as would a further development application, if one were now required. Seven submissions were received in relation to the original development application, two of which supported approval.
(i)Mr and Mrs Poole, of Paradise Drive, Doonan, raised issues regarding water quality.
(ii)The Sunshine Coast Environment Council raised concerns associated with impact on water quality in the Lake; visual impact from the Lake; the absence of a 100m buffer from the Lake; and the risk of acid sulphate soils.
(iii)Noosa Shire Council (which was a submitter, since the application was made to the Maroochy Shire Council) raised concerns associated with visual amenity; the width of the buffer to the Lake; acid sulphate soils; effluent disposal; and the upgrading of roads within the Shire.
(iv)Mr Matthews, of address unknown, raised effluent seepage and water supply issues.
(v)The Noosa and District Landcare Group Inc objected on the grounds of water quality.
[21]Although the site is adjoined by large sites, which have not seen any great influx of new residents, there have been more changes in the broader locality. Despite those changes in ownership, there is likely to be a reasonable level of knowledge of the approval.
[22]In December 2012 a different development application (the "Northbrook Application") was made in respect of the subject land, as well as various other land holdings. That application is the subject of an appeal in this court. The Northbrook Application required impact assessment and was the subject of considerable public interest. Ms Field's affidavit shows where the 18 notices regarding the Northbrook Application were placed in and around the locality. The application alerted anyone sufficiently interested to inspect it, to the existence of the subject development approval. In particular the documentation on the public scrutiny file for the Northbook Application contained references to the existing approval.
[23]I am conscious that Lake Weyba is, of course, an important feature. Its environment is likely to be of general interest within the region, beyond simply those who live nearby. Proposals which have, or are perceived as likely to have, some adverse impact upon the lake or its environs are prone to provoke public interest and to potentially trigger the exercise of public submission rights.
[24]The Council’s grounds for refusing the request made reference to a letter from the “Friends of Lake Weyba”, which supported the Council’s refusal of the requested extension. It stated, amongst other things, that:
“The application giving rise to the approval was lodged in February 1999. Public notification associated with the application commenced in May 1999. This means that the application has not been before the community for consideration of for around 14 years. Since that time there has been considerable growth and change in the community of Weyba Downs. There will be many people who are unaware of the proposed development and who have not had the opportunity to consider its impacts.
...
The community of Weyba Downs should be provided with the opportunity to make submissions about the development proposal and it should be tested against contemporary controls especially given the sensitivity of the environment and catchment in which the site is located. In the event that such a proposal was placed before the community for comment, Friends of Lake Weyba and it is imagined a number of residents of the area would make a submission.
[25]There is some force in the sentiments expressed in that letter. I would not discount the likelihood of public submissions rights being exercised, at least to some extent, were the proposal to be the subject of a fresh development application. There might be those who would hold concerns, notwithstanding that the conditions have been updated. That does not, however, preclude a grant of the requested extension. The matters referred to in s 388 of SPA are matters for consideration. They are not preconditions. None of the stated considerations must necessarily prevail. The matter is one of discretion, to be exercised in the circumstances of each case having regard to the specified considerations.
[26]I accept, however, the submissions on behalf of the appellant, that current community awareness of the development approval, the potential availability of public submission rights and the likelihood of their exercise may become weightier considerations where there is also significant inconsistency between the approval and the planning documents, being the primary source of reasonable expectations.[1]
[1] See Cleveland Power Pty Ltd v Redland Shire Council (2013) QPELR 406.
[27]As the explanatory notes to the predecessor of this provision (under the Integrated Planning Act) stated (my underlining):
“The older a development approval becomes, the less it is likely to conform with current community expectations, reflected in the relevant laws and policies applying for assessment of such development.
…
The community’s current awareness of development approval. In some localities, population changes may mean that a significant proportion of the current community may not originally have had an opportunity to comment or make submissions about the development, and may be unaware of the development and its likely impact on its neighbourhood. This is particularly important if the development was at the time of approval, or has become inconsistent with the relevant planning scheme and other laws and policies;
Whether if the request was refused, the community would acquire further rights to make submissions about the development, and the extent to which those rights might be exercised. This criteria is closely related to the previous point, as it may be more likely that the community would exercise available rights to make a submission if a significant proportion of the current community did not live in the area when the original application was considered and consequently did not previously exercise rights to make a submission”.
[28]That is not to say, however, that community awareness of the approval and the potential availability and likely exercise of submission rights are irrelevant if there is consistency between the approval and existing laws or policies.
[29]The letter from the Friends of Lake Weyba complains that the proposal has not been tested against either Maroochy Plan 2000 or Sunshine Coast Planning Scheme 2014; however, the first extension was given when Maroochy Plan 2000 was in force, and, the current proposal has been considered against both schemes for the purposes of the changes to the approval and for this request for its extension.
[30]It has already been noted that reference to both Maroochy Plan 2000 and the Sunshine Coast Planning Scheme 2014 reveals that restricted forms of development are contemplated, provided issues such as environmental and visual amenity issues are appropriately addressed.[2] It is issues of that nature which were the subject of submissions to the original development proposal and would likely be of most interest if the proposal was subject to a further development application. These types of concerns were addressed, to some extent, in initial conditions of approval and to a greater extent (with a likely better outcome) in the changes to the approval made only last year.
[2] Both ‘nature-based tourism’ and ‘short term accommodation’ are potentially consistent uses in the applicable zone under the 2014 scheme.
[31]I would not have been inclined to grant the request in relation to the unchanged development approval. Given the recent changes, however, I am, on balance, not inclined, in the circumstances of this case, to give decisive weight to the considerations in s 388(1) (b) or (c).[3]
[3] Compare Ardmore Holdings Pty Ltd v Brisbane City Council (2009) QPELR 341.
[32]That is not to say that a developer can endlessly luxuriate in an approval, without acting upon it, on the assumption that it will be extended subject only to the updating of conditions. There may well be cases where the considerations in s 388(1) (b) and (c) are given decisive weight, notwithstanding the level of consistency with the current laws and policies. Indeed I regard the present case for an extension as towards the margins of acceptability. I am, however, on balance, persuaded that it is appropriate to allow the appeal and to grant the requested extension of the now changed development approval.
0
0
0