Prettejohn v Cairns Regional Council
[2012] QPEC 23
•30 March 2012
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Prettejohn v Cairns Regional Council & Ors [2012] QPEC 23
PARTIES:
ROBERT HUGH PRETTEJOHN
(Appellant)
v
CAIRNS REGIONAL COUNCIL
(Respondent)
CHIEF EXECUTIVE, DEPARTMENT OF ENVIRONMENT AND RESOURCE MANAGEMENT
(First Co-respondent by Election)
SAVE OUR SLOPES COMMUNITY ACTION GROUP INC
(Second Co-respondent by Election)FILE NO/S:
159 of 2010
DIVISION:
PROCEEDING:
Appeal
ORIGINATING COURT:
Planning and Environment Court, Cairns
DELIVERED ON:
30 March 2012
DELIVERED AT:
Cairns
HEARING DATE:
6-17 February and 5-8 March 2012
JUDGE:
Everson DCJ
ORDER:
The appeal is dismissed
CATCHWORDS:
ENVIRONMENT AND PLANNING – PLANNING SCHEMES – CONSTRUCTION OF PLANNING SCHEMES –conflict with planning scheme – conflict with the strategic plan- grounds – complex engineering solutions – minor earthworks – visual amenity
Integrated Planning Act 1997 (Qld), s 4.1.52, s 4.1.52(2), s 6.1.28, s 6.1.29(3), s6.1.30(3)
Local Government (Planning and Environment) Act 1990 (Qld), s 4.4(3)(b), s 4.4(5A), s 5.1(6A)
Sustainable Planning Act 2009 (Qld), s 819Elan Capital Corporation Pty Ltd & Anor v Brisbane City Council & Ors [1990] QPLR 209
Palyaris v Gold Coast City Council [2004] QPELR 162
Weightman v Gold Coast City Council [2003] 2 QdR 441COUNSEL:
C Hughes SC and T Fantin for the Appellant
R Litster SC and P Djohan for the RespondentSOLICITORS:
Williams Graham Carman for the Appellant
MacDonnells Law for the Respondent
Environmental Defenders’ Office of Northern Queensland Inc for the Second Co-respondent by Election
Introduction
This is an appeal against the decision of the respondent on 7 July 2010 to refuse a development application for a Development Permit for a Material Change of Use for dwelling houses and a Development Permit for Reconfiguration of a Lot on land at Taylor Point north of Cairns.
The development application, the subject of this appeal, currently seeks the reconfiguration of Lot 10 on RP 24040 into 30 residential lots plus park and a material change of use for dwelling houses (“the development application”).
The subject site covers the entire currently undeveloped area known as Taylor Point, an area of approximately 18.8 hectares which has frontages to Marana Street, Moore Street and Wilmas Street, Trinity Beach to the south, the only landward side.
The topography of the site consists of low lying land adjacent to the beach to the west and south west, steep rocky cliff faces to the east and a combination of rocky outcrops and beach to the north. Internally, the site rises to a steep ridge running generally in a northerly direction through the site, with a series of gullies running down from this ridge.[1]
[1]Ex 5 para 3.1.2
The site is a well vegetated coastal headland with a variety of vegetation including vine forest which is predominantly on the western side and open forest on the ridge and on the eastern side. Although the precise mix of vegetation was the subject of some dispute, it is currently mapped as showing five remnant regional ecosystems, three of which are classified as being of concern.[2]
[2]Ex 13 para 1.1
Historically, the site has been used for up to three lawful dwelling houses and some unlawful structures along the beachfront, however all of the houses and structures have now been removed.[3] As a consequence Taylor Point presents as a well vegetated headland in a natural state. In reality not inconsequential earthworks have been carried out on the subject site which appear to have created benches not only for the houses which have now been removed, but also in other parts. There is also an extensive network of access tracks linking some of these house sites which were apparently also created a considerable time ago. There is evidence of the use of the site for four wheel drive access to the beach, to the north and west and elsewhere on the site despite the unsuccessful efforts of the appellant to restrict this. Parts of the subject site reveal that it has been used for the unlawful dumping of rubbish, including one car body and there is also evidence of significant habitat disturbance and the presence of a number of invasive weed species including guinea grass.
[3]Ex 5 para 3.1.4
The development application
The appellant seeks to develop the site in an environmentally sensitive way. Despite having an area of about 19 hectares only 30 residential lots are proposed in a Community Management Scheme with nominated building envelopes (“BLEs”) on each residential lot. All vegetation outside the BLEs, the internal road network and internal driveways will be subject to a covenant preventing clearing which is intended to be imposed by conditions running with the land. Two parcels of beachfront land, one consisting of 2.5 hectares and the other of approximately 5,500 square metres are proposed to be dedicated as publicly owned reserves for beach protection and coastal management purposes. Lawful access to the beaches adjacent to the site is to be secured through the transfer of land on both the eastern and western sides of the proposed development. Access to the beach to the north and west is to be facilitated through the construction of a 2.5 metre wide pathway adjacent to the vehicular access for the proposed development in this part of the subject site. Common property comprising of significant remnant vine forest is to be dedicated and through this and other measures, a large area of ecologically significant vine forest is to be preserved. A vegetation management plan is proposed to not only limit the clearing of vegetation outside designated areas but also create a revegetation regime for rehabilitation of disturbed areas of the subject site.
Comprehensive design guidelines are proposed[4] to further limit the scale of dwellings and other built form which may be constructed within the proposed lots.
[4]Ex 90
Access is to be provided by a carefully designed road network consisting of Road B to the east, Driveway A to the south, Driveway B which runs through the centre of the site linking the other two accesses and an elevated pathway for pedestrians and emergency fire vehicles traversing the preserved vine forest and linking Driveway A and Road B to the north.
The development application in a slightly different form, seeking the creation of 39 residential lots, was lodged with the Cairns City Council on 24 August 2004. The EPA stopped the IDAS process in 2005 and as a consequence of lengthy negotiations the Department of Environment and Resource Management (DERM) as the then relevant concurrence agency ultimately approved the proposed development on 9 February 2010. Despite advice to the contrary the respondent resolved to refuse the development application.
The issues in the appeal
The appellant submits that the proposed development addresses all legitimate concerns of the respondent, the second co-respondents by election and members of the public in terms of the impacts the proposed development may have on the visual amenity of Taylor Point and the significant vegetation and ecosystems on Taylor Point and points to a number of grounds which justify the approving of the development application despite any conflicts with relevant planning controls. The appellant emphasises that this is private land that is currently in need of management to address issues such as illegal access, the dumping of waste and the spread of weeds. It is argued that the proposed development will result in a much better outcome for the management of Taylor Point and the protection of its attributes than would otherwise occur.
The respondent and the second co-respondent by election contend that the proposed development is not contemplated by the planning controls for Taylor Point and that it represents an overdevelopment of the subject site which will have unacceptable environmental and visual amenity impacts.
Statutory framework
The appeal is brought pursuant to s 819 of the Sustainable Planning Act 2009 (“SPA”). Accordingly, the Court must decide the appeal under the repealed Integrated Planning Act 1997 (“IPA”). Pursuant to s 4.1.52(2) of IPA 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”.
Owing to the long gestation of the appeal, the planning scheme in force at the time the development application was made was the Planning Scheme for the Balance of the City of Cairns which was gazetted on 29 November 1996 (“the 1996 Planning Scheme”). Accordingly, the transitional provisions in Chapter 6 of IPA apply. Pursuant to s 6.1.28 of IPA as the development application required public notification under the repealed Local Government (Planning and Environment) Act 1990 (“PEA”) it must be processed as if it were a development application requiring impact assessment. Furthermore, IPA provided that the material change of use components of the development application and that the reconfiguration of a lot component of the development application must both be assessed and decided pursuant to the relevant provisions of the IPA.[5]
[5]Section 6.1.29(3) and s 6.1.30(3)
Relevantly, consideration of the material change of use component of the development application required an assessment of “the need for the proposed planning scheme amendment” but only “to the extent…relevant to the application”.[6] In each instance the development application must 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.”[7]
[6]PEA s 4.4(3)(b)
[7]PEA s 4.4(5A) and s 5.1(6A)
The 1996 planning scheme
Pursuant to the 1996 Planning Scheme the subject site was:
(a) designated as a Rural Constrained in the Strategic Plan;
(b) designated as Major Future Tourist Accommodation in the Tourism Strategy Diagram in the Strategic Plan;
(c) zoned partly Special Facilities and partly Rural;
(d) included in the Constrained Development Area Regulatory Map; and
(e) designated Urban Hillslopes and Hillslopes Category B in the Development Control Plan.
The Special Facilities Zone extended over most of the south western portion of the subject site. The form of development specified for the land in the Special Facilities Zone was “Multiple Dwelling Maximum of 252 Units in buildings not exceeding 2 storeys associated Indoor Entertainment, Shops not exceeding 400 m2 Gross Floor Area and associated Outdoor Entertainment”.[8]
[8]Ex 7 p 102
Although some of the proposed development is located within the part of the site covered by the Special Facilities Zone, much of it lies outside it.
Section 5.5.2 contains the Intent and Table of Development for the Special Facilities Zone. It is stated:
“The intent of the Special Facilities Zone is to accommodate a particular form of development on a particular site, where such development is considered in the circumstances to be desirable, but where the inclusion of the land within any of the other zones may enable an undesirable form of development or a wider range of the uses than that being considered.”
Pursuant to the Table of Development, as the subject site was included in a Constrained Development Area, development relying upon the zoning would have required an application for the notification of conditions.
In the Strategic Plan it is stated[9] that development within the Rural Constrained Preferred Dominant Land Use “is not expected to occur unless in accordance with the Strategic Plan, Development Control Plans or any other part of the Planning Scheme”. In this regard it is significant that the subject site was not identified as appropriate for residential housing in the Urban Residential Housing Strategy Diagram. Moreover, the intent for the Rural Zone[10] contemplated large areas of land being protected from urban uses because of their steepness. It is expressly stated:
“It is intended that most Rural zoned land will remain in that zone and only land suitable for Urban purposes that is identified as Urban or Low Density Residential Preferred Dominant Land Use on the Strategic Plan Map and satisfies the intent of the Strategic Plan and can be economically converted to Urban purposes, will be excluded from the zone.”[11]
[9]Section 4.5
[10]Section 5.3.1
[11]Ibid
As noted above the subject site is not identified as being within either the Urban or the Low Density Residential Preferred Dominant Land Use on the relevant Strategic Plan Maps. A dwelling house on an area of greater than 600 m2 is permitted development and prohibited development if the area is less than 600 m2 in the Table of Development for the Rural Zone. Dwelling houses are prohibited development in the Table of Development for the Special Facilities Zone.
The provisions discussed above indicate that the nature and scale of the proposed development is not in accordance with the Strategic Plan.
As noted previously the site is also designated as Category B land in the Hillslopes Development Control Plan (“the DCP”). It seeks to regulate uses requiring the lodgement of development applications. The general intent of the DCP states that it is intended that the “attractiveness and importance of the hillslopes as a habitat be maintained”. It seeks to preserve the scenic quality of the hillslopes. It states further that:
“It is intended that this natural attractiveness be maintained by not permitting development on much of the hillsides. Where development does occur, it should only be on slopes that are safe and stable and in a manner which ensures that there will be no changes to the landscape character, visual appeal or ecological values.”[12]
[12]DCP para 1.2
Particular performance standards are required for land designated Category B. These are relevantly expressed in the following terms:
“For development to be approved in this category, the applicant will need to demonstrate to Council that the land can be made safe and serviceable for the proposed use without resort to, in Council’s opinion:
[i] complex engineering solutions to overcome the constraints;
[ii] the undertaking of anything more than minor earthworks;
or[iii] the need for controls, to ensure that there is no change to the landscape or scenic value of the area, to be placed upon the land use, in excess of those available in the Planning Scheme or Local Laws.”
Section 1.7.4 of the DCP expressly deals with siting and design of buildings and outbuildings. It states, inter alia, that buildings and associated roads shall not be constructed in areas with a slope greater than 1:3.[13]
[13]Ibid s 1.7.4[e]
A number of provisions which expressly address the visual amenity of Taylor Point are also raised for consideration. These include City Image Objective 1 which identifies the view of Taylor Point as making a significant contribution to the “City Image”, City Image Objective 2 which states that the Council will “protect or enhance the scenic qualities of the hillslopes landscape” identified as, inter alia, “the natural skyline or ridgeline of the hillslope” and “the full vegetation cover of the higher and more visible hillslopes”. Significantly City Image Objective 3 states:
“[a] Council will protect or enhance the significant qualities of the beach and foreshore landscapes that are identified as:
[i] the naturalness of the enclosing skyline or ridgelines as viewed from the beach and foreshore;
[ii] the naturalness of the vista of the headlands as seen from the beach and foreshore;
[iii] the particular character of the foreshore locality.
[b] Council will ensure that any proposed development along any beachfront or headland is subservient to the surrounding landscape and unobtrusive when viewed from the beach and foreshore or any distant viewpoints.”
These City Image provisions are called up in the Objectives and Implementation provisions of the DCP.[14]
[14]Section 1.5.1.1
Certain broadly worded nature based conservation objectives were raised by the respondent and the second co-respondent by election but did not assume any particular importance in the course of the appeal.
There is no express support for the proposed development in the 1996 Planning Scheme. The provisions of the Strategic Plan do not identify the subject site as being appropriate for the type of development envisaged by the development application. In assessing the development application, it is important to have regard not only to the provisions of the Strategic Plan which seek to protect the visual amenity of the subject site because of its identified prominence but also to the express constraints placed upon development on Category B hillslopes which contemplate minimal interference with the landform and an uncomplicated development scenario which does not require controls in excess of those available in the Planning Scheme or Local Laws to preserve the landscape or scenic value of the area.
New laws and policies
As noted above, pursuant to s 4.1.52(2) of IPA the court may give weight to any new laws and policies the court considers appropriate.
Given the extensive delays in the IDAS process for assessing and determining the development application, a number of changes have occurred with respect to the relevant planning controls over the subject site. A new planning scheme, Cairns Plan 2005 took effect on 1 March 2005 and was later amended and consolidated into the current planning scheme, Cairns Plan 2009 which took effect on 1 March 2009.
Initially the development rights pertaining to the Special Facilities Zone in the 1996 Planning Scheme were preserved pursuant to s 3.6.2 of Cairns Plan 2005. Moreover, an irregular area covering part of the western area of the subject site was placed in the Tourist and Residential Planning Area and part of the central and eastern area of the site was placed in the Residential 1 Planning Area. The balance of the subject site was placed in the Conservation Planning Area. It is fair to say that both the Residential 1 Planning Area Code[15] and the Tourist and Residential Planning Area Code[16] contemplated residential development, however pursuant to the provisions of the Conservation Planning Area Code[17] land in private ownership in this Planning Area is not to be further developed.
[15]Cairns Plan s 4.5.4
[16]Ibid s 4.5.7
[17]Ibid s 4.5.19
The subject site was also placed largely in the Hillslopes Category 1 (Urban) designation pursuant to the Cairns Beaches District Plan Hillslopes Overlay pursuant to the Hillslopes Code.[18] This designation contemplated “opportunities for limited forms of development” having regard to the constraints of the site, the protection of visual amenity, the protection of landscape character and the provision of safe and serviceable access.
[18]Ibid s 4.6.5
In December 2011, Cairns Plan 2009 was amended to remove the Special Facilities designation from the subject site. Almost all of the subject site was placed in the Conservation Planning Area leaving only tiny portions of it adjacent to the southern boundary designated as suitable for residential development. The hillslopes overlay was amended from Category 1 (Urban) to Category 2 (Urban). Pursuant to the Hillslopes Code land in Category 2 (Urban) “is considered to be unsuitable for development”[19].
[19]Ibid s 4.6.5
There are also a number of provisions of the current planning scheme which address the importance of conserving ecological processes on the subject site and the visual amenity of the subject site in similar terms to the 1996 Planning Scheme.[20] The second co-respondent by election also relies on provisions specifically referring to the importance of conserving the integrity of scenic values of Taylor Point in the Wet Tropical Coast Regional Management Plan 2003.
[20]Cairns Plan 2009 s 2.2.3, 2.2.5, 3.6.1 are examples
The Far North Queensland Regional Plan 2009-2031 (“FNQRP”) came into force on 13 February 2009. It is the “pre-eminent plan for the FNQ region and, therefore takes precedence over all other planning instruments” and “if there is any inconsistency with another plan, policy or code, including another planning instrument made under state legislation that affects the FNQ region, the FNQ Regional Plan prevails”.[21]
[21]FNQRP p 5
The subject site is included within the urban footprint which includes areas unsuitable for urban development because of various values or constraints.[22] Pursuant to s 2.3 coastal land including the subject site cannot be reconfigured or subject to other development inconsistent with the relevant council planning scheme unless it “avoids slopes greater than 1:4 or upwards to and including the ridgeline unless there is an overriding need for essential community service infrastructure.”
[22]Ibid p 32
The factual issues
A number of detailed photomontages were prepared by Mr Elliott, a recognised expert in architectural illustration. He endeavoured to place realistic images of proposed built form, access roads and driveways into the existing landscape. Where he thought it was appropriate he deleted from the image existing vegetation which, in his view, would be removed as a consequence of the proposed development. He was extensively cross-examined and his methodology was criticised. Although I accept that certain prominent trees making up the skyline of the subject site may not have been removed from the post-development images when it is unlikely they would survive, by in large I found his methodology to be persuasive and sufficiently accurate in the circumstances.
Visual amenity evidence was given on behalf of the appellant by Dr Hassall who emphasised that extensive replanting was contemplated by the appellant in seeking to mitigate visual amenity impacts and that what was proposed involved a combination of keeping vegetation removal to an absolute minimum and then further disguising built form and the vehicular access to it by a comprehensive replanting programme to be implemented via a vegetation management plan.
On behalf of the respondent, Mr Chenoweth gave evidence that most of the visual amenity impacts of the proposed development could be mitigated in this manner. Mr Chenoweth did have reservations about certain proposed lots, however I am satisfied that with the imposition of appropriate conditions and minor adjustments to the BLEs these concerns can be satisfactorily addressed. Mr Buttrose, a local architect, who is the president of the second co-respondent by election and a seasoned anti-hillslopes development campaigner, gave visual amenity evidence on behalf of the second co-respondent by election. Whilst he made the point that certain vegetation was likely to be removed over and above that shown in the photomontages prepared by Mr Elliott, I did not find his evidence as to the likely visual impact of the proposed development persuasive. The evidence which he produced was not responsive to the likely development scenario in my view.
Having regard to the relevant provisions of the 1996 Planning Scheme and in particular City Image Objective 2 and City Image Objective 3, I am satisfied that the naturalness of the enclosing skyline and ridgelines as viewed from the beach and the foreshore will be adequately protected in the circumstances and that the proposed development will be subservient to the surrounding landscape and unobtrusive when viewed from the beach, the foreshore or any distant viewpoints with the exception of the development proposed in respect of Lots 13, 15 and 16.
In this regard I accept the evidence of Mr Chenoweth, that prominence of the BLE on Lot 13, being at the top of the ridgeline, means that it cannot be developed without unacceptable impacts having regard to the above considerations. I am of the same view with respect to Lots 15 and 16 because they are on an exposed part of the site adjacent to the eastern cliffs and I accept the evidence of Mr Chenoweth that it is unlikely that supplementary screening vegetation can be relied upon to adequately screen the proposed built form.
Architectural evidence was given on behalf of the appellant by Mr O’Brien and on behalf of the second co-respondent by election by Mr Buttrose. I am satisfied that the proposed design guidelines[23] put forward by Mr O’Brien will ensure in theory that the proposed built form on each of the remaining BLE’s has the potential to be controlled to limit unacceptable impacts on visual amenity. I do note however that Mr Buttrose took issue with the difficulties of enforcing such guidelines.
[23]Ex 90
Evidence as to impacts on vegetation and the amelioration of them was given on behalf of the appellant by Dr Olsen. He expressed the view that the clearing required for the proposed development would not result in unacceptable negative environmental impacts on any of the significant flora values present on the land and that this would be further mitigated by imposition of appropriate revegetation conditions. Both Dr Olsen and Mr Chenoweth the counterpart expert called by the respondent, acknowledged the benefits of the significant protection afforded to the integral vine forest on the subject site. Mr Chenoweth expressed the view that proposed Road B may intrude into the edge of the vine forest worthy of protection, however Dr Olsen disputed this. In this regard I prefer the view of Dr Olsen, however, not much turns on this point. While it is true that Mr Chenoweth acknowledged that the protection of the vine forest on the site would come at the expense of the ecologically significant sclerophyll woodland, the view of both vegetation experts was that the proposed development would ensure the protection of the essential vine forest and that this was the most significant feature on the site in terms of vegetation.
It was also uncontroversial that the vegetation management plan proposed by the appellant, which would control the significant environmental weeds on the site would be beneficial in protecting the significant native vegetation present.
Mr Tucker, an ecologist, also gave evidence and I am satisfied that the proposed development would not have any significant impact on fauna on the subject site. I am satisfied that the proposed development does not offend any conservation strategies in the 1996 Planning Scheme.
Three engineers gave evidence concerning the infrastructure required for the proposed development and its likely impacts. Mr Pommer designed the road network and driveway accesses. In such a constrained site his efforts to minimise the footprint of the infrastructure have led him to exceed a number of design guidelines, however I am satisfied that he has still produced a safe and serviceable design, albeit at the very limits of what is contemplated in this regard. The engineering design is prefaced on agreed geotechnical evidence that with comprehensive geotechnical treatments a sufficiently stable platform for the infrastructure can be laid.[24] In this regard I accept the evidence of Mr De Roma who summarised features of the earthworks required by the proposed development as including a number of different treatments consisting of soil nailing, retaining walls and batter excavation using in excess of 200 individual soil nails, in the order of 1,100 m2 of retaining walls up to 4-5 metres in height and a comprehensive drainage network including up to 1,200 metres of catch drains[25]. Mr De Roma estimates that the volume of the earthworks required would be in the order of 19,200 cubic metres consisting of 16,000 cubic metres of cut and 3,200 cubic metres of fill. He estimates that this is equivalent to filling the entire playing oval of the Melbourne Cricket Ground fence to fence to a depth of approximately 1 metre and that this would require 2,375 standard dump truck movements.[26]
[24]Ex 15
[25]Ex 27, p 3
[26]Ibid p 2
The significant feature of the access provided within the proposed development is the elevated pathway for pedestrians and emergency fire vehicles which traverses the preserved vine forest and links Driveway A and Road B. It is summarised by Mr Gould, the engineer who gave evidence on behalf of the respondent in the following terms:
“The pathway construction involves a bridge structure for the entire 156 m. The pathway crosses two gullies, one of which is some 40 m wide at the crossing point and some 8 m below the pathway. The proposed design incorporates the use of concrete piers supporting stainless steel members and the use of pre-cast concrete deck elements to accommodate the pathway surface.”[27]
[27]Ex 25, para 9.3
It is proposed to construct the elevated pathway within a 5 metre work zone to minimise impacts on the vine forest using an incremental launch technique working from the middle point outwards.
Significant portions of the areas proposed for development within the subject site, particularly parts of the road network and driveways, are designated for slopes greater than 1:3 and even more of the proposed developed area traverses slopes greater than 1:4.[28]
[28]Ex 79
Finally to the extent it is relevant I accept the evidence of Mr Perkins the planner called by the respondent that the proposed development does satisfy a need “at a particular level in the market” and that any requirement to demonstrate a need for the proposed development pursuant to s 4.4(3)(b) of the PEA has been satisfied.[29]
[29]T12-32 lines 30-40
Planning grounds
In the event of conflicts with the Strategic Plan and the DCP in the 1996 Planning Scheme the appellant submits that there are sufficient planning grounds to warrant approval of the proposed development despite any conflicts. These are nominated as being:
(a) Previous decisions of the respondent to retain the benefit of the Special Facilities zoning and to designate areas of the subject site Tourist and Residential and Residential 1 in Cairns Plan 2005;
(b) That the proposed development involves securing lawful public access to the foreshore;
(c) The dedication of about 3 hectares of beachfront land into public ownership as a reserve for coastal management and beach protection purposes;
(d) The better managing of the subject site mitigating the impacts of such things as illegal access and the dumping of waste;
(e) The benefits of managing the vegetation on the subject site and controlling the spread of weeds;
(f) The express protection of over 80% of the vegetation on the subject site to be secured by statutory covenant which includes the essential vine forest; and
(g) The implementation of measures to control erosion and sediment run-off from storm water which are currently evident on the subject site.
The tests to be applied
In Palyaris v Gold Coast City Council[30] Wilson SC DCJ observed that:
“The term “planning grounds” in s 4.4(5A) of the PEA prefaced by the word “sufficient” connotes grounds which would establish positive betterment in terms of planning outcomes which would not otherwise be achievable through the existing Planning Scheme and justify departure from it.”
[30][2004] QPELR 162 at p 169
In Weightman v Gold Coast City Council[31] Atkinson J propounded the relevant test in the following terms:
[31][2003] 2 QdR 441 at 453
“The proposal must be refused in such a situation if there are not sufficient planning grounds to justify the approval despite the conflict. The discretion, as White J observed in Groser v Council of the City of Gold Coast, is couched in negative terms, that is, the application must be dismissed unless there are sufficient grounds. This is a mandatory requirement. If there is a conflict then the application must be rejected unless there are sufficient planning grounds to justify its approval despite the conflict…
In order to determine whether or not there are sufficient planning grounds to justify approving the application, despite the conflict, as required by s 4.4(5A)(b) of the P & E Act, the decision maker should:
1. examine the nature and extent of the conflict;
2. determine whether there are any planning grounds which are relevant to the part of the application which is in conflict with the planning scheme and if the conflict can be justified on those planning grounds;
3. determine whether the planning grounds in favour of the application as a whole are on balance, sufficient to justify approving the application notwithstanding the conflict.”
The nature and extent of the conflict
As noted above, in the 1996 Planning Scheme the Strategic Plan does not contemplate the proposed development on the subject site. This is evident by the failure to include the subject site within either the Low Density Residential Preferred Dominant Land Use designation or the Urban Preferred Dominant Land Use designation and instead including it within the Rural Constrained Preferred Dominant Land Use designation. Furthermore, the subject site was not identified as appropriate for residential housing in the Urban Residential Housing Strategy Diagram A5 but was instead identified on the Tourism Strategy Diagram A4 as having potential for Major Future Tourist Accommodation. The conflicts with the strategic plan are therefore significant.
The DCP provided additional controls in respect of those uses requiring the lodgement of a development application. There was a clear intent in the DCP to limit the nature and scale of development in Category B areas including the subject site. Three separate alternative controls are called up in this regard. Firstly, complex engineering solutions to overcome the constraints of the subject site are not to be resorted to. The term “complex” is not defined in the 2006 Planning Scheme. In the Macquarie Concise Dictionary it is defined as, inter alia, “composed of interconnected parts, compound, composite”.[32] Having regard to the engineering evidence, in proposing a design solution to provide safe and serviceable infrastructure to the highly constrained site, intricate solutions including the provision of an elevated pathway 156 metres in length, to be constructed within a 5 metre corridor utilising incremental launch construction techniques, in my view comes within the definition of complex engineering solutions.
[32]4th Edition Macquarie University 2006
Turning to the second alternative requirement that resort not be had to the undertaking of anything more than minor earthworks. Again the term “minor” is not defined in the 1996 planning scheme. In the Macquarie Concise Dictionary the term is defined as, inter alia “lesser, as in size, extent”.[33] In my view the volume of the earthworks referred to above is such that they are significantly greater than minor earthworks notwithstanding the size of the subject site.
[33]Ibid
The third separate requirement is that resort not be had to the need for controls to ensure that there is no change to the landscape or scenic values of the area in excess of those available in the Planning Scheme. The proposed development is prefaced on the design guidelines put forward by Mr O’Brien ensuring that the built form is acceptable having regard to visual amenity requirements elsewhere in the Planning Scheme. Similarly, a vegetation management plan is proposed to ensure an appropriate outcome in this regard. Obviously, the DCP contemplated difficulties with enforcement of controls on development which were proposed outside of the Planning Scheme or Local Laws and determined that such an approach was not an acceptable way in mitigating the impacts of development in hillslopes land designated as Category B.
The proposed development also clearly contemplates buildings, roads and driveways being constructed in areas with a slope greater than 1:3 contrary to s 1.7.4 of the DCP.
The nature and extent of the conflict with the DCP is flagrant as each of the above requirements is not complied with.
Are there any planning grounds justifying the conflicts and sufficient to justify the proposed development?
Firstly the appellant asserts that the past zoning of part of the site in the Special Facilities Zone and the including of it in the Tourist and Residential and Residential 1 Planning Areas justifies approving the development application despite the conflicts with Strategic Plan and the DCP. The simple fact is, however, that the whole site was never designated for the type of development the subject of the development application and the designations referred to above which might have encouraged the development of some of the subject site for residential purposes have been extinguished by Cairns Plan 2009. Applying s 4.1.52 of IPA I am of the view that it is appropriate that significant weight be given to Cairns Plan 2009 in its current form and to the relevant provisions of the FNQRP which effectively preclude the proposed development.
Secondly, the appellant advances grounds that the proposed development secures the lawful public access to the foreshore and the dedication of about 3 hectares of beachfront land for coastal management and beach protection purposes which would not occur if the land was left undeveloped. The town planner who was called to give evidence by the appellant Mr Schomburgk, conceded that for almost any form of development on the subject site there would be a requirement placed on the owner to provide access to the beach.[34] It is also true as Mr Perkins, the town planner who gave evidence on behalf of the respondent observed, that the current planning scheme contemplates public access across the site in any event.[35] Similar considerations are relevant to the question of the dedication of erosion prone land for coastal management and beach protection purposes.
[34]T10-67 L20-30
[35]Ex 5 para 7.11.4, Ex 5A Figure 10
Thirdly, the appellant submits that the site will be better managed by mitigating impacts from illegal access, dumping of waste and the like and that the development of the subject site will also ensure proper management of its environmental assets and the control of the spread of weeds and reduced erosion and sediment run-off. These are clearly planning grounds which are relevant to the exercise of determining if the conflict can be justified.
In Elan Capital Corporation Pty Ltd & Anor v Brisbane City Council & Ors[36] Quirk DCJ stated:
“It should not be necessary to repeat it but this Court is not the Planning Authority for the City of Brisbane. It is not this Court’s function to substitute planning strategies (which on evidence given in a particular appeal might seem more appealing) for those which a Planning Authority in a careful and proper manner has chosen to adopt.”
That passage is relevant to the determination of the question of whether the securing of access to the beach for the public and the better management of the site from an environmental perspective justify a development application which is at substantial variance from what is envisaged in the Strategic Plan and DCP of the 1996 Planning Scheme. The lack of support for the proposed development in the Strategic Plan and the DCP is only reinforced by the current planning scheme provisions and the parts of the FNQRP relevant to the subject site. In weighing the above planning grounds with the clear planning intent in the Strategic Plan and DCP of the 1996 Planning Scheme, I am of the view that the planning grounds are not, on balance, sufficient to justify approving the development application notwithstanding the conflict.
[36][1990] QPLR 209 at p 211
Conclusion
The proposed development has merit. It seeks to limit its impacts from both a visual amenity and ecological perspective. It would provide some benefits in terms of environmental controls and a formalised and developed lawful access to the adjacent beach, however, these benefits do not warrant derogating from the very clear planning intent that Taylor Point is not to be developed for residential purposes in the manner proposed.
The appeal is therefore dismissed.
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