Moore v Cairns Regional Council

[2011] QPEC 102

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:	Moore v Cairns Regional Council & Ors [2011] QPEC 102
PARTIES:	MARK and KATRINA MOORE (Appellants) v CAIRNS REGIONAL COUNCIL (Respondent) R ANGELINI (Co-Respondent) RAYMOND TAYLOR, LISA TANNER, DOMINIC CAPLIN, LENE SOFE WOLTHERS, LARS WOLTHERS, GREGORY HONEY, WENDY HONEY, BARRY KNIGHT, CHERYL POWELL, CAROL EATOUGH, LILLIAN DOHERTY, FRANCIS DOHERTY, DON CAMPBELL, CARLOS PIGINI, REBECCA CLARKE, SERANIE EECEN, TELENA HILL, LEIGH MORITZ, KRISTY BENNETT, MELODY RAWINGS AND SATHYABHAMA DALY (Co-Respondent By Election)
FILE NO/S:	120 of 2010
DIVISION:
PROCEEDING:	Appeal
ORIGINATING COURT:	Planning & Environment Court, Cairns
DELIVERED ON:	5 August 2011
DELIVERED AT:	Cairns
HEARING DATE:	1-4 August 2011
JUDGE:	Everson DCJ
ORDER:	Appeal allowed in part
CATCHWORDS:	ENVIRONMENT AND PLANNING – PLANNING SCHEMES – CONSTRUCTION OF PLANNING SCHEMES – conflict with planning scheme – grounds
COUNSEL:	Ms T Fantin for the Respondent Mr D Morzone for the First Co-Respondent
SOLICITORS:	Environmental Defenders Office of Northern Queensland for the Appellant P&E Law Solicitors for the Respondent Miller Bou-Samra Lawyers for the Co-Respondent

Introduction

1. This is a submitter appeal against the respondent’s decision made on 14 April 2010 to permit a one into six lot reconfiguration at Brays Road, Little Mulgrave.  It is proposed that the lots will range in size from 2.27 hectares to 36.07 hectares.

1. On 8 December 2010, the court declared that the development application made to the respondent was pursuant to s 3.1.6 of the Integrated Planning Act 1997 (“IPA”) to vary the effect of the planning scheme to permit uses consistent with the Low Density Residential planning area of Cairns Plan 2005 and to reconfigure a lot.

1. The site of the proposed development is approximately 8.5 kilometres from Gordonvale and has an area of 79.62 hectares and is heavily vegetated with rainforest.  It lies at the end of the Little Mulgrave valley.  This is a most picturesque valley with heavily vegetated rainforest slopes leading down to the valley floor which contains various water courses including the Little Mulgrave River and Pilba Creek.  The flatter land in the valley, including parts of the subject site, has been developed for a number of agricultural uses in the past.  However, the land immediately to the south of the site of the proposed development has been the subject of previous subdivision and includes a number of small lots ranging in size from 1 hectare to 20 hectares, many of which are between 3 hectares and 7 hectares in size.  These lots are occupied by people who do not actively farm them in a commercial sense.

1. The site of the proposed development is surrounded to the north, east and west by the Wet Tropics World Heritage Area and national park.

1. In an area of such natural beauty and ecological significance it is not surprising that the submitter appellants and co-respondents by election had ecological concerns in respect of the proposed development.  As many of them depend on Pilba Creek for water, concerns about impacts of the proposed development upon water quality and quantity downstream in Pilba Creek are understandable.  In the course of the appeal new conditions of approval were negotiated between the co-respondent and the respondent which addressed these concerns.  When I was appraised of this at the commencement of the hearing of the appeal and inquired as to whether the appellants and co-respondents by election wished to continue to agitate these issues in light of the new conditions which had now been agreed between the respondent and the co-respondent, they elected to abandon issues in dispute relating to impacts on ecological values and water quality and quantity.  Issues relating to visual amenity were also abandoned.

The applicable statutory framework

1. The development application in respect of the proposed development was lodged on 31 March 2008.  The planning scheme in effect at the date of lodgement of the application was the Cairns Plan 2005 (“the planning scheme”).  At no point in the appeal was reference made to the current planning scheme for the area in question.  The parties conducted the appeal on the basis that the current scheme is not relevant to it and I will accordingly determine the appeal on this basis.  The parties agree, however, that the Far North Queensland Regional Plan 2009-2031 (“the FNQRP”) which has come into effect since the lodging of the development application is relevant to the determination of this appeal.

1. The development application was made pursuant to IPA but not decided before the commencement of the Sustainable Planning Act 2009 (“SPA”). It is therefore an existing application pursuant to s 802 of SPA and must be dealt with and decided on the basis that IPA continues to apply and that SPA had not commenced.

1. The proposed development is both impact assessable and code assessable. Obviously, pursuant to s 4.1.28 of IPA, the submitter appellants may only appeal against the impact assessable components of the proposed development. This distinction did not assume any particular significance in the course of the hearing of the appeal however, as there was a degree of inter-relationship between the material change of use and reconfiguration of lot components of the development application and each of the parties to the appeal were content to proceed on this basis.[1]

   [1]See Garners Beach Habitat Action Group Inc v Cassowary  Coast Regional Council & Ors [2011] QPELR 61

1. Section 3.5.14 of IPA relevantly stated:-

“(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.”

1. The term “grounds” is defined as meaning “matters of public interest” and not including “the personal circumstances of an applicant, owner or interested party”.[2]

   [2]IPA Schedule 10

1. Section 4.1.52 of IPA relevantly stated that in determining an appeal such as this the court:-

“(a) must decide the appeal based on the laws and policies applying when the application was made, but may give weight to any new laws and policies the court considers appropriate;”

The disputed issues

1. The focus of the appeal was essentially on whether the proposed development inappropriately compromised good quality agricultural land (“GQAL”) on the site and represented an urban encroachment into a rural area.

1. In particular the appellants and co-respondents by election allege that the proposed development will compromise the achievement of the following desired environmental outcomes (“DEOs”) in the planning scheme:-

·DEO 2.3.1 Primary Production;

·DEO 2.3.4 Preservation of Resources; and

·DEO 2.3.5 Pattern of Urban Development.

1. The appellants and co-respondents by election also contend that the proposed development conflicts with the intent of the Gordonvale – Goldsborough District Planning Area in which the subject site is situated.

1. The appellants and co-respondents by election also assert that the proposed development conflicts with the purpose of the Rural 1 Planning Area Code and Part B Performance Criteria P1, P2, P3 and P4 thereof.

1. The appellants and co-respondents by election also contend that the proposed development conflicts with the purpose of the Reconfiguring of a Lot Code and, in particular, to the extent it results in the fragmentation or alienation of GQAL.

1. Finally the appellants and co-respondents by election allege that the proposed development conflicts with a number of land use policies set out in the FNQRP relating to the limitation of urban development and the preservation of GQAL.

1. In the event that I find any such conflicts, it is asserted by the co-respondent and the respondent that there are sufficient grounds to justify approval of the proposed development despite the conflict.

Relevant provisions of the planning scheme and FNQRP

1. DEO 2.3.1 relevantly states:-

“Primary industries, particularly sugar cane production, continue to contribute to the economy of the City and to employment within the City.

The effects of urban development on the resource of good quality agricultural land and on the operation of primary industries are minimised. 

The preferred pattern of development shown on the Structure Plan map limits the encroachment of urban development onto good quality agricultural land.”

In discussing this DEO it is relevantly stated that when “converting an area of agricultural land to other uses, it is necessary to consider this in terms of the viability of the particular agricultural industry (i.e. the minimum area of land required to ensure a viable agricultural base remains)”.

1. DEO 2.3.4 relevantly states:-

“Natural resources, such as extractive resources, good quality agricultural land, water and forestry resources within the City, are protected from encroachment by, and the adverse effects of, urban development and are utilised in a sustainable manner.

…

The preferred pattern of development shown on the Structure Plan, Map 4 limits the encroachment of urban development into areas containing natural resources.”

This DEO is discussed in the scheme in terms, inter alia, that the “continued loss or degradation of good quality agricultural land will have a direct impact on the City’s agricultural businesses and their economic output.”

1. DEO 2.3.5 states:-

“The pattern of urban development recognises the importance of the natural environment, natural resources and quality of life to the viability of Cairns and the wellbeing of its residents.

The pattern of urban development provides opportunities for growth and consolidation within the framework established by the Regional Plan and achieves the efficient use of existing and planned infrastructure.

The preferred pattern of development shown on the Structure Plan, Map 4 is achieved.”

1. Structure Plan Map 4 designates the site of the proposed development as “Non Urban/Rural”.

1. Relevantly at s 3.14.1 of the Gordonvale-Goldsborough District Planning Area provisions it is stated:-

“It is intended that the rural areas within the District should remain and that there should be a range of opportunities for residential living in the areas identified for urban development.

There are opportunities for rural residential living in the Goldsborough Valley and in the area on the western side of the Gillies Highway closer to Gordonvale.  This is consistent with the established planning intent.  It is not intended that there should be any expansion of the areas identified for this purpose.”

1. The Gordonvale-Goldsborough District Plan designates the site of the proposed development as “Rural 1”. 

1. The Rural 1 Planning Area Code states that its purpose includes the following desired development outcomes for the Rural 1 Planning area:-

·     “Areas for use for primary production, particularly areas of Good Quality Agricultural Land, are conserved and not unnecessarily fragmented; …

·    Rural activities are protected from the intrusion of incompatible uses;

…”

1. Thereafter the identified Performance Criteria relate to the protection of rural activities from the intrusion of incompatible uses and the retention of natural character and amenity.

1. To the extent it is relevant in this appeal the Reconfiguring a Lot Code states that GQAL is not to be fragmented or alienated.

1. The terms “rural” and “urban” are not defined in the planning scheme.

1. Numerous conflicts with provisions of the FNQRP are alleged by the appellants.  They are:-

·      “2.4.1 Good quality agricultural land is protected from urban development outside the urban footprint;

·     4.1.1 Urban development is contained within the urban footprint …;

·     4.1.2 Urban development is sequenced to ensure logical and orderly land use and infrastructure delivery;

·     4.6.1 New rural residential development is located in rural living areas;

·     4.6.2 Future demand for rural residential housing is provided within the existing stock of land zoned for this purpose;

·     5.4.2 Threats to primary production from incompatible development are identified and managed through land use planning and where appropriate, by developer - established buffers;

·     5.4.3 Potential conflict between primary industries and urban activities is managed through land use planning and, where appropriate, developer-established buffers;

·     6.1.1 Development in the areas planned for urban growth is appropriately sequenced to facilitate more efficient provision of infrastructure and services and reduce costs;

·     8.1.1 Land use and transport planning are integrated to support efficient land use, efficient movement of people and goods, and industry competitiveness and growth.”

1. Pursuant to the FNQRP, the site of the proposed development is located outside the Urban Footprint and Rural Living Area.  It is partly designated as GQAL.

1. It is uncontentious that the land, the subject of the proposed development, is not zoned for a rural residential purpose.  Again, the term “urban” is not specifically defined in the FNQRP.  “Urban activity” is defined as “residential development, industrial, retail, commercial, sporting, recreational or community purpose normally found in a city or town.”  The term “Urban development” is defined broadly to include “residential activities” and “a range of other urban land uses” but not including “rural land uses such as agriculture and horticulture”.  The term “Urban purposes” is defined as “purposes for which land is used in cities and towns, including residential, industrial, sporting, recreation and commercial purposes, but not including environmental, conservation, rural, natural or wilderness area purposes.”  The term “Rural residential” is defined as “land that is zoned for a rural residential purpose in a local government planning scheme” and “Rural residential purposes” is defined as “residential purposes involving single dwellings on lots greater than 2500 square metres”.

The Expert evidence

1. Three suitably qualified scientists gave evidence as to the presence of GQAL on the site, the subject of the proposed development and whether it could be viably used for commercial agriculture. 

1. Mr Thompson and Mr McClurg were both of the view that the subject site contained small areas of low quality GQAL.  Mr Walker was of the view that constraints on the use of the land in question were such that it could not be classified as GQAL.  I prefer the approach of Mr Thompson and Mr McClurg in this regard and find that there is a small amount of low quality GQAL on the site of the proposed development.  However, the small area in question is seriously constrained, not least by the fact that there is a water moratorium in place for the area[3]. 

   [3]See ex 16

1. Notwithstanding the constraints associated with the relatively poor quality of the soil in question and the lack of an identified means of irrigating any crops which may be attempted on the subject site, Mr McClurg is of the view that there is the potential to undertake commercially viable agriculture if the subject site is farmed in conjunction with adjoining land.  Mr Walker and Mr Thompson disagree.  They assert that the area of land required for any commercially viable agriculture including the subject site is such that Mr McClurg’s view is unrealistic.  Mr Thompson notes that there has been a decline in commercial cropping in the area in question, corresponding with an increase in the size of commercial farming undertakings generally.  He expressed the view that none of the properties in the immediate vicinity are likely to re-establish commercial cropping and there is simply not enough land available for a commercial grazing operation.  Mr Thompson expressed the view that the subject site is not commercially viable for crops now and will remain so, regardless of whether it is reconfigured.  I accept the evidence of Mr Thompson in this regard and I prefer the evidence of Mr Thompson and Mr Walker to that of Mr McClurg as to the prospects of any GQAL on the subject site being the subject of commercially viable agriculture.  I therefore find that although there will be further fragmentation of the GQAL on the subject site as a consequence of the proposed development it will not have any impact on its commercial viability.  Furthermore, it will not be alienated as it will be available for use on a small scale in the manner residents in the vicinity use their lots, namely for rural pursuits and hobby farming.

1. Three planners gave evidence, Mr Robinson, Ms Taylor and Mr Feros.  Whilst Mr Feros expressed the view that it was contrary to good planning principles to extend residential development on the subject site, he conceded that the use contemplated by the proposed development was not urban in a narrow sense.  He stated further that it was not rural either.  Both Mr Robinson and Ms Taylor expressed the view that the proposed development did not exhibit the characteristics typical of rural residential development having regard to matters such as lot size and the extent of the infrastructure proposed.  Both preferred to describe the proposed development as one involving the provision of rural lifestyle lots which contemplated a rural use rather than an urban use.  They also emphasised that the overall characteristics of the proposed development are consistent with the pattern of development to the south of the subject site which is subject to the same planning controls.  Each of the town planners who gave evidence acknowledged that the proposed development brought with it a number of benefits to the area.  In particular, both Ms Taylor and Mr Feros expressed the view that the proposed conditions of approval brought significant environmental benefits for the subject site and Pilba Creek.

Conclusion

1. In determining whether or not the proposed development will compromise the achievement of various DEOs and whether it otherwise conflicts with various provisions of the planning scheme, it is necessary to firstly categorise the proposed development. As noted above, the terms “rural” and “urban” are not defined in the planning scheme. In such circumstances s 5.2 of the planning scheme provides that the term is to have the meaning assigned to it by IPA. The above terms are not defined in IPA either, however in Schedule 10 the term “urban area” is stated to mean, inter alia “an area identified on a map in a planning scheme as an area for urban purposes, including future urban purposes, but not rural residential or future rural residential purposes”. The term “urban purposes” is defined as meaning “purposes for which land is used in cities or towns, including residential,…purposes…” In The Macquarie Concise Dictionary[4], the term “urban” is defined as, inter alia, “characteristic or accustomed to cities” and the term “rural” is defined as, inter alia “relating to, or characteristic of the country (as distinguished from towns and cities)”.

   [4]4^th Edition, Macquarie University 2006

1. I therefore conclude, having regard to the characteristics of the proposed development which incorporate house sites on large lots in the country as opposed to residential developments serviced by infrastructure in the city, that the proposed development is not urban but rural in character.

1. Having regard to the evidence in respect of GQAL which I prefer, and which is summarised above, I conclude that the proposed development will have no impact on the viability of any agricultural industry through the fragmentation of GQAL.

1. In the circumstances, I conclude that the proposed development will not compromise the achievement of DEOs 2.3.1, 2.3.4 and 2.3.5. 

1. The conflict asserted by the appellants and co-respondents by election with the Gordonvale-Goldsborough District Planning Area statement of intent addresses the concept of rural residential living from an urban perspective.  In my view, the proposed development does not fall within this concept.  I accept the evidence of Mr Robinson and Ms Taylor that it is better described as rural lifestyle living as it lacks urban characteristics associated with rural residential living.  As noted above I do not find it to be urban in character.  I therefore conclude that the proposed development does not conflict with the intent of the Gordonvale-Goldsborough District Planning Area.

1. So far as the Rural 1 Planning Area Code is concerned, it is true that there will be a fragmentation of the poor quality GQAL on the site of the proposed development.  However, the proposed development will ensure that it is conserved as the use contemplated by the proposed development does not involve the alienation of GQAL and it is likely that it will be used for the keeping of livestock, horses and hobby farming.  Consistently with the purpose of this Code it will therefore be conserved.  Given that the evidence before me discloses that it has not been used for agriculture in any respect since the 1970s[5] it could be argued that the proposed development will better conserve it through the conditions requiring revegetation and weed control and that in order to better preserve it, the fragmentation contemplated by the proposed development is necessary.  Furthermore, the proposed development appears consistent with the performance criteria in Part B of the Rural 1 Planning Area Code.  Having regard to the intent of this provision as a whole I do not find the proposed development in conflict with it.

   [5]Affidavit of Harold John Way filed 8 July 2011 paras 7 and 8

1. So far as the Reconfiguring a Lot Code is concerned, it is true that there is a technical fragmentation of GQAL as a consequence of the proposed development.  However, there is no alienation of GQAL and again, I do not find a conflict in this regard when this provision of the planning scheme is construed broadly and in light of the GQAL evidence before me.

1. Numerous conflicts with the FNQRP are identified.  Whilst it is true that the site of the proposed development is outside the urban footprint, I am of the view that the land in question is not intended to be used for a purpose for which land is used in cities and towns and it is therefore not intended that it be used for an urban purpose as defined in the FNQRP.  For the same reason, it would appear not to be an urban activity as defined.  As the term “urban development” is coloured by the use of the phrase “urban land uses”, it is not clear that this term necessarily contemplates the proposed development.  However, what is proposed does appear within the definition of “Rural residential purposes” and the proposal appears inconsistent with land use policies at paras 4.6.1 and 4.6.2.  So far as it asserted that the proposed development involves threats to primary production from incompatible development or potential conflict between primary industries and urban activities I conclude that there is no basis for such assertions.  Similarly, the assertion that there is a conflict with the efficient provision of the infrastructure and services identified in s 6.1.1 does not appear substantiated.  On weighing the relevant provisions of the FNQRP which have been identified by the appellants and co-respondents by election, I am of the view that they should not be accorded such weight as to preclude the proposed development in circumstances where I find that it is consistent with the identified DEOs and the other provisions of the planning scheme, and is entirely consistent with the pattern of development in the immediate vicinity and where it does not carry with it any detrimental impacts from an environmental perspective.

1. In the event that I am wrong in concluding that the proposed development will not compromise the achievement of the identified DEOs and does not otherwise conflict with the provisions of the planning scheme referred to above, I have regard to the following grounds pursuant to s 3.5.14 of IPA.

1. The proposed development provides for more permanent protection of habitat, specifically vegetation, than currently exists with respect to the land in question.  In particular pursuant to the Vegetation Management Act 1999 a number of exemptions available for clearing in respect of rural land will no longer apply. There will also be permanent protection of over 12 hectares of significant rainforest vegetation which is not currently protected.

1. In addition, the proposed development will ensure the rehabilitation and revegetation of a 10 metre riparian buffer along the degraded sections of Pilba Creek which will improve and protect water quality in the creek. 

1. Furthermore, the proposed development will result in the removal of weed species and an improvement of the quality of the vegetation on the subject site.

1. Even if a significant compromise of the DEOs referred to above and conflicts with the planning scheme were found to exist, having regard to the categorisation of the proposed use, I am of the view that given these significant environmental benefits in the context of the size of the subject site, the extent of the available GQAL, (which is to be fragmented and not alienated) and the existing pattern of development, that there are sufficient grounds to justify the approval of the proposed development despite the conflicts.

1. As a new suite of conditions have been negotiated between the co-respondent and the respondent following the institution of the appeal, many of which are relevant to matters set out above, it is appropriate that the appeal be allowed in part, but only to the extent of allowing the new suite of conditions to be imposed.[6]

   [6]Appeal book B7

Order

1. The appeal is allowed in part.