May v Redland Shire Council
[2009] QPEC 106
•23 October 2009
PLANNING & ENVIRONMENT COURT OF QUEENSLAND
CITATION: | May & Anor v Redland Shire Council [2009] QPEC 106 |
PARTIES: | JOHN MAY and CINTIA MAY (Appellants) v REDLAND SHIRE COUNCIL (Respondent) |
FILE NO/S: | BD3425 of 2006 |
DIVISION: | Appellate |
PROCEEDING: | Appeal against refusal of material change of use for “residential subdivision” |
ORIGINATING COURT: | Planning & Environment Court |
DELIVERED ON: | 23 October 2009 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 10 and 11 August 2009, written submissions received to 15 September 2009 |
JUDGE: | Robin QC DCJ |
ORDER: | Appeal allowed |
CATCHWORDS: | Integrated Planning Act 1997 (IPA) s 3.5.5(2)(d), s 3.5.30, s 4.1.52(2) – developer’s site in environmentally sensitive location – part designated Special Protection Area – development application made under transitional planning scheme with which it was compliant, subject to issues under Council Policies regarding parks and recreation contributions – Council refusal based on proposal cutting across new planning arrangements, in particular a draft structure plan for the area – relevance of an existing approval for a golf driving range on the site which had been implemented, so that site was totally cleared, and afforded little by way of environmental value – developer offered a comprehensive Greenspace Management Plan with large areas subject to covenants to be registered – whether preferable to have covenant areas privately owned or dedicated – court concerned at loss of lot yield consequent upon dedication |
COUNSEL: | C Hughes SC for the Appellants S Ure for the Respondent |
SOLICITORS: | McCarthy Durie Ryan Neil Solicitors for the Appellants Corrs Chambers Westgarth for the Respondent |
Mr and Mrs May appeal against Council’s refusal advised by a Decision Notice dated 30 October 2006 of their development application for a material change of use of their six hectare site at 11 Rachow Street, Thornlands to “residential subdivision” from “residence”. The application was made in 2005. Although made under the Town Planning Scheme for the Shire of Redland which commenced in 1988 and includes the Redland Shire Strategic Plan 1998, the application was refused (and continues to be opposed) by the Council principally on the basis of its cutting across the new “Redland Planning Scheme” which commenced on 30 March 2006. It is the one referred to in the stated grounds for refusal, which commenced:
“2. Grounds for Refusal.
1. The application is contrary to the Redland Planning Scheme.
The proposal for a Park Residential zone would lend itself to subdividing the subject lot into Park Residential lots. The subject site is situated within the Emerging Urban Community zone, whereby Table 1 of Part 4, Division 5 of the town Plan states:-
“Creating lots by subdividing another lot by a Standard Format Plan (whether or not having a Community Management Statement) is Inconsistent Other Development.”
Therefore it is considered that the subject application is in conflict the Redland Planning Scheme and cannot be supported, as it would generally jeopardise the Structure Plan currently being developed for the area. This is the case, as the rezoning of the land to Park Residential would subsequently allow the site to be subdivided into Park Residential lots. A reconfiguration application for Park Residential lots, insofar that it is an application achieving the Redland’s Planning Scheme’s Performance Standards and Probable Solutions, could then not be refused.”
The theme that the application, which envisages eight residential allotments (the indicative configuration of which has undergone change), ought not to succeed at this time is followed through in other grounds for refusal. There is reference to 3.1.3 of the Redland Planning Scheme, Desired Environmental Outcome No. 2 which seeks to restrict the range of uses undertaken within the Emerging Urban Community Zone (now applicable to the site), maintaining the current “low intensity and open character until such time as structure plans are prepared”. Ground 3 refers to Division 3 of the South-East Queensland draft regulatory provisions regulating applications to subdivide land in a Major Development Area subject to exceptions which include an approved structure plan being in place – this ground being accompanied by a concession that the regulatory provisions were not in force when the development application was submitted to Council on 7 April 2005. Ground 4 refers to the South-East Thornlands (SET) Structure Plan endorsed by Council on 21 August 2006. The Structure Plan is effectively a draft of which the court has seen two versions, the “Public Exhibition” version (March 2008) and the “2nd State Interest Review” version (November 2008); it is a matter of speculation what factors (among State interests, submissions from members of the public, etc) influenced changes from draft to draft; the changes include arrangements affecting the site in particular, that part of the western end allocated to 2a Attached Housing (as opposed to 4a Coastal Corridor) has been reduced. The appellants’ latest thinking is to take advantage of what the November 2008 draft colours pink and foreshadows by way of future streets (separating the pink from the green) by reducing the size of the proposed lot accommodating the existing residence on the site to 5000m2 only, also anticipating further subdivision. The fifth ground of refusal referred to the Integrated Planning Act 1997 (IPA); it noted that, the application was made under a transitional planning scheme, the Act providing assessment of it is to be carried out effectively by reference to 4.4(5A) of the repealed Local Government (Planning and Environment) Act 1990 which requires a refusal if:
“a)the application conflicts with any relevant strategic plan or development control plan; and
b)there are not sufficient planning grounds to justify approving the application despite the conflict.”
The relevant section of the IPA is s 6.1.30(3).
No conflict with the 1988 planning scheme or the 1999 strategic plan arises. The parties’ planning experts agree on this aspect. The zoning of the land was Rural/Non Urban[1] but it comes within one of the specific planning intents explained in the strategic plan:
[1] The preferred dominant land use for land so designated in the strategic plan (provisions about which are less relevant than the provisions about the notional new zoning) is explained as follows (italics added):
“4.5.1 Rural Non Urban
This designation indicates the location of the major rural non urban parts of the Shire which are intended not to be developed for urban purposes. The area includes large areas of significant habitat value for koalas and other native fauna…has also been identified as being critical to the overall maintenance of the landscape character of the Shire.
… future development or land use within the Rural Non Urban designation will need to demonstrate that it does not compromise these important environmental and landscape values. In some cases, these constraints may preclude any substantial intensification of an existing lawful use, and in any event all land uses in this area will require careful management to ensure retention of its environmental and visual values.
Subdivision of land on the basis of one (1) allotment per ten (10) hectares will be provided for in the Rural Non Urban designation in circumstances where significant nature conservation benefits are achieved in association with the intensification of development on the land. Examples of such benefits include agreed programs for the maintenance of existing environmental values and/or the rehabilitation of degraded land through reafforestation, weed removal, bush fire risk management and other bushland management activities. Subdivision of this nature would involve the clustering of residential allotments in areas of low conservation significance on the site. An allotment size of one (1) hectare would be appropriate for allotments intended to contain dwellings.
To assist in retention of environmental and visual values of the area, the Council will also apply tree clearing and building location controls to any new subdivision in this area, similar in nature to the controls to apply to land in the Park Residential designation. This will involve the identification on each proposed allotment of a building site usually of about 2,000m2 in size positioned so as to minimise the amount of tree clearing.
…
The balance of areas of original parcels subdivided in this manner will be required to be used and managed in a manner that conserves their environmental values.”
The preferred dominant land use for the site is not indicated by the above, but, rather, by Specific Planning Intent No 4, set out in the text.
“Specific Planning Intent No. 4 plays an important role in the separation of the Thornlands and Victoria Point urban communities both in a physical and visual sense. All development within this area shall be predominantly open rather than built up in nature in order to retain its rural non urban character. The protection of the environmental values of the remnant bushland and coastal vegetation within the area is also considered important.
Development of this area shall be primarily residential (6000m2 – 10,000m2 sized allotments), however suitable commercial, recreational and service orientated uses may be considered provided that they are consistent with protecting the health and amenity of residents and the principles of retaining the rural non urban character and the environmental values of the area.
Reticulated sewerage shall not be provided or planned for. Access to State controlled roads will be limited and involve shared accessways wherever possible.”
The expert planners who assisted the court, Mr Lambert and Mr Vann, agreed that “park residential” development on the site generally satisfied the Intent. Preferred dominant land use Intents set out in s 4.0 of the strategic plan “urban – residential oriented” Intents (such as those for urban residential, medium density residential, residential low density and Specific Planning Intents Nos. 1 – 6) include:
“4.2.4 Park Residential
This designation indicates the location of areas which are intended to accommodate the establishment of larger residential allotments of around 6,000m2 and above in an open, semi-rural environment. These designations are located in areas which, whilst accessible to major urban facilities, are considered not to compromise future urban development potential within the Shire.
The full range of urban infrastructure services is required with the exception of reticulated sewerage. In areas without reticulated sewerage, on-site treatment and disposal will be in accordance with performance standards and design requirements for the protection of the water quality of the surface and ground waters and downstream ecological values.
Forms of development other than detached houses will be limited only to those uses which are consistent with the amenity and character of the area and which provide a direct service to the local community in these areas.
Controls on building location and tree clearing will be applied to new development within this designation as a means of retaining vegetation which contributes to the environmental values and intended character of these areas. This would usually involve the identification of a building site of generally no greater than 2,000m2 in size positioned so as to minimise the amount of tree clearing and site earthworks modification required. Limitations on tree clearing, building and other permanent works would be applied over the balance of the allotment.
The Council may require allotments in this designation to be greater than 6,000m2 where necessary due to physical or environmental features of the land concerned, such as flood plains, wetlands, water ways or habitat for fauna and flora.”
The eastern part of the site, whose eastern and western sides are approximately 160m long, the northern and southern boundaries being approximately 380m, is close to Eprapah Creek; indeed, it is located below the line of highest astronomical tide (HAT) (RL1.52m). It is convenient to refer to the boundary near the creek as the “eastern” one, although it may strictly run close to the north east, and to simplify all bearings, etc accordingly. The creek and surrounds have “greenspace habitat” significance. The eastern part of the land is designated Special Protection Area by mapping which is not cadastrally based, so that the Area boundary cannot be precisely delineated. Perhaps one quarter of the site is included. Of the relevant designation the strategic plan (according recognition to a role for land in private ownership) says:
“4.4.3 Special Protection Area
This designation indicates the location of areas within the main urban parts of the Shire which have been identified as possessing natural environmental qualities worthy of conservation. These include many areas of remnant vegetation which provide important habitat, corridor and visual landscape values.
Much of the land in this designation is privately owned, including some areas used for community purposes in a way which protects their environmental qualities (such as scout and girl guide activities); while other land in this designation is controlled by government agencies.
The purpose of the inclusion of these lands in this designation is to retain their natural values. This may be achieved while land is in private ownership through suitable environmentally sensitive use of the land itself or balance areas of the land. In some cases dedication may be sought in conjunction with the urban development of the surrounding areas where this is provided for in the Preferred Dominant Land Use Map; or in limited circumstances private land may be purchased using the Environment Charge or other sources of funding.
The conservation of the environmental values of land in this designation is an essential pre-condition to Council’s preparedness to consider development within or adjoining this designation. This designation therefore represents a constraint to the development of adjoining land and the manner in which it is able to be developed both in terms of design of roads, services and drainage so as not to impact on land in this designation, and in the purposes for which it may be used. This process is addressed in more detail in Section 5.0 Greenspace.
This designation also includes most of the coastal areas of the Shire which are adjacent to locations where further urban development may be permitted. At the time urban development is proposed in these adjacent areas, it will be necessary to establish the appropriate width of land to be retained in its natural state along the coastline so as to comply with the requirements of the Coastal Protection Act and any associated planning documents, to take into consideration sea level changes which may result from changes in climatic conditions, and to preserve environmental values of Moreton Bay including fish habitat and the ecological functioning of the tidal and sub-tidal areas. This process would also be addressed through the provisions in Section 5.0 Greenspace.
The designation also includes land along waterways wherein a similar approach will be adopted at such time that urban development in adjacent areas is proposed.
While not its primary purpose, the designation also represents a mechanism through which the Council will meet its obligation to refine some of the boundaries of, and to protect, conserve and where appropriate, improve the other Major Habitat under State Planning Policy 1/97 – Conservation of koalas in the Koala Coast.
While it is not its primary purpose, the designation also represents an opportunity for low key recreational pursuits which do not cause undue adverse impacts on the environmental values of the land.”
The last provision or a similar one may have played some role in the Mays obtaining the town planning consent to use the land for the purpose of a golf driving range and private residence underlying their “conditions” appeal 1950 of 1998 resolved by consent order made by Judge Quirk on 11 November 1998. Vegetation in the area exhibits “marine” characteristics below the HAT line. A higher contour of planning significance is at the 2.4m level which represents the “storm surge” line adopted by the Council below which planning constraints exist – precluding residential development, for example.
The eastern end of the site is picked up in the strategic plan’s Greenspace Map along with other privately owned land and much publicly owned land in various designations. The Greenspace Provisions deal with the public-private mixture and issues that may arise relevantly in 5.2.1:
“5.2.1 Special Protection Area Designated Land
(a)Where land in the Greenspace Habitat is designated Special Protection Area on the Preferred Dominant Land Use Map, the land is to be used and managed primarily for the maintenance, protection or enhancement of its environmental values in accordance with the intent for the Special Protection Area designation set out in Section 4.
(b)Where land referred to in subclause (a) forms part of a site which also has a designation on the Preferred Dominant Land Use Map for other purposes, the use of the land for those other purposes shall be conducted in a manner which does not significantly impact on the environmental values of that part of the land designated Special Protection Area.
(c)Where land referred to in subclause (a) forms part of a site that also has a designation on the Preferred Dominant Land Use Map which anticipates development further involving further subdivision, that subdivision shall be undertaken in a manner so as to maintain, protect or enhance the environmental values of the land. Without limiting the scope of this requirement, this may be addressed through:
(i)the number, size, shape and location of allotments;
(ii)identification within allotments of areas suitable for the location of buildings and associated activities and areas in which vegetation is to be retained in conjunction with the development and use of the allotment;
(iii)arrangements to limit the number, type or breed of domestic animals to be kept or to restrain the movement of domestic animals within the allotment;
(iv)the alignment, width, design, speed and construction of roads; and
(v)the location, design and construction of drainage and reticulated services.
Where Council is not satisfied that adequate provision has been or will be made for the maintenance, protection or enhancement of the environmental values of the land, Council may require as a condition of development or subdivision approval or seek through negotiations with the applicant, the dedication of the part of the site designated Special Protection Area as public reserve. The dedication of such land may be determined by Council to fulfil the requirements for the provision of public garden and recreation space required under the subdivision of land provisions of the Planning Scheme.
(d)Where land is wholly designated Special Protection Area on the Preferred Dominant Land Use Map and is in private ownership, Council recognises that the land may be able to be used for purposes which do not significantly impact on the environmental values of the land. The nature of such purposes will vary with the size, location, physical characteristics, tenure, surrounding uses and environmental values of the land. Where in the opinion of Council the land is not able to be used for a purpose or in a manner that would not detrimentally affect its environmental values, Council will investigate other methods of ensuring its conservation, including conservation agreements under the Nature Conservation Act. If these methods are not achievable the land will be treated as a priority for purchase by Council using funds raised by its Environmental Charge or other sources and negotiations with the owner for purchase of the land will be initiated by Council. In this regard statutory powers of compulsory acquisition will only be exercised where a negotiated purchase is not possible and Council considers the environmental values of the land are under threat.” (italics added)
By s 4.1.52(2) of the IPA the court:
“…
(a)must decide the appeal based on the laws and policies applying when the application was made, but may give weight to any new laws and policies the court considers appropriate; and
…”
This provision accommodates (if it does not encapsulate) the Coty principle: see Chellash Pty Ltd v Maroochy Shire Council [2000] QPELR 139, also the discussion in Fogg, Meurling and Hodgetts, Planning and Development Queensland [5720]. The idea of Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117 is that where new planning arrangements are well advanced or are identified but are yet to come into force, a court should “arrive at its judgment so far as possible in consonance with town planning decisions which have been embodied in the local scheme in the course of preparation”. There is an obvious tension between accommodating future planning arrangements which may not even be in their final form and the reasonable expectations of landowners to be allowed to develop in accordance with the planning rules in force at the time of a development application, even if (as is presumably the case here) from material placed on public display, they have a good idea of what the planning future might hold. There may be cases in which the expected new planning arrangements assist an applicant developer, providing positive support for a proposal which is lacking in current arrangements, as in Jones v Redcliffe City Council [2004] QPELR 275 (see [30]); in one respect (a height restriction) the new arrangements limited the developer if the proposal was not to “cut across” new planning arrangements.
Iverach v Cardwell Shire Council [2006] QPEC 114 was a successful submitter appeal, decided against a “legislative” history similar to the present one and apparently on the basis that considerable weight ought to be given to new supervening planning arrangements which limited development to low density residential; at the time of the application, “multiple dwellings” were contemplated as a “consent” use when the application was made. The development application was not rejected for conflict with the original planning arrangements on the basis of 15 dwelling units proposed on a site of 5,305m2 surrounded by detached single dwellings, the conflict being “rather a matter of opinion and degree”: [29].
The leading case on s 4.1.52(2)(a) is Hervey Bay City Council v BGM Projects Pty Ltd [2007] QCA 298 in which it was determined that this court erred in declaring as a preliminary legal point that in the ensuing merits determination it ought not have regard to or give weight to an infrastructure charges policy not in existence at the time of the development application. The appellant developer apprehended that application of the policy would result in its facing more onerous obligations. An outcome to that effect would be consistent with a history of developers being obliged to meet infrastructure charges, etc at whatever rates happened to be current when the time came for payment, and perhaps could be seen as less concerning than a development application being refused, notwithstanding that it complied with the law and policies current when it was made, on the basis of frustrating new planning arrangements arrived at or contemplated by the planning authority. Nonetheless, I accept, to use Judge Dodds’ words in Chellash at 145 that “it would be wrong to approve a proposal which would clearly frustrate a proposed new planning intention”. In the result there, he considered the particular proposal would not have that effect, bearing in mind its location, design, size and proposed landscaping, and allowed the developer’s appeal.
The Mays’ proposal, as presently propounded, sets out to satisfy the Council’s Local Planning Policy Waterways Wetlands and Coastal Zone (June 1996) adopted as Policy under s 1A.4 of the Local Government (Planning and Environment) Act 1990 and Statutory Policy ENDS – 001 Parks and Recreation Contributions (23/11/04); the Policy Statement for the former contains the following:
“In determining whether or not planning approval should be given to any proposal, and the nature of conditions to attach to any approval, Council will ensure that all relevant Policy Objectives are considered. It should be noted that many of the Policy Objectives are interrelated and as such may have effect on one another. Consequently all of the Policy Objectives and their potential interactions should be considered for any proposal.
Applicants should refer to the Strategic Plan Map for guidance on the location of waterways, wetlands and foreshores in the Shire.
In order to achieve the objectives described above, one or more of the flowing measures should be considered:
(a)The implementation of adequate sediment and erosion control measures to minimise siltation of waterways or wetlands for any activities involving earthworks such as subdivision, building and construction, provision of services and the placement of fill. (Refer to Local Planning Policy, Erosion and Sediment Control).
(b)Development should be separated from the coastal zone, wetlands or waterway by a buffer zone of sufficient width to accommodate the maintenance of physical and biological processes, storm surge or flood inundation, public use and access, and visual amenity.
The buffer zone width will vary on a site specific basis depending on individual circumstances such as the presence of existing vegetation, flooding conditions, size and ecological significance of the waterway or wetland and intensity of development proposed. As a general rule however, minimum buffer widths are typically in the order of between 30 and 60 metres from:
·The middle of the waterway channel;
·The highest inundation level of wetlands; or
·R.L. 2.4 metres in coastal areas.
The buffer zone will not necessarily be included in the gross subdivisible area on which parkland contributions are assessed.
DEFINITIONS
The following are definitions of terms used in this Local Planning Policy.
“BUFFER ZONE” is an area of generally undeveloped land between a development and a waterway, wetland or coastal zone area. The width of the buffer zone is determined on a site by site basis. The requirement for a buffer zone is to ensure the maintenance of natural, physical and biological processes, public use and access and visual amenity.
“COASTAL ZONE” is the area located between low water mark and R.L. 2.40m. For Redland Shire, R.L. 2.40m has been indicated as it is the level to which inundation occurs in the 100 year recurrence interval for storm surge.”
I would construe the above as offering a good deal of flexibility. I do not think it seeks to go beyond identifying where development, in the sense of construction of houses and the like, ought to happen; I do not think it has any direct implications for dedication of land to the Council, for example. The building envelopes envisaged all fall outside a line 30m from the RL2.4m contour.
The Statutory Policy ENDS – 001 does bear on dedications directly. It provides, inter alia,
“Until a new town planning scheme is prepared this document will rely on the current development control plan maps as the basis for the requirement for public open space. These maps only give an outline of possible requirements in that they indicate sports fields and playgrounds and multi-purpose linkage systems.
CATEGORIES OF PARK:
When assessing the area of park to be transferred to Council as a condition of subdivision approval Council shall take into consideration the following:
i)the area of land to be provided is suitable for the type of park proposed;
ii)whether or not the land is within the subdivision the location of the land is acceptable to Council;
iii)whether the applicant proposes to carry out works or make a contribution in addition to transferring the land;
iv)the combination of land, contributions and works is in accordance with the Act and this policy.
The use of the term “park” in this section shall include land which would otherwise be left in its natural state and be unused, land which would otherwise be classed as a drainage path and be otherwise transferred to Council for that alternative purpose, and land which would otherwise be transferred to Council at no cost because it cannot be used for a permissible purpose by a private owner.
In determining the suitability of land for parks and recreation purposes the following criteria will be used to establish the category of park:
Category A
Land which is free from flooding calculated at 0.2 cumecs/ha and contains no creek bank, no batters from adjoining filling and no open drain and is suitable for active recreation.
Category B
Land other than within creek banks where the land is left substantially in its natural state and is not suitable for active recreation but is usable by way of walking tracks or similar which floods at an average frequency of 1 in 100 years.
Category C
Land containing a creek and the banks thereof and land which contains vegetation supporting water logged ground and land which is to be transferred for parks and recreation purposes but contains constructed batters steeper than 1 in 10.`
Land classified as category A will automatically be assessed at 100% of its area for the purpose of complying with this policy.
Land classified as category B will be assessed at 50% of its area for the purpose of complying with this policy to the extent that not more than 50% of the total park dedication requirement consists of category B land provided that the balance will not be classified as park and Council will require either the balance to be category A land, works within the category B land or in a pro-rata contribution.
Land classified as category C will be assessed at 10% of its area for the purpose of complying with this policy to ensure that the land is passed into public ownership.”
The Council’s case (as opened by Mr Ure at p 37 of the Transcript for Day 1) is that all land below RL2.4m should be discounted by 50% - or that half of the park dedication required (that is half of the conventional 10% of a little over 6,000m2)[2] should be provided above the 2.4m contour. There are specific provisions for Waterfront Land:
[2] Clause 16(2)(a)(ii) of the subdivision of land by-law under the transitional planning scheme requires 10% of a site to be dedicated as park.
“Council will not permit any development which does not dedicate to Council a strip of land along all frontages to the sea or water course.
The extent of such dedication shall be determined having regard to:
a) land subject to tidal inundation as a result of the highest astronomical tide;
b) land subject to tidal surge as the result of storm and wind and the greenhouse effect;
c) land subject to flooding from flows in adjoining water courses;
d) steep land adjoining foreshores of the sea or a creek which is likely to be unsuitable for building without modification because of slope stability and/or seepage.
Council will require the dedication of an esplanade along the sea frontage to all proposals to subdivide land. The width of such esplanade shall be the greater of the following:
a) six metres measured from mean high water spring tide where the area required to be dedicated based on ten percent of the area of the subject land is equal to or less than the product of six metres and the frontage to the sea;
b) the width measured from mean high water spring tide obtained by dividing the required area to be dedicated by the sea frontage subject to a maximum of thirty metres;
c) the width of land containing the foreshore plus the coastal cliff plus six metres where the coast line contains a cliff feature which Council requires to be retained.
d) the width determined by Council to create a safe natural buffer to wave action as the result of a storm surge study carried out at the applicants’ expense where such is required by Council.”
On this basis, almost half of the site would have to be dedicated to the Council as park – over and above further dedication along the southern boundary which the Council seeks for drainage purposes. Such an exaction strikes one as excessive and unreasonable in the circumstances. It is difficult to discern what advantage the public would gain from such a dedication, particularly as the generous swathe would be abruptly constricted at the southern end where the public open space is confined to the narrow strip at the eastern end of the Leishman property.
The Leishman approval
The Council’s Decision Notice of 10 June 1999 confirms approval of a reconfiguration and material change of use to park residential to create out of a battleaxe block with a narrow frontage to Rachow Street residential lots of 6,000m2, 8,200m2 and 8,200m2 so that there are now three battleaxe blocks behind which is public open space of some 5,000m2 at the Eprapah Creek end. The southern end of the public open space is some 46m wide, the northern end 54m wide where it adjoins the Mays’ land, accounting for the 57.99m width of “proposed park” dedication offered (the “offer” for the northern end of the 7,500m2 park is 30m only as the site’s eastern boundary has a kink towards the west). On the southern of the larger lots was a dam similar to the Mays’ which the Council permitted to be filled in. There is now a house in that location. Mr Lambert, who prepared the Leishman application, also prepared the Mays’. There is obviously attraction in an approach which would see the neighbours treated alike not only in achieving a maximum yield of residential lots in a park residential area, but also in respect of limiting park dedication and allowing filling of the dam. The Council’s planner, Mr Vann was critical of the Leishman decision. Whether or not it was right for its time, it runs contrary to what the Council as the planning authority now hopes to achieve in the foreshore area, which is a wide swathe of terrain to accommodate fauna habitat and movement, particularly for koalas. Exhibit 9A shows the officer assessing the Mays’ submission in respect of the draft South-East Thornlands Structure Plan referring to buffers of up to 200m between the foreshore and residential development in core areas of the Greenspace corridor (which extend onto the site).
Mr Vann has demonstrated that in recent times, as one ranges further from the site than its southern neighbour, approved development has been kept well back from the foreshore, consistently with the buffer above the RL2.4m contour. The site is part of a missing link in the desired green corridor along the foreshore. Mr Vann’s Figures 18, 19 and 20 show how the Council has gained control of areas above RL2.4m in association with development in recent years. The court ought not to cut across the prospects of missing links being completed. From the standpoint of preserving the values of the foreshore and environs, bearing in mind the views of ecology experts, the better approach is that the dam on the May property should be preserved, notwithstanding that its contribution (one likely to be enhanced as revegetation of the surrounds is achieved) is limited compared to that of the much larger dam on the property to the north. That northern dam in line with current thinking (which discounts the concern traditionally felt that bodies of water such as dams to which the public had access constituted an unacceptable invitation to tragedies) is a feature that we can be fairly confident will be preserved.
In the 2006 Planning Scheme the site is covered by the Habitat Protection-Bushland Habitat Overlay, partly Enhancement Corridor, otherwise in Marine Habitat with the sites north and south in similar case, also having substantial areas of Bushland Habitat, as does the land to the west which is otherwise Enhancement Link. Recognition of the western land was also accorded in the 1998 Strategic Plan as both Special Protection Area PDLU and Greenspace (like the eastern part of the site). The site is strategically located as a link in all directions (indeed, along virtually all of its boundaries) for Greenspace/Fauna Corridor purposes. The Development Application Decision Notice Operational Works of 16 February 2000 (Exhibit 15) indicates, for example, that (the building envelope for Lot 2 apart) the Leishman land along the boundary is either Protected Vegetation Area or Park. The land to the north and west is apparently controlled by Heritage Pacific/Ausbuild, named as client in Exhibit 13, a conceptual subdivision layout yielding 288 lots in a development whose frontage is to Cleveland Redland Bay Road; “tree retention” and park areas, including the large existing dam, are generous. No claim is made to include land below the storm surge contour as park; only 20% or so of the parcel adjoining the Mays’ site is to be developed and retained in private ownership according to that conceptual subdivision layout. That developer does not face the same proportionate loss of land or yield of lots which the Mays do, should the Council have their way. The Heritage Pacific project, called “Waterline” is the subject of a development application lodged in late 2003 which is presently on hold because of “the ongoing uncertainty in the strategic land use planning for the precinct. … theoretically being resolved through the SET Structure Planning Process…”, to quote the sole submission received by the Council in respect of the Mays’ development application, which was impact assessable. The point of the lengthy submission was to ensure that nothing happened on the site which may jeopardise the Waterline proposal. The submission is dated 29 May 2006. The extent to which matters are in flux may be gauged by reference to the concluding paragraphs of the submission:
“As a summary of the key points made within this submission, we make the following concluding points:
· Heritage Pacific neither supports nor objects to the proposed development, with the intent of this submission to raise issues for Council ultimate self determination.
· The proposed plan of subdivision represents a substantial underdevelopment of the site, and fails to comply with the SEQ Regional Plan provisions.
· The proposed plan of subdivision is inconsistent with the draft SET Structure Plan concepts, which currently intend for the subject site to be developed at standard residential densities and importantly seeks a significantly different road hierarchy and structure for the subject site. We suggest that it would be pre-emptive for the proposed development to be approved in its current form when it would clearly be in conflict with the eventual SET structure plan. We suggest that Council should not approve the development in its current form.
· The proposed application does not include a sufficient conservation reserve and fauna movement zone, consistent with that currently proposed on the Waterline site. We suggest that Council should not approve the development in its current form.
· The proposed extension to Rachow Street does not comply with rules and regulations stated in the Redland Shire Local Planning Scheme.
Should you have any enquiries regarding this submission, please do not hesitate to contact the undersigned to discuss. As noted previously, Heritage Pacific have to date been prepared to wait for the completion of the structure planning process and request that the applicant for the subject application be forced to similarly wait for the completion of that process. Having said this, Heritage Pacific would welcome the Council to begin assessing and approving applications in this locality despite the incomplete status of the SET Structure Plan.”
The Mays are in the different situation of the Council being willing to have their development application determined. Movement in respect of SET structure planning establishes a trajectory towards less intensive development of the site. This is not necessarily at odds with the SEQ Regional Plan vision which identified South-East Thornlands as a Major Development Area on 16 June 2006 and in the SEQ Plan 2009-2031 treats the site similarly as part of a much more extensive area as a Local Development Area in the Urban Footprint: it is not contemplated that every square metre of the footprint be “developed”.
The Golf Driving Range Approval
Judge Quirk’s order (made by consent of the Mays and the Council on 11 November 1998) resolved a successful conditions appeal, attaching 33 numbered conditions to the approval of an application for town planning consent for the purpose of golf driving range and private residence. There is little in the conditions recognising or protecting the environmental values or potential that the site is now assessed as having. The site was divided into four areas from west to east, Area 1 to contain the existing house and proposed shed, also a hard surface car park required along the southern boundary, as well as a putting area and tee areas (open and covered) and a “kiosk”. Area 2 extended in an easterly direction as far as the RL2.5m AHD contour; as the order sets out, “this Area includes open grass tees, grassed area and the dam.” Area 3 covers the land further east as far as the “vegetation protection buffer” the court’s inspection revealed (and the evidence confirmed that for years) Area 3 has been completely cleared save for some trees at the site boundaries. The Vegetation Protection Buffer referred to is 5m wide and further to the east – where it abuts “a line of best fit…along the RL1.5m AHD contour to indicate a “marine vegetation boundary”. Land to the east of that Boundary is Area 4.” The conditions contemplate mowing activities and ball collecting, sorting and cleaning (but not between 6pm and 7am). There is to be no new fencing, slashing/mowing, driving range extent or ball collection (except by hand only) in Area 4 nor use of fertilisers east of Area 2. There are no requirements for fencing to be fauna-friendly – which may be impractical for a golf driving range. That use has been established, but to date not on any significant commercial basis, the users being principally family and friends, as the court understands.
Mr Hughes SC, for the Mays, argues that the covenants they offer in respect of areas along the northern and eastern boundaries of the property which will require establishment and maintenance of vegetation (to provide opportunities for fauna movement) (Day 1 p. 8), being:
Covenant B (Lot 2) 1096m2
Covenant C (Lot 3) 1096m2
Covenant D (Lot 4) 1096m2
Covenant E (Lot 5) 5863m2
Covenant F (Lot 6) 4142m2
Covenant G (Lot 7) 4127m2
Covenant H (Lot 8) 4374m2
represent a far better outcome than a golf driving range from the environmental perspective and that this is a significant argument in favour of approval of the proposal. This brings to mind opinions expressed by Quirk DCJ in cases such as Upham v Brisbane City Council & Anor;Fischer v Brisbane City Council & Anor [1993] QPLR 318, 321; [1993] QPEC 38 (unfortunately available only in the Supreme Court Library, not electronically):
“I do not favour the argument that, instead of this development, the appellants might be faced with a development of the traditional “six pack” type which, although complying with the relevant performance standards of the Town Plan, has many factors that would be regarded unfavourably. A development of this type in this zone is a discretionary use and must be examined on its merits. It does not seem to me to be a particularly compelling argument (if indeed it is a valid one) that a particular form of development should be accepted because a less acceptable form of development might take its place. Leaving aside completely the matter of what other forms of development might occur on the subject land I am satisfied on the evidence that this proposal, because of its own characteristics, is worthy of approval.”
I would not subscribe to any general approach of rejecting arguments that a lawful, complying development would be worse than the proposed one under consideration: see Calvisi v Brisbane City Council [2008] QPEC 45; [2009] QPELR 35 at [45]. In any event, s 3.5.5(2)(d) of the IPA requires the Assessment Manager to have regard to any development approval for and any lawful use of the site or adjacent premises.
No suggestion is being made that it is a case of “open slather” for any proposal less bad than one that could be lawfully achieved on a site. The suggestion is that it is a factor to be accorded appropriate weight in the circumstances that the relevant goals of the planning authority as set out in its planning instruments may be better served by the proposal to the extent of counting in favour of it. In my opinion, s 3.5.5(2)(d) requires as much. As for adjacent premises, those to the south are already developed in the way that the Mays propose for their site, and reliance is placed on the 1999 approval for the Leishman development, as it was called. The appellants’ application appears to be indistinguishable; both were prepared by Mr Lambert who understandably is critical of the difference between the approaches taken by the Council to his respective clients. The question remains whether replication of the Leishman decision a decade later is inappropriate. Mr Vann’s view is that the Leishman approval was not appropriate, even for its time. I am not prepared to regard the Leishman approval as a precedent.
Section 3.5.2(2)(d) does not bring in anything of particular relevance respecting the other adjacent premises; with one qualification, significant development of these seems unlikely. Immediately adjacent land to the west of the site is generously treed and recognised for that and its fauna habitat and corridor values in the planning schemes. The latest thought in SET structure planning is that this land be Greenspace Network Coastal Corridor, the southern half also “indicative local park”. The land to the north which, like the site, extends to Eprapah Creek in the east, appears for purposes of the 1998 strategic plan to contain more Special Protection Areas (absolutely and proportionately) than the site, likewise more Greenspace. Under the 2006 Planning Scheme it has Storm Tide area contours like the site’s (extending beyond the recognised Marine Habitat they share); it alone has a substantial area (20% or more) of Bushland Habitat; it is entirely Greenspace Network Coastal Corridor as shown in current SET structure planning. There are no relevant development approvals. What can be anticipated in “Waterline” (see [14]) if the layout in Ex 13 comes to fruition is 19 suburban residential lots in the north west of the site, the eastern eight separated from the park including the large dam by a road. At least four of the 19 allotments would abut the park. All of this is essentially speculation: most of the 24 lots shown in stage 1b are in the area of the “indicative local park” referred to above: in SET Structure Plan Exhibition Version (March 2008) this area was proposed to be “urban residential”. The November 2008 Draft allots this (like all of the May land except for the south west) all to sub-precinct 4a:
“●Sub-precinct 4a Coastal Corridor protects and enhances publicly owned land that:
Ø incorporates a regionally important habitat and movement corridor for Koalas and other fauna between Pinklands Reserve and bushlands adjacent to Eprapah Creek
Ø buffers ecologically sensitive RAMSAR wetland wader birds roosts and the Moreton Bay foreshore and marine habitats;
Ø restricts active recreation opportunity to the district park; maintains the hydraulic capacity of the Moreton Bay foreshore to accommodate ecological processes including tidal storm tide, potential sea level rise, flooding and overland stormwater flows;
Ø protects existing remnant and non remnant vegetation”
The specific outcomes desired include the following:
“
Specific Outcomes Probable Solutions …
S1.6
…
(1) Precinct 4 – Greenspace Network comprising of six (6) sub precincts is designed and located –
(a) …
…
(g) where in sub precincts 4a, 4b, 4c, 4d and 4f, be progressively transferred to public ownership;
(h) where in sub precinct 4e be retained in private ownership
(2) Sub-precinct 4a – Coastal Corridor protects and enhances publicly owned land that –
(a) incorporates a regionally important habitat and movement corridor for koalas and other fauna moving between Pinklands Reserve and bushland adjacent to the tidal section of Eprapah Creek;
(b) incorporates a local park in close proximity to the Mixed Use – Local Centre Precinct (Precinct 1) and surrounding Medium Density Housing Precinct (Precinct 3);
(c) protects a locally important node of vegetation located between the local park and Precinct 2 – Housing and Sub Precinct 2a Attached Housing;
(d) provides a buffer of a minimum 200m to the Ramsar listed wetland wader bird roost and marine habitat and foreshore areas of high ecological sensitivity from the impacts of passive recreation along the shared pedestrian cycle way and adjoining housing precinct;
(e) ensures the large existing farm dam adjoining the housing precinct to the west is maintained as an artificial wetland and habitat area;
(f) protects the hydraulic capacity and ecological features and values of the Moreton Bay foreshore which naturally accommodate the flow of waters during storm tide events and potential sea level rises;
(g) is transferred to public ownership where part of a development site; or
…
P1.6
(1) No probable solution identified.
(2) No probable solution identified.
”
The covenants proposed which would be registered under s 97A of the Land Title Act 1994 are a novel way of controlling land use but have been accepted by the court in Grand View Horizons Pty Ltd v Maroochy Shire Council [2007] QPEC 59; [2007] QPELR 588 and in other cases collected at paragraph [8]ff in Bakrnchev Enterprises Pty Ltd v Maroochy Shire Council [2008] QPEC 27, in which there was expressed willingness to accept in principle the appellant developer’s proposal for vegetation covenants in some areas where protection was required: see [27]. In respect of other areas, where covenants were proposed, the court’s preference was for a corridor across the back of a number of lots to be public open space in the Council’s ownership, rather than subject to a series of covenants as proffered, monitoring of which would have been a difficult task for the authorities: [25]. Bakrnchev alludes to other issues which require examination in this appeal including whether loss of title to “covenant” areas would reduce the lot yield ([19]) and whether, assuming a corridor for wildlife is to be provided, it can reasonably be contemplated that adjoining land will be required as a condition of new development to contribute to the corridor, with the consequence of relieving the developer currently before the court of sole responsibility to provide the corridor that might be desirable: [22]. In Wall v Doyle [2008] QPEC 23, a fairly draconian order to re-establish and maintain vegetation was made by consent, in contemplation that it would be registered under s 173J of the Nature Conservation Act 1992 so as to bind the respondents’ successors in title. The order there (made in enforcement proceedings) imposed obligations not only on the respondents but, the order stating, as contemplated in s 173I(1)(c) that the section applied to the land, it would be taken to be made against future transferees in the ordinary case.
Views to similar effect had been expressed at an earlier stage of the Bakrnchev appeal: [2007] QPEC 117; [2008] QPELR 372 at [52].
It is odd that, however the issue of title to those parts of the proposed lots to be protected for environmental purposes is to be dealt with (whether by dedication to the Council as public open space or by registered covenants), the practical outcome will essentially be the same. For lots 5, 6, 7 & 8, in particular, the building envelopes are to be located at the far west of those lots; what can be done on them under the Mays’ proposal, assuming the land remains private, is severely restricted by the Greenspace Management Plan (GMP) which has been prepared in respect of the 8 lot park residential concept. The GMP is reproduced in Mr Lambert’s report (Exhibit 1). It delineates and stipulates management intents and permitted uses for three so-called Management Units as follows:
“Management Unit 1 – Marine and Saline Communities
The eastern fringe of the site supports Salt pan vegetation comprising Sporobolus virginicus grassland and samphire herbland. This area provides potentially suitable habitat for waterbird, shorebird and raptor species listed under the migratory provisions of the Commonwealth Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act), and several species of conservation significance under the Queensland Nature Conservation Act 1992 (NC Act). The majority of MU1 will be located within the proposed Public Open Space Reserve, which encompasses approximately 0.75ha, or 12.5% of the site area.
Management Intent:- To conserve and enhance the marine vegetation community and associated fauna habitat existing within the area. This intent will be achieved by implementing the following measures:
· restricting public access, via removal of the originally proposed public pathway;
· the removal and management of declared and environmental weed species; and
· the removal of all refuse and old fencing located within this area.
Permitted Uses:- Activities that would be permitted in MU1 would be limited to passive recreational pursuits (i.e. bushwalking, bird watching, etc.), however the development layout has generally been designed to discourage public access into this area.
Management Unit 2 – Queensland Blue Gum Forest / Melaleuca Wetlands – Habitat and Linkage Establishment
MU2 encompasses areas of the site that will be managed primarily for the establishment/enhancement of fauna habitat and movement corridors through the site. The majority of these have been substantially cleared of their original forest cover and fauna habitats. MU2 encompasses 1.55ha (or 16% of the site) including all parts of site located below the RL2.4m contour (excluding MU1) and a 10m wide band of land extending along the site’s northern boundary.
Management Intent:- To establish and maintain vegetation communities and associated fauna habitat that reflects the structure and floristic composition of the Queensland Blue Gum Forest / Melaleuca Wetlands vegetation association as described in Redlands Planning Scheme – V2, Vegetation Associations – Redland Shire Mainland – Schedule 10 – Vegetation Species List (the “RPS Revegetation Schedule”). This intent would be established through:
· the retention of all existing native vegetation;
· the removal and ongoing management of declared and environmental weed species;
· an intensive revegetation program, using the native plant species listed in the RPS Revegetation Schedule and the active encouragement of natural regeneration;
· prohibiting the establishment of any structures other than fauna friendly fencing, walking trails and some seating areas for passive recreation use; and
· prohibiting the keeping of livestock or operation of machinery (unless for permitted purposes).
Permitted Uses:- uses and activities appropriate within MU2 would be limited to:
· the use of machinery for weed management and revegetation purposes only (i.e. use of chainsaws and planting drills); and
· passive recreation pursuits (i.e. picnics, bushwalking, bird watching, etc.)
Management Unit 3 – Habitat and Management Buffer
MU3 encompasses a 30+ metre wide buffer to the RL2.4m contour and a 10m wide band of land adjacent to the site’s northern boundary. MU3 is cleared land that will be selectively revegetated to compliment the habitat and linkage functions of MU1 and MU2, whilst providing an appropriate interface (or buffer) to adjacent residential uses that has a combination of bushfire hazard mitigation and amenity (coastal breezes) and security (visual surveillance) functions. MU3 encompasses approximately 0.73ha or 12% of the site area.
Management Intent:- To establish and maintain an effective buffer between residential land uses and adjacent areas of the site, and adjoining land to the north, that have important intrinsic and/or strategic greenspace values. This intent would be established through:
· the retention of existing native vegetation;
· the removal and ongoing management of declared and environmental weed species;
· the establishment of native plantings using species and patterns that enable MU3 to act as an effective “fuel reduced zone” for bushfire hazard mitigation purposes (i.e. the planting of clumps of native trees and understory species surrounded by areas of mown grass);
· prohibiting the establishment of any structures other than fauna friendly fencing; and
· prohibiting the keeping of livestock or operation of machinery (unless for permitted purposes).
Permitted Uses:- Uses and activities appropriate within MU3 would be limited to:
· the use of machinery for weed management, revegetation and bushfire hazard mitigation purposes (i.e. maintenance of grassed areas between native planting); and
· passive recreational pursuits (i.e. picnics, bushwalking, bird watching, etc)
In combination MU2 and MU3, which encompass nearly 30% of the site area, provide a ‘Core and Foreshore’ buffer well in excess of the 40m and 60m requirements as set out in Table 1 – Minimum Buffer Distances and Revegetation Requirements of the Redlands Planning Scheme V1 Part 5 – Overlays, Division 12 – Waterways, Wetlands and Moreton Bay Overlay.”
(The M3 10m buffer strip is additional to the M2 one, as shown in the drawing before the court.)
The GMP goes on to set out specifications for revegetation and fencing (to be “fauna-friendly” around site and lot boundaries but fauna proof around building envelopes) and provides for environmental covenants to be registered with the Department of Natural Resources. It seems to me that, excepting what would happen in respect of fencing and public access, there will be little, if any, detectable difference depending on whether the area in contest between the parties is dedicated to the Council or remains privately owned. In those circumstances, it seems to me incongruous to have lot yield determined according to who has title to the area within the GMP. Maximising lot yield is more than a matter of the Mays’ private interest. Speaking generally, it is something which the State favours, along with due respect being paid to environmental and amenity considerations, as the South-East Queensland Regional Plan attests. I don’t suggest that Mr Lambert (who happens to be a registered real estate salesman as well as a qualified surveyor and planner) is able to make admissions binding his clients, the Mays, and he strove not to do it, but I think it is pertinent that he conceded (Day 2 p. 92) that:
“If the lots are there and they are smaller, (the development) wouldn’t be a failure but if the lots weren’t there at all it probably would be a failure.”
In the currently proposed layout, Lot 5, in the north east of the site, generates most conflict (followed by Lot 8, which includes the farm dam). Lot 5, if a house is erected in the building envelope, tends to create a “pinch point” for animals coming from the west, if they are minded to turn south. In my opinion a condition requiring sacrifice of an allotment to avoid that would be an unreasonable imposition on the development proposed, within s 3.5.30 of the IPA. The current and likely future role of the land immediately to the north should alleviate the “pinch point” concern.
During the hearing of the appeal and since I’ve been interested in the importance of insistence upon a 6,000m2 minimum for lot sizes (disregarding proposed Lot 1, which all concerned agree can appropriately be smaller in light of what can be expected of the SET Structure Plan when it is completed). There is apparently nothing in the planning schemes (as there is in those of some local governments) which, for the purposes of calculating permitted intensity of development, allows parts of the site which are to be dedicated to be counted, nonetheless. Mr Ure’s written submissions oppose the acceptance of lots smaller than 6,000m2 on the basis that “an ad hoc dilution of this approach would compromise the integrity of the Scheme” (which has allocated land to different designations to achieve varying densities): “It is important that there is consistency in the application of a Planning Scheme.” However, he has brought to my attention:
“90.…clause 15 of the subdivision of land by-law which relevantly permits the Council to vary any of the provisions:
“Where it considers such variation to be necessary because of the location, size, shape or topography of the subject land, and where it considers that the proposed allotments would be satisfactory for use or uses permissible within the zone which the subject land is included.”
91.The fact that allotments may be in an area which is not readily visible to a large number of people is no warrant to permit a more dense development. In the instant case, Lots 6, 7, and 8 are already narrower than the 40 metre frontage contemplated by clause 13(1)(b)(F) of the subdivision of land by-law: Exhibit 5, vol. 1, p.128.”
“Relaxations” in minimum lot sizes are far from unprecedented: Simpson Rayner Surveys v Brisbane City Council 2001] QPELR 231, Hayes v Brisbane City Council [1997] QPELR 432, Ambrose v Gatton Shire Council (1980) 1 APAD 179. The cases that demonstrate that the discretion to allow “relaxations” (however called) is part of the planning law system are legion. See, in relation to setback from a seafront boundary Eschenko v Cummins [2000] QPELR 386, to minimum frontage, Tod v Brisbane City Council [2003] QPEC 55, cf Calvisi v Brisbane City Council [1996] QPELR 283.
There has been noted above the possibility that on the land immediately to the north of the site, there may be an aggregation of four houses on sites far smaller than proposed building envelopes for Lots 5, 6, 7 and 8 immediately abutting the park which the Council is striving to establish to link the Pinklands Reserve (to the north) and Point Halloran Reserve (to the east), beyond Eprapah Creek.
There is no application for reconfiguration at present, but the appellants understandably desire to obtain in the appeal some indication of the reconfiguration or subdivision which they might anticipate being able to achieve consequent upon approval of a material change of use. They want to have that indication in the form of a condition that future development be substantially in accordance with identified plans, for example. It is the case that requirements the Council are disposed to insist upon may require dedication of large tracts of the site, with the consequence that the appellants’ lot yield is appreciably reduced if the 6,000m2 minimum lot size is to be satisfied. The Council presses for the “integrity” of the planning arrangements to be respected by insistence upon the minimum area. In support of the dedications it calls for it presents a case supported by expert opinion in relation to:
(a) Stormwater management, soils, erosion and sediment control, environmental management and buffers (water quality);
(b) Fauna and terrestrial (ecology).
So far as (a) is concerned, Dr Johnson and Mr Sutherland are agreed that appropriate measures have been or can be devised which include stormwater treatment areas up to 100m2 being provided in the building envelopes for each proposed lot, the purpose of them being to ensure that stormwater flowing off the lots is of acceptable quality. They differ only so far as Mr Sutherland is inclined to defend as reasonable the Council’s policy and practice whereby such treatment areas are provided on public land to assist in monitoring and maintenance. Mr Sutherland was less supportive (if supportive at all) of Council’s contention that a 10m strip along the southern boundary of the site to accommodate run-off from the road towards Eprapah Creek should be dedicated. In the Leishman development, the Council was content to acquire an easement over land which remained in private ownership. In my opinion, a similar arrangement meets the case here satisfactorily without requiring the appellants to divest themselves of title to land. I adopt the approach that (as I took Dr Johnson to suggest) an easement arrangement, likewise, could provide sufficient entitlement to access to the stormwater treatment areas. The proposed development should be subjected to conditions accordingly.
Turning to the ecology issues, as the engineers had, the ecologists, Mr Agnew and Mr Delaney met on multiple occasions and considered changes in design of the proposal and additional information that became available. Mr Agnew accepts that changes made have been advantageous from the ecological point of view. Any conflict with the superseded planning scheme is in terms of the Council policies, relevant provisions of which are set out elsewhere. The policies themselves incorporate a lot of flexibility; from their very status as “policies” they do not give rise to any expectation that they will be implemented in their full rigour. I agree with Mr Delaney that the current plan of development and the associated greenspace management measures proposed by him and the appellants (subject to qualifications about to be mentioned) “achieve general compliances with the relevant ecological provisions” of the current planning scheme as well as with most of the specific outcomes sought in the SET Draft Structure Plan for Precinct 4 (Greenspace Network) and Precinct 4(a) (Coastal Corridor). What is currently proposed does not cut across these subsequent and likely future planning arrangement in an unacceptable way. It is not unacceptable, for example, to have a minimum buffer of 200m from the RAMSAR listed wetland wader bird habitat nearby and other marine habitat and foreshore areas of ecological sensitivity, although Mr Agnew would prefer a wider buffer and “corridor” provision; Mr Hughes accused him of succumbing to a personal desire to secure provision of an east-west fauna movement corridor that the planning documents in force at the relevant time did not contemplate. He and Mr Delaney differed as to the appropriateness of private ownership rather than public ownership from the point of view of protecting ecological values. In my opinion, the court is showing over time greater inclination to accept private ownership, subject to appropriate covenants and this is an appropriate approach here. It is not only because it may serve to maximise the number of residential lots the site may be able to produce.
While accepting in principle the appropriateness of the GMP proposed, I am concerned at the imprecision of a limitation of permitted uses to “passive recreation pursuits” (i.e. picnics, bushwalking, bird watching, etc.). The etcetera may in the course of time be relied on to let in other uses inimical to the appellants’ offer to restore and then maintain ecological values that the relevant parts of the site are presumed to have had before clearing. At the hearing, the court was assured (transcript at page 20) that the covenant areas could not be used for any sort of construction, for storage of anything, or for the keeping of horses. I would invite the parties to dispense with “etcetera” and to devise either an exhaustive list of “passive recreation pursuits” or a set of prohibitions.
It follows from the foregoing that the appellants have persuaded me that a building envelope more or less in the location currently envisaged for proposed lot 5 is acceptable.
For reasons appearing elsewhere, I agree with the planners that an “under-size” Lot 1 is acceptable. To my mind, no persuasive case has been made against the acceptability of additional “under-size” lots (although it has not been suggested that an aggregate yield of more than 8 lots is feasible). As indicated, development of the covenant areas (excluding the regeneration of them) is effectively precluded, preserving them for benefit of the environment and even compulsory acquisition by Council, very likely on easier terms for the Council than if development were permitted, as the land is largely sterilised for development purposes by the covenants. The circumstances are highly unusual ones in which we become enmeshed in a somewhat artificial debate about where title to the covenant areas ought to reside. It may well be that, when reconfiguration is applied for, the Council becomes willing to agree to “under-size” lots in addition to Lot 1 (and undersize by a considerable margin).
The court is persuaded by Mr Agnew that the farm dam in the area of Lot 7 ought to be preserved as an existing feature offering a “bonus” for the environment, but on the basis that its retention does not lead to loss of a residential allotment. This may require some adjustments of lot boundaries and/or covenant areas as presently enveloped.
The appeal should be allowed. The proposal, conditioned as outlined above, will not “frustrate a new planning intention”. It satisfies the planning arrangements that were the law when the development application was made, the conditions required by the Council so far as they require dedication of land for parks, etc with the consequence of reducing lot yield below 8 (as generally proposed presently) do not satisfy the statutory requirement of reasonableness under s 3.1.30 in the circumstances. The golf driving range approval generates a factor favourable to the proposal, whose comparative contributions to the environment are so much greater.
The parties are invited to propose (cooperatively if possible) an order and conditions package which will give effect to the conclusion now indicated. The recourse had to written submissions has occasioned unfortunate delay, and precluded my seeking submissions from counsel in an oral hearing. I record the court’s interest in easement arrangements for the northern boundary movement corridor which would keep the corridor fully open in the absence of waiver by the Council – also of similar easement arrangements that might apply to at least part of the covenant areas along Eprapah Creek.
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