Masonre Pty Ltd v Logan City Council
[2014] QPEC 51
•4 September 2014
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Masonre Pty Ltd v Logan City Council [2014] QPEC 51
PARTIES:
MASONRE PTY LTD (AS TRUSTEE)
ACN 136270534(appellant)
v
LOGAN CITY COUNCIL
(respondent)
FILE NO/S:
1317/12
DIVISION:
PROCEEDING:
Appeal
ORIGINATING COURT:
Planning and Environment Court, Brisbane
DELIVERED ON:
4 September 2014
DELIVERED AT:
Brisbane
HEARING DATE:
29 July 2014 – 4 August 2014
JUDGE:
Everson DCJ
ORDER:
Appeal dismissed
CATCHWORDS:
ENVIRONMENT AND PLANNING – APPEAL - conflict with planning scheme – grounds – land subject to flooding – whether proposals for evacuation in the event of a flood justify residential development on the land
Disaster Management Act 2003 (Qld), s 77.
Sustainable Planning Act 2009 (Qld), sch 3.
Lockyer Valley Regional Council v Westlink Pty Ltd (No 3) (2012) 191 LGERA, applied.
Weightman v Gold Coast City Council [2003] 2 Qd R 441, applied.
COUNSEL:
S.P. Fynes-Clinton for the appellant
B.D. Job for the respondent
SOLICITORS:
H. Drakos & Co for the appellant
Minter Ellison – Gold Coast for the respondent
Introduction
This is an appeal against the decision of the respondent on 14 March 2012 to refuse a development application for a material change of use for four houses in respect of land at 41, 45, 47 and 49 Bompa Road Waterford West (“the land”).
The land is in the immediate vicinity of the Logan River which adjoins Lot 41 and subject to flooding. The flood plain area management code of the respondent therefore applies to the proposed development and the respondent refused the development application because of conflicts with specific outcomes of the flood plain management area code.
The appellant contends that Temporary Local Planning Instrument No.1 (Logan Interim Flood Response) 2013 (“TLPI 2013”) which has come into effect since the refusal of the development application justifies the approval of the proposed development and moreover that there are sufficient grounds to justify approval of the proposed development despite conflicts with the flood plain management area code which was part of the 2006 Logan Planning Scheme (“the planning scheme”) in place at the time the development application was made.
The proposed development
The proposed development relates to four vacant lots in an established residential area which were created by a residential subdivision in about 1965[1]. All of the other lots in the area have been developed over time for residential purposes with the exception of adjoining Lot 43 which is owned by the respondent and apparently used for public recreation purposes. It is proposed that each of the houses to be built on the vacant lots will be elevated on significant piers and that the habitable floor level will be above the level of the highest recorded flood event in the vicinity.[2]
[1]Exhibit 2, Tab 16.
2 Ibid Tab 11.
The issues in dispute
The issues in dispute relate to the extent of the conflict with the planning scheme, the weight to be given to TLPI 2013, the weight to be given to the respondent’s draft planning scheme and whether there are sufficient grounds to justify the approval of the proposed development despite conflict with the planning scheme
The statutory framework
Pursuant to the Sustainable Planning Act 2009 (“SPA”) the development application is code assessable and must be assessed against any applicable codes in the planning scheme.[3] A decision in respect of the development application must not conflict with the planning scheme unless there are sufficient grounds to justify the decision despite the conflict.[4] The court must decide the appeal “based on the laws and policies applying when the application was made, but may give weight to any new laws of policies the court considers appropriate”.[5]
[3]Section 313.
[4]Ibid s 326.
[5]Ibid s 495(2)(a).
At the time the development application was made the respondent assessed it pursuant to the flood plain management area code in the planning scheme and refused it, identifying conflicts with the following specific outcomes[6]:
[6]Section 4.3.9 of flood plain management area code.
“O1 Development does not-
(a)in combination with the access area and with existing and proposed development and access areas on adjacent land –
(i) in the defined flood event-
…
(e)increase the number of people calculated to be at risk from a flood; and
(f)increase the number of people likely to need evacuation during a flood; and
…
(j)place an additional burden on the local government’s resources and emergency services during a flood.
…
O3 Development provides access to a road which is-
(a) above the level of the defined flood event; or
(b)below the level of the defined flood event where the road-
(i) has a low flood hazard; and
(ii)remains serviceable and trafficable having regard to the likely traffic densities and loads until another road access to the development may be restored; and
(iii)connects to a road which is above the defined flood event that provides access to the road network.
O4Development provides that the access area to a building or a fill area upon which a building is to be constructed is classified as a low flood hazard in the defined flood event.”
Significantly the “defined flood event” is relevantly defined as “the highest recorded flood”[7]. It is common ground that the defined flood event for the land is the 1974 flood.
[7]Ibid s 4.3.3 and PSP6, s 2.1.1.
TLPI 2013 came into effect on 28 March 2014.[8] The respondent submits that the court ought to give it significant weight as it represents the respondent’s current position for development of the land from a flood management perspective and would be the regime which applies in the event the development application were made at present.[9] The respondent submits that significant but not determinative weight should be given to it.[10] The appellant identifies the following specific outcomes of TLPI 2013 to be considered in the determination of this appeal:
“O2Development must not increase the level of risk of life or adversely affect flood evacuation procedures.
…
O16Development provides vehicular access to the road network that is sufficient to enable safe access and egress.
O17Development provides an access area to a building or fill area on which a building is to be constructed where the access is located on land classified as a low flood hazard in the defined flood event.”
[8]Exhibit 3.
[9]Exhibit 13, paras 53-60.
[10]Exhibit 12, para 87.
The respondent has prepared a draft planning scheme which was placed on public notification between 3 February 2014 and 30 April 2014.[11] It contains a flood hazard overlay code which includes identical performance outcomes to the specific outcomes in TLPI 2013 listed above.
[11]Exhibit 10.
Conflicts with relevant provisions of the planning scheme and TLPI 2013
Evidence was given by two highly qualified hydrologists, Dr Johnson who was engaged by the appellant and Dr Connor who was engaged by the respondent. In their joint report dated 22 November 2012 they stated:
“It is agreed that the definition of high flood hazard within Chapter 4, Part 3 of Council’s Planning Scheme covers both access roads and premises, which in this case can be taken to be the lots themselves….
It is further agreed that both access to the nominated lots and the lots themselves would therefore be considered to be subject to a high flood hazard.”[12]
[12]Exhibit 2, tab 1, p 2.
Not surprisingly the respondent concedes noncompliance with each of the identified specific outcomes in the flood plain management area code identified above with the exception of O1(a)(j), in respect of which the respondent called no specific evidence. I find that there are major conflicts with each of the specific outcomes identified above with the exception of O1(a)(j).
The appellant submits that TLPI 2013 should be the primary focus in the determination of the appeal[13] and that it should be given “substantial and material weight” in circumstances where it is consistent with the respondent’s published forward planning intent evident in the draft planning scheme.[14] Two changes of approach are specifically relied upon in respect of TLPI 2013. Firstly it is more performance based and less prescriptive in terms of relevant specific outcomes when compared to those in the flood plain management area code. Secondly the defined flood event is stated to be “the 100 year ARI” in circumstances where “low flood hazard” is defined to mean inundation to a maximum depth of 300mm during events up to and including the defined flood event.[15]
[13]Exhibit 13, Para 64.
[14]Ibid para 53.
15 TLPI 2013 s 10.
In assessing the degree of conflict with TLPI 2013 it is necessary to have detailed regard to the evidence of the expert hydrologists. Dr Johnson expressed the view that the 1974 flood event should still be considered in determining what likely impacts on property and life could be.[16] He further stated that he did not consider it to be “a safe situation” for people to shelter in the proposed houses above the level of flood waters during a 100 year ARI event.[17] Rather, Dr Johnson emphasised the opportunity of sufficient time for prospective residents to evacuate houses the subject of the appeal in the event of a significant flood event. In his report dated 5 June 2014, Dr Johnson stated that residents of Bompa Road
“would have between 24 and 48 hours’ notice of a large flood providing more than sufficient time for self-evacuation to occur”[18]. Dr Johnson also prepared an emergency flood management plan to assist in this process, which he annexed to his report.[19] Although under cross-examination Dr Johnson revised the likely warning time down by four hours,[20] this does not appear to be of any significance in terms of the fundamental thesis upon which the appellants have approached the question of managing flooding impacts. Essentially it is that there will not be an increase in the level of risk to life or an adverse impact on flood evacuation procedures because all of the prospective residents will have had ample time to evacuate and will not be there when dangerous flood waters are present. Similarly, it is submitted that timely evacuation has the consequence that vehicular access to the road network will be sufficient to enable safe access and egress, and that this in turn means that specific outcome 17 in TLPI 2013 should not stand in the way of an otherwise adequate performance based solution.
[16]T 2-4, L 20-30.
[17]T2-17 lines 40-45.
[18]Exhibit 2 tab 8 para 12.
[19]Ibid pp 91-101.
[20]T 2-50.
On the other hand, Dr Connor, in his report dated 11 June 2014, carefully examined flood scenarios both for the 100 year ARI event and for the 1974 flood event.[21] He noted that flood hazard is measured by the product of velocity and depth, and stated that a flood hazard greater than the defined low flood hazard was present at sample points in the vicinity of the proposed development.[22] He stated that flood depths at the front of all the relevant lots fail a low hazard test pursuant to TLPI 2013 and that when the 1974 flood event is considered, the hazard increases substantially.[23] He concluded that “the proposed developments pose very high levels of hazard in foreseeable flood events”.[24] I accept unreservedly the detailed flood analysis of the area in the vicinity of the land undertaken by Dr Connor and in particular his evidence in respect of site specific flood hazard analysis.
[21]Exhibit 4.
[22]Ibid table 4.1.
[23]Ibid p 4.2.
[24]Ibid.
25 TLPI 2013 s 6.
The appellant seeks to bolster its argument that there can be a high degree of assurance that any prospective residents at risk from a significant flooding event will have evacuated long before it eventuates, a reference to provisions of the Disaster Management Act 2003 (“DMA”). A close perusal of the DMA reveals that there is no power which can compel residents to evacuate their homes in the event of a disaster situation. Section 77 provides for the giving of directions to people to regulate their movement of that person into or out of or around the declared area. However, there is no specific power to require someone to evacuate their home and much less any sanction in the event a person refuses to do so when asked.
The approach of the appellant appears, in any event, to confuse desirable planning outcomes in a spatial sense with the process of organising and managing an appropriate emergency response to a natural disaster such as a flood. While the DMA provides a framework for emergency responses to a major flood event, sound planning principles seek to prevent prospective residents being at risk from such a natural disaster at all. Emergency responses provided for in the DMA or elsewhere do not provide a justification for otherwise unsound land use proposals.
Given that TLPI 2013 reflects the respondent’s current position with respect to planning for flooding in its local government area and that it prevails to the extent of any inconsistency with the planning scheme[25], I am of the view that it should be given considerable weight. It is significant that the relevant provisions quoted above are replicated in the respondent’s draft planning scheme and therefore represent a consistent approach to planning for flooding in the respondent’s local government area. On the evidence before me, however, I find the proposed development not only substantially in conflict with each of the identified specific outcomes of the flood plain management area code in the planning scheme which was in force at the time the application was made, but also that the proposed development is substantially in conflict with specific outcomes O2, O16 and O17 of TLPI 2013.
Grounds
The appellant submits that there are sufficient grounds to justify approval of the proposed development despite the conflicts with the specific outcomes of the flood plain management code identified above. The nominated grounds are that it is a matter of public interest that the four residential lots the subject of the appeal not be kept vacant and undeveloped in circumstances where they are otherwise compliant with current planning requirements and located within an established residential neighbourhood.
In Lockyer Valley Regional Council v Westlink Pty Ltd (No 3)[26] the Court of Appeal recently endorsed the three step test set out by Atkinson J in Weightman v Gold Coast City Council[27]. Addressing a more restrictive concept of “planning grounds” rather than “grounds” it was stated that the decision maker should:
“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.”
[26](2012) 191 LGERA 452 at 462.
[27][2003] 2 Qd R 441 at [8].
28 SPA Schedule 3.
As noted the concept of “planning grounds” no longer applies and it is necessary that there be sufficient “grounds” which are defined in SPA as being:
“1 Grounds means matters of public interest.
2 Grounds does not include the personal circumstances of an applicant, owner or interested party.”[28]
Development of the land for houses would place prospective residents at risk from a flood in circumstances where the houses would be completely surrounded by flood waters in the event of either a 100 year ARI event or an event of the scale of the 1974 flood. This is a significant conflict with planning provisions designed to ensure risks to human safety from flood events are minimised. The grounds proposed assert that otherwise suitable residential land within a residential area should not remain undeveloped because of this minor risk in circumstances where there will be ample evacuation time for prospective residents in the event of a major flood event. Where there can be no assurance that prospective residents will evacuate in a timely way, the desirability of utilising otherwise appropriate residential land is insufficient on balance to justify approving the development application, notwithstanding the significant conflicts which relate not just to desirable planning outcomes generally but to minimising risks to human safety in particular.
Conclusion
The proposed development is significantly in conflict with specific outcomes identified in TLPI 2013. These outcomes represent the respondent’s current planning policy with respect to mitigating flood risk, having regard to the draft planning scheme which has been placed on public notification. Significant weight should be given to these provisions.
It is conceded by the appellant that the proposed development is significantly in conflict with the flood plain management area code in the planning scheme. The desirability of utilising otherwise appropriately located residential lots for residential development does not on balance justify approving the development application, notwithstanding the major identified conflicts with the flood plain management area code.
Order
The appeal is dismissed.
0
1
2