Patterson –v- Hervey Bay City Council & Others
[2004] QPEC 25
•9 June 2004
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
| CITATION: | Patterson –v- Hervey Bay City Council & Others [2004] QPEC 025 |
| PARTIES: | GAVIN HAMILTON PATTERSON Appellant HERVEY BAY CITY COUNCIL Respondent ECHOCALL PTY LTD & BARLOW, GREGG & ASSOCIATES PTY LTD Co-Respondents |
| FILE NO: | 29/04 |
| PROCEEDING: | Appeal |
| DELIVERED ON: | 9 June 2004 |
| DELIVERED AT: | Townsville |
| HEARING DATES: | 17, 18 & 19 May 2004 at Maryborough |
| JUDGE: | CF Wall QC |
| ORDER: | Appeal dismissed. |
| CATCHWORDS: | BUILDING CONTROL AND TOWN PLANNING – MATERIAL CHANGE OF USE - COUNCIL APPROVAL – Sub-division – wh. land environmentally significant and sensitive within planning scheme – question of fact. |
| COUNSEL: | Appellant – self-represented |
| SOLICITORS: | Connor O’ Meara Solicitors for the Respondent |
HIS HONOUR:
INTRODUCTION
This is an appeal against the decision of the respondent council on a material change of use application to approve the reconfiguration of certain land into 44 allotments, plus a balance open space area. The decision notice is dated the 1st of July 2003. The proposed subdivision layout is shown on the amended plan, Exhibit 1, and its location is apparent from figures 1, 2 and 3 in Exhibit 11. The land is situated in a very attractive part of Point Vernon at Hervey Bay.
The appellant lodged a submission objecting to the application. A number of the conditions attaching to the approval are directed to retaining vegetation growing on the land.
The appellant wants the following relief, in the alternative but in this order, each predicated on a determination that the land is environmentally sensitive and significant:
(1)That the application be refused and the council buy the land and turn it into a park;
(2)If the development is to proceed the current proposal is an overdevelopment of the land and should be refused and replaced by:
(a)a multi unit development of the nature referred to in the plan attached to the submission he made to the council (see Exhibit 3, page 105) which would achieve greater vegetation retention; or
(b)a subdivision with a reduced number of lots, each being at least 1200-1500 square metres.
Proposal (2)(a) is though contrary to the planning scheme, see the evidence of Mr MacNamee the council's acting principal planner at page 131 of the transcript.
In general terms, the areas to the north, east and south of the land have already been subdivided into residential allotments in the order of 800 square metres each. Eaton Street on the western side will remain an unconstructed road reserve providing a buffer between the land and a large area of parkland or recreation reserve extending to the Esplanade. Internal roads are proposed, including a bridge over a drainage corridor which runs through the land. Ideally, as I mentioned, the appellant would like the council to purchase the land and make it part of the recreation reserve.
At the end of the evidence, the only issue argued by the appellant related to his contention that the land is an environmentally sensitive and significant area containing significant vegetation and wildlife habitat and, as a result, the proposed subdivision would conflict with the council's transitional planning scheme.
The strategic plan designation of the land is urban residential, the DCP 1 designation is cottage residential and the zoning is future residential. The land is not designated environmental open space in the strategic plan. For details of that designation see section 1.1.4.7. Section 1.2.16 contains objectives which have general application throughout the plan area. An assessment of the environmental value of the land is required as part of the development application. See section 1.1.4.16.
The general objectives applicable to all preferred dominant land use designations in the strategic plan include section 1.2.16.6, which is:
"To ensure that permitted development does not conflict with environmentally sensitive and/or significant areas including areas of significant vegetation and wildlife habitat."
The council's Temporary Local Planning Instrument No 1, dealing with vegetation management, contains criteria relevant to assessment of areas.
The future residential zone is intended to provide both residents and developers with "a clear and confident knowledge of the localities where new residential and associated developments may be carried out," section 3.2.4.1.
The issue here is whether the land is an area of environmentally sensitive and/or significant vegetation and wildlife habitat. The council's view is that it is not, but that there are certain vegetation features about the land that should, if possible, be preserved and that is what the conditions attaching to the approval are designed to achieve as much as is possible. Notwithstanding differences on some aspects of the evidence by some of the witnesses, the preponderance of the evidence persuades me that this view is correct. In my view, the appellant has genuinely, but mistakenly, sought to elevate a relatively large block of land covered with woody vegetation to a status not warranted by the evidence. His views as to the environmental significance of the land are outweighed by the rest of the evidence.I incline to the view that the appellant, environmentally concerned as he obviously is, has endeavoured, with minimal evidentiary support to latch upon relatively minor flora and fauna aspects associated with the land as well as relatively minor conflicts in the evidence of some of the witnesses called in support of the decision and elevate these to a level sufficient to restrict development as much as possible with a view to preserving, as far as he can, what he perceives to be the visual and environmental amenity of the area.
The land has been cleared in the past and utilised for grazing. Over more than 30 years regrowth vegetation has occurred, such that the land is now fairly heavily treed. The appellant described it as "a fairly valuable piece of scrub land".
FLORA
According to Dr Michael Olsen, report Exhibit 6, most of the land has a plethora of weed taxa and is largely occupied by weed-dominated landscapes. He described it this way in his report at pages 3 and 4:
"Much of the subject land is occupied by abandoned, degraded agricultural lands characterised by weed dominated landscapes, associated infrastructure such as the small dam and an abandoned tram body amongst a mosaic of regrowth saplings and juvenile trees. The few canopy relicts are located along the perimeter with Spence Street yielding an indication of the former canopy height. The regrowth is species poor compared to analogous pre-clearing landscapes in the area and has poor structural and floristic recovery following these earlier land clearance and grazing activities.
The weed dominated former grazing lands have the least significant native flora values with their extant flora a reflection of the artificial landscapes rather than the innate natural attributes of this site. The regrowth areas have a higher proportional representation of native taxa, but the structural integrity of these areas testifies to their early successional status. The indicative floristic list (Appendix 1) illustrate the poor native species diversity relative to the number of exotic taxa - and this with exotic landscaping taxa removed that would further diminish the proportion of native taxa recorded for the site. Soils, topography and drainage are the major determinants of the natural patterning of vegetation, although human related disturbance regimes (particularly artificial fire regimes, land clearance and subsequent weed invasion) alter the relative displacement, viability and integrity of the vegetation mosaic. In this instance, the native vegetation mosaic has been totally displaced and only a vestige of the original biodiversity remains on this site.
There are no remnant regional ecosystems on the subject land."
He expressed his opinion as follows at page 6:
"Clearly, this land has been cleared and utilised for many years as a grazing paddock as evidenced by the extensive weed infestations across the site and the poor structural and floristic integrity of the native component of the regrowth. From a flora perspective, the subject land could not conform to an 'environmentally sensitive and/or significant area.' It contains neither remnant vegetation of any status under the Vegetation Management Act 1999 nor any endemic taxa of significance from a local, regional, State or national perspective.
The lack of remnant vegetation or taxa of significance would obviate against the Environment Protection Agency being a referral agency for flora matters. Thus, the site could not be deemed, from a flora perspective, to be either 'environmentally sensitive' or 'significant' as per the contentions in the Grounds of Appeal. The flora of the site indicate the past disturbance history of the site rather than providing any evidence of 'environmental sensitivity' or 'significance' of the vegetation or its component flora."
In evidence, he said of the land:
"It is reflective of a weed dominated regrowth site, which is precisely what it is, and I don't believe from an ecological perspective it has any landscape amenity value other than being a potential threat to the surrounding reserve lands because of that high proportion of readily dispersible environmental weeds on the subject site.
There certainly is quite high species diversity on the site; it is just that half of that species diversity is exotic plants. A number of what you would consider to be characteristic native species from the original vegetation mosaic I would say have probably been completely lost and would never - well, it's very difficult to say never in ecological terms but it would be most unlikely to ever occur because we don't have an adjoining or contiguous body of vegetation in an undisturbed state that they can disperse from on to the subject site, particularly given the competition with those exotic weed species.
Yes?‑‑ So from a native species perspective, yeah, it is a depauperate site in the context of undisturbed or natural vegetation.
Is it what? What did you say - what?‑‑ It is depauperate, it is species poor compared to the same vegetation type as that would have occurred originally on the site compared to that which is there now. The species richness of this site is a consequence of the weeds rather than a consequence of high native species diversity."
I accept these opinions.
The other flora witness was Mr Tony Van Kampen, the council's vegetation protection officer. The difference in opinion between him and Dr Olsen as to the significance level attributable to two of the criteria used in assessing the value of the land, does not, in terms of their overall assessment of the land, result in a difference of opinion between them, and in these circumstances, I am unable to attribute to it the weight contended for by the appellant.
Mr Van Kampen concluded, much like Dr Olsen, that in the context of the planning scheme, the land has "a low level of significance" and is "not of high significance" for flora or in fact "of any significance." He conceded that the land does have some visual amenity significance but that is different from the significance with which section 1.2.16.6 of the planning scheme is concerned.
I accept Mr Van Kampen's statements that those flora conservation values he identified are addressed in the development approval and that the conditions of that approval will assist in retaining any environmental values which the site has. See page 18 of his report, Exhibit 10. He expressed himself as follows in his evidence:
"Well, in conclusion then, Mr Van Kampen, given the land is designated urban residential on the strategic plan, it's zoned future residential in the planning scheme, and it is identified in DCP1 as being suitable for cottage development, do you think that the conditions strike a reasonable balance between preserving the values of the site as you see them and the opportunity to develop the land consistent with the planning scheme?‑‑ Yes, I would agree with that. The conditions have been drafted in such a way that some of those environmental values that have been identified here - I mean, they might not be high values but there is some environmental values there and I believe that the conditions would protect those."
He also said that the land does not have high conservation significance under Temporary Local Planning Instrument No 1 and that is the conclusion I have also reached.
The appellant put to him that the land was "rare and unique" but Mr Van Kampen disagreed and said that in accordance with the applicable assessment criteria "and compared to similar vegetation around the Hervey Bay local authority area is it not a rare vegetation site." He agreed that it is rare in Point Vernon because there is not much bush left there, but that assessment does not, in my view, advance the appellant's case, recognising though, that the appellant does not bear the onus of proof in this appeal.
He was also cross-examined by the appellant about wildlife and said, whilst "not a fauna specialist," he did not think the land "constitutes a significant wildlife corridor." That view is consistent with the opinions of the fauna experts who gave evidence and whose evidence I accept.
FAUNA
The evidence here fell on the same side of the line as that relating to flora.
Mr Paul Barden provided a report, Exhibit 7, and gave evidence. In his report, he expressed his conclusions in the following terms:
"3.1.9 The fauna of the subject land is dominated by
species that are likely to occur in small, isolated or disturbed habitats. Based on the limited survey undertaken during March 2004 the vertebrate fauna biodiversity of the subject land is low and areas of the southern subject land support fewer vertebrate species than the areas surrounding the central drainage line and northern open forest/woodland.
4.1The habitat within the subject land has been structurally and floristically simplified by past land uses and has been invaded by a significant number of exotic weed species. These changes are reflected in the range of fauna species detected within the subject land during the current assessment. In general the fauna biodiversity values of the subject land is low and rare & threatened fauna species listed in the schedules of the Queensland Nature Conservation Act 1992 and Commonwealth EPBC Act 1999 have not been detected within the subject land.
4.2The status of components of the subject land as a wildlife corridor has been identified in the notice of appeal as an issue of relevance. In relation to this matter it is relevant to note that:
· There are few fauna species remaining within the subject land that would use wildlife corridors within the local area, as the mammal and other groups within the subject land show a limited diversity of species;
· Areas to the east of the subject land that may be accessed by the open space corridor are dominated by intense urban land use. Any movements by wildlife into these areas would expose animals to threats from domestic animals, vehicle collisions and other threats. Available natural habitats are virtually non-existent in these areas other than occasional isolated or small clusters of remnant canopy trees.
4.3The subject land and in particular the open space corridor cannot be considered to be a component of a functioning or significant corridor for wildlife."
I accept the opinions of Mr Barden. There was no evidence to the contrary sufficient to cause me any unease in acting on what he said.
In evidence he described the ground fauna of the land as "a very poor diversity of species." He said:
"I think that there is a threat to wildlife with any sort of activity of that nature but in the context of this site, the most valuable components of the fauna of the site are really bats and birds. The other fauna, reptiles, frogs and ground mammals, if you are strictly looking at vertebrate species, they are quite species poor and this is really typical of that sort of habitat which has been highly disturbed in the past and invaded by weeds. So if you have a plan which attempts to retain canopy trees and the few significant trees that are there, then the impacts on the fauna will be minimal.
In my experience, and this is in the context of surveying hundreds of sites in the region, I think that the fauna of the site is quite depauperate and particularly so for ground mammals, reptiles and amphibians. I'd say less so for birds and bats which are highly mobile, which are using the canopy resources within the site. But even then in the context of other sites which I have surveyed in the region, I don't believe this site to have a high species diversity for any of those groups."
Likewise, he did not envisage insurmountable problems, as a result of developing the land and having internal roads, for kangaroos which traverse the land. Further, nothing turns on the slight difference in observations of hollows in old trees as breeding sites for bats, birds and arboreal mammals made by him and Mr Van Kampen.
OTHER ASPECTS
The town planners who gave evidence, supported the development conditions as designed to achieve a balance between vegetation retention and residential development. Notwithstanding that I have, like the appellant, Mr Schomburgk, the town planner called by the appellant, and Mr Lewis, some reservations about the extent to which trees will be retained once building commences, and whether spreading tree roots will, over time, damage slabs leading to the removal of the offending trees, I think that the proposed conditions endeavour to ensure that tree removal will be kept to a minimum. This should be seen as a satisfactory outcome in circumstances where the vegetation on the land is not "sensitive and/or significant." Mr Gregg, the engineer called by the co-respondents, spoke of the desirability of designing a footing system for a house capable of co-existing with nearby large trees and I have no reason to think that builders, architects and engineers would not approach matters in that way. See in particular his evidence at page 104 of the transcript and also the evidence of Mr MacNamee at page 140. That would obviate the concerns expressed by the appellant and Mr Lewis about slab damage and consequent removal of offending trees.
Mr Gregg also considered the proposed lot sizes to be "typically characteristic" of what is proposed by the planning scheme and that a larger size would not necessarily lead to greater tree retention. I have, like Mr Schomburgk, the appellant himself and Mr Lewis, some doubts about the latter aspect of this evidence (and similar evidence given by Mr MacNamee) but I cannot see that the lot sizes as proposed, coupled with the development conditions, represent a problem of the magnitude contended for by the appellant. The conditions aim to preserve a significant proportion of the trees on the land and convey the impression of a treed site, particularly when viewed from the outside. As well as the conditions, Temporary Local Planning Instrument No 1, gives the council a degree of control over tree removal. Mr Schomburgk also agreed that the planning instrument provided a mechanism for vegetation retention.
As to lot sizes, I am satisfied that they do not offend and are consistent with the planning scheme and its objectives. They are at the upper end of the size contemplated by the urban residential designation. A size such as is desired by the appellant would most likely be found in the park residential designation. The average lot size is 802 square metres. Were it 900 square metres or more, the council could not refuse an application for a dual occupancy dwelling and that may cause more problems for vegetation retention.
Mr Schomburgk conceded that the land has urban development, low density residential, potential as recognised by the planning scheme. His two main concerns about the proposal assumed the land to be environmentally significant which, in my view of the evidence, it is not.
As part of the rezoning process, the council does not propose to acquire part of the land for public open space. See section 1.2.1.4(v) of the planning scheme. The land does not have intrinsic cultural or conservation values and there is no evidentiary or legal basis for the proposition that I should order, as part of the rezoning process, the contribution by the co-respondents of the whole of the land so that it could form part of the nearby parkland/recreation reserve.
In his brief report, Exhibit 12, Mr Schomburgk refers to section 1.2.16.6(ii)(d) of the planning scheme. This was not referred to in his evidence or that of other witnesses and the appeal was not argued by reference to this provision. On the evidence before me, I am satisfied that the land is not an area of significant remnant vegetation.
I appreciate the concerns of the appellant and others who made submissions in relation to the proposal but I, nevertheless, consider that the co-respondents have discharged the onus which rests upon them. Relevant environmental impacts have been taken into account. See section 5.1.(3)(d) Local Government (Planning and Environment) Act 1990. The views and anxiety of those, including the appellant, Mr Lewis and Mr Staunton, who consider the land to have environmental significance and significant wildlife on it, are outweighed by the other evidence which I accept.
I am unable to agree with the submission of the appellant that "the application as it currently stands will be an environmental disaster." Nor can I agree with him that the evidence of Dr Olsen, Mr Van Kampen and Mr Barden was so riddled with conflict that their conclusions should not be accepted.
In case there is any doubt, I should also record that I am satisfied that the engineering aspects of the proposal have been appropriately dealt with.
The evidence supported the amendment of some of the conditions of the development approval and the decision notice should be amended to reflect the order made by Judge Wilson SC on the 14th of January 2004.
I make the following amendments:
(1)In the Development Application Decision Notice the approved plan will be H/8753 BO2 dated June 2003 and not H/8753 AO2;
(2)Add to condition number 2, after the last word, the words, "with such variations as are required to retain as much vegetation as possible";
(3)In condition number 36, delete the second and third sentences and add in lieu thereof the sentence, "The barrier shall be constructed within the road reserve to a minimum height of 750 millimetres";
(4)In condition number 47, delete the words "constitutes a threat to life or property" and insert in lieu the words, "pose an immediate danger to property or persons".
Subject to these amendments, the appeal will be dismissed.
The co-respondents have asked that I reserve the question of costs until they have had an opportunity to consider these reasons. I will do so, notwithstanding that I have some doubt as to why there should be any departure from the normal rule applicable in such appeals.
I direct that any submissions as to costs be filed in writing with the Court at Townsville within 14 days of today. The submissions are also to be served on each other party within the same time frame. If no submissions are received there will be no order for costs.
I order that the aerial photographs, Exhibits 17A, 17B and 17C, be returned to the solicitors for the respondent at the expiration of the appeal period if there is no appeal, and if there is an appeal, after the appeal has been determined.
I direct the Registrar of the Planning and Environment Court at Townsville to post to the appellant at his address for service a copy of these reasons.
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