Parsons v Redland City Council

[2011] QPEC 62

PLANNING AND ENVIRONMENT OF QUEENSLAND

CITATION:

Parsons v Redland City Council [2011] QPEC 62

PARTIES:

Malcolm Lionel Parsons
(Appellant)

V

Redland City Council
(Respondent)

FILE NO/S:

3391 of 2009

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court of Queensland, Brisbane

DELIVERED ON:

5 May 2011

DELIVERED AT:

Brisbane

HEARING DATE:

23 – 25 February 2011 at Brisbane and

8 April 2011 at Southport

JUDGE:

Robin QC DCJ

ORDER:

1. Appeal allowed, conditions varied

CATCHWORDS:

Integrated Planning Act 1997 s 3.5.30

Conditions appeal – Island site close to Moreton Bay affected by storm surge and Q-100 flood lines – 90% of site (outside the development application for a material change of use for a one bedroom house) zoned Conservation – Council sought a drainage easement over that 90% - that extent of easement considered not reasonable – likewise other conditions restricting development that might be applied for in future.

COUNSEL:

Mr M. Parsons representing himself as the appellant with the assistance of Mr L. Hackett as McKenzie friend

Mr S. M. Ure for the respondent

SOLICITORS:

Appellant is self-represented

HWL Ebsworth for the respondent

[1] This is an appeal against certain of the conditions which the respondent Council imposed in a Development Permit for Material Change of Use (dwelling house and carport) in respect of the appellant’s land at 65 Coondooroopa Drive, Macleay Island. The original decision notice of 14 December 2006 (based on a development application lodged on about 24 November 2006) was re-issued on or about 24 June 2009. According to the Notice of Appeal, on or about 7 July 2009, the appellant suspended his appeal period in accordance with s 3.5.18 of the Integrated Planning Act 1997 and four weeks later made representations to the Council in relation to the conditions imposed by the decision notice, accompanied by the requisite fee of $597; no notice of any decision by the Council under s 3.5.17 having been received, on 24 November 2009, the request was withdrawn. This appeal, which is brought under s 4.1.27(1)(b) and (d) was filed by Mr Parsons’ solicitors the next day. He has since become self represented, and Mr Hackett (who has a background and qualifications in science which have earned him membership of at least one professional engineering body) was his advocate in the appeal hearing. At the beginning of the hearing, Mr Parsons was making submissions on his own behalf. It is probably appropriate to characterise Mr Hackett as a McKenzie friend who gradually became a speaking one, being the more confident advocate.

[2]      The precise area of Mr Parsons’ land is immaterial.  The Notice of Appeal identifies Lot 269 on RP31213 of “approximately 5020.64m²”.  Mr Parsons’ holdings include Lot 268 as well as Lot 269.  According to a Gutteridge Haskins & Davey Pty Ltd report of March 2002, Lot 269 is approximately 3790 square metres, Lot 268 is approximately 1635 square metres, fronting the shoreline of the island.  Both lots significantly exceed the 500 square metres average sized block on Macleay Island.  A Council Rating Services search of 24 November 1997 (Exhibit 34) states a combined area consistent with that in the Notice of Appeal and (confirming assertions made by Mr Parsons) gives the address of the properties as 21 Cross Street, Macleay Island.  That street crosses the northern part of the island from east to west.  Three long north-south roads serve the area, Kate Street in the middle representing a “spine”, Coondooroopa Drive being located roughly parallel tracking the west coast and providing access for residential lots on both sides, those on the west, including Lot 269, having a water frontage.  Lot 268 is unique in having only a Cross Street frontage.  The land is low lying, like Lot 270 immediately to the north and Lots 266 and 267, south of Cross Street.  Only Lot 266 of those named has been built on.  Virtually all of the beachfront lots to the south have houses on them.  Lot 267 may well remain undeveloped; like the Cross Street reserve, it is covered by mature vegetation which would appear to have environmental and conservation values.  East of Coodooroopa Drive, Cross Street is constructed.

[3]      Not only are all of the lots identified by number subject to constraints which preclude building or ancillary works such as trenches to permit on site treatment of sewerage below the 2.4 metre AHD line, they also have constraints attributable to their being in the way of an overland flow path which drains this part of the Island.  Where the Q-100 (or 100 Year ARI) line should be located on the site was contentious between the parties.  (Lots 271 and 272 further north are clear of the flow path; each has a substantial house erected on it.)

[4]      The combination of the constraints as a practical matter would preclude development on Mr Parsons’ land, except for at the eastern end.  This slither exhibits the shape of a slender kite.  The eastern and southern boundaries are constituted by the Coondooroopa Drive frontage of 7.34 metres in the east, the adjacent part of the Cross Street frontage, (roughly similar in length) – the street frontages being at an obtuse angle of 130 degrees – in the south.  The eastern end of the common boundary with Lot 270 for about 40 per cent of its length back from Coondooroopa Drive is the northern side of the “kite” and a meandering line of similar length connecting the end point with the point at the relevant cut-off in Cross Street is the western one.  That “western boundary” is in truth a meandering line with a south-south-west orientation, the true western boundary being essentially a ‘point’. 

[5]      That part of Lot 269 described in the preceding paragraph has been separately dealt with in the Council’s 2006 Planning Scheme, which is the relevant instrument for present purposes.  The “meandering line” separates the Conservation zone which extends to the water and includes all of Lot 268 as well as most of Lot 269 from the SMBI[1]  Residential Zone.  In the former, any development associated with establishing a residence would require an impact assessable application – development such as filling, construction of a residence or digging of trenches for waste water treatment purposes.  In submitting his development application, after discussions with the Council, Mr Parsons accepted that situation.  There was no impact assessable application.  In accordance with the outcome of those discussions, what was proposed was a two level one bedroom house, the unusual restriction to a single bedroom being explicable in terms of the amount of land above the storm surge line at AHD 2.4 metres available for trenches for waste water treatment.  Mr Parsons proposed no development outside the Residential zone.  Mr Donaldson, an architect, prepared plans including a site plan exhibiting maximum use of the Residential zone area.  Inconsistencies in areas remain, Mr Donaldson’s plans showing a building area of 366m², whereas the Council’s plans showing its proposed drainage easement over the balance of Lot 269 show an easement area of 3422m² approximately and a Balance Area available for building of 378m² approximately.  No development in the Conservation zone was applied for, nor any permit to fill. 

[1] Southern Moreton Bay Islands

[6]      It seemed that Mr Parsons was seeking to expand his application in this appeal, which would be an impossibility legally, given that there’s been no impact assessment process gone through, no public notification in particular.  In fairness to Mr Parsons, it might be observed that the appeal is in large measure about conditions which the Council seeks that relate to the Conservation zone land. 

[7]      The Notice of Appeal identifies the impugned conditions as the following:

“15.     Condition 6:

‘A drainage easement is required over the subject allotment to provide drainage for a Q100 (1 in 100 year) storm and/or flooding event.  The easement shall be as indicated on Council’s Drawing Number A2-C316-2(B) attached.  Written agreement of the owner of the allotment must be received prior to the commencement of building works, to allow Council to survey and register the easement at the Titles Office (see attached easement consent form).’

17.Condition 18:

‘Due to the limited area available for effluent disposal, this approval is for a one (1) bedroom dwelling house only. No further bedrooms will be permitted on this allotment, unless it can be demonstrated that such a proposal can comply with the requirements of the relevant Australian Standards, Council’s Household Wastewater Treatment/Disposal Policy (ENBS006) and the Plumbing and Drainage Act 2002.’

18.Condition 31: 

‘No building works, cutting or filling or plumbing and drainage works are permitted below the 2.4 metre AHD level (Australian Height Datum) contour level or below the 100 Year ARI (Average Recurrence Interval) flood level.’

19.Condition 37:

‘This development permit for a Material Change of Use will remain current until 30 January 2011 starting the day the approval takes effect, as per sections 3.5.21(1) and 3.5.19 of the Integrated Planning Act 1997.’”

[8]      My understanding is that challenges to Conditions 8 and 34 were not pursued.  They related to provision of a vegetated buffer within the drainage easement and a stormwater diversion mound to be constructed upstream of it; the appellant’s case is that there was no case for an easement at all.  

[9]      Most of the appellant’s case was devoted to establishing that the line separating the two zones was in the wrong place.  Mr Parsons contended that the Council had reneged on an agreement compromising a proceeding he instituted against it in the Land Court in 2002 which would have given him a building area greater than the 378m² which the Council contends now applies.  450m² was an important benchmark; owners of smaller sites faced constraints on residential development.  In 2002, the land was “Category 3 Drainage Constraint”; it was important to Mr Parsons to have it in Category 3A rather than 3B, where the Council placed it.  Although it never got formally into evidence, the court saw (transcript 1-43) a letter of the Council of 10 June 2003 referring to a decision of the Land Court of 6 August 2002 which allowed Mr Parsons’ appeal (without any hearing or determination by the court) on the basis of the parties’ agreement that the land should be placed in Category A rather than Category B.  The Land Court’s advice of the consent order was produced.  In respect of subsequent planning history, Mr Parsons alleged (1-44) that “Council have gone against that decision by zoning it Conservation and Residential”.  The letter explained that although the rating categorisation would be changed, the zoning (Drainage Problem) and use rights were not affected.  Be that as it may, the court must accept the new zonings, which Mr Parsons said he was not challenging.  The Council’s internal planning report of 8 December 2006 states (Appeal Book Exhibit 1 tab 7 page 38):

“As the proposed dwelling is sited within the area zoned SMBI Residential, only this zone will be considered during the assessment.  The zoning was as a result of a drainage investigation survey that was accepted by Council as part of Court proceedings.  Dwelling houses are a consistent form of development in the SMBI Residential Zone, subject to Council approval, requiring a Material Change of Use – Code Assessment Application.”

1. Back in 2002, Mr Parsons, supported by a relevant expert, Mr Paddison presented a case that the GHD[2] estimate of “only some 340m² of Lot 269 which is both above the Q-100 or 100 Year ARI flood line and the 2.4 metre storm surge line” required revision upwards (Paddison’s report is not in evidence).  GHD did further work in response, concluding that “with the reconstruction of Coondooroopa Drive there is an area of some 400 square metres…clear of inundation from either the Q-100 flood event and the ARI 100 storm surge”. (This would leave the site as in the drainage problem category, having a minimum area less than 450 square metres.)

   [2] Gutteridge Haskins & Davey Pty Ltd

1. An important part of the appellant’s case is that he ought not suffer from works done or permitted by the Council and predecessor authorities (which included the State of Queensland) which have exacerbated the drainage problem on his land by diverting and concentrating overland flows of storm water to the disadvantage of Lot 269.  The court finds that such exacerbation has happened.  Mr Collins (a hydraulics expert called by the Council whose evidence has assisted the court in

many cases) is doubtful that it is to the extent described by Mr Rogers (the appellant’s expert, a civil engineer with expertise in stormwater and flooding analysis), but I accept Mr Rogers on this aspect.  Development of the higher land east of Coondooroopa Drive, by creating more hard surface, has increased the amount of run-off to be expected.  North of the site, a spoon drain has been formed of bitumen on the western side of the Drive featuring a lip which prevents water from getting on to Lot 272, or exiting the Drive as sheet flow, collecting it instead to flow down the drain towards Lot 269.  Some of the water collected in the drain goes down the driveway of Lot 271, close to Lot 270, which would receive some of that flow and lower down, sheet flow.  Lot 269 receives more overland flow than it would otherwise in this way.  The intensity of flows can be gauged from scouring of at least one gravel driveway up the hill on the opposite side of Coondooroopa Drive.

1. It is unlikely that this situation is of relevance in the present appeal except to show a pattern of works sanctioned and carried out from solicitude for other land owners, to the detriment (not necessarily intended) of Lot 269.  It may be that the original formation of the Drive even before it was sealed had the effect of concentrating flows.

1. More significant is what happened in the south.  Here, with the effect of protecting Lot 266 and/or its neighbour(s), the “low point” of Coondooroopa Drive has been moved by work done in about 2002 some 20 metres closer to Lot 269.  I accept the opinion of Mr Rogers that this has diverted the dominant overland flow path of water coming from east or south of Cross Street to the disadvantage of Lot 269, which receives more of this water.  In ordinary storm or rain events, flows move under Coondooroopa Drive via a pipe opening to the Cross Street reserve, hard against Mr Parsons’ boundary, rather than more centrally located on the Council’s reserve.  There is reason to think that the direction of flow through the pipe is towards Lot 269, threatening erosion.  Exacerbating the situation, the Council omitted to follow its own designs and omitted to place 10 metres of hard rock along the ground beyond the pipe opening, and to construct a vertical revetment wall on Mr Parsons’ side.

1. Although the appellant made much of the pipe aspect, it has little relevance (except as a symptom of the Council’s unsympathetic attitude as anyone in the appellant’s position would assess it).  That is because the pipe will cater only for events expected with a frequency of up to once every two years.  This appeal is concerned with the one in one hundred event, in which the flow will be across the concrete spillway (“dished invert crossing”) now forming part of the road.  The appellant and Mr Rogers would like to see the Council construct a swale drain to the sea along the Cross Street reserve, i.e. on its land (as has happened in at least one location nearby to the south).  One can guess that the Council has two answers: insufficient funds available and a general policy against concentrating flows of run-off into Moreton Bay.  The Council would prefer to see a shallow flow spread across Mr Parsons’ land (not its own reserve, which is slightly more elevated).

1. One can surmise that the surveyor who laid out the subdivision in the 1880s, if considering how storm run-off would get to the sea, would have anticipated the path being down Cross Street, rather than across private land, Lots 267, 268 and 269 in particular.

1. Since the court cannot require the Council to do or accept works on its road reserve, these considerations play no part in the court’s deliberations, except so far as they bear on the reasonableness of the conditions appealed against.  The Council could ensure that storm run off entering its reserve was retained in it until reaching Moreton Bay. Section 3.5.30 of IPA establishes the test for conditions. The relevance of the conditions still in dispute may be accepted, whether or not that are strictly necessary. But it is a serious question whether it is reasonable to impose a condition which requires the owner of Lot 269 to accept storm water run-off collected and concentrated in Cross Street in a way effectively sterilising most of the parcel in order to accommodate a wide path for overland flow of that run-off, with the possibility of works in the Cross Street reserve (not ever likely to be used as a road) described by Mr Rogers not taken up.

1. These considerations are important in relation to the easement condition.  I do not include in them that there is some element of discrimination against Mr Parsons merely from there being a proposal for an easement.  As Ms Collins says, this is a common, almost standard practice in circumstances like the present: cf May v Redland Shire Council [2009] QPEC 106; [2010] QPELR 225 at [28] ff. I prefer his opinion to Mr Rogers’ on the contentious issue of whether Mr Parsons’ application should be assessed on the basis of the natural overland water flows, which assumes that these can be identified, rather than on the existing situation which the works of man have brought about. Every practical consideration points to the latter approach being the correct one. We cannot pretend that Lot 269 does not provide the last sector before the sea of the drainage “system” as it now exists. That is the situation planning assessments must be based upon.

1. There are other drainage easements in the area, including one across the frontage of Lot 266, where the Council has permitted the construction of semi-solid timber fencing that will impede overland flows across the Coondooroopa Drive frontage that would otherwise occur.  It is reasonable to expect a continuation easement across Lot 267 being required if a relevant development application is made to the Council.  The same may well happen on Lot 270 along the boundary with Lot 269 at the back (Bay) end.  In those cases, the impact of the putative easements (like that of the Lot 266 one) will be far less destructive of the particular Lot’s capacity to accommodate a house of standard size. 

1. What Mr Parsons (doubtless reluctantly) applied for and obtained approval for is a modest structure which would be surrounded by much larger ones that are typical of the locality and offer potential for a greater number of residents to enjoy the salubrious environment.  Restrictions to one bedroom (as applied for) and to the tight building area in the SMBI Residential Zone will, as a matter of common sense, reduce the value of Lot 269.  There is an aspect of officiousness in imposing them in consequence of a development proposal confined to the SMBI Residential zone and to a one-bedroom house. 

1. The proposed easement is particularly onerous.  Mr Parsons and his successors, in practical terms, could do nothing with 90 per cent of Lot 269, yet they retain legal responsibility for that 90 per cent, the obligations of maintenance and liability to pay rates.  The area is proposed to be quarantined to serve a public interest, relegating the owner of Lot 269 to a building area of inadequate dimensions and a bizarrely pocket-sized dwelling, if any is practicable there.  No building can be permitted on the easement area:  see the Building Act 1975 s 65 which contains the present equivalent of the Standard Building Regulation s 58. No “building development application” may be approved unless each registered holder of the easement has consented to the building work. Such applications are sufficiently widely defined in s 6 to cover any potential situation likely to be encountered. It might be noted that Mr Parsons’ land is fairly flat, that, walking it, there is nothing to distinguish the 90 per cent from the rest. The proposed easement document imposes not a single obligation (beyond statutory obligations) on the Council – not even the limited obligation to re-instate fencing in the easement taken over Lot 266 in 2004 (Exhibit 8).

1. The court accepts the principle of easements in such circumstances.  Mr Collins’ observations are in line with the court’s experience.  Without the right to enter as necessary to preserve the integrity of drainage systems, a council with responsibility to protect the community interest is left having to implement unwieldy, complicated, time-consuming and costly processes to gain access, and may be frustrated in situations of some urgency.  Mr Parsons cannot complain that he may be one of the first to be saddled with a drainage easement.  If a new, better regime it is introduced to look after the public interest, someone has to be the first to face the inconveniences it may produce for a private owner.

1. That does not imply that the Council should get everything it asks for in the draft proposed easement, Exhibit 24.  It is a serious fetter on potential development which must be confronted beyond the obstacles that the Conservation zoning throws up.  Mr Hackett in his able and thorough closing submissions in Mr Parsons’ interest argued that the zoning gives the Council all it could reasonably require by constraining Mr Parsons and his successors: what they can do without a successful impact assessable development application is extremely limited, and so there is no justification for any additional restriction.  So ran the argument. 

1. Mr Ure for the Council argued that the easement would not impede any future development because the Council, if approving the development, would agree to modification of the easement or to the relevant “building development application” or other application. I do not accept that as a sufficient answer. If there is an easement, its very existence may be pointed to by some (including the Council and submitters) as a reason not to approve development. The Council may seek to exact some price for the modification. As I read s 65, it gives the owner of the dominant tenement a veto which could not be overcome by an order of this court. There is the possibility of relief in the Supreme Court under s 181 of the Property Law Act 1974. One asks rhetorically why the owners of Lot 269 should be forced to make an application of that kind, whose success may be very uncertain. In the meantime what can be done with Lot 269 is restricted, and no doubt with effects on its attraction in the market. (An instance of a council disinclined to give a registered covenant required under an earlier approval to facilitate a development the court decided ought to be approved is Altitude Corporation Pty Ltd v Isaac Regional Council [2010] QPEC 127; see [95] and subsequent proceedings on 5 May 2011.)

1. The point of reference to Mr Parsons’ successors is that to an extent the Council has relied on matters personal to him.  Mr Ure justified the imposition of an easement on Mr Parsons having “form”.  The evidence shows that he has carried out unauthorised, unlawful filling on the site.  A Council letter to him of 10 April 2008 advises that a recent inspection shows the fill had been removed, so that Action Request SC002305 was “closed”, likewise Show Cause Notice SC002305 and Enforcement Notice ENF005912.  The matter got as far as completion of a Brief of Evidence for a prosecution in Cleveland Magistrates Court.  Mr Parsons protests that he did not realise he was not allowed to fill his property without a development permit.  Nonetheless, he has been a source of trouble and cost to the Council, and a nuisance to it.  Mr Ure insinuates that Mr Parsons may do the wrong thing again, in which event the Council should have a right to enter under an easement to rectify matters.

1. Although Mr Ure said nothing about it, there emerges clearly enough from other material placed before the court that the Council may well regard Mr Parsons as frustrating to deal with, as someone who makes the Council’s business unnecessarily complicated.  This relates to the history of the appeal.  Mr Parsons gave every sign of accepting the original December 2006 Decision Notice.  Nearly two and a half years on came a solicitor’s letter of 19 May 2009 contending that notification of Mr Parsons’ rights of appeal under s 4.1.27 of IPA as prescribed by s 3.5.14(4) was not included in the Decision Notice, invalidating that Notice.  Authorities in the court to that effect were cited.  Issue of a valid Decision Notice was requested.  Although the Decision Notice just above the signature in Item 5 referred to Rights of Appeal under ss 4.1.27 and 4.1.28 and “Division 10 Part 1 Chapter 4 of the Act which deals with the making of an appeal to the Planning and Environment Court” and in Item 6 invited “Representations on the conditions…in advance of the ending of the Applicant’s appeal period”, the Council could not establish that it had in this instance complied with its “usual and overwhelming practice” of appending the IPA provisions to the Decision Notice as Item 5 said had been done.  It yielded, giving Mr Parsons the “benefit of any doubt”,[3] but in the replacement Decision Notice of 24 June 2009 carried out its threat to limit the currency period to expire on the date originally set.  The relevant condition in that regard is the subject of appeal, but there is no issue here.  The Council accept that a four year currency period (or “relevant period”) would run from the date of this court’s order.

   [3] See its letter of 17 June 2009

1. The court’s conclusion regarding the easement condition is that in principle it satisfies the tests of reasonableness and relevance.  Without the precedent of the Lot 266 easement (and other remoter ones) it might not.  However, the restriction sought upon what may be done on Lot 269 far exceeds what is reasonable, both replicating to an extent what the zoning arrangements require and coming close to emasculating Lot 269’s potential as a residential site.  I think that it has all along been envisaged as that, albeit with an apparent acknowledgement of its role in the drainage system demonstrated by its unusually generous dimensions.  (Lot 268, for what this is worth, was presumably seen as a site for a residence, too.  As late as November 1997 the Council was using the address 21 Cross Street (Exhibit 34).  The GHD report of March 2002 related to lots 268 and 269 Cross Street.) 

1. This decision does not depend on Mr Parsons’ expectations when he acquired the site about 1997.  It appears from Exhibit 34 that Council rates were many years in arrears at that date; Council’s planning arrangements (which Mr Parsons could easily have discovered) were at least as constraining for Lot 269 then as the present ones are. 

1. The proposed easement is remarkable for taking nearly the whole of the parcel and leaving an inadequate building area; it comes close to confiscation of the site.  It is not shown that such a depredation is necessary; the better view is that it is not.  Why should not a house of more conventional size be achieved by a cantilevered structure protruding above the easement area?  The existence of an easement would probably prelude this – and even more, the activities of construction.  There is no need for an easement to place additional difficulties in the way of a future development. 

1. The important purpose of securing the path to the sea for the overland flow in very high volume events can be achieved by an easement of more modest dimensions.  A easement is justified to guard against the risks to the path that would accompany the establishment of a new house; the court is accustomed to hearing of the “edge effects” of residential development.  The line Mr Collins marked on Exhibit 14 may be taken as the “Bay” side boundary of the appropriate easement.  The other boundary ought to be some four metres closer to the Bay than the Council’s proposed line, measured at right angles to that line, that being my entirely provisional estimate of a revised line which would produce a building area the equivalent of the 450m² that was important at the time of the Land Court proceeding in 2002.  Whether Mr Parsons or any successor ever achieves such a building area is entirely dependant on the Planning Scheme being changed or a favourable decision by the Council or the court on a future development application.

1. Consideration of the evidence of Mr Collins (who supported the Council’s position) and Mr Rogers’ persuades me that confining the easement in that way will not unacceptably compromise the situation in the “hundred year event” (assuming the easement area is kept clear); escape of flows to the nearby sea would be essentially unimpaired.  Nothing like a dam is in prospect – merely a new physical barrier along or near the eastern side of the wide flow path.  The flows would be very shallow.  It is over-dramatic to talk of threats to life or threats to property.  The former seems unfounded alarmism.  As to the latter, any inundation would be minor and presumably could be allowed for or avoided.  The extent of the “threat”, even on the basis of filling of Lot 269 to 2.7 metres to produce a building area of 815m² of that elevation as proposed by Mr Rogers would be minor – no more than a few millimetres extra (he says 7) in depth on the far side of the road – and would not be likely to affect buildings there.

1. It must not be overlooked that Mr Parsons is unable to carry out any development on his Conversation zoned land without a further development application being successfully made.

1. So far as Condition 18 is concerned, the court’s view is that only the first sentence should stand.  It is an unjustifiable restriction, in my opinion, to legislate for the future in the way the balance of the proposed condition after the introductory sentence does.  It is sufficient that Mr Parsons or his successor must make an appropriate development application if a material change of use for additional bedrooms should be required in the future.  There is no reason to doubt that appropriate considerations will be consulted if and when that happens.  The proposed clause might have been improved by an indication of the entity to whom matters ought to be “demonstrated”; it may well be sufficient for it to be some properly qualified and recognised consultant.

1. Condition 31 is appropriate, even if it simply repeats what is required under present planning arrangements.  In my opinion it is useful to have such a provision to guard against events that might constitute infringement occurring incidentally in the carrying out of works within the building area presently available to Mr Parsons or some reoccurrence of unauthorised filling as part of the curtilege of a new house.  Lest the condition be taken as special legislation for lot 269 for general purposes in the future, it would be appropriate to add at the beginning, “Under this approval,”.

1. It seemed that Mr Parsons was hoping to obtain more from the appeal than could possibly be available, for example some approval of filling and a court determination that the boundary between the two zonings into which Lot 269 is split was in the wrong place.  The court has no jurisdiction in either respect.  Mr Parsons cannot hope to achieve more than his 2006 development application asked for.  He did not apply for permission to fill or for anything to occur inside what the Council would have as the easement area.

1. For what it is worth, the court feels unable, on the evidence presented, to express a view as to whether the dividing line between the zones is in the right place.  It is not possible to be confident that the contours of land on and surrounding the site have been accurately identified.  A survey by Paul Caddey Surveys of 25 July 1998 appears to have been done on a rather broad scale in the sense that limited heights were taken (or heights were taken at limited points) and straight lines drawn to connect them.  A later Council survey appears to be more accurate.  In particular, it identifies a ridge along the northern boundary of Lot 269.  Modelling has produced various representations of the inundations expected in the 100 Year ARI event.  Mr Parsons has seized on some which indicate that the available building area on Lot 269 is greater than that shown in the most recent “Delft” work.  He relies on earlier such work which is said to be and is indeed marked “superseded”.  There was debate as to whether “Hecras” modelling, which I understood to emanate from the US Army Corp of Engineers and is supported by Mr Rogers, was sufficiently reliable, or whether two dimensional modelling as advocated by Mr Collins would produce a more reliable indication in present circumstances.  The outcomes, it was said, would or might not to be the same.  I am not persuaded that the Hecras approach is inappropriate.  My definite impression is that better information is needed to feed into either model if an accurate result is to be achieved. 

1. Unfortunately, a feature of Mr Parsons’ differences with the Council has been in relation to whether he ought to bear the costs of work to produce modelling outcomes in which more confidence could be reposed.  I accept Mr Rogers’ opinion that, even if Mr Parsons had funds available, there would be little point in doing work as the potential for significantly different results from this does not exist.  At present, matters are sufficiently uncertain for the court to refrain from giving the Council all it seeks in relation to the proposed easement.  The court is not prepared to take on faith the most recent Delft work; the purpose of it was apparently to give an understanding of the effects of the most recent changes in Coodooroopa Drive; the author was not available to be questioned.  Mr Collins’ opinion was that ideally, more work should be done to arrive at the most reliable, accurate modelling outcomes.

1. The court expressed its concern early in the appeal hearing that the zone boundary may have an indeterminate location (compare the boundary of the Green Space System considered in Red Mountain Pty Ltd as trustee for theRaptis Family Trust v Brisbane City Council [2002] QPEC 071). At that stage, the Council was unable to demonstrate otherwise. However, it was able to demonstrate sufficient definiteness about the boundary when the hearing resumed on 8 April 2011 in Southport[4] by the statements of evidence of Mr Elliott and Mr Beekhuizen.  The boundary can be taken as clearly defined in the sense that it replicates the shading in the latest Delft work.  The court is prepared to accept the “metes and bounds” indicated in Exhibit 24 as reflecting the Delft modelling, and as the most precise definition of the boundary between the zones, which can be taken as clearly defined.  It is beside the point for the appellant to show that it may be in the wrong place on the basis that the “Delft” line is in the wrong place.  Any determination by the court in that regard would appear to have no effect.  The Delft line is where it is.  The court is unable to say that it defines areas subject to inundation more accurately than any other line purporting to do so that was in evidence.  The Planning Scheme is determinative, even if it achieves the outcome intended imperfectly, that is an outcome of reflecting what will be the correct 100 Year ARI and AHD 2.4 metres contours.  What the appellant needs to do, if he makes his point, is to try to get the zone boundaries in the Planning Scheme changed.  The court cannot help him.  It must give effect to the Planning Scheme.

   [4] For logistical reasons.

1. In the result, Condition 6 should be changed to provide for the more modest easement being endorsed by the court, Condition 18 is to be edited and Condition 31 expanded, and the standard currency period will run from the date of the court’s order (here foreshadowed) rather than Condition 37 applying.

1. In the circumstances, the making of orders finalising the appeal has to be deferred to allow outstanding matters to be attended to.