Mirbelia Street Action Group v Brisbane City Council

Case •

[2003] QPEC 43

•

21 August 2003

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Mirbelia Street Action Group v Brisbane City Council & Ors [2003] QPEC 043

PARTIES:

MIRBELIA STREET ACTION GROUP
Appellant
v
BRISBANE CITY COUNCIL
Respondent
And
GREYMOUTH PTY LTD
Co-Respondent

FILE NO:

BD 548 of 2003

DIVISION:

Planning & Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Brisbane

DELIVERED ON:

21 August 2003

DELIVERED AT:

Brisbane

HEARING DATE:

16-20, 24 June 2003

JUDGE:

Robin QC DCJ

ORDER:

Appeal dismissed, conditions varied

CATCHWORDS:

Appeal by adverse submitter group against approval of development application - proposal incorporating a “notional rezoning” from Rural Residential to Residential A and 27 dwellings added to existing 4 on 5.9 hectare “bushland” site - ”pristine” McKay Brook (with fauna/flora values) flows through one corner of site – site not mapped as Green Space in Strategic Plan maps – appellant’s argument that all Rural Residential land was “green space”, rejected – green space values of site relevant to McKay Brook and treed ridgeline protected by the proposal (which included dedication of park) – expectations of local residents and “planning need” considered.

COUNSEL:

C. McGrath for the appellant
M. Rackemann for the respondent
J. Haydon for the co-respondent

SOLICITORS:

Environmental Defenders Office (Qld) Inc. for the appellant

Brisbane City Legal Practice for the respondent
Porter Davies for the co-respondent

REASONS FOR JUDGMENT

  1. The appellant is pursuing the interests of hundreds of local people who made submissions to the Council urging it to reject the co-respondent’s Development Application (Superseded Planning Scheme) for Material Change of Use (Development Permit) and Reconfiguration of a Lot (Development Permit) in respect of land at 37. 39, 69 and 71 Brookfield Road, Kenmore, also parts of 41 and 55 Brookfield Road and the Oakmont Street Road Reserve, Kenmore. The Council approved the application, subject to conditions. Greymouth, although not the appellant, bears the onus of establishing that an appeal such as the present should be dismissed under s 4.1.50(2) of the Integrated Planning Act 1997; the applicant in a development application has the conduct of the appeal according to the practice of the court.

  1. The matter has had quite a history.  The opposition of local residents has been marshalled in an organised way since a meeting which Mrs Kubale said occurred on 19 November 1999 (even before public notification of a predecessor application which did not include No 69 (lot 36)) upon advice of the application being given by Councillor de Witt.  The application and proposed plans underwent various changes it is not necessary to recount.  Issues similar to those raised in the present appeal have previously been raised in Cordiner v Brisbane City Council and Greymouth Pty Ltd BD 6032 of 2001, in which Mrs Cordiner had allowed her name to be used, before it was appreciated that the present appellant could proceed in its own name.  Greymouth, in the face of certain technical difficulties raised by Mr McGrath on the first day of hearing of Mrs Cordiner’s appeal on 18 March 2002, asked on the following day that the further hearing of the appeal be adjourned.  In the end, a further development application was lodged with Council on 21 May 2002, for Greymouth’s proposal to be considered under the superseded 1987 Planning Scheme.  The new application included the Oakmont Road Reserve and parts of adjoining land which were burdened with easements for access purposes and appropriate consents from owners.  The Council indicated its planning approval to the subdivision proposed by Greymouth in accordance with approved plan 012055.01 and conditions 1-68.  Subsequently, this appeal was commenced.

  1. The “street” addresses of the site, given above, are somewhat misleading.  The easements mentioned give on to Brookfield Road.  But for them, the site is essentially land locked.  The land is lots 8-10 on registered plan 81879 and lot 36 on registered plan 895537.  Lots 8 and 10 are contiguous with lot 9 and together they form a rough square.  Lot 36 is contiguous with lot 10, to the west, but off-set to the extent of about one third of the boundary towards the north.  Effectively, the four blocks and their access arrangements are battle-axe configurations with long handles extending in each case to Brookfield Road, lots 36 and 10 effectively sharing one handle, lots 8 and 9 the other.  There is an established residence located towards the handle on each block.

  1. In recent years, Mirbelia Street has been constructed to serve development north of Brookfield Road in stages.  It leaves Brookfield Road immediately west of the large shopping centre known as Kenmore Village, traversing a meandering course effectively enclosing the co-respondent’s site on three sides, and looping back to rejoin Brookfield Road on the city side of Iona Retirement Village.  The site is essentially landlocked from Mirbelia Street, which is proposed to become a principal access to all lots in the final subdivision, with the possible exception of lots 27 and 28, which account for two of the existing dwellings and which may retain their existing access to Brookfield Road, albeit supplemented by easements to the north providing a connection with a cul-de-sac at one end of an extension of Oakmont Street.  Oakmont Street is presently an unconstructed stub road to the south from Mirbelia Street between two recently subdivided allotments fronting Mirbelia Street on which new houses have been erected.  The proposal would extend Oakmont Street past two proposed lots backing onto those houses to a “T” branching in an easterly then southerly direction to the cul-de-sac and, on the other side, to the west then south towards Brookfield Road, linking up with the western “axe handle” which may become a road, if Exhibit 1A is to be taken at face value.  (After the hearing, consequent upon the court’s inquiry, e-mails were exchanged relative to access arrangements to Brookfield Road.  Exhibit 1A appeared to envisage a branch of Oakmont Street extending south to Brookfield Road, whereas other evidence referred to existing access rights to Brookfield Road being terminated.  There were no traffic issues raised in the appeal.  The parties left it to Mr Haydon to outline the situation, which is that condition 27 will eventually preclude access to Brookfield Road for Lots 27 to 31 inclusive.  I am uncertain about access arrangements for Lots 27 and 28 in particular, having been led to regard their easements to the proposed eastern stub of Oakmont Street as alternative access – use of them might threaten vegetation.  It may be that the access is to be by a new easement from a proposed southern cul-de-sac of Oakmont Street, an easement to run along the southern boundary of the site.  It can be left to the parties to ensure there is a workable arrangement.)

  1. The total area of the site is 5.911 hectares.  Lot 8 (37 Brookfield Road), the most easterly, contains 1.241 hectares, lot 9 1.604 hectares, lot 10 1.669 hectares and lot 36 1.25 hectares.  All are long narrow blocks where there is an established residence well to the south.  There is a tennis court on the northern part of lot 36, where it projects beyond lot 10.  The houses on lots 36 and 10 have swimming pools close to them.  Greymouth’s proposal envisages retention of those houses on planned lots 27, 28, 29 and 30, whose areas will be reduced to 5 179m2, 7 839m2, 3 767m2 and 2 011m2, respectively.  One of the appellant’s concerns is that further subdivision may occur of the larger blocks (and perhaps others).  Lots 1-26 will account for the balance of existing lots 8-10.  The last of the (27) new dwellings envisaged will occupy the tennis court area, which becomes lot 31, of 400m2.  Otherwise, the existing lot 36 is to be dedicated as park, subject to a very small part becoming a roadway.

  1. The park will augment the adjacent Council reserve or park through which McKay Brook flows.  In the general area of the tennis court, lot 36 provides the eastern bank of the creek.  McKay Brook actually flows through the south western corner of lot 36.  Dedication of the park will enhance the Council’s ability to protect McKay Brook.

McKay Brook and its alleged ‘tributary’

  1. The Council has adopted an SMP (stormwater management plan) for the McKay Brook catchment (Ex 16).  The SMP was based on a detailed study available for public inspection and comment, whose final version I take to be Ex 16A, the Mackay Brook SMP Technical Report.  It identifies the catchment as follows:

“2.        CATCHMENT DESCRIPTION

2.1        TOPOGRAPHY

The McKay Brook catchment covers an area of 250 hectares, measured approximately 3.5 km in length and 1 km across at its widest point.  The catchment lies within the suburbs of Kenmore and Kenmore Hills (refer Figure 2.1).

The general topography of the catchment and the stream is of a very steep nature.  Typical sub-catchment slopes are in the order of 3 to 13%.  Stream gradients typically range from 1 to 2%, with the steeper slopes characterising the upper reaches.

2.2        CATCHMENT DEVELOPMENT

The following documents were referenced in determining the current land use (refer Figure 2.2) and projecting future developments within the catchment.

·Brisbane Town Plan – Preferred Dominant Land Uses – Strategic Plan

·Magistrates Court Coot-tha Development Control Plan

·McKay Brook Catchment Zoning Plan

The northern part of the catchment, upstream of Elwood Street is currently zoned as Special Development (Bushland Residential Precinct).  In this area, the land is subdivided into very large blocks with sizes ranging from 3 to 10 hectares.  It was assumed that the zoning in this part of the catchment would remain the same in future, but subdivision yielding a minimum allotment size of 1 hectare would be permitted.

The middle part of the catchment between Elwood Street and Advanx Street is currently zoned Rural Residential and features large allotments as for the northern sub-catchment.  The portion of land zoned Special Uses currently accommodates a Retirement Village type development. It was assumed that the zoning in this part of the catchment would remain the same in future, but subdivision yielding a minimum allotment size of 1 hectare would be permitted. 

The predominant zoning at lower part of the catchment between Advanx Street and the Moggill Creek confluence is Residential A, interspersed with pockets of Commercial/Industrial areas.  It was assumed that the portion of rural residential land located between Mirbelia Street and Brookfield Road would be developed to the same density as the surrounding Residential A area.  The remainder of this portion has already been developed to its full potential.” 

  1. The site is covered by the final paragraph, which is also set out prominently in the Executive Summary at the beginning of the Report.  It is relied on by the respondent and co-respondent as notice to the public of the likely future of the site.  It is unnecessary to set out sections of the Report which attest to the presently satisfactory quality of water discharged from the McKay Brook into Moggill Creek (the Report suggested that “revegetation would reduce pollutant export in the ultimate catchment to below existing levels for all except the driest years”).  The merits of the Brook are canvassed in s 7 Environmental Significance - Species of Cultural Significance; noted in the catchment are platypus, echidna, koala, rainbow bee-eater, white-throated needletail, great egret and cattle egret; species of local or regional significance are the greater glider, sugar glider, squirrel glider, mountain brush tail possum and great barred frog; as well, it is said that long-finned eel, fresh water mullet and eel-tail catfish were known to be present.  The Report is less enthusiastic as to flora:

“7.3.1    Flora

Tall Open Sclerophyll Forest dominates the upper catchment.  This graduates to Closed Mesic Forest in the middle and lower catchment.  The vegetation in the upper catchment is moderately disturbed, with local clearing for house sites.  The area surrounding Tinarra Crescent has largely been cleared.  It is unlikely that many trees in the upper catchment are over 50 to 80 years old.  The middle reaches of the waterway are moderately to highly disturbed, with patches of remnant vegetation.  The lower section of McKay Brook runs through suburban land.   A number of parks adjacent to the creek support isolated patches and individual trees of riparian forest origin.  Species occurring locally are given in site inspection data in Appendix C.”

  1. Nonetheless, it is unsurprising that a bushland care group or equivalent, with Council’s support, is active in restoring and maintaining the McKay Brook waterway corridor.

  1. As the Report notes, the Strategy Plan for the management of Brisbane’s waterways identifies McKay Brook as a major waterway.  The SMP provides:

“Infrastructure Requirements

The infrastructure elements shown in Plan 1 and Plan 2 state Council’s requirements for stormwater management in the McKay catchment.  These elements include:

1.   Waterway corridors along McKay Brook as determined by the greatest combined distance of either the limits of the Flood Regulation Line or a distance of 30m either side of the top of bank.  (Note: where the 30m requirement would encroach upon existing dwellings the width may be reduced to 15m or other distance satisfactory to the Manager, Waterways Program).

2.   Waterway corridors along major tributaries 15m either side of top of bank.

3.   Recommended vegetation rehabilitation and enhancement areas.

4.   Cross drainage culvert upgrades.

5.   Limited trunk drainage upgrades.

6.   Two (2) Stormwater Quality Improvement Devices (SQIDS).”

  1. One of the questions ventilated in the appeal was the status of an overland flow path (what the appellant contended was a “waterway”: see Planning Policy No 19.22) traversing the site east to west roughly along the top of the “T” of which Oakmont Street will be the stem.  There were more or less veiled suggestions that some political or equivalent pressure had been brought to bear during the processes leading to the SMP, to ensure that such “tributaries” of McKay Brook should not be covered.  Maps are available incorporating lines marking such a “waterway”, likewise many others of similar nature which have obviously become swallowed up in suburban subdivision without leaving any trace.  There was debate as to whether material examined in soil testing was alluvium (water-borne particles) or colluvium, particles borne by water, wind or gravity, with a view to supporting the case for a “waterway”.  Essentially the material would be the same, what matters is how it got to the sampling locations.  This must be assessed by examination of the surrounding terrain.  I found persuasive the explanation of a witness that the mapped lines mentioned, which often seemed to go nowhere in particular, were simply derived from contours, and marked the lowest-lying terrain.  There were suggestions, never made good in evidence, that there existed features of vegetation confirming the “waterway”.  There is no doubt that at times of heavy surface run-off overland water flows or tends to concentrate in the relevant area, but there are no features of a “waterway” otherwise.

  1. One of the respects in which Greymouth may be disadvantaged for seeking to develop later than other land owners in the area is that the site, by remaining vacant, has had thrust upon it the function of cleaning up surface run-off from surrounding areas which have been intensively developed.  Sediments will be trapped on the site on their way to McKay Brook.  Construction of 27 new houses will at once remove the “polishing” facility and considerably increase the run-off to reach McKay Brook, in the absence of suitable attenuation measures.  Those have been devised by Mr Settle.  Essentially, there will be a gross pollutant trap as a “pre-treatment device” above an artificial wetland area located between proposed lot 30 and proposed lot 31 where nutrients and finer sediment materials can be trapped on vegetation.  Mr Settle has taken some care to minimise the loss of trees.  I accept his evidence that, should his proposals be effectively implemented, the proposed development ought not to lead to a decline in quality of water entering McKay Brook from the site.  As is predictable in cases like this, the court was warned that if the development did not go ahead, and the land were devoted to certain “rural residential” uses, such as agistment of horses, the outcome could be worse.  I should say that in this matter, I attach no weight to the scenario threatened.  Mr Settle confirmed that special arrangements had been designed to protect McKay Brook during the construction phase.

  1. A suggestion that emerged from Mr Settle’s evidence, which Greymouth took up, as should the court, was that new residences ought to install rubble pits to facilitate absorption of stormwater run-off on site.

Is the site part of the Brisbane Green Space System?

  1. Mr McGrath’s clear written submissions identified what he called the two principal issues in dispute in this appeal:

·        does the application conflict with the Strategic Plan of the Town Plan of the City of Brisbane 1987 because the land is part of the Brisbane Green Space System; and

·        if so, are there sufficient planning grounds to justify approving the application despite the conflict?

It was common ground that the superseded Town Plan was the relevant instrument, not City Plan 2000.  Indeed, on 19 March 2003, Judge Quirk ordered that:

“Because of s 4.1.52(3)(b) of the Integrated Planning Act 1997:

(a)this appeal is to be heard and determined under the respondent’s Superseded Planning Scheme.

and

(b)the decision in Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117 is not relevant in the hearing and determination of this appeal.”

  1. The hurdle faced by the appellant at the outset is that the land is not mapped as included in the Brisbane Green Space System in Strategic Plan Map 3; nor is it acknowledged in Strategic Plan Map No 2 – Brisbane Green Space System Values, nor is it included as Green Space Area in Strategic Plan Map 1 – Preferred Dominant Land Uses; rather it is included in the Urban Area.  Those maps are not cadastrally based, so that there can be problems at the periphery as to whether a particular site has been mapped Green Space or not.  Compare Red Mountain Pty Ltd v Brisbane City Council [2002] QPEC 071 (1058 of 2001, 15 November 2002). (I would refer to the comments made at paras [33] to [35] in Red Mountain regarding assertions on the part of a developer (as encountered here) that a proposal represents “infill” development; this is an argument which, for reasons appearing elsewhere, I consider appropriate here, although it was rejected in the cases referred to.)

  1. The appellant contends that, approaching the maps and text of the Strategic Plan (1987) together, it should be held the land is part of the “Brisbane Green Space System”, an expression which, regrettably, is not defined.  It has become trite to observe that the Strategic Plan should be read as a whole.  Its purpose is to set “the broad framework for managing private development to help achieve the Vision for Brisbane.”  That Vision is “a broad statement of the intended pattern of development and character which is aimed at securing and enhancing Brisbane’s liveability and ecological sustainability.”  It consists of a set of principles, and broad statements of the preferred pattern of development and of the preferred character.  The Vision is “underpinned by principles of environmental quality, social justice and economic efficiency.”  2.3 Pattern of Development refers to “regional centres, framed by a network of green open spaces”:

“Green space will be retained and enhanced to provide contrast and relief to the urban areas and to maintain viable natural habitats.  This green space will include green areas at the edge of the City separating it from other urban areas within the City and in the region.  Corridors of green space will extend from the outer areas towards the Central City along the waterways, ridge lines and other linked green space areas.”

2.4 Character – Identity of the City calls for all development to contribute by “reinforcing the green space as a strong character element of the City.”  The importance of the green space system is thus emphasised before one even gets to the Strategic Plan.

  1. The Strategic Plan commences with 3.2 The Focus on desired outcomes of the City being environmentally responsible, accessible, well serviced and equitable, well-designed and culturally dynamic, also “economically prosperous and progressive”.  First among the “Directions” explaining how the outcomes will be achieved is:

“3.3.1  Brisbane Green Space System

3.3.1.1Statement of Intent

The Brisbane Green Space System is intended to enhance the long term liveability of the City by ensuring that areas of habitat, rural, semi-rural, open landscape, open space, recreation, scenic and corridor value are retained and managed as part of an integrated City-wide system. 

Larger tracts of land which have one or more of these values are identified on Strategic Plan Map 2.  The values are described below:

Habitat Value

Lands within the Brisbane Green Space System have habitat values where they contain significant stands of vegetation or important remnants of vegetation.  The value of these sites is in the preservation of vegetation in its own right or as habitat for wildlife, as core areas of habitat, movement corridors or as refuges for migratory animals. 

Lands with these values are typically bushland or wetland, within and adjacent to the catchment of the Leslie Harrison Dam and Bulimba, Oxley and Scrubby Creeks, and the heavily vegetated foothills and ridges in the City’s west.

Rural, Semi Rural/Semi Natural and Open Landscape Value

These lands exhibit landscape values which are characteristic of rural, semi rural/semi-natural and open landscapes. They are often used for agricultural activities and are generally located in outlying areas of the City. These lands may have agricultural value and provide visual diversity to the City, a contrast to urbanised areas and pleasant views along Movement Networks. 

Recreational Value

Lands with recreational values provide a range of active and passive recreational opportunities.  They typically include open parklands, formal sporting fields and major recreational complexes and occur throughout the City.

Natural Scenic Value

These lands exhibit scenic values that are identifiable with the character of Brisbane and hence form an important landscape function.  These areas typically include bushland and wetlands that occur throughout the City, the forested ridges and foothills on the eastern and western boundaries of the City and the Brisbane River and adjoining lands. 

Corridor Value

These lands typically link lands with habitat or open space and recreation value.  As well as providing for fauna movement they can provide visual relief, screening or separation between incompatible activities, provide a recreational resource, and/or provide for drainage and floodway functions.

Based on these values, the Brisbane Green Space System is comprised of a number of elements:  Green Space Areas, Lands with Environmental or Scenic Constraints, Green Space Corridors and Areas for Investigation.  These elements are:

Green Space Areas which form the body of the Green Space System and are areas for which the preferred dominant land use is Green Space.

Lands with Environmental or Scenic Constraints which are lands for which the preferred dominant land use is not Green Space Area, but where, in the assessment of any subdivision or development proposal, all reasonable measures should be employed to protect the nominated environmental values. 

Green Space Corridors which are links between Green Space Areas or Lands with Environmental or Scenic Constraints.  The role of these corridors is to be preserved and enhanced.

Areas for investigation which are strategically located lands with opportunities for future development but which also exhibit Green Space Values. Options for the development of these sites are subject to further assessment.  The intention is to balance the Green Space Values with development opportunities.

The first three of these elements is (sic) described in greater detail below.

The larger tracts of land in each element are indicated on Strategic Plan Maps 1, 2, and 3.  Smaller parts of each element also occur throughout the City.  These unmapped elements also make important contributions to the Brisbane Green Space System.  For some parts of the City these are identified in Local Area Outline Plans, otherwise they will be identified in the assessment of subdivision and development proposals.” 

  1. The site is not mapped as any of the four elements identified.  Given the site’s Preferred Dominant Land Use of Urban Area as opposed to Green Space Area, I find it impossible to construe the Strategic Plan in a way that would make the site “Green Space Area”.  The Strategic Plan goes on to expand upon three of the four elements:

“3.3.1.2 Green Space Areas

Green space areas are intended to contribute to the conservation of habitat areas; provide recreational opportunities; serve floodway and drainage functions; and assist in defining the preferred pattern of development and character.

The Green Space Area comprises a range of natural, semi natural and modified environments in both public and private ownership.

The three components of the Green Space Areas are shown on Strategic Plan Map 3 and described below.

(a)        Conservation and Recreation Areas

….

(b)        Nature Based Rural Living Areas

….

(c)        Semi Rural and Agricultural Areas

This component of the Brisbane Green Space Area is intended to be retained and enhanced for rural and semi rural activities.  Lands with semi rural and agricultural value occur throughout the outer areas of the City, often forming significant buffers between incompatible land uses and between built-up areas.  They are intended to retain these functions and to define the edges of urban expansion, provide pleasant vistas along Movement Networks and provide open landscape character to many areas of the City.  These areas are also often part of important gateways to the City.

Areas of Moggill, Rochedale and Eight Mile Plans have also been identified as good quality agricultural lands.  These areas are to be protected in accordance with the relevant State Planning Policy.

Semi Rural and Agricultural Areas are generally zoned Non Urban and in Category “B”.  Some Category “C” land, Rural Residential land and some areas of Special Use zoned lands are also in this category.”

Of less direct relevance, but useful indicators of the “case by case” approach to be taken which descends to treating “parts” of sites differently, are:

“3.3.1.3. Green Space Corridors

A unifying element of the Brisbane Green Space System is the network of environmental, waterway and foreshore corridors which link major conservation, parkland and recreational areas within the City and those neighbouring Local Authorities.  These Green Space Corridors are also intended to serve as physical breaks and buffers in the urban area, increasing identity for local areas and providing floodway and drainage functions.

The Green Space Corridors of strategic significance are indicated on Strategic Plan Maps 1,2 and 3.  Other corridors of local significance also exist throughout the City and the functions of these corridors will be required to be identified and protected as part of the detailed assessment of development proposals.  Urban or sub-urban residential development will only be allowed in those areas designated as Urban Areas.

The function of Green Space Corridors will be partly dependent on land tenure.  For example, areas such as the Bulimba Creek and Normal Creek waterway corridors serve ecological, recreational and scenic functions and are intended to be accessible to the general public.  However, because parts of these corridors are held in private ownership, public access might not be available.  In determining the preferred functions of any corridor appropriate weight will be given to the Strategy Plan for the Management of Brisbane Waterways dated October 1992.”

and

“3.3.1.4 Lands with Environmental or Scenic Constraints

Lands with Environmental or Scenic Constraints form an important element of the Brisbane Green Space System.

This element includes lands in zones which could allow development to higher densities than their current uses.

However, these lands or part of these lands contain areas of significant historic, architectural, topographic, landscape, scenic, bushland, ecological, social or cultural interest.  They may also be considered significant for the retention of flora and fauna habitat, wetlands and waterway corridors and therefore unsuitable for development.  These lands are located throughout the City and often occur adjacent to large tracts of bushland and semi rural areas.

In any subdivision or development of the land, sites or parts of sites which are unsuitable for development, by reason of any one or more matters referred to in the paragraph above, must be identified and either excluded from the development or developed in such a way that the Green Space System values of the site are preserved.

Lands with Environmental and Scenic Constraints are generally zoned Future Urban or Future industry.”

  1. The appellant argues that the reference to “Rural Residential land” in 3.3.1.2(c) includes all Rural Residential zoned land in the Green Space System.  It was only (c) of (a), (b) and (c) (the “components”) that reliance was placed upon.  Confirmation was claimed from the terms in which the Intent of the Rural Residential Zone, where the site is located is described in 7.5.1:

“Land included in the Rural Residential Zone is intended to provide for detached house development on allotments larger than those normally associated with suburban areas.

Although the Rural Residential Zone is one of the range of residential zones in the City, land in this zone is recognised in the Strategic Plan as part of the Semi Rural and Agricultural Area in the Brisbane Green Space System.

Land within this zone generally consists of allotments of one hectare or more, but less than four hectares, in area.  Such land has a water service sufficient to cater for development of each existing allotment but not necessarily capable of servicing development of any new allotments.  Sewerage is not generally available but is not required to be provided in this zone. Minimum allotment size in this zone is intended to be one hectare.  This will allow for some additional subdivision subject to the availability or provision of adequate water supply and a suitable road connection.  The minimum allotment size will assist in retaining a semi-rural character in which buildings do not dominate.  The use of septic systems in these larger subdivisions is expected to be adequate to cater for all conditions including varied soil type, slopes and prolonged periods of wet weather.

Most of the land now included in the Rural Residential Zone was previously included in the Non Committed Zone or the Future Urban Zone.  The green space values and other characteristics include the shape and size of existing allotments, the existing road system, and the level of investment in residential development.  The location and size of detached houses and ancillary features such as driveways, landscaping and swimming pools also militate against further close division.  The lack of sewerage facilities and the low capacity of the existing water supply contribute to the unsuitability of this land for close subdivision.  It is intended that further development reflecting the existing life-style of these areas should be encouraged. 

Where existing services, particularly water supply, are inadequate, they will need to be augmented or improved prior to any further subdivision into allotments of one hectare.

Development for purposes which require the consent of the Council in this zone will be assessed for consistency with the green space values of the area, and will not be approved where it adversely impacts on those values.

…

It is not intended that other land be included in the Rural Residential Zone where that land is suitable in the foreseeable future for suburban development.  In particular, land should not be included in the Rural Residential Zone where subdivision into allotments of one hectare or larger would prejudice further development.  This could result in increasing the per hectare cost of providing services or preventing the provision of future necessary road systems.” 

  1. Exhibit 17 is an overlay map combining the Rural Residential Zone and the four “elements” of the Green Space system.  Rather uniformly, the Rural Residential land is included in “Semi-Rural and Agricultural Area”; tiny amounts are in “Nature-based Rural Living Area” and there is some in “Land With Environmental or Scenic Constraint”.  The site and adjoining property roughly equivalent in size to the south west constitute one of up to a dozen Rural Residential areas not coinciding, as mapped, with any part of the Green Space System.  So far as the site and its aforementioned neighbour are concerned, the explanation for its exclusion seems obvious.  It was formerly surrounded by other Rural Residential land which has all been re-zoned Residential A and developed.

  1. It implies no criticism of the objectors, it is simply a matter of fact, that the ability of them (or most of them) to reside in a pleasant part of the city (whose amenity they say depends on any notional rezoning of Greymouth’s site being refused) has come about only because of similar rezonings in the recent past.  Historical aerial photography shows just how recently all of this development has occurred.  The objectors are saying they do not wish to have across their boundaries or in their immediate locality development similar to what they have constructed or moved to themselves.  This is a human enough approach, since nearly everybody offered the choice of looking at a building or at open space in a particular location is likely to opt for the latter. 

  1. Does the appellant have a good argument that the site (indeed, all Rural Residential zoned land in Brisbane) is part of the Green Space System?  If “yes”, then Greymouth’s proposal may be held to conflict with planning instruments to such an extent that sufficient planning grounds to justify approval of its application despite the conflict cannot be readily identified.  However, in my opinion the question must be answered in the negative.  The Brisbane Green Space “System” seems to me a somewhat nebulous or amorphous phenomenon.  There is no doubt about areas that are mapped.  In my opinion the reference in 3.3.1.1 to “unmapped elements” which “make important contributions to the Brisbane Green Space System” has only that further significance expressly stated, namely that they are expected to be identified in an LAOP or (DCP), “otherwise they will be identified in the assessment of subdivision and development proposals”.

  1. Greymouth concedes that should its site exhibit values identified in the Statement of Intent for the Brisbane Green Space System the Council is expected to ensure that any development respects those values, and does not destroy them.  A considerable amount of effort has been expended in trying to achieve just such an outcome.  The number of new residential allotments proposed has been reduced to 27 from 34.  The part of lot 36 to be dedicated as park has increased considerably.  Another small park is now proposed.  The Council will obtain control of banks and part of the bed of McKay Brook.  Adequate measures have been identified to ensure that the quality of water run-off into the Brook will not suffer if the development proceeds.  Further, the Green Space “value” constituted by the heavily treed ridge in the southern part of the site (to the rear of the established residences) on proposed lots 27, 28 and 29 (formerly lots 8, 9 and 10) will be preserved by measures reinforcing a Vegetation Protection Order which the Council caused to be made about the time of Greymouth’s first application.  In addition, there is a proposal to earmark a considerable number of trees elsewhere on the site for retention.  The court is willing to indicate its strong concern that appropriate measures be taken in due course to ensure that what is put forward regarding retention of trees is more than “fine words”, that “accidental” destruction by operators of heavy equipment, which Mrs Kubale indicated she feared on the basis of earlier experience in the locality, will be made so costly (perhaps by bonding arrangements) that the developer will ensure that what it says will be retained will be left in place.  Of course, there will remain a risk of ultimate owners of subdivided allotments seeing fit to get rid of trees so retained. 

  1. Mr McGrath is correct that, grammatically, 3.3.1.2 by specifically referring to “some” Category “C” and “some” Special Use Zoned Land, has the meaning that Rural Residential land, mentioned without qualification, is totally within component (c).  (One assumes category “c” is the same thing as component (c).)  However, in my opinion, the governing provision is:

“The three components of the Green Space Areas are shown
  on Strategic Plan Map 3 and described below.”

I do not think there is any room in this context for contemplating that land not mapped as Semi Rural and Agricultural Area may nevertheless be treated as if it had been mapped.  In my opinion, “and” here cannot be read as “and/or”.  It ought to be remembered that, from an economic point of view, the likelihood is that inclusion is detrimental to the owner’s interests, to the extent that there may be restrictions on the land being turned to most profitable account.  Other things being equal, owners and purchasers of particular parcels should be entitled to repose confidence in the way in which they have been mapped.

  1. The Intent of the Rural Residential zone is set out in paragraph [19]. The appellant argues that the second paragraph is a confirmation that all land in the zone is “part of the Semi-Rural and Agricultural Area Brisbane Green Space System.” This provision cannot control the interpretation of the Strategic Plan, to which it is subsidiary. By contrast with 3.3.1.2 (c), here it is open to read “land” as “some land” – that interpretation seems to me correct. Grammatically, the second sentence of the fourth paragraph in the Intent would, by “the land”, refer to Rural Residential land that had previously been included in the Non Committed zone (like the site) or the Future Urban zone. There must be acknowledged existence of “Green Space Values” (not disputed by any party in relation to the site) and wording as to the land’s being “not intended to be developed for suburban residential development.” Given my view that relevant Green Space values here are confined to particular parts of the site and will be protected, one has then to note that none of the factors relied on for limiting development in the Rural-Residential Zone to large lot subdivisions is applicable to the site. I accept the planning evidence that it was originally included in the zone because of constraints regarding sewerage capacity, which were quickly overcome. The reason for the site’s remaining Rural Residential is that the established practice in Brisbane is for changes in zoning to be considered only on a case by case basis and only in response to an appropriate application; there has been none in respect of the site up till the present one, and its predecessor, which include notional rezoning in them. The site exhibits no feature of the listed constraints in the way of smaller lot subdivision, particularly to do with road design, lack of nearby facilities or inconsistency with the Green Space values of the surrounding area (essentially non-existent). Indeed, it is effectively common ground that the site has positive advantages in such respects, the impediment to Greymouth’s proposal relied on being the site’s alleged inclusion in the Green Space System - which here has to be understood as meaning that it is Green Space Area, component (c).

  1. As to this last, there is nothing agricultural about the site.  As to whether there is anything “Rural” or “Semi-Rural” (undefined terms), in Heilbronn & Partners Pty Ltd v Brisbane City Council (1999) QPELR 267, Skoien SJDC at 268-269 said:

“There was some debate on the extent to which the site and its surrounding area could properly be described as rural or semi-rural.  “Rural” means pertaining to the country, as opposed to the town.  It is the fact that this area is not part of open farming or grazing land but that is beside the point.  The drafter of the strategic plan has described this area as rural or semi-rural, and that is that.
In stating that I do not suggest that the area is inappropriately described as rural or semi-rural.  The evidence, as exemplified by the view I had, does not persuade me that the description is inappropriate.  The area generally (and the site in particular) is semi-rural in that it has a broadacre atmosphere where one feels more likely to see gum trees than garden beds, horses rather than Hills hoists.”

According to the Australian Concise Oxford Dictionary, “Rural” means “in, of, suggesting, the country (opp. Urban)” or “pastoral or agricultural”.  The site has the appearance of unused bushland, rather than being “of the country”, if that signifies (which it arguably does) some human occupation or activity.  It cannot be said here that the drafter of the Strategic Plan has described the site as Rural or Semi-Rural.  In Heilbronn, a proposal which would not present any rural or semi-rural aspect to a viewer was rejected as unreasonably degrading the existing, pleasant semi-rural amenity of the relevant area.  His Honour held that the fact that some proposed allotments in the area had developed inappropriately in the context of the Strategic Plan did not weaken the intent of the planning scheme.

  1. This Rural-Residential site is isolated in a “sea” of Residential A.  The Council’s long-term thinking has obviously been that, like land to the south and east prior to 1987 and Rural-Residential land to the north and west on 15 December 1988, 11 April 1991, 9 December 1994 and 1 February 1996, it would go to Residential A.  The provision of the Oakmont Street stub from Mirbelia Street was, in my opinion, plainly something done in contemplation of future subdivision on the site equivalent to what was happening on either side and opposite it, likewise the pathway provided between lots 72 and 73 from Mirbelia Street East, (opposite Christella Court) leading to the site.  It has to be accepted that the Council’s thinking does not justify setting the Strategic Plan at nought, any more than anyone else’s thinking.  But it has always been a feature of the system of zones that zoning could be changed.  Where rezoning is sought, from some standpoints, the Intent of the existing zone may be of less interest than the Intent of the proposed new zone.  In situations like Heilbronn, where the Intent of the existing zone is being achieved to any extent in the general area where particular land is located, that may constitute a good reason for avoiding introducing a new discordant development by rezoning.  That is hardly the case here.  The notional rezoning sought will enable the site catch up with its neighbours.

Expectations of existing residents

  1. Some time was devoted to consideration of the expectations of local residents.  Mrs Kubale has lived in Shannon Place, overlooking the site from an elevated position from the north west, across Mirbelia Street for nine years.  McKay Brook runs through her backyard, tracking Shannon Place, and then underneath Mirbelia Street via a wildlife-friendly culvert towards lot 36.  Sad experience will have disabused her of thoughts that the environment and amenity she moved to would remain unchanged.  She spoke feelingly of the destruction of silver gums marked for preservation in a development between Mirbelia Street and Advanx Street (running roughly parallel to Mirbelia Street to the north).  Presumably speaking generally for those at the meeting Councillor de Witt called, rather than for herself, she said that “the members of the community had relied completely on the plan that the Brisbane City Council had put before us that said that this was Rural Residential and we anticipated that it would always stay Rural Residential, naively perhaps, but we believed what the Council told us … we want green trees.  We are not against development.  We expected development along the lines of the zoning.  The zoning said “maybe five properties”. … We are desperate to save the wildlife in the area” (p 391).  (I would say I regard Mrs Kubale’s description of the site as “the bushland” as accurate.)  Pressed by Mr Haydon (398):   “with less houses, you don’t necessarily get park?”, she responded, “but we’d still have some bush – bushland, wouldn’t we?” 

  1. Mr Reed, who has training as a town planner and is a current member of the Planning Institute, purchased 111 Mirbelia Street (opposite the north western corner of lot 36) in early 2000.  His objection to Greymouth’s current application (tendered as Ex 43 by Mr Haydon, Greymouth’s counsel) contains the following:

“When we bought our property, we did so in the expectation that the land immediately opposite our house (the subject property) would be retained as low density housing with allotment sizes limited to 1 Hectare.  This expectation was based on my discussions (at that time) with the Town Planner from Brisbane City Council who indicated whilst there was no guarantee the land would remain undeveloped, the most likely form of development Council would consider would consist of large residential allotments in view of the Rural A zoning of the land in the City Plan.

In those discussions the Town Planner made it quite clear any residential development consisting of small allotments or medium density would require Council approval to a material change of use.  He indicated such an approval would be contrary to the intent of the City Plan.  He did indicate that there could be no guarantees but that approval of a development contrary to the City Plan was extremely unlikely.

I made it clear during those discussions we had contracted to buy the property immediately opposite the subject land for the sum of $585,000 and our decision to go ahead with the contract was in part dependent on the likely future development potential of the subject land.  He assured me again there was little likelihood the subject land would be developed for small allotment residential use.

Finally it is my professional opinion that the intended use of the subject land in the manner proposed not only destroys one of the last tracts of remaining native bushland in the locality, it contravenes Council’s own planning strategy.

Importantly in purchasing my property immediately adjacent to the subject land I had a reasonable expectation that Council would uphold this strategy and insist on a development consisting of 1 hectare allotments.

Importantly, Councils existing planning strategy has not been altered in the new City Plan 2000.  In fact Council has reaffirmed its intent for the subject land identifying it in the City Plan 2000 as Green Space Area – Rural Area.

Under normal circumstances this would give both existing residents and prospective property purchases confidence in the future of the locality.  The fact that Council approved an earlier application for a similar material change of use over the subject land destroys any confidence in our planning system.”

  1. I believe what Mr Reed says regarding City Plan 2000 is correct, and is a matter worth noting.  However, I am constrained by Judge Quirk’s ruling to ignore City Plan 2000 for all purposes.  I was concerned that Mr McGrath’s attempts to rely on the process leading up to adoption of City Plan 2000 (rather than City Plan 2000 itself) in respect of residents’ expectations might contravene the order and the section relied on.  It was not only the appellant seeking to draw comfort from aspects of that “process”.  The Council relied on Mr Vann’s planning report (Ex 14) and in particular Fig 9(a) and Fig 9(b) to indicate that the site was proposed to be mapped as Green Space in Map 1: Structure Plan as natural area with high scenic value and in Map 2: Metropolitan Green Space System in the 1995 Draft Strategic Plan - of which he said (p 14):

“this was not continued into either the draft version placed on public display or the final version gazetted … its omission from this mapping is, in my view, deliberate.”

Mr Vann’s underlying point (effectively made by reference to equivalent or smaller areas that had been mapped) was that the site was large enough to have been mapped in the 1987 Strategic Plan maps, had that been the intention.  In the circumstances, without considering the matter any further, I think that fairness requires reference to the “process”, given the way the parties have conducted their cases.

  1. Mr Huth completed the cast of the appellant’s local resident witnesses (whom I would say were very well selected).  The outlook from the back of the house that he built at 6 Regency Place (parallel to Mirbelia Street and to the north of it) will be considerably affected; to an extent it is dominated by Oakmont Street and the projection of it, which will be constructed, with loss of vegetation.  Mr Huth dreads the likely increase in the limited number of rooftops he presently overlooks, and an apprehended loss of privacy.

  1. None of the “lay” witnesses appeared to appreciate that their own Residential A blocks had been rezoned from Rural Residential (see p 406, Mr Reed, p 424, Mr Huth and p 400, Mrs Kubale).  Mr Huth reported to the court enquiries he had made of the Council before purchasing his block in 1996 (“there was not a tree on the entire estate when we purchased it” – 414).  He obtained a plan of the locality from the Council (Ex 45) and took Council pamphlets entitled “How Your Land is Zoned” and “Rezoning – Amendment of a Planning Scheme” which became Ex 46.  The rezoning pamphlet indicates to those interested the possibility of rezoning “when a proposed development is not allowed in the zone your site is located in” and the procedures an applicant for rezoning should follow.  Far from being alerted to the risk of the site (which he ascertained was zoned Rural Residential) being rezoned, Mr Huth was given greater confidence that the pleasant prospect offered by the bushland on the site, which he has valued from the outset, to the extent of photographing the prospect when he first saw it (a prospect he had in mind when selecting his block and designing his house) would endure - by the example given in the pamphlet of a rezoning, namely “Future Urban Zone to Residential A Zone.”  He did not contemplate there might be such a rezoning from Rural Residential.  Those designing such information pamphlets for the purpose of their being distributed to the public might be well advised to offer as examples more radical scenarios in addition to, or in place of those that are mundane or unsurprising.  (Likewise, as Mr Reed’s experience suggests, Council officers might be well advised to prepare inquirers like him for the “worst” that might happen, rather than offering assurances that change is unlikely.)

  1. Given Mr Huth’s approach, it is not surprising that Ex 45, far from alarming him, as it would those who are alive to the pace of suburban expansion, was a source of comfort that the site (marked “RR”) had and would continue to have Rural Residential zoning.  The individual lots where Regency Place is located, all three of which were somewhat larger than those constituting the site, were by the time Ex 45 was generated zoned Residential A, but no subdivision of them was indicated, nor the construction of roads (not only Regency Place, but, significantly, the “missing link” between East Mirbelia Street and West Mirbelia Street and the Oakmont Street stub).  Mr Huth knew Mirbelia Street had been constructed.  Whatever his knowledge of the niceties of re-zoning, I would think that observation of the completion of Mirbelia Street and the earlier substantial development generally surrounding it should have alerted him to the possibility that the site might go the same way.  I cannot see the logic in a rapidly growing city such as Brisbane in an approach that assumes an “RR” designation on a plan will preserve land essentially unchanged, indefinitely.

  1. Probably there is an element of wishful thinking in all of us that surroundings we prize will continue to exist, essentially unchanged.  Mr Reed knew there was “no guarantee”.  What the planning regime did grant to him was a right to make submissions should there be a relevant application to change the status quo.  The local residents have availed themselves of that right in considerable numbers, but with “success” limited to some reduction in the number of new residential lots, and important conditions relating to dedication of park land, and protection/enhancement of vegetation.  Even if the land were mapped or designated Green Space, there would be no guarantee.  In Red Mountain, if the developer and the Council had had their way, such land would have been developed as 1,000m2 residential allotments.

  1. It cannot be said that the expectations of the local residents, taking them to be exemplified by Mrs Kubale, Mr Reed and Mr Huth, were other than genuinely entertained and reasonable.  While there may be contexts in which a court will strive to see that reasonable expectations are met, or compensated for if they are not, town planning does not offer such a context.  Town planning processes are essentially about change and, on analysis, it must be held that the only expectations coming with a guarantee are those to do with having proper processes followed.  It must not be overlooked that there are expectations on the other side.  The site is Greymouth’s private property.  Only those it invites there are entitled to go on to the site.  The appeal is about protecting the objectors’ view of the site from outside, along with the general public’s, which can be a decisive interest, as it was in Red Mountain.  (I do not overlook the comfort that can be drawn from a degree of assurance that flora and fauna values are being protected.)  Although this may be legally irrelevant, the objectors are in the curious situation of wanting to be spared, when they look into the site, the kind of prospect they offer their neighbours (including putative neighbours on the site) in terms of what exists on their properties.  It seems there is no “Golden Rule” operating in this jurisdiction.  Nor is there any system of precedent such that Greymouth may advance its application by pointing to the string of successful applications that may not have been distinguishable in the immediate locality and elsewhere.

Merits of Application

  1. The merits of the application, Green Space issues apart, are clear.  The proposed residential development is harmonious with the existing surrounding development.  It will integrate well with the road system in the area (which, indeed, appears to have been designed to accommodate it).  The site is close to shops, notably Kenmore Village and the general business area from Brookfield Road from Kenmore Village.  It is close to Moggill Road, part of the arterial road network, and to public transport.  It is close to educational facilities, notably Kenmore Primary School and Kenmore High School.  Other facilities close by include a Fire Station and Mail Centre, the Iona Retirement Village and a Bible College.  There is developed parkland adjacent, which implementation of the proposal will enlarge.  Speaking generally, the proposal protects the Green Space Values found on the site, as planning arrangements contemplate that it should.  The proposed qualifies as “infill” development.

Need

  1. It was hardly necessary for the co-respondent to call Mr Benjamin Smith, a real estate agent with considerable experience in the area, to establish demand exists for residential allotments of the kind proposed in the area.  Mr Mummery, a town planner, whose efforts for the appellant I found impressive, although they were affected by limitations arising from his having been instructed not only that he must not give evidence as to the legal meaning or construction of the Strategic Plan (because of the decision in H A Bachrach Pty Ltd v Caboolture Shire Council (1992) 80 LGERA 230; [1993] QPELR 33), but also “to accept that on its proper construction land in the Rural Residential Zone is part of the Green Space System whether or not it is shown in Strategic Plan Maps.” Mr Mummery expressed the view that there was no “planning need” for the proposed subdivision, having regard to existing vacant and/or subdividable land in the Low Density Residential Area classification, and “ample land contained in the more appropriately zoned Emerging Communities Area”, at least up to year 2011. He relied on figures contained in ch 2 s 4.2.2.1 of the Draft Brisbane City Plan 1999. I am not persuaded that such relatively remote land satisfies the requirement that exists for people to live closer to the City Centre. Further, Mr Smith’s detailed survey of the local area indicates that, on analysis, there is very little land likely to become available for subdivision.

  1. It is useful to set out Mr McGrath’s argument in relation to need:

“59.      A great deal of caselaw has dealt with the issue of “need”; however, an oft quoted early judgment of this Court is the decision of Carter DCJ in Skateway Pty Ltd v Brisbane City Council (1980) 1 APAD 417 at 423-424:[1]:

[1]See also Williams McEwans Pty Ltd v Brisbane City Council (1981) 2 APAD 165 at 169-171 per Carter DCJ; Cut Price Stores Retailers v Caboolture City Council [1984] QPLR 126 at 131 per Skoien DCJ; Anka Builders (Gold Coast) Pty Ltd v Maroochy Shire Council [1986] QPLR 436 at 459-460 per Row DCJ; Roosterland Pty Ltd v Brisbane City Council (1986) 23 APAD 58 AT 60; All-a-wah Carpark v Noosa Shire Council [1989] QPLR 155 at 157 per Skoien DCJ; Jadmont Pty Ltd v Miriam Vale Shire Council [1998] QPELR 351 at 354 per Skoien DCJ; Warradale Holdings Pty Ltd v Caloundra City Council [1998] QPELR 498 at 513-514 per Brabazon DCJ.

“Need in planning terms is a relative concept.  As Hardie J pointed out in Chartres Constructions Pty Ltd v Randwick Municipal Council (1972) 25 LGRA 193 at p195, consideration of need in a town planning case “must yield to the decisive effect of amenity and other town planning considerations’. In a rezoning application the need contended for is firstly a community need, not in the sense that there is an element of urgent community necessity for a facility or for land so zoned on which the facility can be provided. Rather it connotes the idea that the physical wellbeing of a community or some part of it can be better and more conveniently served by providing the means for ensuring the provision of that facility, subject always to other considerations of a town planning kind including the consideration that the wellbeing of a community also depends significantly on an acceptable residential amenity. If the provision of a facility which would otherwise advance the physical wellbeing of a community will affect the capacity of residents in that community to enjoy life, then it can in truth be said that there is no need.”

60. “Need” does not mean simply  market demand[2] and while the availability of other land in the locality of the same zoning is relevant it is not necessarily determinative.[3]  Rather an overall public benefit is required as stated in Roosterland Pty Ltd v Brisbane City Council (1986) 23 APAD 58 at 60 per Skoien DCJ:[4]

[2]All-a-wah Carpark v Noosa Shire Council [1989] QPLR 155 at 157 per Skoien DCJ; Leeglade v Mulgrave Shire Council [1995] QPLR 122 at 125 per Daly DCJ.

[3]Hervey Bay Projects v Hervey Bay City Council [1993] QPLR 104 at 114 per Row DCJ; Warradale Holdings Pty Ltd v Caloundra City Council [1998] QPELR 498 at 514 per Brabazon DCJ.

[4]See also Warradale Holdings Pty Ltd v Caloundra City Council [1998] QPELR 503 at 513 (Brabazon J).

“‘Need’ in planning terms is a relative concept.  It does not connote pressing urgency but rather relates to the general wellbeing of the community.  A use would be needed if it would, on balance, improve the services and facilities available in the locality.  See Skateway Pty Ltd v Brisbane City Council (1980) 7 QL 296; [1980] QPLR 245 at 250. It is not, of course, the sole or even the most important criterion to be considered and indeed must give way to the decisive effect of amenity and other town planning considerations, ibid.”

61. The nature of planning need and the fact that it does not invariably carry weight was considered by Fryberg J in Ecovale Pty Ltd v Gold Coast City Council [1999] 2 Qd R 35 at 46-47:[5]

[5]See further Ballymont Pty Ltd v Ipswich City Council [2002] QCA 233 (as reported at (2002) 120 LGERA 318 and [2003] QPELR 41) at [49] where Fryberg J reiterated these comments.

“What is important [in considering the concept of need in planning appeals] is that neither in the concept as judicially developed nor in the statute is need propounded as a matter which invariably carries weight.  Often it may be a factor of no importance at all.  The [Local Government Planning and Environment) Act 1990] requires a council to assess it to the extent it is relevant.  It requires no more than that.
  Secondly, it should be remembered that need has many aspects.  It may in some cases be argued that an amendment to a planning scheme is necessary because the development proposed is one of a type of which there is shortage in the community, or for which there is an economic demand.  In such cases, the focus of the evidence will understandably be upon the proposed development.  In other cases, the focus of the evidence will understandably be upon the proposed development.  In other cases the focus may be upon the question of whether a particular zone is more appropriate than another zone.  In yet others, the issues may revolve around the market availability of suitable land to permit a particular development, both lawfully and practically – the ‘supply and demand’ aspect of need.  No one aspect of need must necessarily apply in every case. …”

62. The authorities confirm that need is a relative concept to be given a greater or lesser weight depending on all of the circumstances which the planning authority has to take into account.[6]

[6]Intrafield Pty Ltd v Redland Shire Council [2001] QCA 116 (also reported at (2001) 116 LGERA 350 and [2001] QPELR 413) at para [20]; Ballymont Pty Ltd v Ipswich City Council [2002] QCA 233 at [49].

63. While the Appellant accepts that there is a market demand for Residential A housing and that there are practical limitations to the current availability of such land in the locality, it is submitted that the proposed development is not needed on the basis that it will not, on balance, improve the services and facilities available in the locality or the general wellbeing of the community because:

·     the proposed development will substantially destroy part of the Brisbane Green Space System; and

·     in circumstances where there is sufficient land set aside or zoned under the Town Plan and which the Draft Brisbane City Plan 1999 indicated was available to accommodate urban development of the type proposed to be constructed on the land.

64. Further, accepting that there is a market demand and practical limitations to the availability of residential land for subdivision the Appellant submits that to the extent that the Court finds that there is a need for the proposed development, it should be given little weight in the context of the counter-balancing need for green space in the rapidly urbanizing Brisbane City and south-east Queensland region.”

The submission went on to note the agreement of all three town planners who gave evidence as to the “need to retain Green Space” which Mr Mulcahy, the co-respondent’s planner, described as “a normal element of the urban environment.”

  1. While the concept of “need” in planning cases is notoriously elastic, the court is confronted with an argument based on countervailing needs.  A particular embellishment referred to Strategic Plan provisions indicating the desirability of preserving Green Space near the Kenmore Village Shopping Centre and nearby commercial development.  Here, of course, the site’s only contribution, undeveloped, is as something to look at, rather than somewhere to go to.  In my opinion, there is a planning need here for a development such as that proposed, and there are not countervailing needs sufficient to outweigh it, once the measures to protect McKay Brook are acknowledged.  This judgment is made on the basis of the proposal including positive contributions to the Brisbane Green Space System and to Green Space values.  While accepting that the development may be unwelcome to many who presently live nearby, this is not a situation of negative impacts of the kind referred to in Skateway and other cases mentioned by McGrath.

Conclusion

  1. Reverting to the “principal issues” identified by the appellant, as set out in paragraph [13] above, that of the asserted conflict with the Strategic Plan because the site is part of the Green Space System is resolved against the appellant.  The “Green Space System” is undefined.  It not having been mapped, the site, in my opinion, is not within any of the “components” of the Green Space Areas.  It exhibits Green Space values, as the Council has recognized, which are protected by  conditions set in the approval.  To those conditions, the court will add, at Greymouth’s invitation, the one suggested by Mr Settle requiring rubble pits.  There should be a bonding (or similar) condition as contemplated in  paragraph [23] to protect significant trees.  It occurred to me that other conditions might have been considered, such as stipulation of additional “Building Location Envelopes”  (I was not persuaded by the criticisms mounted during the appeal of conditions directed to saving trees in particular locations) – and even one limiting or precluding building on the tennis court area on lot 36, which is clearly located very sensitively in relation to McKay Brook.  It may be that difficulties attend any attempt to “appropriate” an improvement such as a tennis court in the public interest, such that the parties chose not to ventilate them in the appeal.  They may, however, be able to work out something in the course of formulating a suitable form of order to give effect to the court’s conclusions.  The court itself ought not be too inventive about new or revised conditions at this stage.  Exhibit 1A suggests that a corner of the tennis court area is to be included in the park.

  1. If the site were in component (c) of the Green Space Areas rather than Urban Area, the conflict between the proposal for Residential A subdivision and the Strategic Plan, which broadly calls for “retention” of areas making up the Green Space System, would be clear.  That the Green Space System extends beyond areas mapped is clear from s 3.3.2 of the Strategic Plan:

“3.3.2 Urban Areas

3.3.2.1   Statement of Intent

While all the Urban Areas designated in the Strategic Plan will not be fully developed by the year 2011 this preferred dominant land use contains those areas which may be developed for urban purposes within this planning horizon, subject to the considerations set out below and the intents for the zone concerned.  Urban and suburban residential development will only be allowed in those areas designated as Urban Areas.

Urban Areas identified on Strategic Plan Map 1 may be developed areas, developing areas or areas which are not yet developed.  All of these areas will include elements of the Green Space System, including areas too small to be shown on the Strategic Plan Maps.  This will include local parkland and sports fields which cater for local communities.  Similarly the Urban Areas contain small centres, industrial areas, schools and other institutional uses.”

The Statement of Intent concludes:

“Within Urban Areas, land shown as having environmental and Scenic Constraints on Strategic Plan Maps 1 and 2 may be developed only in a manner which is compatible with the Brisbane Green Space System values which apply in a particular area.”

  1. The land is not mapped as Green Space.  Nevertheless, the closing paragraph of s 3.3.1.1 (Statement of Intent for the Brisbane Green Space System) contemplates identification (and presumably appropriate protection – cf 3.3.1.4) when there is a development application such as the present one.  The Council has gone to some trouble here to achieve the outcome so envisaged.  Should the correct view be that the site is a component of the Green Space Areas, the planning grounds favouring approval of the development application notwithstanding the resulting conflict with the Strategic Plan appear to me to be considerable.  If the site is regarded as part (because an “element”) of the Green Space System, the proposal, as conditioned, does not exhibit conflicts to any appreciable extent – and the argument for approval notwithstanding seems overwhelming.

  1. Effectively, the appeal must be dismissed.


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