Orford Wilson Ralston Pty Ltd -v- Crow's Nest Shire Council

[1999] QPEC 33

IN THE PLANNING AND ENVIRONMENT COURT
HELD AT TOOWOOMBA

QUEENSLAND

[Orford Wilson Ralston Pty Ltd -v- Crow’s Nest Shire Council]

[Before QUIRK DCJ]

Appeal No 2 of 1999

BETWEEN:

ORFORD WILSON RALSTON PTY LTD

Appellant

AND:

CROW’S NEST SHIRE COUNCIL

Respondent

JUDGMENT

Judgment delivered:              

Catchwords:  

Counsel:    ~

Solicitors:   ~

Hearing Date(s):                   ~

IN THE PLANNING AND ENVIRONMENT COURT
HELD AT TOOWOOMBA
QUEENSLAND
  Appeal No 2 of 1999
BETWEEN:
  ORFORD WILSON RALSTON PTY LTD
  Appellant
AND:
  CROW’S NEST SHIRE COUNCIL
  Respondent
  REASONS FOR JUDGMENT -QUIRK D.C.J.
  Delivered the 19th. day of August   1999

This appeal, in which the issues are fairly concise, arises out of a refusal by the Court of an application to reconfigure four allotments (which make up a total area of just over 33 hectares) on the western border of the Shire.  The land is to the south-east of the intersection of Teschner Road and the Birnam-Cawdor Road.  It is presently undeveloped and is used for grazing. 

The existing configuration of the allotments is a consequence of the construction, many years ago, of the Toowoomba/Crow’s Nest Railway which has long since been abandoned.  Three of the allotments make up a roughly rectangular shaped parcel of over 32 hectares in area.  Lot 2 (12.383 hectares) is separated from lot 3 (17.958 hectares) by a long narrow winding strip of land, lot 161 (2.0432 hectares) which was the path of the railway.  Lot 138 (0.7158 hectares), a roughly triangular block, was also railway land and adjoined the south-western corner of the balance area.

It is sought to reconfigure the parcel by a more even distribution of the total area into four regularly shaped allotments each with a frontage of at least 150m to the Birnam-Cawdor Road.  The areas of these allotments are respectively 6.9, 8.6, 9.1 and 8.5 hectares.

Town planning was the determinative matter in the appeal the central issue being the proposal’s consistency with the Town Planning Scheme for the Crow’s Nest Shire and particularly the Development Control Plan for the Highfields area.

The current Town Planning Scheme is a “Transitional Planning Scheme” within the meaning of Division 2 of Part 1 of Chapter 6 of the Act.  Section 6.1.30(3) provides that a matter which would have involved an application for subdivisional approval under the repealed Act (s.5.1) must be decided under s.5.1(6) and (6A) of the repealed Act.

Section 5.1(6A) requires that such an application be refused if:

“(a)the application conflicts with any relevant Strategic Plan or Development Control Plan, and

(b)there are not sufficient planning grounds to justify approving the application despite the conflict.”

In the Town Planning Scheme for the Crow’s Nest Shire, the subject land is part of an area included in the Rural A Zone.  The stated intent for that zone is:

“Rural A - The Intent of this zone is to provide areas where arable land is preserved for agriculture and primary production without the intrusion of smaller acreage subdivision or incompatible developments.  Some land uses considered to be desirable in the rural atmosphere may be approved.  The general minimum subdivision in this zone is 40 hectares.”

In the Strategic Plan the subject land is in an area also designated Rural A.  The intent for this designation is set out in the Strategic Plan as follows:

“These areas are shown coloured light brown on the map and designate the balance of the Shire not required in the foreseeable future for other preferred dominant land uses.  These areas also include land which is unsuitable for development because of environmental, slope, drainage or flooding constraints or land already in rural use, minor and major, as identified int he planning studies, and land which is adjacent to some urban centres to provide a land source for future development.”

Part of the Town Planning Scheme is the Development Control Plan No. 1 (DCP1) which is intended as a guide to the future development of the Highfields area.  In the Development Control Plan the subject land is within an area designated Rural A.  The intent of the “Rural” preferred dominant land use designation is as follows:

“Two categories of rural land are proposed, Rural A (coloured light brown) and Rural B (coloured dark brown).  The intentions of these categories as defined in the Strategic Plan and reinforced herein, are to preserve and enhance the rural character of the area.  This will be achieved by not committing all land to more intensive uses at this stage, and to facilitate the retention of traditional rural uses on those lands.

Further the requirements relating to the Rural land contained in the Strategic Plan will be maintained.  Those areas indicated as rural are not intended for uses other than permitted in the Scheme.  Applications for rezoning other than in accordance with DCP1 will not be approved.  The minimum area of subdivision is in general 40 hectares in Rural A category and 100 ha in Rural B category.”

General provisions governing subdivisional design are found in s.8.11 of the Town Planning Scheme.  Section 8.12.9 deals with the Rural zone and provides:

“The minimum area that shall be permitted in the subdivision of land for any purpose in a Rural zone for any one allotment or parcel of land shall be as follows

1.Rural A: 40 hectares

2.        Rural B: 100 hectares”

A consideration of these provisions indicates that of importance in these planning strategies are:

• the preservation and enhancement of the area’s rural character,

• the achievement of this by setting minimum lot sizes to prevent more intensive land uses.

In evidence given in the appeal I had the advantage of the views of two experienced town planning consultants, Rhonda Miles who was engaged by the appellant and Maxwell Poole who has been the Shire’s consultant town planner for a considerable period.

Ms Miles accepted that the proposed reconfiguration does not comply with the requirements of the planning scheme in that allotments of an area of less than 40 hectares are the result.  It was however her opinion that the proposal was one of considerable planning merit which overcame any conflict with these requirements and warranted the application’s approval. To demonstrate this the following points were made;

• No greater number of allotments will result.  Those that exist are well below the 40 hectare limit as indeed is the total area.

• The new allotments will be of more regular and better shape, each will have a frontage to a sealed road (Teschner Road is presently unsealed).

• Attractive building sites will be available on each of the resultant allotments whereas opportunities for such sites on the allotments as they presently exist are constrained.

• The utility of the resultant allotments will be improved and their ability to be used for a viable rural pursuit (e.g. growing grapes, olive trees or some other intensive rural pursuit that is suitable for a lot size proposed) will be enhanced.

Ms Miles also drew attention to a discretion to relax the requirements of s.8.12 which is found in s.8.14.1.2.  This provides:

“Notwithstanding the provisions of s.8.12 of this part, the Council may vary any of such provisions:-
...
Where it considers such variation to be necessary because of the location size shape or topography of the subject land and where it considers the proposed allotments would be satisfactory for the use or uses permissible within the zone and which the subject land is included.”

Mr Poole, while admitting that much of what Ms Miles said was factually correct, believed that to allow the application would be poor town planning and contrary to the Council’s stated planning objectives for the area.  His view was that while no further allotments will be created, those that will result will be of a size and configuration that will give them an appeal as rural residential home sites which is presently lacking in respect of the parcel’s existing configuration.  Development of that kind is not intended for the area.

I believe that there is substance in this view and I accept that to encourage rural residential development in this area is at odds with the planning strategies found in the statutory planning documents.  While it is true that there are presently four irregularly shaped allotments making up a total area of less than 40 hectares this is very much a consequence of the construction of the railway line.  Since the line’s demise it would seem that (certainly in respect of the three larger allotments) in a practical sense the use of the land as a rural unit has reverted to the pre railway position.  I appreciate that the present allotments are able to be separately owned but I also accept that the probability of their continued use as a rural unit would be higher than if this proposal was effected.

Mr Poole is of the opinion that the facts of this case give rise to no necessity for a variation of the subdivisional requirements of s.8.12 that would enliven the discretion referred to.  On the evidence I accept this as the preferred view.

On the evidence given I find that the proposal is not in conformity with the Town Planning Scheme’s express strategies for this area.  I am not satisfied that matters of sufficient planning importance to overcome such non-conformity have been demonstrated.  I find that the onus of showing that the application is one that should be approved has not been discharged and the appeal must be dismissed.