Mulgrave Central Mill Co Ltd v Cairns Regional Council
[2013] QPEC 6
•11 March 2013
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Mulgrave Central Mill Co Ltd v Cairns Regional Council & Anor [2013] QPEC 6
PARTIES:
MULGRAVE CENTRAL MILL CO LTD
(Appellant)
v
CAIRNS REGIONAL COUNCIL
(Respondent)
SEVENTH-DAY ADVENTIST SCHOOL – NORTHERN AUSTRALIAN CONFERENCE
(Co-Respondent)FILE NO/S:
154 of 2012
DIVISION:
PROCEEDING:
Appeal
ORIGINATING COURT:
Planning and Environment Court, Cairns
DELIVERED ON:
11 March 2013
DELIVERED AT:
Cairns
HEARING DATE:
11-15 February 2013
JUDGE:
Everson DCJ
ORDER:
Appeal allowed in part.
CATCHWORDS:
ENVIRONMENT AND PLANNING – Preliminary Approval for Educational Establishment including other self-assessable uses – Good Quality Agricultural Land – Strategic Cropping Land – whether development conflicts with regional plan and planning scheme – whether sufficient grounds exist to justify approval despite conflict – community need
Sustainable Planning Act 2009 (Qld), s 19, s 43, s 242, s 316, s 329, s 340, s 495, s 496
Lockyer Valley Regional Council v Westlink Pty Ltd & Ors [2012] QCA 370
Lewiac Pty Ltd v Gold Coast City Council (1994) 83 LGERA 224.COUNSEL:
Ms T Fantin for the Appellant
Mr D P Morzone SC for the Co-RespondentSOLICITORS:
Marino Moller for the Appellant
p&e Law for the Respondent
Miller Bou-Samra for the Co-Respondent
Introduction
The co-respondent operates a small school at the back of the Seventh-Day Adventist Church in Manunda, a central suburb in Cairns. The school has been operating since 1950 and, although it presently only has 85 students, it is operating in cramped conditions which are less than ideal. To better accommodate its present and anticipated student population and provide better facilities, the co-respondent purchased an undeveloped site near Gordonvale, south of Cairns, which has until recently been used for cane farming.
For reasons which are not entirely clear, the co-respondent applied for, and obtained, a preliminary approval permitting a number of uses to be carried on at the site proposed for its new school.
The appellant has appealed this decision on a number of grounds which essentially relate to the proposed development being in conflict with the Far North Queensland Regional Plan 2009-2031 (“FNQRP”) and the Consolidated Planning Scheme for the former Cairns city adopted on 25 February 2009 (“Cairns Plan”), having particular regard to the fact that the site of the proposed development is outside the Urban Footprint and will result in the loss and permanent alienation of Good Quality Agricultural Land (“GQAL”).
The proposed development
The site of the proposed development is located on the eastern side of Crossland Road, approximately 1.5 kilometres from the Gordonvale town centre and approximately 350 metres outside its town boundary. It is connected to a reticulated water supply and is generally cleared, flat, rural land, rectangular in shape with an area of 10.43 hectares (“the site”). The site is surrounded by land used for sugar cane production, interspersed with a number of rural lifestyle lots. Immediately opposite the site is a cane railway line.[1] In this area there are two sidings which collect bins of sugar cane, delivered by tractor, from the surrounding area for transportation to the mill, which is operated by the appellant during harvesting.[2] The site is a historical cane block which was created on 16 June 1908[3] and was, until recently, used for the growing of sugar cane. In more recent times, however, it has been used for the agisting of horses.[4]
[1]Ex 2, p 7.
[2]Ex 27.
[3]Ex 25.
[4]Ex 2, p 2.
The site is described as Lot 42 on NR 387, Parish of Grafton, County of Nares. It is located within the Regional Landscape and Rural Production Area, outside the Urban Footprint and is described as GQAL pursuant to the FNQRP. Pursuant to the Cairns Plan, the site is designated as Non-Urban/Rural in the Structure Plan. It is in the Rural Lands District and located within the Rural 1 Planning Area.[5] The site is also shown as potential strategic cropping land (“SCL”) pursuant to State Planning Policy 1/12 (“SPP 1/12").[6]
[5]Ibid.
[6]Ex 16.
The appeal is in respect of the decision of the respondent on 27 June 2012 to grant the co-respondent a Preliminary Approval varying the effect of the Cairns Plan for an Educational Establishment (“the Development Approval”).[7] The Development Approval states that the gross floor area of the Educational Establishment must not exceed 2,500 m2. It also incorporates a development code which makes not only an Educational Establishment self-assessable, but also a Place of Assembly, Indoor Sport and Entertainment and Outdoor Sport and Entertainment self-assessable uses provided they are “carried on as part of, or associated with College activities or curriculum otherwise Impact Assessable”.[8] The terms “Educational Establishment” and “Place of Assembly” are defined in s 5.3.6 of the Cairns Plan and relevantly would include a school and a church. The terms “Indoor Sport and Entertainment”, and “Outdoor Sport and Entertainment” are defined in s 5.3.7 of Cairns Plan in extremely broad terms. The currency period pursuant to the Development Approval is 15 years, an unusually long time.[9]
[7]Ex 1, p B9.
[8]Ibid.
[9]The currency period being the relevant period pursuant to s 340 of SPA.
Although it was stated in the joint expert report of town planners that the proposed development was a school of not more than 500 students from preschool to secondary school, and 25 staff members,[10] and the appeal was conducted on this basis, such restrictions on the size of the proposed use in this respect are not apparent from a perusal of the development application,[11] or the decision notice.[12]
[10]Ex 2, para 3.2.1.
[11]Ex 1, p B1.
[12]Ex 1, p B9.
The legislative framework
The development application was lodged pursuant to s 242 of the Sustainable Planning Act 2009 (“SPA”). The assessment of such an application is provided for in s 316 of SPA, which relevantly states that the application must be assessed having regard to the state planning regulatory provisions, the regional plan for a designated region to the extent it is not identified in the planning scheme as being appropriately reflected in the planning scheme, state planning policies to the extent the policies are not identified in any relevant regional plan or the planning scheme, a structure plan and “the effect the proposed variations would have on any right of a submitter for following applications, with particular regard to the amount and detail of supporting material for the current application available to any submitters”.[13]
[13]s 316(4)(e) SPA.
Section 43 of SPA states that if there is an inconsistency between a state planning policy and a local planning instrument, the state planning policy prevails to the extent of the inconsistency. Section 19 states, inter alia:
“(1)If there is an inconsistency between a State planning regulatory provision and another planning instrument, or any plan, policy or code under an Act, the State planning regulatory provision prevails to the extent of the inconsistency.”
In Schedule 3, “planning instrument” is defined broadly to include a state planning policy and a planning scheme.
Section 329 of SPA relevantly provides that in deciding an application under s 242:
“(1) The assessment manager’s decision must not conflict with a relevant instrument unless –
...
(b) there are sufficient grounds to justify the decision,despite the conflict; ...”
The term “grounds” is defined in Schedule 3 as “matters of public interest” and as not including “the personal circumstances of an applicant, owner or interested party”.
Pursuant to s 495 of SPA an appeal is by way of “hearing anew” and if the appellant is a submitter, the court “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”.[14] In deciding the appeal the court has broad powers pursuant to s 496 of SPA. The court may “make the orders and directions it considers appropriate”[15] and specifically, the court may “change the decision appealed against” or “set aside the decision appealed against and make a decision replacing the decision set aside”.[16]
[14]s 495(2) SPA.
[15]s 496(1) SPA.
[16]s 496(2) SPA.
The relevant laws and policies applicable when the development application was made are:
1. The Far North Queensland Regional Plan 2009-2031 State Planning Regulatory Provisions (“the Regulatory Provisions”);
2.The FNQRP; and
3.Cairns Plan.
New laws and policies which are appropriate and to which the court may give weight are:
1.SPP 1/12 which commenced on 30 January 2012; and
2.Temporary State Planning Policy 2/12, Planning for Prosperity which took effect on 24 August 2012 (“TSPP 2/12”).
It is also noted that the Regulatory Provisions were repealed on 26 October 2012.
So far as they are relevant to this appeal, the Regulatory Provisions provide that a community activity includes an educational facility, and that a material change of use for community activities in the Regional Landscape and Rural Production Area does not require assessment by the referral agency for the FNQRP in circumstances where it will have a GFA of no more than 2,500 m2, subject to certain qualifications which are not relevant to the appeal before me.
The FNQRP states at the outset that it is “the pre-eminent plan for the FNQ region and, therefore, takes precedence over all other planning instruments”.[17]
[17]FNQRP, p 5.
Relevantly, the FNQRP seeks to restrict urban growth to established or designated areas, and to protect GQAL. The preferred pattern of development is stated to be one which:
·“consolidates urban growth around existing urban settlements, in particular the principal and major regional activity centres and future transit oriented communities
...
·avoids expansion into areas with significant regional landscape or rural production values or land use constraints.”[18]
[18]FNQRP, p 21.
The intent for the Regional Landscape and Rural Production Area is that these lands which have Regional Landscape, Rural Production or other Non-Urban values are to be protected from “encroachment by inappropriate development, particularly urban or rural residential development”.[19] Significantly, it is further stated:
[19]Ibid, p 31.
“The FNQ Regulatory Provisions support diversification of rural economies by allowing a range of developments including:
...
·small scale industry, business and community activities
...”[20]
[20]Ibid, p 32.
The term “community activities” is not defined in the FNQRP, although it is listed as being one of the uses falling within the definition of “urban development”.[21]
[21]Ibid, p 179.
Urban development is separately dealt with in Chapter 4 of the FNQRP. The objective is stated in the following terms:
“Urban development is consolidated and compact to facilitate the land use and infrastructure efficiencies, conserve regional landscape and rural production land, and promote a range of other community benefits.”[22]
[22]Ibid, p 74.
Thereafter, it is stated that urban development is to be contained within the Urban Footprint shown in the relevant maps. There is a particular reference to the Mount Peter Master Plan Area as a nominated growth area. Significantly, however, the following passage appears in the accompanying explanatory notes:
“Urban development is best located within or adjoining existing urban areas where greater land use synergies can be achieved. This includes social infrastructure such as educational facilities (e.g. schools, universities) and health facilities (e.g. hospitals, retirement villages, aged care). These facilities can act as community anchors and should generally be located within the urban footprint to facilitate access and infrastructure efficiency. In some instances this may not be possible, for example, where small primary schools are located in or near small urban centres within the regional landscape and rural production area.”[23]
[23]Ibid.
The term “small urban centres” is not defined in the FNQRP, nor is there any guidance as to the size of the social infrastructure, such as educational facilities, which are contemplated to fall within this exception run by the co-respondent.
There are subsequent statements about the sequencing of development of rural-zoned land within the Urban Footprint, but they are not relevant to the issues in this appeal as the site is not within the Urban Footprint.
Regional activity centres are expressly provided for and contemplate the location of “education services” within such centres. Relevantly, it is stated under the heading “Land use policies”:
“4.2.6 Centre activities are encouraged within regional activity centres and should only occur outside of such centres where:
(a) there is a demonstrated public need and sound economic justification
(b) there are no alternative sites in-centre
...”[24]
[24]Ibid, p 77.
There are also subsequent references to the Mount Peter Master Plan Area which is described as the area between Edmonton and Gordonvale, generally west of the Bruce Highway which has been identified as a future urban area with an ultimate population capacity of up to 50,000 people.[25]
[25]Ibid, p 83.
Turning to the Cairns Plan, there are a number of relevant provisions which address the preservation of GQAL and urban development. Additionally, contained therein are various desired environmental outcomes (“DEOs”) which are stated in general terms. For example, DEO 2.3.1 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 GQAL and on the operation of primary industries are minimised.”
DEO 2.3.4 states, inter alia:
“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 pattern of urban development is addressed in DEO 2.3.5, which notes that the preferred pattern of development shown on the Structure Plan Map 4 “limits the encroachment of urban development onto good quality agricultural land”.
The appellant has submitted that DEO 2.3.5, DEO 2.3.6 and DEO 2.4.5 are of relevance. These DEOs address the patterns of urban development, the efficient use of infrastructure and the co-location of community facilities. However, these DEOs are so general in their terms that they do not appear of sufficient relevance when regard is had to the nature and scale of the school proposed by the co-respondent, to warrant detailed consideration.
As noted above, the site is within the Rural Lands District and the Rural 1 Planning Area. In the description and intent provisions for the Rural Lands District it is stated, inter alia, that GQAL “should not be alienated by inappropriate land uses or fragmented by inappropriate subdivision”.[26] It is further stated that “Urban development is not intended to occur in the District, except within the boundaries of the existing villages”.[27]
[26]Cairns Plan 3.17.
[27]Ibid.
An Educational Establishment is an Impact Assessable use in the Rural 1 Planning Area. Significantly, it is not listed as Impact Assessable (Inconsistent Use).[28]
[28]Ibid, p 3-115.
SPP 1/12 seeks to ensure a number of policy outcomes. Such policy outcomes include that the development impacts on SCL or potential SCL are managed to preserve the productive capacity of the land for future generations. Specifically, it is stated:
“To the extent that SCL or potential SCL in a protection area will be permanently impacted upon by a development with a footprint greater than 3,000 m2, the development must not proceed except in exceptional circumstances, and where the development is an exceptional circumstance, mitigation is provided for the permanently impacted land.”[29]
[29]SPP 1/12, para 1.1.3.
TSPP 2/12 is in very general terms. Relevantly, it states:
“At the decision making stage on a development application, the purpose of this policy will be achieved by a balancing of competing or conflicting outcomes that gives additional weight to:
a. agricultural uses in areas zoned for agricultural uses;
b. urban uses in areas zoned for urban uses;….”[30]
The issues in dispute
[30]TSPP 2/12, p 1.
The uses the subject of the Development Approval other than Educational Establishment, particularly the self-assessable uses of Place of Assembly, Indoor Sport and Entertainment and Outdoor Sport and Entertainment, were not canvassed to any significant degree during the course of the evidence. It is clear the focus of the development application was the Educational Establishment use. In both its submissions and its supplementary submissions, the co-respondent sought orders in the alternative that the appeal be allowed in part, with orders that the development application be approved for lesser uses for a lesser period. It is on this premise that I am approaching the assessment of the disputed issues.
The first matter for determination is whether the use of the site for an Educational Establishment will result in the loss and permanent alienation of GQAL and, to the extent it is relevant, SCL. The only relevant expert to give evidence was Mr Thompson, an agricultural scientist. He gave evidence that the site was GQAL class A, having the highest quality soil classification available and well suited to the growing of all crops. He stated that the site also met the criteria for SCL.[31] Under cross-examination, Mr Thompson made it clear that any alienation of GQAL or SCL would be restricted to the developed area of the site, and that the balance could be used for cane farming or other crops.[32] I therefore conclude that the use of the site for an Educational Establishment will result in a minor loss and permanent alienation of GQAL and SCL.
[31]Ex 20, p 2.
[32]T2-36-37.
The next matter for determination is whether the proposed development will be incompatible with, adversely affect, and compromise, surrounding rural uses and in particular the efficient functioning of cane farming in the area. In this regard, I accept the evidence of Mr Thompson that appropriate conditions could be imposed to satisfactorily buffer the school from surrounding uses.[33] I therefore find that the use of the site for an Educational Establishment will not be incompatible with, adversely affect, or compromise, surrounding rural uses.
[33]T2-30-31.
I was also asked to determine whether the proposed development will have unacceptable traffic impacts, in particular upon the safe and efficient operation of the adjoining cane railway sidings. In this regard, evidence was given by two engineers, Mr Flanagan and Mr Martin, and by the manager of the Mulgrave Central Mill, Mr Flanders. Notwithstanding the significant amount of activity in this vicinity at harvest time involving cane bins being hauled by tractors to the adjoining cane rail sidings opposite the site, I am of the view that these impacts can be satisfactorily addressed by the imposition of appropriate conditions.
I now turn to whether the proposed development conflicts with the FNQRP and the Regulatory Provisions.
Mr Bond, the principal of the Cairns Adventist College, gave evidence of the past and current operation of the co-respondent’s school in Cairns. The school currently has a total number of 85 students. However, a table dating back to 1997, which was contained within Mr Bond’s statement, indicates that the total number of students at the school has, in the past, been as low as 21.[34] Mr Bond is hopeful that relocating the school from its current cramped and overcrowded setting to a new site and offering a more diverse curriculum, including studies involving agricultural themes, will lead to significant growth in the number of students attending the school. Mr Bond is hopeful that the student population of the school will eventually reach 500, with the inclusion of high school in 30 years’ time, however, Mr Bond has not undertaken any detailed modelling in this regard,[35] and his projections only reveal an anticipated student population of 220 in 10 years’ time.[36]
[34]Ex 7, p 5.
[35]T2-57.
[36]T2-54, L30-40.
Three town planners gave evidence, Mr Robinson, Ms Garner and Ms Taylor. With the exception of Ms Taylor, they expressly agreed that there is a community need for a school operated by the co-respondent in the Cairns area.[37]
[37]Ex 12, p 20; T4-80; Ex 18, p 15.
Although making it clear that urban development is not generally to be encouraged outside the Urban Footprint, the FNQRP nonetheless permits limited small scale community activities in the Regional Landscape and Rural Production Area. It expressly looks to the Regulatory Provisions for guidance in this regard. The explanatory notes to Chapter 4 make it clear that certain schools located in or near small urban centres are contemplated within the Regional Landscape and Rural Production Area. The example given is that of a small primary school. However, this is only an example, and guidance is provided by the Regulatory Provisions which suggest a school having a GFA of no more than 2,500 m2 is appropriate in such circumstances. Nowhere in the FNQRP or the Regulatory Provisions is there any other basis for ascertaining what is contemplated as being “small”. These provisions of the FNQRP, supported by the Regulatory Provisions which contemplate an Educational Establishment having a GFA of not more than 2,500 m2 are specific to the Rural Landscape and Rural Production Area where the site is located, unlike the more general provisions of the FNQRP which address such matters as regional activity centres. I am therefore of the view that an Educational Establishment on the scale proposed by the co-respondent and located near the town boundary of Gordonvale does not conflict with the FNQRP and the Regulatory Provisions.
If I am wrong in this regard, I am nonetheless of the view that conflicts with the FNQRP, in terms of the policy of locating community facilities in the Urban Footprint, of protecting GQAL and encouraging centre activities within regional activity centres, are not significant in their nature and extent when regard is had to the scale of the proposed Educational Establishment. The Educational Establishment under consideration is small in scale, it will alienate very little GQAL and it is located in close proximity to the urban centre of Gordonvale. Despite an exhaustive exercise undertaken by Ms Taylor on behalf of the appellant, no alternative suitably zoned site was identified as being available to the co-respondent. As far as grounds are concerned, it is noted above that the other town planners who gave evidence acknowledged a community need for an Educational Establishment of this type which will service citizens of Cairns who are interested in a faith-based education for their children, aligned to the principles of the Seventh-Day Adventist Church. I accept this proposition. I also find that the current school has outgrown its site. These are matters of public interest which, on balance, are sufficient grounds to justify approving an Educational Establishment having a GFA of no more than 2,500 m2 on the site, notwithstanding the conflicts identified above.[38]
[38]Applying Lockyer Valley Regional Council v Westlink Pty Ltd & Ors [2012] QCA 370 at [18].
Whilst the FNQRP prevails over the Cairns Plan and I have already determined that an Educational Establishment of the scale contemplated is not in conflict with the FNQRP and the Regulatory Provisions, I have been asked to determine whether there is conflict with the Cairns Plan and what weight should be given to the draft Mount Peter Structure Plan. I will therefore consider these issues, but do so acknowledging the supremacy of the FNQRP and the Regulatory Provisions.
Despite having a long gestation, the Mount Peter Structure Plan is still in its embryonic stages. It is currently being used as a guide by the respondent with a view to it being incorporated in the new Cairns Regional Planning Scheme.[39] The Structure Plan has not been subject to public notification and, in my view, has insufficiently progressed for it to be given any weight.[40]
[39]Ex 14, pt 9.
[40]CF Lewiac Pty Ltd v Gold Coast City Council (1994) 83 LGERA 224.
It was submitted by the appellant that there are conflicts with DEO 2.3.1 and DEO 2.3.4 which are quoted above, and which seek to protect GQAL and DEO 2.3.5 setting out the preferred pattern of development. It is also submitted that there are conflicts with statements in the intent for the Rural Lands District which are also quoted above, and which again seek to protect GQAL from alienation by inappropriate uses. In examining the nature and extent of the conflict, it has to be acknowledged that DEOs are broad, city-wide objectives, and that, pursuant to the Rural Lands – District Assessment Table, the site is zoned Rural 1 and an Educational Establishment is therefore Impact Assessable. It is not Impact Assessable (Inconsistent Use) and there are no planning areas in the Cairns Plan where an Educational Establishment is a self-assessable use.[41] As noted above, the loss of GQAL will be relatively minor. The conflicts with the relevant provisions of the Cairns Plan are also minor. The grounds identified above in the context of the FNQRP are equally relevant to the conflicts identified with the Cairns Plan. As discussed in the context of the FNQRP, there is a community need for the co-respondent’s school which has outgrown its current site. On balance, this need is sufficient to justify the approval of an Educational Establishment having a GFA of no more than 2,500 m2 on the site, notwithstanding the minor conflicts with the provisions of the Cairns Plan which seek to protect GQAL and restrict urban development. .
[41]T5-41, L30-40.
I am of the view that weight should be given to SPP 1/12 pursuant to s 495 of SPA. However, restricting the proposed development to an Educational Establishment with a GFA of no more than 2,500 m2 results in the policy outcomes sought by the SPP not being compromised as a development footprint greater than 3,000 m2 will not be permanently impacted upon. Such a use does not therefore offend the intent of SPP 1/12.
TSPP 2/12 does not appear to be of any particular relevance and, in my view, should not be accorded any weight.
Conclusion
As noted above, in the alternative, the co-respondent seeks approval for lesser uses for a lesser period which is expressly provided for pursuant to
s 496 of SPA. I note that public notification of the proposed development was carried out in terms where it was described as “Preliminary Approval – Educational Establishment made Self-Assessable by varying the effect of Cairns Plan 2009 to incorporate and Assessment Table Code specific to Lot 42 NR 387”.[42] The appellant has quite correctly taken issue with the inclusion of the other self-assessable uses having particular regard to s 316(4)(e) of SPA. I have been taken to no supporting material for the development application which would have enabled prospective submitters to glean the scope of what was contemplated by the development application in this regard. Moreover, there is nothing in the description of the proposed development as publicly notified which, in my view, would have put a prospective submitter on notice that the other self-assessable uses were contemplated.
[42]Affidavit of Peter Robinson filed 7 September 2012.
The co-respondent conducted its case with a view to justifying an Educational Establishment on the site. The co-respondent has not discharged the onus of establishing that the appeal should be dismissed, other than to the extent the Development Approval relates to an Educational Establishment having a GFA of no more than 2,500 m2. When it is considered that “use” is defined in Schedule 3 of SPA as including “any use incidental to and necessarily associated with the use of the premises”, why it was considered necessary to include uses other than an Educational Establishment in the development application is unclear. Furthermore, no justification has been shown for the 15 year currency period.
I therefore allow the appeal in part and approve the development application to the extent that the Development Approval is restricted to an approval for an Educational Establishment having a GFA of no more than 2500m2 and no other uses, with a standard currency period of four years.
I adjourn the further hearing of the appeal to enable the parties to negotiate appropriate conditions, particularly having regard to the need to appropriately buffer the proposed development from surrounding uses and to manage the traffic impacts associated with the proposed development and surrounding uses.
0
2
1