Moncrieff v Townsville City Council [No.2]
[2011] QPEC 100
•16 May 2011
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Moncrieff v Townsville City Council [No.2] [2011] QPEC 100
PARTIES:
S & D MONCRIEFF
(Appellant)AND
TOWNSVILLE CITY COUNCIL
(Respondent)AND
DEPARTMENT OF MAIN ROADS
(Co-Respondent)FILE NO/S:
D59/09
DIVISION:
Planning and Environment Court
PROCEEDING:
Appeal
ORIGINATING COURT:
Planning and Environment Court, Townsville
DELIVERED ON:
16 May 2011
DELIVERED AT:
Townsville
HEARING DATE:
13 – 16 September 2010
JUDGE:
Durward SC DCJ
ORDERS:
1. Substantive appeal allowed
2. Decision of respondent dated 27 January 2009 set aside.
3. Development Application for a Development Permit for a Preliminary Approval approved subject to lawful conditions.
4. Appeal adjourned for determination of appropriate conditions of approval.
CATCHWORDS:
PLANNING & ENVIRONMENT - PLANNING SCHEMES - preliminary approval overriding planning scheme - rural to park residential - land contiguous with but outside urban growth area boundary - extension of existing park residential area - balancing of public and private interests
PLANNING & ENVIRONMENT - MINOR CHANGE - development application - park residential - reduction in number of proposed lots - non-reticulated in lieu of reticulated sewerage proposed - whether latter is a minor change
PLANNING & ENVIRONMENT - ASSESSABLE DEVELOPMENT - compliance with rural planning area code and urban growth area code
PLANNING & ENVIRONMENT - IMPACT ASSESSMENT - CONSTRUCTION OF PLANNING SCHEME - whether compromise of DEO's - whether conflict with planning scheme - whether sufficient grounds to justify decision despite conflict
LEGISLATION:
Integrated Planning Act 1997 ss 1.3.3, 1.3.6, 3.1.6, 3.5.5, 3.5.5A, 3.5.14, 3.5.14A and 4.1.52; Sustainable Planning Act 2009 ss 350 and 819; Local Government Act 2009 ss 250, 251.
PLANNING
SCHEME:
City of Thuringowa Planning Scheme 2003
CASES:
Moncrieff v TCC [2010] QPEC 45; Westfield Management Ltd v Pine Rivers Shire Council & The Warehouse Group (Australia) Pty Ltd [2004] QPELR 337; Webster v Caboolture Shire Council [2009] QPELR 455; Luke v Maroochy Shire Council [2003] QPELR 447; Woolworths Ltd v Maryborough City Council (No 2) [2006] 1 Qd R 273; Weightman v Gold Coast City Council [2003] 2 Qd R 441; Australian Capital Holdings Pty Ltd v Mackay City Council [2008] QCA 157; All-a-wah Carapark v Noosa Shire Council [1989] QPELR 155; Arksmead v Council of the City of Gold Coast [2000] 107 LGERA 60; ALDI Stores (A Limited Partnership) v Redland Shire Council [2009] QCA346; Rich v Central Highlands Regional Council [2010] QPEC 36; Plafaire Projects Australia Pty Ltd v Council of the Shire of Maroochy & Anor [1991] QPELR 87; Grosser v Gold Coast City Council [2001] 117 LGERA 153; Casagrande Investments Pty Ltd v Redland City Council & Ors [2010] QPEC 54; HA Bachrach Pty Ltd v Minister for Housing (1992) 80 LGERA 230; Yu Feng Pty Ltd v Maroochy Shire Council (2000) Qd R 306; Cut Price Stores v Caboolture Shire Council (1984) QPELR 126; Intrafield Pty Ltd v Redland Shire Council [2008] QPELR 455; Harderan v Logan Shire Council (1989) ! Qd R 524; Adam & Anor v Gold Coast City Council [2007] QPELR 379; Leda Holdings Pty Ltd v Caboolture Shire Council [2006] QCA 271; Gelling v Cairns City Council [2008] QPEC 38; Acland Pastoral Co Pty Ltd v Rosalie Shire Council [2007] QPEC 112; Bullock & Ors v Maroochy Shire Council & Anor [2008] QPELR 115.
COUNSEL:
C.L. Hughes SC and M.A. Williamson for the appellants
R.A. Quirk for the respondent
SOLICITORS:
p & e law for the appellants
Townsville City Solicitors for the respondent
The appellants in about October 2006 made a Development Application for a Development Permit for a Preliminary Approval overriding the Planning Scheme in respect of a property (“the land”) situated at Granitevale Road, Alice River (the “development application”).
The proposed development
The land situated at Granitevale Road, Alice River, Townsville City (formerly in Thuringowa City) is located in the Rural Planning Area under the City of Thuringowa Planning Scheme 2003 (the “planning scheme”), described as Rural 400 (property description Lot 2 on RP 738646 and part of Lot 2 on RP 728339, comprising an area of 420 hectares). It adjoins the existing rural residential estate of Rupertswood.
The development application originally proposed a master planned Park Residential Subdivision of 1,100 lots as an extension to the existing Rupertswood Rural Residential community. Modifications were subsequently made to reduce the number of lots to 850, with an increase of parkland and open space and conservation and riparian corridors. The lot sizes directly the adjoining existing Rupertswood Estate were also increased to satisfy adjoining owner’s amenity concerns.
Notice of Appeal
On 27 January 2009, the respondent (the "Council") refused the development application. The appellant filed a Notice of Appeal on 2 March 2009. In the course of the hearing of the appeal the Council abandoned reliance on DEOs 1, 2 and 5. The appeal also sought relief against the decision of the co-respondent (“DMR”) made on 25 February 2008 to impose conditions on the approval of the development application. However, that part of the appeal was deferred until after the principal appeal was resolved in this hearing. DMR were earlier in the proceedings excused from participation in this hearing.
Decision Notice and Grounds of Appeal
The Decision Notice dated 30 January 2009 identified four reasons for refusal. The edited grounds of appeal, in italics, follow each of the four reasons for refusal:
‘a. the proposed material change of use of land does not comply with the character statement for the Rural Planning Area specifically s 3.1.1(b)(i), (iii), (iv) and s 3.1.1(f) and (g)(iii);
· A dominant feature of the area is the Rupertswood Residential Area.
· The land is separated from other rural land by road, river and power easement
· The development proposal is consistent with Rupertswood rural residential area and thus consistent with the established character of the area
· Rupertswood provides infrastructure to the boundary of the land
· There is a minimisation of adverse environmental impacts including retention of park, conservation and riparian corridors
· The proposed development consolidates the existing Rupertswood Residential Development
· The expansion of Rupertswood was anticipated by sizing of infrastructure and the design of future road connection points
· The proposed development will support and improve the efficiency of established infrastructure
· There are limited locations for 'park residential' developments under the Planning Scheme
· The land is no longer a viable rural property, because of its size and location, water sources and soil structure and slope
· Any concerns are able to be addressed by conditions.
b. the proposed material change of use does not comply with the Rural Planning Area Code, specifically P1 (character in built form), P2 (separation distances), P5 (lot size), P6 (non-rural development) and P7 (existing and future rural amenity);
· The grounds referred to in a. above are relevant to this reason
· With respect to conflict, the 'conflict' is that of the continual rural use of the land which is adjacent to Rupertswood residential area.
c. the proposed material change of use does not comply with the City-Wide Codes, specifically 5.5.3 P1 (transport) and s 5.6 (urban growth boundaries) and s 5.2 (Natural Areas Code – P1 and P3);
· The grounds referred to in a. above are relevant to this reason
· The proposed development complies with City Wide Codes; AS is consistent with 5.5.3P1A1 (transport)
· 5.6 (Urban Growth Boundaries): the land adjoins Urban Growth Boundaries and rather than inhibit or restrict implementation of the Urban Growth Boundary Code it assists by contributing to the urban efficiencies of Rupertswood. Hence there are sufficient grounds for approval despite any conflict
· The proposed development complies with CWC s 512 (Natural Areas Code - P3) because the concurrence agency NRW supported the proposal subject to conditions.
d. the proposed material change of use does not comply with the Desired Environmental Outcomes of the IPA Planning Scheme, specifically DEO 6 (land use patterns) 2.6.2(a), (b), (c) and (d); DEO 2 (environmental quality) 2.2.2(d)(ii); DEO 5 (economy) 2.5.2(b)(iii); and DEO 1 (nature) 2.1.2(iii) and (iv).'
· DEO 6 (Land Use Patterns - the proposed development is consistent with s 2.6.2 a, b, c and d: there is integration with the adjoining Rupertswood estate, there is consolidation with the adjoining Rupertswood estate, it promotes co-location and there are transport network advantages. (NB: DEO6 was at the end of the hearing the only relevant DEO).
The Appeal
Pursuant to s 819(1) and (2) of the Sustainable Planning Act 2009 (“SPA”), the court is required to hear and determine the appeal as if SPA had not commenced. The appeal is made under s 4.1.27 Integrated Planning Act 1997 (“IPA”) and s 3.1.6 IPA (preliminary approval overriding the Planning Scheme).
Overriding the planning scheme: the Preliminary Point decision
I do not need to consider the sufficiency of the application in respect of the requirements inherent in s 3.1.6 IPA or its application to this development application. That has already been determined as a preliminary point.
In Moncrieff v TCC [2010] QPEC 45 His Honour Judge Robin QC ruled that the development application was an application to which s 3.1.6 of the IPA applied. His Honour expressed the view that "the planning scheme was sought to be varied by the site being treated as if included in the park residential planning area and not in the rural planning area or the sub-area to which it is currently assigned by the planning scheme." [11]. His Honour continued and wrote:
"[12] Nothing like the analysis or 'expertise' necessary to appreciate the effect of varying the applicable planning scheme provisions in Stockland would be required here. There were nearly 200 submissions, the content of which shows that the authors were fully aware that the developer proposed an extension of the existing Rupertswood Estate beyond its boundaries, which coincide with the Growth Area Boundaries in this locality. The change in character from rural and the foreseeable impacts of more intensive residential development were well understood and objected to. Plans show the proposed street pattern and the number of residential lots in particular sections or stages etc.
[13] The application can possibly distinguish from the one which failed at Lagoon Gardens Pty Ltd v Whitsunday Regional Council [2009] QPEC 66; [2010] QPELR 74 for seeking not 'development', but a 'rezoning'; readers were left to speculate which of the uses in the new zone might actually be contemplated by the developer. The present development application avoids this pitfall. It is not sought to re-assign the site to another planning area, but to have it treated as if it were in another planning area to facilitate the future development outlined. The distinction may be subtle, but it is a distinction.
[14] In my opinion, the appellant's development application sufficiently 'states the way in which the applicant seeks the approval to vary the effect of any [or any applicable] local planning instrument for the land; for the purposes of s 3.1.6 to do with characterisation of the application and for purposes of s 3.5.5A for the purposes of assessment of the application, which could sensibly proceed. It appears the Council did not apprehend any difficulty in either regard until some time in 2010. The Council did assess (and reject) the development application. The preliminary point which Judge Durward SC on 8 March 2010 ordered be determined must be decided against the Council."
The IPA Provisions
The material IPA provisions, so far as are relevant about impact assessment, provide as follows:
“3.5.5 Impact Assessment
(1)This section applies to any part of the application requiring impact assessment.
(2)If the application is for development in a planning scheme area, the assessment manager must carry out the impact assessment having regard to the following:-
(a)the common material;
(b)the planning scheme and any other relevant local planning instruments;
(d)any development approval for, and any lawful use of, premises the subject of the application or adjacent premises.”
“3.5.14 Decision if application requires impact assessment
(1)This section applies to any part of the application requiring impact assessment.
(2)If the application is for development in a planning scheme area, the assessment manager’s decision must not -
(a)compromise the achievement of the desired environmental outcomes for the planning scheme area; or
(b)conflict with the planning scheme, unless there are sufficient grounds to justify the decision despite the conflict.”
Where the application is for a Preliminary Approval that may override the planning scheme the assessment is subject to s 3.1.6, which provides for additional things an approval may do under Part 5 IPA. The application must be assessed against ss 3.5.5A and 3.5.14A IPA. Those sections provide, so far as is relevant:
“3.5.5AAssessment for s 3.1.6 preliminary approvals that override a local planning instrument
(1) This section applies to any part of the application that requires impact assessment.
(2) If the application is for development in a planning scheme area, the assessment manager must carry out the impact assessment having regard to the following –
(a) the common material;
(b) the planning scheme and any other relevant local planning instruments;
(c) …..
(d) any development approval for , and any lawful use of, premises the subject of the application or adjacent premises;
….”
and
“3.5.14ADecision if application under s 3.1.6 requires assessment
(1) In deciding the part of an application for a preliminary approval mentioned in section 3.1.6 that states the way in which the applicant seeks the approval to vary the effect of any applicable local planning instrument for the land, the assessment manager must –
(a) approve all or some of the variations sought; or
(b) subject to section 3.1.6(3) and 5 – approve different variations from those sought; or
(c) refuse the variations sought;
…….”
The planning Scheme
A. Planning Intent
The construction of the Planning Scheme against the legislation is a matter for judicial determination. The Court must consider the merits of the development proposal against the relevant provisions of the Planning Scheme. The opinions of town planners as to the planning intent inherent in a planning scheme, if it is expressed in evidence, are an irrelevant matter: HA Bachrach Pty Ltd v Minister for Housing (1992) 80 LGERA 230; and Yu Feng Pty Ltd v Maroochy Shire Council (1996) 92 LGERA 41. In Grosser v Council of the City of Gold Coast (2001) 117 LGERA 153, White J referred to the proper approach of the Planning and Environment Court to matters of planning policy. It is a self-limiting approach, at least when considering town planning matters. Her Honour wrote:
"It is not this Court's function to substitute planning strategies … for those which a Planning Authority in a careful and proper has to adopt (sic) …”
The section reference in Grosser to s 4.4(5A) is to the repealed legislation. The section, so far as is relevant, is materially the same as s 3.5.14 of IPA. See also Fitzgerald P in Yu Feng Pty Ltd v Maroochy Shire Council (2000) Qd R 306 at 332.
B. Relevance of Strategic Plan and Policies
In Grosser v Council of the City of Gold Coast (supra), Her Honour wrote at 163-164:
"[38] The proper approach of the Planning and Environment Court and of its predecessor, the Local Government Court to matters of planning policy has long been recognised as one of restraint. Most recently this Court affirmed the desirability of a self-limiting approach, at least when considering town planning matters in Holts Hill Quarries Pty Ltd v Gold Coast City Council [2000] QCA 268 unreported decision of 14 July 2000. The Court quoted with apparent approval at [42] the following passage from the judgment of Quirk DCJ in Elan Capital Corporation Pty Ltd v Brisbane City Council [1990] QPLR 209 at 211: 'It should not be necessary to repeat it but his (sic) Court is not the Planning Authority for the City of Brisbane. It is not this Court's function to substitute planning strategies (which on evidence given in a particular appeal might seem more appealing) for those which a Planning Authority and a careful and proper has to adopt (sic) (Brazier v Brisbane City Council (1972) 26 LGERA 322 at 327). As was observed by Carter CJ in Sheezel v Noosa Shire Council [1980] QPLR 130 (when he then constituted this Court), it would be quite inappropriate for this Court to deal with an individual application for rezoning in a way which might be construed as determinative of some wider question. Adopting the phraseology of those cases which deal with the non-derogation principle, I feel that to allow this appeal would be to 'cut across' in quite unacceptable manner, a planning strategy which has been adopted by the Planning Authority and publicly exhibited for community comment.' This stated a proposition which the Court said was 'common sense … for which no authority was required' [46]. See also Ampol Petroleum (Qld) Pty Ltd v Pine River Shire Council [1989] QPLR 133 per Row DCJ at 134, 136; Bullock v Hervey Bay Town Council [1983] QPLR 98 per Carter DCJ at 100; Cherrabun Pty Ltd v Brisbane City Council [1985] QPLR 205 per Quirk DCJ at 208; and the discussion in Fogg, Land Development in Queensland (1987) pp 390 et seq.'"
In Rich & Anor v Central Highlands Regional Council [2010] QPEC 36, His Honour Judge Rackermann wrote:
"The relevant provisions, however, also envisage that development may be justifiable where there is an overriding need for the development in terms of public benefit and no other site is suitable and available for the purpose. In this respect, the planning scheme mirrors provisions of the State Planning Policy"; and
"As the state planning policy itself acknowledges, development of this nature (large rural residential or rural living allotments) is locationally flexible. That is, it is not the type of development which necessarily has to be located on a particular parcel of land or in a particular area within the Shire. It can be accommodated in a number of different locations."
Discussion
Mr Quirk submitted that there was no evidence to support the contention that there will be a reduction in the level of service (in Rupertswood and environs) if the application was refused. I do not think that there was a strong contention, if any, to that effect. Rather, the emphasis in the proposed development was the further benefit in service and infrastructure that would flow from a larger population.
Similarly, he submitted that the environmental benefits were presently achievable by intervention from appropriate regulatory bodies and that there was no evidence that the existing roads network was other than satisfactory. That may well be correct. However, such contentions are not a basis for refusing the proposal, which at the very least is another way in which environmental benefits can be provided and the road network enhanced.
I accept that the court is not a planning authority. My approach to this matter is unremarkable and consistent with the authorities to which I have referred. I will have something further to say about that when discussing the evidence and the Urban Growth Boundaries Code.
C. Construction of the Planning Scheme
In Weightman v Gold Coast City Council [2003] 2 Qd R 441, the Court of Appeal held that the requirement imposed by s 4.4(5A) of the Repealed Legislation was mandatory and not merely directory. Atkinson J applied the following test:
"[36] In order to determine whether or not there are sufficient (planning grounds) to justify proving the application despite the conflict, as required by s 4.4(5A)(b) of the P & E Act, the decision maker should:
1. Examine the nature and extent of the conflict;
2. Determine whether there are any planning grounds which are relevant to the part of the application which is in conflict with the planning scheme and if the conflict can be justified on those planning grounds;
3. Determine whether the planning grounds in favour of the application as a whole are, on balance, sufficient to justify proving the application notwithstanding the conflict."
In Woolworths Ltd v Maryborough City Council (2006) 1 Qd R 273, the Court of Appeal analysed the issue of conflict between the decision and the scheme and the test applied in Weightman:
"[23] 'Conflict' in this context means to be at variance or disagree with. It describes a quality of a relationship between the subject (the decision) and a part of the predicate (the scheme). Unlike 'compromise' in para. (a), it implies no particular impact by a subject upon an object. A determination that there has been a breach of the requirement that 'the assessment manager's decision was not … conflict with the planning scheme' requires the identification of the decision, the identification of some part or parts of the scheme with which the decision might be said to conflict and a decision whether the former conflicts with the latter. Only if such a determination has been made is it necessary to consider whether there are sufficient planning grounds to justify the decision.
[24] Section 3.5.14(2)(b) differs in several respects from s 4.4(5A) and s 4.1.3(5A) of the Local Government Planning & Environment (Act) 1990, provisions which may be regarded as its predecessors. Under those sections, the subject of the putative conflict was under the application; here it is the assessment manager's decision. Under those sections the object of the conflict was any relevant strategic plan or development control plan; under the present section it is the whole planning scheme. Under those sections (if they applied) the result was a refusal of the application in the absence of sufficient planning grounds; here the result in the same circumstances is simply a non-conflicting decision. Under those sections what required justification was approval of the application; under the present section what requires justification is the decision. Moreover, the grammatical structure of the two sections is significantly different. These differences mean that care must be used in complying the cases decided under those provisions to the present section."
Fryberg J (with whom Holmes J agreed) referred to the process approved in Weightman in respect to the repealed section. However, he said it would "[be] a mistake to treat the relevant passage in that judgment as if it were a code for the determination of justification"; and "[T]he purely mechanical application of the Weightman dictum should be avoided, particularly when dealing with the current statute rather than the one under consideration in that case" (at p 286 and 296 respectively).
In Westfield Management Ltd v Pine River Shire Council & Anor (2004) QPELR 337, Britton SC DCJ said with respect to the construction of planning schemes:
"[18] I accept that the following principles apply to the construction of planning schemes:
(a) they should be construed broadly rather than pedantically or narrowly and with a sensible, practicable approach;
(b) they should be construed as a whole;
(c) they should be construed in a way which best achieves the apparent purpose and objectives;
(d) in the light of the prescription against prohibiting development contained in IPA (s 6.1.2)(3);
(e) Statements of Intents or Aims or Objectives are intended to provide guidance for the task of balancing the relevant facts, circumstances and competing interests in order to decide whether a particular use should be rejected as inappropriate;
(f) a Strategic Plan sets out broad desired objectives and not every objective needs to be met before a proposal can be approved;
(g) a Strategic Plan should be read broadly and not pedantically;
(h) although planning documents have the force of law they are not drawn with the precision of an Act of Parliament;
(i) a conflict alone may not have the effect of ruling out a particular proposal;
(j) implementation objectives must be read sensibly and in context. They are but a function of the principle objective; The purpose of the objective is better understood by reading all of the implementation objectives and understanding the strategy that is inherent."
(Citations have been omitted from the cited passage.)
D. Sustainability
“1.3.3 Meaning of ecological sustainability
Ecological sustainability is a balance that integrates -
(a) protection of ecological processes and natural systems at local, regional, State and wider levels; and
(b) economic development; and
(c) maintenance of the cultural, economic, physical and social wellbeing of people and communities."
“1.3.6 Explanation of terms used in ecological sustainability
For section 1.3.3 -
(a) ecological processes and natural systems are protected if -
(i) the life supporting capacities of air, eco- systems, soil and water are conserved, enhanced or restored for present and future generations; and
(ii) biological diversity is protected; and
(b) economic development occurs if there are diverse, efficient, resilient and strong economies (including local, regional and State economies) enabling communities to meet their present needs while not compromising the ability of future generations to meet their needs; and
(c) the cultural, economic, physical and social wellbeing of people and communities is maintained if -
(i) well-serviced communities with affordable, efficient, safe and sustainable development are created and maintained; and
(ii) areas and places of special aesthetic, architectural, cultural, historic, scientific, social or spiritual significance are conserved or enhanced; and
(iii) integrated networks of pleasant and safe public areas for aesthetic enjoyment and cultural, recreational or social interaction are provided."
The Council has several published Planning Scheme Policies, including one for Rural Areas and one for Urban Growth Boundaries, made in December 2003 to support the Urban Growth Boundaries Code. Its purpose is to ensure orderly development, provision of a reasonable level of infrastructure, service and create "vibrant and liveable communities that provide a range of infrastructure, facilities and services to meet the needs of the community”; see: “1.1. Purpose of this Policy”.
Urban Growth Boundary Policy and Urban Growth Boundaries Code
The Urban Growth Boundary is defined as "an officially adopted and mapped line that separates an urban area, existing or planned, from its surrounding, predominantly rural land. Urban Growth Boundaries identify the location of land that will accommodate the City's future residential growth. Urban expansion shall be limited to those areas within the defined boundaries.”
In paragraph 3.5 of the Policy, ecological sustainability is sought to be achieved in the planning scheme. It is described as "a balance that integrates the protection of ecological processes and natural systems, facilitates economic development and maintains the cultural, economic, physical and social wellbeing of people and communities" and is detailed in the DEO's.
In paragraph 4 the policy provides guidance (my emphasis) as to how a development proposal involving land outside the urban growth boundaries identified on map 5.6 of the planning scheme can address Performance Criterion P2 of the Urban Growth Boundaries Code. The paragraph expresses the intention that:
"the land outside the urban growth boundary areas will be retained for specific economic, social or environmental reasons such as agricultural land, areas of scenic protection, significant water catchments and World Heritage Areas. Land beyond the urban growth boundary areas will be used only for activities such as farming, forestry, open space and tourism."
The policy requires, for urban development beyond the urban growth boundaries, information to be furnished that the location be demonstrated as necessary and represented a well planned, orderly development. An amendment of the defined urban growth boundaries must be justified in respect of the following:
"(a) Reasons justifying why the Urban Growth Boundary Code should not apply;
(b) Demonstration that areas within the urban growth boundaries cannot reasonably accommodate the proposed urban development;
(c) Demonstration that the long-term environmental, economic, social and energy consequences resulting from the use of the proposed site with measures designed to reduce adverse impacts are not significantly more adverse that would typically result from the same proposal being located within the defined boundaries, and
(d) The proposed development is compatible with other adjacent uses or will be so rendered through measures designed to reduce adverse impacts."
The appellant referred specifically to the four matters taken into account by the planning authority in justifying development outside the urban growth boundary. Mr Hughes SC submitted that there was a specific statutory policy about permitting residential development beyond the urban growth boundary and that the proposed development was compliant with the planning scheme policy.
Mr Quirk submitted that residential development was not ‘non-urban’ development’ and that the land was not within the urban growth boundary, and was in a rural area retained for non-urban development; and that the development was not compliant with the Code, section 1.8.1 of the planning scheme.
Discussion
The correct construction of the Policy and Code is that, by way of guideline, it allows consideration to be given to residential development outside the boundary.
Mr Hughes SC submitted that the planning scheme had not made sufficient provision to satisfy “the need for a type of residential accommodation in a particular locality”; there was a potential for positive community benefits to be provided, without adverse impacts, on the land; there is no evidence to support the contention that – in the planning context – the land has or should be retained for an economic, social and environmental purpose; and the Council has approved residential development elsewhere outside the Urban Growth boundary, at Jensen and Bluewater Park.
In paragraph 1.1(b) the policy refers to a "reasonable level of infrastructure service": Rupertswood does not have this. The urban growth boundary goes around Rupertswood in a rather artificial way that recognises it as an existing residential area (even though it might be some distance from other urban areas). It also does so at Rangewood. The appellant submitted that the proposed development will potentially provide that reasonable level of infrastructure service referred to in paragraph 1.1 (b).
The four matters of justification in order for an amendment to the boundary to be made seem to me to be met in this case, in the following respects:
(a) The development is a logical extension to Rupertswood:
· Integration between Rupertswood and the land;
· A need for the development in this locality;
· The services and stub road to the boundary of the land, from Rupertswood;
· The agreement exhibit 31;
· Community benefits from services and infrastructure provision;
· Community expectation;
· Achievement of the ecological sustainability purpose in the Code.
(b) Other areas within the urban growth boundary do not reasonably accommodate the development:
· The land is a logical extension to the existing Rupertswood;
· ‘Need’ in this locality is now emphasised by the virtual completion of Rupertswood (which was not the case in 1996 and 2003);
· Locations in the former Townsville City Council planning area are not relevant in the context of the planning scheme;
· Other locations within the urban growth boundary do not meet the ‘need’.
(c) There are no adverse environmental, economic, social and energy consequences:
· There are beneficial environmental, economic and social outcomes;
· The imposition of anticipated reasonable conditions will have no greater impact than if the land was within the urban growth boundary;
· There are no unacceptable impacts on amenity.
(d) The proposed development is compatible with the adjacent Rupertswood and with the rural area:
· The development is compatible with and of the same character as Rupertswood;
· The development is compatible with adjacent uses;
· There is separation from and buffers to the rural properties.
I understand the intent of the policy and its support for the content of the Code. However, Rupertswood is a reality. It is a community. It should not be shunned as an unwanted planning mistake of the past, undeserving of improvement. It cannot be simply be discounted or ignored in the holistic planning scheme context. The proposed development has the potential to create the sort of community envisaged in the policy. Whilst all planning policies are by there nature speculative in the context of planning guidance for future development, the urban growth boundary at Rupertswood is in my view an arbitrary line that recognises the existence of the residential estate but condemns it as a distant urban location with a less than optimal residential community status.
The conclusions referred to at (a) to (d) above are further explained in my discussion of the evidence and other matters that follow in this judgment.
The evidence
Town Planning
The proposed development is of the nature of rural residential. Section 2.16.2 of the City of Thuringowa Planning Scheme (19 December 1996) described Park Residential as follows: "these lands are intended to provide a lifestyle option to that part of the population who wish to incorporate some aspects of rural living in their residential environment particularly the separation between buildings while still having access to urban facilities. This form of development is regarded as essentially residential in character."
That description in the predecessor to the planning scheme in 2003 which is relevant to this appeal, reflects what a number of the residents have said, from their own perspectives and interests, about lifestyle options. The uptake of allotments within the adjacent Rupertswood estate has been more significant in recent years than at the commencement of that particular development, which might, amongst other things, reflect the consumer preference for park residential lifestyle in or about this locality, as distinct from alternative localities within the present local government area for Townsville City. That is a matter which in some respects is reflected in the evidence of experts and of residents in this case and to which I will make reference in the discussion of evidence that follows.
The respondent in oral submissions referred to the planning history of Council. Mr Quirk said that the planning strategy was lengthy and consistent in respect of the type of development it intended to permit in the locality of this land and that there could only have been one expectation, namely that the land was intended for rural development. He referred to the regional strategies in the 1996 Planning Scheme, including the regional structure plans, which he said showed that the exclusion of land outside the urban growth boundaries was a clear planning strategy decision that was then implemented in the 2003 Planning Scheme. He referred to the performance criterion with respect to land outside the urban growth boundary and its retention for economic, social and environmental purposes. In other words, it did not include urban development.
However, Mr Hughes SC for the appellant said that there was "no evidence that there is a planning strategy relevant to the area of Alice River, nor is there any evidence that the planning authority has carefully and properly adopted any particular strategy". He expressed the view that the effect of the 2003 Planning Scheme was that there would be further development of park residential development in the Alice River locality. He submitted that section 3.5.5(2)(d) required one to take into account the lawful use of adjacent land. Mr Hughes SC said that the Urban Growth Boundary Planning Scheme Policy - adopted by section 2.1.23 of the Planning Scheme - was a guideline (s 2.1.23 (4e)) and was not inconsistent with section 2.1.17A of IPA.
1.The Joint Report
The town planners - Ms Rayment for the appellant and Mr Davies for the Council - prepared a joint report. They agreed that the primary planning issues in the appeal were:
1. The degree to which the proposal complies with the IPA Planning Scheme, including:
A.the Character Statement for the Rural Planning Area ;
B.the Rural Planning Area Code ;
and is consistent with:
C. the City Wide Strategies ; and
D. whether or not Desired Environmental Outcomes (“DEOs”) of the IPA Planning Scheme are compromised; and
E. whether or not there are planning merits of the proposal to vary the effect of the IPA Planning Scheme and sufficient grounds to support the proposal despite any identified complex with the planning provisions.
A.The Character Statement for the Rural planning Area
The relevant Rural Planning Area Character Statement provides:
"3.1.1 Character Statement
(a) …
(b) The Rural Planning Area is intended for Rural Development that contributes to the amenity and landscape of the area. In particular -
(i) Buildings and structures and sited to protect the amenity of adjoining premises and contribute to maintaining the rural landscape.
(ii) …
(iii) Development is compatible with the rural landscape or has a nexus with Rural Development;
(iv) Development is adequately serviced by infrastructure."
"Rural Development" is defined in Part VII of the Planning Scheme to include agriculture, animal husbandry, aquaculture, host farm, intensive animal husbandry, rural accommodation units, rural dwelling, rural home occupation and rural industry. Those terms have their ordinary meaning. They are assessed as impact assessable development unless otherwise indicated in the planning scheme.
a)s 3.1.1(b)(i)
Mr Davies considered that a Park style residential development was not rural development as defined in the planning scheme. The land was "distinctly rural of a singular character" and consistent with the area surrounding Rupertswood.
Ms Rayment acknowledged the inconsistency in the context of the type of application made in this case. She considered there was merit in the proposal: economic need, community demand, that the land was suitably located and provided the logical expansion to Rupertswood (which she believed had been contemplated by reference to the stub road and infrastructure "connections" on the boundary, was of the urban growth area and had "hard" physical boundaries to the east, west and south. She considered that the proposal would provide community benefits from additional population and additional public open space. The houses to be built were the subject of the same or similar planning and Queensland Development Code requirements respectively as between rural and Park residential lots and consistent with existing development in Rupertswood.
b)s 3.1.1(b)(iii)
Mr Davies said that the proposal would create a semi-urban character in and was incompatible with a rural landscape. The Rural Planning Area comprise Rural 10, 40 and 400 sub-areas that were intended for some form of agriculture. Mr Davies was critical of the "expanded negative effect" of the proposal on the natural environment.
Ms Rayment referred to the protection of Mt Margaret and the riparian corridors and buffer zones.
Both witnesses referred to the 4,000m2 lots proposed on the boundary with Rupertswood. Ms Rayment regarded these as "transitional" between Rupertswood and the land. Mr Davies questioned why it was necessary to have a "buffer" between the two if there was a "nexus" between them.
c)s 3.1.1(b)(iv)
Mr Davies considered that existing infrastructure (water, sewerage and traffic) to service the proposed development was non-existent or required significant augmentation and that despite the developers undertaking to provide the necessary infrastructure there would be a cost, not planned for, to Council. Ms Rayment referred to the requirement for these services being met by conditions imposed on the development.
d)s 3.1.1(f)
Mr Davies considered that amalgamation was the appropriate answer to non-viable holdings rather than something of the nature of the proposal.
Ms Rayment referred to the planning scheme not "locking out" (my expression) other forms of development in the Rural Planning Area and to the positive amenity, "need" and environmental aspects of the proposal. She regarded it as a logical extension to Rupertswood and that it would consolidate it, particularly in terms of the desired Townsville Thuringowa Strategy Plan (“TTSP”) threshold.
e)s 3.1.1(g)
Mr Davies referred to the "agricultural intent" in the planning scheme designation Rural 400. He said that there was no compelling need to abandon rural uses for urban uses when there were alternative locations for Park style residential uses.
Ms Rayment referred to the planning merits supporting the proposal.
B.Rural Planning Area Code
Section 3.1.3: Rural Planning Area Code provides:
"P1 - Buildings, pens and other structures do not detrimentally impact on development on adjoining premises and in the surrounding area.
P2 - A separation distance between rural development and sensitive receptors is provided to prevent adverse impacts of spray drift, odour, noise, smoke, dust, vibration and ash.
P5 - The proposed Rural Living Area maintains farm holdings capable of sustainable production in terms of …
P6 - Development, other than Rural Development, is only located in the Rural Planning Area where no viable alternative location exists.
P7 - Development will not detrimentally affect the existing and future rural amenity and landscape of the Rural Planning Area."
Mr Davies has the view that the amenity of the existing rural planning area and the residential amenity of Rupertswood would be adversely affected by the proposal. Ms Rayment referred to the retention of important rural features. The land had physical separation (the rivers, transmission lines and Rupertswood Estate) from other rural land. The rural character of the immediate area was altered by the existence of Rupertswood.
C.The City Wide Codes
The City Wide Codes provide from a town planning perspective:
"5.6 Urban Growth Boundaries Code
The purpose is to ensure -
(a) Development occurs in an orderly, efficient and cost effective manner;
(b) The community is provided with a reasonable level of infrastructure service;
(c) Council Infrastructure and State Government Infrastructure is coordinated and provided in an orderly, efficient and cost effective manner;
(d) Areas outside the City's Urban Growth Boundaries are retained for economic, social and environmental purposes such as agricultural land, visual and natural resource protection, significant water catchments and World Heritage Areas; and
(e) Development within the City's Urban Growth Boundaries -
(i) does not prejudice premises for urban development in the long term;
(ii) creates vibrant and liveable communities; and
(iii) provides an example for sustainability in the City."
Mr Davies considered that the achievement of ecological sustainability would be defeated if the principle of "identification of land needs to accommodate future growth" was not adhered to. He referred to the proposal being "out of sequence" development, the land being "unconnected to the existing urban concentration, and that the proposal even when completed would not "suddenly emerge as a sustainable community."
Ms Rayment referred to the Performance Criteria and Acceptable Solutions. They provide as follows:
| P1 Urban Development - (a) occurs in an orderly, efficient and cost effective manner; (b) maintains a reasonable level of service to the existing community; and (c) provides infrastructure in an orderly, efficient and cost effective manner. | A1 - Urban Development occurs within the defined urban growth boundaries defined on map 5.7 (sic - it is in fact map 5.6) |
She expressed the view that "urban development occurs within the defined urban growth boundaries etc" as only one way in which the performance criteria is achieved. In other words, there may be another acceptable solution.
D.Desired Environmental Outcomes
The Desired Environmental Outcomes of the planning scheme. Whilst the experts addressed DEO 2 Environment Quality, DEO 5 Economy, and DEO 1 Nature, the only relevant DEO for my consideration at the end of the trial is DEO 6.
DEO 6 - Land Use Patterns - provides that the City's land use patterns create cohesive communities that balance economic, social and environment considerations. In the City Strategies, DEO 6 is intended to be achieved by -
"(a) Integrating new and existing development and providing a range of land uses that create cohesive, safe and sustainable communities.
(b) Establishing the City's Urban Growth Boundaries (refer to map 5.7) to create an efficient urban form by -
(i) providing for higher residential densities and a mix of uses around centres and public transport nodes.
(ii) ensuring orderly and sequential growth defining Urban Growth Boundaries
(iii) providing linkages between residential, public spaces and facilities and workplaces; and
(iv) establishing a land use pattern that is consistent with the location and capacities of existing infrastructure items, plans and programmes of service providers.
(c) Protecting land from encroachment by incompatible development, promoting the co-location of compatible and complementary development and allowing development where need is demonstrated.
(d) Developing and maintaining a transport network considering frictional, functional and impact characteristics that -
(i) improves assessability;
(ii) enhances mobility;
(iii) facilitates efficient and convenient access and mobility within and through the City for all transport and travel modes (maritime, vehicle - passenger and freight, bicycle, public transport and pedestrian);
(iv) reflects the road function and protects areas from inappropriate traffic movements;
(v) encourages walking and cycling through the provision of direct, safe and secure routes to local facilities such as shops and schools; and
(vi) minimises environmental impact."
Mr Davies considered Rupertswood and the proposal to be inconsistent with DEO 6 and that:
"There is no reason why this DEO needs to be compromised as the Land Use Patterns have been carefully planned to accommodate future growth within the Urban Growth Boundary so that infrastructure can be delivered efficiently and effectively, so that communities can benefit from the existing services and facilities already provided for and that communities can integrate in a sustainable manner."
Ms Rayment referred to the beneficial aspects of the proposal and expressed the view that it achieves the main goal of DEO 6, expressed in (a) above.
E.Sufficient Grounds
The town planners agreed that the proposal conflicts with various elements of the planning scheme, but disagreed as to the extent of that conflict and whether there are planning merits and sufficient grounds that would justify an approval despite that conflict.
2.Ms Rayment
Ms Rayment in her report considered that Rupertswood was designed in a manner which provided for integration with the land to facilitate its future development, with road connections and other services extending to the shared common boundary of Rupertswood and the land. She referred to the adjacent Rupertswood having water, electricity, telecommunications and waste collection services as well as to Ring Road (Brogan Road) which connects to the land. She said that in addition to the latter stub road essential services, including water supply and electricity supply, had been provided to that point at the common boundary between Rupertswood and the land. Hence she expressed the view that "future connectivity to the subject site was contemplated and facilitated by the approved plan of subdivision incorporating Brogan Road."
She referred to the intention of the developer that all necessary infrastructure would be provided by it and without burden on the Council. She referred to the fact that this could be conditioned in a development approval.
The TTSP is described as a "Framework for Managing Growth Development" and is said to have been the outcome of a cooperative planning exercise between what were then the two city councils and the State government in consultation with the regional community.
Two strategy plans were tendered: one dated March 2000 and the other a revised strategy plan dated June 2007. Ms Rayment referred to two of the key features of the regional structure plan, namely:
". Continued encouragement of infill and fringe urban development within and adjacent to, existing urban areas to promote efficient use of, and to consolidate demand for urban infrastructure and services; and
. Consolidation of rural residential development, within and adjacent to existing rural residential areas including those at the Upper Ross corridor, Bluewater and Alligator Creek. "
She emphasised the inclusion of the phrase "adjacent to" in each of those features. The two key features are expressed in the same words in each of the two strategy plans. In the Regional Structure Plan there is shown in map form existing rural residential at Rupertswood with an attached proposed rural residential is predicated for less than 15 to 20 years, to the east of Rupertswood in the March 2000 plan and proposed urban development to the north east (being part only of the earlier area described) of Rupertswood in the revised June 2007 plan. Ms Rayment referred to the provision in the strategic plan for urban growth management and Priority Action 1: "The preferred settlement pattern shown in the Regional Structure Plan and the Regional Planning Policies contained in the TTSP should be incorporated into Local Government Planning Schemes" and to the Residential Development section of the strategy plan which in the third principle stated "new residential development should occur predominantly as part of an existing or new community of sufficient population )approximately 3,500 minimum population) to facilitate the provision of local community services." The two strategy plans are expressed in the same words so far as those extracts are concerned.
Ms Rayment expressed the view that the development of the land for a rural residential purpose given that it was immediately adjacent to Rupertswood, was consistent with the TTSP because it promoted efficient use of and consolidated demand for existing urban infrastructure. She expressed the view that the TTSP:
"specifically envisages out-of-sequence development, provided the developer pays the bring forward costs of the infrastructure. Therefore, provided the provision of infrastructure is achieved without up-front costs to the Council, development outside the Urban Growth Boundary can be consistent with the TTSP."
Ms Rayment referred to Exhibit 31 – the agreement between the Thuringowa Council (as purchasers) and the appellants (as vendors) about the easement for the reservoir, pipeline and road – and clause 3 (d) that provided to the appellants an entitlement to domestic water supply “for six (6) rural/residential allotments” on the land and said that it contemplated additional rural residential allotments on the land south of Rupertswood, the agreement being one that related to water supply for the estates at Rupertswood and Rangewood.
She referred to the threshold or "critical mass" figure of 3,500 people and by way of analogy referred to that number being the threshold for the provision of a Neighbourhood Shopping Centre in the planning scheme. She considered that sensible planning should encourage population in a location such as this so as to achieve the threshold or critical mass of population to support retail and community facilities and services. She considered that from a planning merit point of view, the benefits included the threshold population which would make the provision of services sustainable, the additional public open space, the taking up of spare capacity and the satisfaction of a community demand or need. In other words, she considered that the addition of the projected population in the proposed development to the population in Rupertswood (which appears to have been in excess of 2,000 people in 2006) would provide a total population what would enable a range of community services to be provided in a viable way.
Ms Rayment referred to the present landscape of the land being dominated significantly by the rural residential style of the development at Rupertswood and the proposed development being consistent with that style to its north at Rupertswood. She expressed the view that future development of buildings and structures would not detrimentally impact on the development on adjoining premises and surrounding land. She considered that the site only had a small boundary to other rural properties and was predominantly separated from the surrounding area by road, river or proposed open space buffers.
The land was not good quality agricultural land (“GQAL”), was constrained in terms of size and slope and had existing sensitive environmental forms at its edges as well as the dominant central feature of Mt Margaret.
Ms Rayment disagrees with Mr Davies' comment that the Rupertswood Estate is an "isolated and unsupported settlement unrelated to and disconnected with the greater urban footprint of Thuringowa": she said it is connected and supported in a community sense. She referred to exhibits 28 to 30 (the Smart Maps) which show the land taken up for residential use and compared them with map 3.5B which shows the filling of lots in areas not otherwise identified in that way.
She also said in evidence that Park Residential land was being developed in some of the areas north of the Bohle River as Traditional Residential use. She was questioned by the respondent's counsel about her having adopted a "market view" as to the preference of potential residents. However she said that if a particular need is identified then one expects the planning scheme to accommodate it: If it doesn't, then one should expect a departure from the planning scheme to so do.
3.Mr Davies
Mr Davies in his report said that the settlement of Rupertswood "has a negative impact upon the amenity and landscape of the area as it diminishes the values, and in particular, 3.1.1(b)(i), which the rural planning area seeks to protect. The proposal will extend and exacerbate this impact which will threaten the rural landscape beyond Rupertswood. The development is not compatible with the rural landscape". He said that if alternative development areas are readily available for this kind of development, namely Park Residential, "… then why risk damaging a distinctly rural environment for the sake of expanding an unsustainable community". He expressed the view that it was debatable if a nexus could be achieved between the proposed development and the existing Rupertswood estate. He described the Rupertswood estate as "an isolated and unsupported settlement unrelated to and disconnected with the greater footprint of Thuringowa". There is no justification to expand this anomaly and compound the issues which have been raised. There are numerous viable locations for park style residential development with approvals in place." He referred to 532 lots available through the current Townsville City Council area. Hence he concluded that the number of lots and what he referred to as significant choice offered, within the existing 2003 scheme and the Townsville City Plan 2005 that there was no requirement to override the 2003 scheme. There was no logical reason to expand upon Rupertswood because of the existence of "viable alternatives".
Mr Davies said that "the creation of an unsustainable pocket of park residential land has no planning merit as viable alternatives do exist". He made reference to the city white codes with respect to matters not within his expertise and I have already referred to my preference for evidence of others about transport ecological and conservation matters and engineering.
Mr Davies referred to the urban growth boundary and correctly said that the acceptable solution or performance criteria could not be met. The appellant recognises this but addresses the matter constructively from a valid and alternative prospective. At the time of writing the report Mr Davies was of the view that reticulated sewerage infrastructure was still sought by the appellant. That, of course, is not the case. He made some other statements upon which he was taken to task in cross-examination. He said that "there is no merit in creating an isolated community which would impose a cost upon the greater community of Townsville" and "as infrastructure and services are virtually non-existent the proposal is not in sequence with the current service provision and cannot be provided in an orderly efficient and cost effective manner".
Mr Davies said that the development of Rupertswood had taken some 30 years and was nearly complete, much of that having occurred in the last 10 years. He said it was "agreed that there is a demand for park residential lots driven by market conditions" and referred to developments within the urban growth boundary, particularly in Kelso and Burdell. He said that "peripheral areas and ad hock settlements like Rupertswood struggled to provide the level of community infrastructure required to sustain a healthy and robust local economy".
By reference to DEO6 he said that the proposal did not deliver sequential development nor integration with existing development, including integration with Rupertswood. He said "to perpetuate and encourage the growth of Rupertswood, is to compromise the integrity of the planning scheme". He referred to the TTSP and observed that it did not identify the land for future urban development. That of course is correct. However, that is not the end of constructive consideration in regard to this proposal.
Finally, he expressed the view that there were no grounds to support the approval despite the conflict and said that the proposal "will only perpetuate the unsustainable characteristics and conditions which already persist" at Rupertswood. He referred to an absence of original documentation in respect of the establishment of Rupertswood estate and hence being unable to account for any grounds for justification for its development.
Mr Davies did not know if vacant rural land in the planning scheme maps was "on the market." He said that "vacant" did not mean that the land was for sale immediately. He did not agree with "choice" in the planning scheme between localities.
(2) Grounds do not include the personal circumstances of an applicant, owner or interested party.”
‘Grounds’ are not limited to merely planning issues, but refer in a broader sense to the purposes and objects of IPA: Bullock & Ors v Maroochy Shire Council & Anor [2008] QPELR 115.
See also Leda Holdings Pty Ltd v Caboolture Shire Council & Ors [2006] QCA 271 per Jerrard JA at pp9-10; and Australian Capital Holdings P/L & Ors v Mackay City Council; Australian Capital Holdings P/L v Mackay City Council & Ors [2008] QCA 157, at [54] to [57].
In a case such as this, the correct approach requires the Court to identify the nature and extent of the conflict and to assess, in the context of the Planning Scheme as a whole, whether there are grounds of sufficient weight to justify approval, despite conflict and bearing the mind the proscription in the Act against prohibiting development. In this case the fact that there is conflict is not an issue - it is plain that conflict does exist and is readily apparent from the very nature of the application. The process has been described by the Court in Gelling v Cairns City Council [2008] QPEC 38 per Dodds DCJ at [83] – drawing on the judgment of Muir JA in Australian Capital Holdings (supra) and adapted to s 3.5.14 (2) (b) IPA – as:
“(a) identifying the grounds which may justify approval;
(b) assessment of the role and importance to the planning scheme of the provisions which would be infringed should the proposal be approved;
(c) the adverse consequences, if any, which might flow from such infringement; and
(d) the competing merits and weight of the grounds relied on to justify approval.”
I have in discussion through this judgment identified grounds which justify approval in the context of the planning scheme and in particular the urban growth boundary and reservation of the rural area within which the land is located. I am satisfied that there are no adverse consequences that will flow from an infringement of the planning scheme provisions and indeed there are positive benefits inherent in the proposed development. The land in its location, in the context of the existing Rupertswood, is somewhat uniquely situated. An approval of the application is unlikely to set a precedent in respect of the relevant planning considerations. In my view there is sufficient merit and weight in the grounds relied on and that are largely summarised in my discussion about the urban growth boundary, to justify approval.
Conclusion
Ecological and landscape considerations, traffic, water supply and sewerage disposal are all adequately dealt with in the development application. There are in my view no issues that are not amenable to and manageable by the imposition of reasonable conditions.
I have expressed views in the course of discussion about the issues in the appeal. From a town planning context, there are good reasons why the planning scheme can properly be seen as having not made proper provision for the development of Rupertswood. The growth of Rupertswood to a completion of that development indicates a preference for this area for the type of lifestyle and lot size that rural residential developments of the nature proposed. They are consistent with those in the neighbouring estate.
There is a need for the development that cannot be supplied by alternative sites located elsewhere in the planning area. The land is not GQAL. There have been and are no specific plans for the land that reflect a rural character, beyond what I consider to be a marginal rural use at present. Its character is defined by its connection with neighbouring Rupertswood rather than by rural land on its other boundaries, which is in a real sense disconnected by two rivers and riparian corridors and a power transmission line.
The land is immediately adjacent to Rupertswood with a common boundary and has connectivity with that residential estate. It is historically arguable that there was expectation, on the part of Council and the appellants, of residential development of some sort - albeit of a more limited scope than the proposal - that has the potential to provide a critical population mass, through an increase in residents added to those in the Rupertswood Estate, for infrastructure and services that brings with it positive benefits for the community.
The urban growth boundary policy contemplates other uses, including residential use, outside the boundary. The proposed development meets the requirements of the Code in that respect.
I am satisfied that there will be no compromise of DEO 6. I am satisfied that there are no town planning or infrastructure matters that would justify a non-approval of the application for preliminary approval.
There is conflict with the planning scheme. However, I am satisfied that there are sufficient grounds to approve the application despite that conflict. I am satisfied that there is good reason for and that it is appropriate to approve the application even though it overrides the planning scheme in the context of the development being on the border of but outside the urban growth boundary and in a rural area. I do not consider that the approval of this application will change the planning scheme intent with respect to the planning area generally.
The appellants have discharged their onus of proof. The appeal should be allowed, the decision of Council set aside and the development application approved subject to lawful conditions.
Orders
1. Substantive appeal allowed.
2. Decision of respondent dated 27 January 2009 set aside.
3. Development Application for a Development Permit for a Preliminary Approval approved subject to lawful conditions.
4. Appeal adjourned for determination of appropriate conditions of approval.
6
0