Mergler v Redland City Council
[2011] QPEC 88
•30 June 2011
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Mergler v Redland City Council [2011] QPEC 88
PARTIES:
STEVEN MERGLER
(Appellant)V
REDLAND CITY COUNCIL
(Respondent)FILE NO/S:
3296 of 2009
DIVISION:
Appellate
PROCEEDING:
Appeal
ORIGINATING COURT:
Planning & Environment Court, Brisbane
DELIVERED ON:
30 June 2011
DELIVERED AT:
Brisbane
HEARING DATE:
8, 9 June 2011 (Following site inspection 7 June 2011)
JUDGE:
Robin QC DCJ
ORDER:
Appeal dismissed subject to variation of easement terms
CATCHWORDS:
Sustainable Planning Act 2009 s 345
Integrated Planning Act 1997 s 3.5.30, s 4.1.27(1)(b), s 4.1.47, s 4.1.50
Appeal by developer against condition of a development approval requiring dedication of an easement for drainage purposes – easement shown in development application document – whether it constituted part of the proposal rather than an appealable condition – whether easement condition unreasonable or irrelevant because need for it allegedly arose from roadworks previously done by Council – or because mapping and the surveys it was based on may be inaccurate – or because it may not be needed forever – or because it precluded self-help by owner of site to place fill which would keep polluted surface run-off off the site – approved house already substantially constructed notwithstanding the appeal’s being undetermined.
COUNSEL:
Mr M. J. Doolan (town planner) represented the appellant
Mr S. M. Ure for the respondent
SOLICITORS:
Mr M. J. Doolan (town planner) agent for the appellant
Redland Council Legal Services for the respondent
This is an appeal under s 4.1.27(1)(b) of the Integrated Planning Act 1997 (IPA) filed on 18 November 2009 seeking removal of the following condition from a development approval granted by the respondent Council on the appellant’s application for a material change of use for the construction of a dwelling house at 106 Beelong Street, Macleay Island, a 1,143 m2 parcel on the inland side of Beelong Street:
“7.0 Drainage Easement
7.1A drainage easement is required over the subject allotment to provide for stormwater drainage. The easement shall be as indicated on Council’s Drawing Number A2-B097-2 attached. Written agreement from the owner of the allotment must be received prior to the commencement of building works, to allow Council to survey and register the easement at the Titles Office. Please be advised that all costs relating to the easement will be borne by Council. (Please find attached an Easement Consent Form).
7.2There must be no man made obstruction to overland flow placed in the easement, no installation involving concrete, brick or other permanent materials or any earthworks without the express written permission of Council, with the exception of up to three (3) 100mmx100mm RHS columns to provide support for the front deck as shown in the SE Elevation Plan in approved plan 09/364 dated 05/10/2009.”
Beelong Street is an extension along the northern tip and then proceeding along the eastern side of the island as a continuation by a 90º curve to the south of Coondooroopa Drive which tracks the western side of the island in this area. The court recently decided an appeal similar in some respects relating to a parcel of land in Coondooroopa Drive: Parsons v Redland City Council [2011] QPEC 62.
Mr Mergler’s land is close to the low point of terrain in the area, which is the next block to the south; it has a Conservation zoning as distinct from Mr Mergler’s Southern Moreton Bay Islands (SMBI) Residential zoning and has been acquired by the Council. Also less elevated and zoned Conservation is the next block to the south which remains in private hands. All these blocks are of similar dimensions. The terrain and the road then become increasingly elevated across two more such blocks to Kate Street which joins Beelong Street from the south-west at a right-angle. Beyond Kate Street are more residential lots on increasingly higher terrain. On the north-western side of Kate Street, inland from the corner block, are five long narrow residential blocks extending as far as Rio Street, which provides them with a rear “street” frontage as well as the Kate Street one by virtue of making a right-angled turn around the fifth of those blocks; it then executes a contrary right angled turn to resume its former bearing, providing rear “street” access for the Council’s block and the site and others between them and Beelong Street/Coondooroopa Drive, which Rio Street at its north-western extremity joins in a right-angle.
A feature of the drainage system pointed to by Mr Doolan, a town planner who conducted the appeal for the appellant, is that for a distance he nominated of 300 metres the street kerb and channelling is such as to collect all surface run-off from the north and direct it not towards Moreton Bay for discharge there, as one might expect, but to the inland side of the road to be discharged onto the two Conservation zoned blocks. They also receive the surface run-off following the general line of the middle section of Rio Street which appears to drain a fairly extensive valley and the surface run-off coming down Beelong Street from the direction of Kate Street. Around the low point of Beelong Street has been constructed a concrete spillway below which has been provided a culvert containing two parallel pipes which carry water from the meandering drain (which has arms running from a few directions) under the road to discharge into a single drain which empties on the beach.
The surface of Beelong Street is marginally higher than the frontage of the site and considerably higher than the frontage of the Conservation blocks. Across the road is a Council beachfront park, which is more elevated than the “inland” side of the street. The site is fairly flat, with a slope of about six degrees. Levels measured along its southern boundary from corner to corner are 2.89, 2.59, 2.89, 3.22, 3.54 and 4.18, on the northern boundary from 3.44 to 5.26. The formation of the drain is such that surface water on the Conservation blocks does not completely drain away through the pipes. On the court’s inspection on 7 June 2011 the ground was boggy; in drier areas towards and in Rio Street (which for the most part is unformed) where one observes what appear to exhibit sandstone layers, scouring shows the effects of run-off.
The appeal has been concerned with the “Q100” event which forms the basis for development standards quite generally. The pipes under Beelong Street are not designed to cater for events of that order, or anything like them. Should one occur, the elevated road will have a damming effect which the experts described as causing inundation on the site up to 550 mm at the lowest point. Essentially, water entering the site will do so via the Council’s Conservation block (lot 71 – the site is lot 70).
The maximum extent of Q100 inundation is within a quadrilateral with sides,
· on the Beelong Street (front) boundary, 9m (about half of the frontage),
· some 41.6 m along the southern boundary, the connection being by the remaining sides of the quadrilateral,
· one being 12.5 m long running from Beelong Street,
· the other 33.745 m,
so that the maximum intrusion into the property would exceed 9 m by a metre or so. Such calculations do not allow anything for the effect of cuts which have occurred on the balance of the property, perhaps without authorisation.
The description of the area subject to inundation in the Q100 event is taken from the plan the Council has prepared to establish the boundaries of the easement referred to in the challenged condition.
Selection of the easement area is based on a 1998 “GHD Flood Study” which led to the inclusion in the flood prone, storm tide, drainage constrained land overlay associated with the planning scheme of not only the easement area but also the two Conservation blocks and most of the frontage of the next block to the south, together with adjoining parts of the Beelong Street reserve and of the five blocks with frontages to both Rio Street and Kate Street and a small part of the block across Rio Street from the site. Further work performed in 2010 using laser aerial survey techniques has refined but essentially confirmed the GHD work.
Is this a conditions appeal at all?
Mr Ure, representing the Council, contends that the present is not really a conditions appeal at all, on the basis that the easement that is now challenged was part and parcel of the development proposal presented to the Council. This puts one in mind of the difficult distinction between requests to change development approvals and requests to change or cancel conditions under s 3.5.24 and 3.5.33 of IPA. The development application placed before Council, which Mr Mergler signed as owner on 16 June 2009, included a site plan drawing no. 09/370 dated 8 June 2009.
It was produced by BF Drafting & Design and shows hatched and identified as “Drainage Easement” what is obviously the area described above as the Q100 inundation area and the extent of the easement the Council require, albeit without dimensions or bearings shown. The plan with those features still present was put before the Council in a number of forms. One, stamped received 31 July 2009 bears a blue biro circle and explanation to show that it illustrates a grey gum tree to be retained, with Mr Mergler’s signature shown. There is an edition of the plan showing further detail bearing date 8 September 2009 and the description “preliminary plans for comments” and another one dated 23 September 2009 (“final draft for comments”). Even if the person to comment was Mr Mergler, the version dated 28 September 2009 would seem to have gone to Council. The version bearing the “Approved Plan 22 October 2009” stamp of the Council which forms part of the approval is one dated 5 October 2009. There is a plan of the site prepared by Statewide Survey Group dated 24 August 2009 apparently prepared for Mr Mergler which is useful in showing contours and site spot levels. It does not show the easement which, of course, has never come into existence. It is unknown whether the surveyor ever knew anything about the easement.
The Development Application Decision Notice of 22 October 2009 shows the approved plans for the development approval as including the site plan (DWG 9/370 dated 5 October 2009) and the Council’s drawing A2-B097-2. The latter (“Redland Shire Council proposed acquisition”) is identical with the corresponding document in an earlier approval for a material change of use of the site for a dwelling house contained in a Development Application Decision Notice of 26 July 2007. The corresponding site plan prepared by Contract Design Staff Pty Ltd for P. Mergler (the appellant’s brother) and stamped received by the Council on 8 June 2007 depicted the same “drainage easement”. There was a condition to similar effect:
“Drainage Easement
13.A Drainage Easement as indicated on Council’s Drawing No. A2-B097-2 attached is required. Costs associated with the survey and legal expenses incurred in relation to the easement to preparation and registration will be met by Council. No building work, earthworks including excavation and filling or solid fencing is to be placed within the bounds of the easement.”
Such conditions (including the one under appeal) must satisfy the tests of relevance and reasonableness in s 3.5.30 of the IPA. In principle, such a condition is acceptable, as to which reference might be made to Parsons. Points of difference are that the easement required there was across land in the Conservation zone, rather than land in the SMBI Residential zone and that the overland flow path for runoff was centred squarely along the easement area; the Council controlled adjoining land (a road reserve terminating at the beach) which could accommodate works to make it the flow path; unlike lot 71, which for the moment constitutes the heart of the flow path, the road reserve joining Mr Parsons’ property served that role only as far as the boundary of his site.
The relevant expert evidence supports the imposition of the contentious easement. Mr Lenehan for the appellant and Mr Collins for the Council agreed:
“B Points of Agreement
1. Based on both the GHD flood study of 1998, and the recent update flood study of November 2010, the eastern portion of the site is subject to inundation by flooding. Under severe flood events, inundation will extend into the subject site.
2. Storm water flows in the overland flow path are controlled by the crest of Beelong Street and two 600mm diameter culverts under Beelong Street which increases the extent of inundation on the subject site through additional pondage.
3. The extent of inundation of the building pad area predicted by both flood studies does not take account of the effect of the cut works that have already taken place. These works are likely to increase the area of inundation in the ARI 100 year flood[1] under the building over that shown in the BF Drafting and Design Plan, in the flood studies, and on the Council easement drawing. However flood waters in this cut area would be pondage.
[1]I take the Average Recurrence Interval 100 year inundation to correspond to the Q100.
4. In the absence of more detailed flood studies incorporating current detailed site and surrounding area ground survey, the November 2010 EnGen Y flood study and associated ARI 100 year inundation extent reporting is the most accurate available, noting that it does overestimate the catchment extent due to the pipe drainage in place around the Beelong Street/Kate Street intersection.
5. If the Appellant wishes to challenge the accuracy of this work, then he would need to carry out the more detailed studies.
6. In all likelihood, the effect of the cut works completed will be to increase the pondage area under the building in the ARI 100 year flood but velocities would be very low and conveyance interference effects are also likely to be small if materials are stored in this area. The owner would need to be aware, however, that this is not ARI 100 year immune.
7. In terms of ensuring no adverse off site flooding impact, it is important to ensure no filling or building works, or solid fences are placed in or across the overland flow.
8. It is agreed that it is important to ensure that the overland flow path is kept clear of obstructions and maintained free from excessive vegetation that could adversely affect flow. A drainage easement in favour of Council is one accepted method of achieving this aim. As to whether the existing town planning drainage mapping alone is sufficient, or whether the condition requiring the granting of the easement is appropriate are planning and legal questions.”
The Court of Appeal appeared to accept in Hammercall Pty Ltd v Gold Coast City Council [2005] QCA 29 that a developer’s agreement to a requirement for dedication of land, while not determinative of the issue of reasonableness, was evidence that a condition in that regard was not unreasonable: see [86]. Here, the development proposal itself shows the drainage easement, in circumstances where the natural understanding would be that the easement was proposed by the developer. Commonsense and experience dictate that the grantee of the easement would be the Council. On this analysis, the easement is not something that a condition might require: it is part and parcel of the proposal. What condition 7 does is quite unremarkably require that no work be done until the Council is put in a position to register the easement.
Mr Doolan argues that there was no intention to propose an easement, that the repeated representations of one were accidental in that the “site plans” were unnecessarily, perhaps thoughtlessly, still recording detail that had got there in 2007, when P. Mergler was the applicant (that role according to the IDAS forms was filled by Contract Design staff, contact person Patrick McElroy). It may be accepted that the appellant is not to be embarrassed or estopped by anything done by anyone else in the 2007 application, which did not involve him except as an owner signing to indicate consent.
My view is that, read on its own, the appellant’s development application proposed an easement extending over the indicated area. The history, including the 2007 approval, justifies a conclusion that the precise boundaries are those on the Council Drawing identified.
If that view is wrong, the case for such an easement is made out on the evidence. The appellant certainly fails to satisfy the onus he bears under IPA s 4.1.50(1) to show that the easement condition is defeated by s 3.5.30 in accordance with ground 1 of the Notice of Appeal.
As to the physical extent of the easement, the evidence supports adopting the best identification of the Q100 line. The consideration that led to reduction by the court in what the Council sought from Mr Parsons (who never proposed an easement) was preservation of prospects of establishing a feasible building envelope. That feature is not replicated here. Indeed, the house proposed by Mr Mergler (different from the one approved in 2007) is already up; its proportions are much more generous than the tiny ones of the proposal of Mr Parsons apparently felt himself restricted to.
It is commendable that the Council has facilitated construction of a dwelling of reasonable size by permitting on the easement area supports for a high deck which itself occupies air space above the easement.
There has not been agreement on the terms of the easement, as to which the proposal included nothing beyond the site plan. There is scope for argument in the appeal as to what the terms ought to be. The Council does not appear to have any “standard form” in this regard, and that approach (i.e. one size fits all) might be inappropriate. What is put up here seems to me unremarkable. It is open to the appellant to propose changes, in particular changes to overcome reasonably avoidable difficulties or unfairness that the Council document may create for the appellant and his successors.
It is convenient to deal in turn with the points made in the Notice of Appeal and the written submissions. The former are:
“The grounds of the appeal are as follows:
1. The proposed easement for drainage purposes required by Condition 7 of the approval is not reasonable or relevant to the subject proposal for a single detached dwelling.
2. The existing town planning drainage mapping already controls any proposal to build on this area.
3. The accuracy of the flood mapping data is queried and is suspected to be out of date.
4. Future flood mitigation works may reduce any area subject to flooding whilst the easement may remain on the site into perpetuity.
5. No compensation has been offered for the taking of the easement.”
Ground 1 is rejected conformably with Mr Lenehan’s and Mr Collins’ views, and for similar reasons to those in Parsons. It is important that the Council have access to the easement area in a situation of emergency without being required to obtain specific consent in advance or specific authority from a court, for example. I accept that Mr Doolan would not be the only planner in whose experience an easement like this is likely to be demanded only where the developer’s proposal is for something more intensive than a detached house on residential-zoned land. However, the “precedents” are mounting as it becomes accepted that impositions on private owners are required in the public interest of proper management of potential flood situations. The Parsons easement was imposed against the owner’s wishes. Like easements including one a couple of blocks away accommodating the same runoff flow are referred to in the reasons; some or all may have been granted willingly.
There was no demonstration (or one seriously attempted) of ground 2. Planning scheme controls do not authorize the local authority to take emergency action that may be appropriate.
As to ground 3, the flood mapping may not be perfect, as was acknowledged in Parsons in respect of a different area on Macleay Island. Mention was made in the evidence in this appeal of a tolerance of a quarter of a metre being appropriate for laser aerial mapping because of trees, etc. In this appeal there was no expert support for doubting the correctness of the surveys, modelling and mapping that have been done. It is for the appellant to provide better data if he can. He has not done so in the appeal.
Ground 4 raises a novel point. If intended to convey that the duration of an easement is reason for not requiring an easement at all, the argument must be rejected. It may be conceded that easements may run forever and that this is the scenario everyone contemplates. An easement does not have to last forever. A little research shows that the easement is not such a blunt instrument, and may be for a term of years: see Treweeke v 36 Wolseley Road Pty Ltd (1973) 128 CLR 274 at 282:
“As a general rule a release, whether express or implied, must be made by a party whose estate or interest in the dominant tenement is, as regards duration, either greater than or at least co-extensive with the period for which the easement exists”: Halsbury’s Laws of England, 3rd ed. Vol. 12, p. 562, par. 1222. On the subject of “Duration” this principle is enunciated at p. 530, par 1151: “An easement may be created by express grant for interests analogues in their duration to an estate in fee simple, an estate for life, an estate for years, or even a smaller interest.”
The relevant reference in the fourth edition of Halsbury is Vol. 14:49, where examples such as easement to take water for 99 years are collected. Easements becoming obsolete or even unacceptably inconvenient is dealt with in s 181 of the Property Law Act 1974; in such circumstances, the appellant or successor could apply to the Supreme Court for an easement to be extinguished or modified. Forcing adoption of that course may be avoidable. A suggestion was made that the Council might undertake to the court to surrender the easement if it became unnecessary on account of works done by the Council in or around lot 71 and Beelong Street in the vicinity. An alternative suggestion from Mr Ure which he has undertaken to explore with his client was that the easement document could oblige the Council as grantee to surrender in that event. Another thought contemplated an easement for years, perhaps with options (subject to the Rule against perpetuities). Problems with that idea are that an easement limited in that way might not run forever, even if conditions indicated that was necessary as events unfolded or did not unfold; also, it may have an appearance of imposing on a local authority an obligation to undertake works, which is something the court may not do.
Ground 5 gets the appellant nowhere. That local governments’ resources are limited is the very reason why requirements like the contentious one here are attached to development approvals, if that can appropriately be done, usually without any payment to compensate for what is given up. It is trite to observe that the appellant can avoid imposition of the easement by not implementing the approval. Mr Mergler has put himself in a difficult position by having presumed to put up the house already, which s 4.1.47 of the IPA distinctly says he may not do without the court’s approval, until his appeal under Division 8 (which includes s 4.1.27(1)(b)) is decided. The house constitutes unlawful development and may even be at risk of being ordered demolished, although the Council indicates that it does not desire that outcome. It takes (as it is entitled to do) the position that the impugned “condition”, which it sees as part of the development proposal, is so important that there should be no approval without it. I am inclined to agree with that stance. The importance of the easement as a way of ensuring that a Q100 flood path is kept open is obvious – the advent of a house on a hitherto vacant site will invite all manner of “improvements” and activities in the house curtilage that threaten the continued availability of an open flood path.
I deal next with Mr Doolan’s written submission, separated into its particular arguments.
“1.The condition requiring an easement over his land is not reasonable or relevant.
Section 183 of the Sustainable Planning Act
345Conditions must be relevant or reasonable
(1) A condition must –
(a) be relevant to, but not an unreasonable imposition on, the development or use of premises as a consequence of the development; or
(b) be reasonably required in relation to the development or use of premises as a consequence of the development.
It is argued that is not customary for Local Authorities to attach such onerous conditions to an approval merely for use of the land for a single detached house. These conditions would more commonly be associated with development applications for the intensification of the use of land (such as a multi-unit or subdivision application). In these intensification applications the owner can hope to be somewhat compensated for lost value via the approval, or via concessions associated with the approval.
The easement is also unnecessary given that the existing Council flood overlays restrict the construction of buildings or the filling of the land in the subject lower corner of the site, which is allegedly subject to flooding.”
The correct SPA reference is s 345; strictly, the appeal concerns the same provisions as found in s 3.5.30 of IPA. The contentions have been dealt with above. Apropos the final one, the court considers that in the present context, it is reasonable for the Council to be able to resort to “self help” by exercising its rights as grantee under the easement. The case against the appellant is even stronger if his proposal is regarded as including the easement, or consenting to one.
Next, Mr Doolan says:
“2. The accuracy of the flood data is questionable.
It is understood that the contour data utilised by Council and its consultants has been based on aerial laser level survey. It is argued that this information is not as accurate as site surveyed information. Site surveyed information taken by the owner shows some 200mm difference from Council contours. This should be considered in the context of the fact that the flooding affecting the site is only a few hundred millimetres in depth.
There has also been some ongoing doubt as to whether Council has used a single or double pipe in its flood calculations for flows under Beelong Street.
Additionally it has been acknowledged in the Joint Experts report on flooding that the catchment was ‘overestimated’.
It should also be noted that Beelong Street kerbing to the north west drains entirely into the pondage area. This water should be discharged to the far side of Beelong Street so as not to worsen flooding.”
The “overestimation” relates to four inverts around the mouth of Kate Street, which in ordinary events would take most or all of the run-off to the south of Kate Street. I accept that these are designed for the one in two and a half years event and (like the Beelong Street double pipes) are essentially irrelevant in the Q100 event, which they cannot cope with (although they would make some contribution, if not blocked). As to the last paragraph, it describes the status quo, which may be undesirable, but which the court must accept as the starting point, eschewing exercises of estimating what the status quo might be had Beelong Street been more appropriately drained: cf Parsons.
There follows:
“3.Even if the site did flood as modelled, the Council created obstruction (the Beelong Street earth filled causeway) has caused this flooding.
It is understood that the causeway was primarily constructed some 10 years ago when Beelong Street was bitumised (according to Island locals). It is not considered reasonable for the Council to create an obstruction to the natural overland flow path, cause flooding to adjoining properties, and then to take rights (easement) over that land to resolve the issue. This is considering also that this is entirely without offer of compensation. Mr Mergler should not suffer from these actions of Council even if they were for some public benefit. The taking of easements for drainage without compensation should only be based on the pre-obstructed, natural flow.”
I accept the general terms of this submission, and the appearance of unfairness in the Council requiring a private owner to forego rights as part of a development approval to deal with an issue (such as a drainage issue) which the Council’s own actions have created. The appellant’s difficulty is that the basic premise that the works 10 years ago caused or added to the problem is not made out. No Island locals gave evidence. The experts do not support the premise, joining in a subsequent agreement in the following terms (which add an explanation by Mr Collins):
“1.The upgrading works of Beelong Street carried out in 2000 have not significantly changed the overtopping capacity or the road low point, which is adjacent to Pats Park just to the east of Mr Mergler’s land, and the two by 600mm diameter pipes installed would have improved the drainage capacity of the crossing.
2.The roadway crossing crest level remains the control for flooding on Mr Mergler’s land (as agreed in Points of Agreement No. 2 of our 27/1/2011 Joint Report).
In relation to point 2 above, it is apparent to me that the Beelong Street crossing of the overland flow path has been in place since the original subdivision of the land. Hence, there would not have been any increase in inundation extent on Mr Mergler’s land due to the 2000 road upgrade works, and the increase in additional pondage referred to in the Joint Expert Report ought to be clarified as being over natural catchment conditions, due to the original subdivision and development of the land.”
On that basis, the Council must be exonerated from culpability, having become responsible for Macleay Island only relatively recently.
Mr Doolan’s submissions went on:
“4.If flooding exists it could be simply resolved by Council increasing the number or size of pipes under Beelong Street.
5.Alternatively the minor filling of the bottom corner of the site would remove the need for the easement without any significant change to flood levels.
The site runs parallel to the overland flow path direction. As such the minor filling of the site would not create a damming effect on the flood waters. There are no nearby houses that would be affected and all nearby houses enjoy significant freeboard above the flood level. Any suggestion that the minor increase in flood level would create a risk to life or property would be considered alarmist. Any increase in flood height would be expected to be minimal given that the flood heights are primarily controlled by the crest height of the Beelong Street causeway. Council’s conservative estimates (presumably on the upside) are 20mm. Any minor filling would not create any significant impact on the house footings or undercroft heights. In any case, as previously mentioned, the existing Planning Scheme and Overlay Flood area requirements ensure future development is made assessable by Council.
6.Additionally the water ponding within the Council property adjoining his site has been tested by the Department of the Environment, Resources and Mines[2] and shown to contain high levels of E. Coli (short for Escherichia coli). Any works to resolve the drainage issue would likely also serve to resolve this issue.
[2]Called “DERM” below.
It is not considered reasonable to allow polluted waters to pass uncontained through a residential property. This is likely to present a health risk during flood events. The presence of polluted water ponding on the adjoining Council property presents an ongoing health risk as children have been known to play in that area and dogs could carry contaminants from the area back to houses.
Additional Concerns
Council has provided a draft easement document. This document contains a number of reference to no fences being built in the easement. The easement would require fencing.
Conclusions
The Appeal for removal of the condition/s relating to the provision of a drainage easement on the subject property should be allowed. The removal of the easement will not see any significant increase in flood levels. Houses in the area have substantial freeboard and will not be subject to significant increase flood risk. Any proposal to fill or build in the flood area will be an assessable application to Council.”
As to 4, this costs money, which the Council may not have. However desirable, this would not seem to be a job of high priority. Mr Mergler does not offer to pay for the work. As to 5, perhaps the strongest opposition to the easement was based on the constraints against resorting to self help which it subjects Mr Mergler and successors to. I agree with 5 in principle. The suggested fill which might be as high as 500mm in limited places would be unlikely to have dire consequences in this location so near to the open waters of the Bay. Whether it is otherwise permissible depends on aspects of the Planning Scheme which have not been gone into. There is presumably no application to authorise filling to justify the Court’s saying or ordering anything on the subject. The appellant cannot use the appeal to get an approval going beyond what he originally applied for. Although “minor change” to an application may be accepted by the court, filling in such a sensitive location, not previously proposed, represents a change that could not be considered as minor. I agree with the view of Mr Collins (with which Mr Lenehan may have agreed) that filling ought not be contemplated without consulting (and it may be giving effect to) nearby owners’ views. It was accepted that the Council’s easement document in cl 4.2.3 contemplates that the Council may by writing give permission to fill. In this situation, if the Council was persuaded of a case for allowing fill, why would it now allow it on the basis contemplated in the easement document? The case is unlike Mr Parsons’, in which it was considered that the easement ought not to preclude the possibility of a development application that would be impact assessable to authorize fill that might be required to allow construction of a house of reasonable size partly extending into Conservation zone.
Point 6 had a double aspect, as I understood it: that Mr Mergler should not be precluded by an easement from taking steps on his own land to exclude the health risk and that it was totally inappropriate to require what was described (in dramatic language) as the easement area being made available as part of the Council’s sewage disposal system for Macleay Island. The “system” on the Island is one of on-site treatment of sewage. The Council agreed to Mr Doolan’s tender of DERM’s report of results of water quality testing on a single occasion on 16 December 2010 of stormwater that had ponded on lot 71, some distance from the boundary with the site on the basis of its tender of a wide-ranging response report by a highly qualified and experienced expert in the relevant field, Mr Sutherland.
DERM advised Mr Doolan and Mr Mergler:
“3 replicates were taken from two locations (6 samples total). The results are below (E.Coli CFU/MPN per 100ml).
Location 1
Sample 1: 9200
Sample 2: 9100
Sample 3: 7600
Location 2
Sample 1: 340
Sample 2: 520
Sample 3: 1100
For context ANZECC guideline levels for primary contact activities is 150-400 CFU/MPN per 100ml. The mean figure for each location sampled is 8600 and 650 respectively. A scanned copy of the lab results is attached for your reference.
DERM will be contacting Redland City Council and/or Queensland Health with respect to its findings to ensure the issue is dealt with under their respective jurisdictions.”
Mr Mergler has written to the Council on an earlier occasion expressing a similar concern to that implied by DERM’s foreshadowing taking the matter further (which there is no evidence to show occurring). This material is, on the face of it, alarming, but Mr Sutherland demonstrated that it establishes nothing useful, being no more than a single snapshot in time, limited to too few locations to be reliable, as the variation within a single location illustrates. The ANZECC levels were described as ones applicable when water is turned to recreational use, which should never happen in stormwater drains (as lot 71 is) – but we all know that it happens. Mr Sutherland agreed that there was cause for concern, if the DERM results represented the usual case, which cannot be said. Other reports of sampling and testing that he referred to suggest that they do not. He has no concern. E.Coli is everywhere, he said, except in the drinking water. It is in the guts of living creatures and excreted all the time. Only certain strains carry a health risk. DERM tells us nothing about strains. In all of the testing that has occurred on the Island, only one location, apparently, has produced E.Coli with a “marker” indicating human origin, which is a cause for serious concern. The location was 3.5km from the site. The appellant is concerned about E.Coli of human origin, which he claims is escaping from the on-site sewage treatment systems that Macleay Island depends on. Typically, the systems depend on sewage dissipating through the soil. According to Mr Sutherland, they are bound to fail with some frequency, for example if the ground becomes too wet, which the relevant Australian Standard he says recognises. The result is sewage and E.Coli dispersed where it ought not to be. One mechanism for such inappropriate dispersal was said to be cuts to land made in the wrong place in order to reduce ground levels. The court heard that the Merglers have done unauthorised cutting on the site near the boundary with an upstream neighbour whose system has come under suspicion.
Mr Sutherland’s evidence had a familiar ring to me in light of Lennox v Board of Professional Engineers [2009] QDC 99. It persuades me that Mr Ure is correct to describe the E.Coli point as a “red herring”, acknowledging its unusual potency at this time when the news has been full of the German E.Coli outbreak that has proved fatal in dozens of people. As Mr Ure says, we are worrying here about something that statistically will affect Mr Mergler’s property only once in a century. The DERM results are insufficient to show a concerning threat. In the Q100 and similar events, the concentrations of E.Coli are likely to be reduced thanks to dilution by rainwater.
It may be that the presence of pollutants including E.Coli is a consequence of the treed and grassed area of the Conservation blocks (lot 71 in particular) constituting a drain west of Beelong Street that also serves the function of a detention basin where run-off water is “polished” (as I understand the jargon to be) or cleaned before discharge into the sensitive waters of the Bay. There was no occasion for investigation of this aspect, which is mentioned here because a witness adverted to it. If it represents the role this area plays or is intended to play, that underlines the importance of the proscription of using stormwater drains for recreation; for different reasons, water in them imposes dangers both when flows are high and when they are minimal or non existent.
Although the easement document propounded by the Council has a general requirement of no fencing without Council’s written consent, it also contains in 4.3.2 permission for boundary fencing within defined limits. The main requirement is to keep 100mm above ground level clear (except for “wire strands” and, by implication, posts). I understand that the parties will look into the appropriateness of height limits of 1.2m on the frontage and the Beelong Street end of the southern boundary (which would appear to do nothing relevant by way of flood mitigation), 1.8m otherwise. Mr Mergler would like 2m, apparently. Although endorsing the document generally, the court is receptive to suggestions of changes that may assist Mr Mergler and successors that do not infringe Planning Scheme requirements or defeat the essential purpose of the easement.
It was not contended by the Council that anything flowed from the approved development having been constructed prematurely, indeed unlawfully: the building that essentially is now constructed is presumably what the Council approved. That feature does present a point of distinction from Parsons, where the court was troubled that Mr Parsons was largely precluded from building a house of conventional size. Mr Mergler already has the house he wants. The easement demanded here covers a substantial portion of the site, 300.5 m2, leaving a balance of about 842.5 m2, which is more than generous for a house and curtilage on Macleay Island, where the average residential site size is not much over 500 m2. The easement demanded from Mr Parsons was 3,422 m2 approximately, leaving a balance area available for building estimated at only 378 m2 or 366 m2.
As noted already, Mr Mergler bears the onus of showing that the appeal should be allowed, rather than the Council having the onus of justifying the contentious “condition”. In practical terms, the Council should be regarded as having some kind of evidentiary onus to justify such a condition as being a supportable one. This the Council has done, and more. Overall, it is not shown that the appeal should be allowed. The court’s conclusion is that, subject to possible revision of the terms of the easement proposed, as referred to above, the appeal should be dismissed. The parties will have the opportunity to consider these reasons, undertake appropriate discussions and thereafter make submissions, if necessary, before orders are pronounced.
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