Prodap Services Pty Ltd v Gold Coast City Council

[1999] QDC 61

DISTRICT COURT OF QUEENSLAND

CITATION:	PRODAP SERVICES PTY LTD v GOLD COAST CITY COUNCIL [1999] QDC 61
PARTIES:	PRODAP SERVICES PTY LTD (Appellant) GOLD COAST CITY COUNCIL (Respondent)
FILE NO/S:	P & E Appeal No. 697 of 1999
DIVISION:	Planning & Environment Court
PROCEEDING:
ORIGINATING COURT:
DELIVERED ON:	21st December 1999
DELIVERED AT:	BRISBANE
HEARING DATE:	25th October- 5th November 1999
JUDGE:	QUIRK, DCJ
ORDER:
CATCHWORDS:
COUNSEL:
SOLICITORS:

1. This is an appeal against a refusal of an application for a material change of use and a reconfiguration of land at Nerang.  The land occupies almost 9 hectares in an elevated position about 3 kilometres west of the centre of Nerang.  It has frontage to Armstrong Way and lies between the 60 metre and 110 metre contour with some parts of it being fairly steeply sloped.  The full physical description of the site is found in the comprehensive material placed before the court.

1. In the late 1980’s, the land was included in the Special Residential zone.  This zoning was maintained in the relatively recent (February 1995) gazettal of the Town Planning Scheme for the Albert Shire.  The approved plan of development for the subject land showed a “town house” type of development involving in excess of 200 units.

1. The proposal was described in the application as:

“(a)A material change of use of premises for development in accordance with the residential A zone and

(b)Reconfiguration of a lot to achieve 84 allotments”.

1. Some revision of the proposal has resulted in a reduction of the number of lots to 81.  The allotments and access roads are generally in the less steeply sloped parts of the site, there being a dedication of about 1.9 hectares (the steeper areas) as open space.  A full description of the proposal and its layout can be seen from exhibits before the court.

1. The application was lodged after the commencement of the Integrated Planning Act.  As a “transitional planning scheme” is in place it must be decided in accordance with s.6.1.30 and by reference to s.4.4(5), (5A), s.5.1(6) and (6A) of the Local Government (Planning and Environment) Act.  Essentially the issues to be determined in the appeal are:

1.          Whether the proposal is sufficiently consistent with the planning strategies for the area set out in the Town Planning Scheme.

2.          Whether the proposal gives adequate attention to;

(a)        Possible bushfire hazard

(b)        Stormwater erosion (particularly in the construction phase)

(c)        Appropriate dedication for park purposes

1. The subject land is presently undeveloped.  To the southeast it is bounded by Armstrong Way.  To the north it adjoins land upon which a townhouse development fronting Ben Lomond Drive has taken place.  Otherwise it adjoins undeveloped and forested land.

1. On the other side of Armstrong Way there is a substantial area (the Highland Park Estate) which is zoned residential A and has been developed consistently with that zoning.  Further along Armstrong Way and up-slope of the subject land there is a large area (the Outlook Estate) being developed for residential purposes. 

1. The respondent’s town planning opposition to the proposal focused upon certain passages in the Strategic Plan.  The subject land is included in the Urban Residential designation in the Strategic Plan.  A major concern was the visual impact of urban development of this presently undeveloped, elevated and fairly prominent location.

1. The matter was examined by 2 experienced consultants, Mr Van Pelt (for the appellant) and Mr Chenoweth (for the respondent).  Their analyses were comprehensive and involved viewing the subject land from different vantage points.  The results of their efforts were explained in their evidence which was assisted by photographic representations which were placed before the court.

1. Necessarily an appreciation of the likely presentation of the proposed development had to be made.  In that respect Mr Van Pelt was quite optimistic while Mr Chenoweth was less so.  However for the purposes of deciding the case I am prepared to accept that residential development taking the place of natural vegetation would be visible from a number of locations particularly in areas closer to the subject land.  However I also accept that this impact will be softened by tree retention and additional plantings that were discussed in the evidence.

1. However as important as what will be visible is the context in which it will be seen.  Mr Chenoweth feared that the proposal would represent:

“An unwelcome intrusion into the existing bushland setting”.

It is true that the site is presently part of a prominent area of bushland.  However equally true is the fact that it is but one element in a landscape which includes not only bushland but close urban settlement below, beside and above it.  Mr Van Pelt put it in this way:

“In terms of land cover, the site is generally seen in the context of urban development and forested spurs and ridges with both often at greater elevations than the site.  Normal landscape theory would allow for borrowing of visual character from either of those character types to achieve a visually integrated change keeping in mind matters of scale of change”.

1. Professor Brannock, the appellant’s town planning consultant, observed;

“ the development proposal is typical of development within the site’s locality and as such will not introduce a visual intensity nor urban form of greater built intensity discordant with the urban character of the locality.”

He further stated:

“The subject site is effectively surrounded by existing residential development and such locational attributes of the site mean that it is an in-fill development site which will have a minimal impact on the existing urban character and visual amenity of the area.  When the site is viewed from most external viewpoints, it is seen in the context of its adjoining residential land use”.

1. Attention was drawn to Shire Image Objective 1 – “to identify, maintain and enhance elements which constitute and contribute to shire image”.

And Objective 4 – “to retain the skyline and upper slopes of the foothills and hinterland ranges predominantly in their natural states”.

Whether we are here dealing with a skyline (such as is referred to in the Strategic Plan) or an upper slope of a foothill was a matter of some conjecture.  In fairness it has to be said that most witnesses were prepared to accept that we might be.  However Mr Van Pelt made the point that:

“The dominant features are the more distant and larger Darlington, Beechmont and Tallai ranges against which the ridgeline on which the site occurs is in the background.  On the side ridge, the site is a small part and well down the slope on a minor spur adjacent to, and in part enclosed by current residential development on the main north-south ridgeline”.

1. It was submitted on the appellant’s behalf that the reference to foothills as a major image element in Shire Image Objective 1 strongly suggests that these objectives are directed to topographical features which are far more significant than the minor ridge on which the subject site is located.  The provisions are directed to the major topographical features which are higher and constitute the skyline and upper slopes of hill systems rather than minor ridges.  I believe there is considerable force in this submission.

1. Regarding the evidence in respect of visual impact my preferred view is that while the proposal will certainly be visible, it will take its place in a setting strongly influenced by urban development that has already occurred.  The observation of Professor Brannock that it may be fairly regarded as “in-fill development” it is apt.

1. The respondent’s case relied heavily upon Urban Residential objective 1:

“To promote a high standard of amenity in residential areas; in particular to promote the qualities of quiet, safety, visual attractiveness, privacy and clean air”.

Particular attention was drawn to implementation provision (viii) which is a lengthy one but relevantly to this appeal contains the following statements:

“Some land included in Urban Residential areas on the map is not well suited to residential use and has high value for open space.  These lands include where the general landform is steeper than a 20% slope for stable soils and 15% slope for unstable soils, steep hill slopes and ridge tops in the hinterland foothills (for example Reedy Creek, Worongary, Gaven), flood plains (for example, Coomera), creek corridors and banks, forested foothills and remnant bushland.  Where these areas include or abut land shown on Strategic Plan map 5 as, open space corridors or areas defined on map 2 as conservation support areas.  Council will aim to conserve such lands in an undeveloped state or if developed, retain at least 75% of vegetation on the site, to provide visual relief for the abutting urban area, and for maintaining the visual quality of the Shire at large, as it develops and for conservation, buffers, water quality protection and recreation generally.  Council will usually endeavour to acquire such lands for public open space, as part of the rezoning process, as the means to best ensure their conservation”.

1. The application of this provision to the case raises a number of questions:

Firstly, Is the general landform (of the subject land) steeper than 20%?  Mr Chenoweth thought it was (adopting an approach that evidently found favour with His Honour Judge Hanger in Peter Mills Holdings Pty Ltd and Gold Coast City Council and Ors 1999 QPELR 226 at 231).

Mr Brannock took a contrary view pointing out that the greater part of the subject land intended for inclusion within the residential estate (with the housing lots) was of a slope of less than 20%.  Accordingly, he said, the general landform is less than 20%.

1. Secondly, leaving aside slope is this land really of a kind referred to in the objective? The land at which the limitation upon development appears to be aimed is that which includes or abuts land shown on Strategic Plan map 5 as Open Space Corridors or areas identified on map 2 as Conservation Support Areas.

1. The subject land does not include or abut a Conservation Support Area.  At its western extremity it has a minor point of connection with land which has an Open Space designation on Strategic Plan map 5.  However the Strategic Plan draws a distinction between areas with an Open Space designation and areas designated as Open Space Corridors.  The map provides different legends for these designations and in some cases the corridor designation appears within areas designated as Open Space and in other cases in areas with different designations.  Accordingly there is force in the submission that the subject land does not include or abut a corridor on the map. Whether this was intended is not easy to say.  It certainly introduces an element of confusion into the exercise.

1. However it is unnecessary to dwell on these difficulties.  Whatever might be the “general landform” of the subject land there is no suggestion that, in engineering terms, there would be undue difficulty in development as proposed.  The land’s topography is certainly comparable with the Outlook and Highland Estates with the development of which Mr Bate, the appellant’s civil engineer, was associated.  His opinion was that the design of works associated with the proposal could be satisfactorily addressed “in a practical and sensible way”.

1. The real difficulty for the respondent’s case was its reliance upon selectively chosen passages from the Strategic Plan which are of general application and its inability to overcome provisions of the Town Planning Scheme (of which the Strategic Plan is a part) which apply directly and specifically to the subject land.  I refer to its zoning as Special Residential which pre-dated the scheme but was maintained in it (as was the lands Urban Residential designation in the Strategic Plan).

1. The zoning applies to the whole of the subject land and must be seen as a strong indication of the land’s suitability for development consistent with that zoning.  It was universally accepted that this proposal was (in planning terms) a preferred form of development to that shown in the relevant plan of development for the Special Residential zoning.

1. If it is the case that some conflict with the wording of parts of the Strategic Plan can be demonstrated, in my view of the evidence there are ample planning grounds to justify approving the application despite any such conflict.

Bushfire Hazard

1. As can be seen from the relevant plan of layout, the proposed allotments gain access to Armstrong Way at 2 points by way of a loop road.  A short cul-de-sac runs from the loop road along a spur to the northwest giving access to 17 of the allotments.

1. Fairly extensive areas of forest stretch away to the south and west.  Because of this and the area’s topography, it has been classified as one of “moderate to heavy” fire danger in a recently compiled “Gold Coast City Council Bushfire Management Strategy”.  This strategy, while not a formal town planning document, provides guidance and suggestion as to steps to be taken by the Council to develop an integrated approach to fire management within its local authority area.

1. Because of ever increasing awareness of the perils for life and property of fires burning out of control, there is now a wealth of published material suggesting measures that should be adopted to guard against such dangers.

1. That the possibility of a bushfire threat should be taken into account in a proposal’s design is a matter raised specifically in the Strategic Plan when it deals with issues relating to quality of life, health and safety, particularly when development in areas of higher slopes is under consideration.

1. However quite independently of this, the matter is one which requires close attention and it received such attention in the evidence called in this case.  Two appropriately qualified experts were called, Mr Hawkes (by the appellant) and Mr Gullen (by the respondent).  Additionally an architect, Mr Forgan-Smith was called to say that there would be no real difficulty in constructing, on the proposed allotments, residences that would satisfy the recommendation in relevant standards (AS 3959) and other Government publications dealing with these matters.

1. In his detailed assessment Mr Hawkes gave what I found to be a thorough but moderate and sensible appraisal of the proposal.  He accepted that risks existed and that a Bushfire Management Plan was called for.  A number of suggested measures were identified including:

1.          The specification of building envelopes and suitably cleared areas around these.

2.          The removal of dead or dangerous trees.

3.          The reduction of fuel loads on the subject land and in areas of existing and proposed open space.

4.          The suitable provision of fire hydrants throughout the estate.

1. In the course of evidence he suggested a set of conditions (exhibit 42) that could attach to any approval.  While it is accepted that such conditions could not ensure that appropriate measures are adopted on land outside the subject land it has to be recognised that a good deal of the adjoining land is already allocated to Public Open Space.  In view of the Council’s demonstrated awareness of the importance to the community of these matters it would not, in my view, be unreasonable to anticipate a responsible approach to fire management in these areas.

1. Mr Hawkes acknowledged that, as a general rule, a cul-de-sac is not a favoured element of subdivision design in such areas.  However, for reasons which he gave, he believed that with the relatively short length of this cul-de-sac and the level of risk management that could be achieved in this case, the result would be not unacceptable.

1. In contrast to the even-handed assessment of Mr Hawkes, Mr Gullen’s approach was, in my view, unhelpfully negative.  In painting a fairly grim picture he relied on what he had to concede were extreme fire conditions and “worse case scenarios”.  There also appeared to be some confusion in his assumptions regarding weather patterns and the proper interpretation of published material particularly the Bushfire Management Strategy.

1. I do not wish to appear overly critical of Mr Gullen and I accept that a cavalier approach to the matter of public safety would never be acceptable.  However I am satisfied on the evidence of Mr Hawkes that proper arrangements could be made for the proposal in the realm of bushfire management and that it should not be rejected on that ground.

Stormwater Erosion Hazard

1. The risk of the transportation by stormwater of unacceptably high levels of eroded soil is a matter to which attention must be given particularly during the construction stage.  Two experienced consultants, Mr Sutherland (called by the appellant) and Mr Gilbert (by the respondent) gave attention to this matter in the carefully prepared assessments which they presented to the court.

1. It was not really suggested that the problem was one which could not be overcome but it was the method that should be adopted that gave rise to some debate.  Mr Gilbert was concerned that the siltation fences upon which reliance was placed by Mr Sutherland would not cope adequately having regard to the erodability of soil on site.  This could lead to dispersion of particulate material to a level which would be beyond the capacity of the fences to deal with.

1. One of the major grounds for such concern was the results of an analysis of a soil sample from the site which disclosed an inordinately high “K-factor”.  While Mr Sutherland had doubts whether this result was representative, Dr Lock, a very experienced soil scientist, was called to verify the result in which he expressed “considerable confidence”.  He added that, in the circumstances,

“The expectation of extremely high erosion rates is very, very reasonable”.

1. Again this is a matter which cannot be dismissed lightly but it is fair to say that it arises in an area of engineering upon which increasing demand is being placed with added emphasis being given to environmental matters.  A number of cases recently before the court have illustrated the importance attached to the topic and it is now virtually routine that satisfactory “Stormwater Management Plans” are required with developments where the difficulty is likely to arise.

1. It is accepted by the appellant that an appropriate Stormwater Management Plan should be submitted when the final engineering design for the subdivision is settled.  It is not suggested that it would be beyond the competence of the appellant’s engineers to attend to this and I am satisfied that the matter can be left on that basis.  I find that it is not a matter which warrants the proposal’s rejection.

Park Contribution

1. There is a dispute in respect of the contribution made by the proposal to land for park purposes.  The evidence indicates that, of a total area of 8.9 hectares, it is proposed that 1.91 hectares is to be dedicated to open space.  This represents about 21% of the total area.

1. It is true that a good deal of this area is steeply sloped but it is contiguous to land already set aside for open space purposes.  Its utility for recreation purposes is to be enhanced by the creation of walking paths, stairways and other structures that would add to its accessibility.

1. Additionally the appellant has offered to contribute an amount of $50,000 towards the upgrading of a nearby area of open space (off Kilmuir and Trafalgar Streets).  On the evidence given, although this area is conveniently located for local residents (and would be for those of the proposed subdivision) there is room for improvement to its accessibility and utility.

1. Although there is some reference to the topic in the Town Planning Scheme, the matter of park provision is dealt with specifically in the Local Government (Planning and Environment) Act.  Section 5.1(3)(M) identifies one of the matters relevant to the consideration of an application to subdivide land as being:

“Whether in accordance with s.5.6(1) provision should be made for parks”.

1. Section 5.6(1) provides:

“Where in respect of land the subject of an application to subdivide, land has not been previously surrendered for parks or a contribution made to a local government instead of a surrender, the local government may require as a condition of approval of an application to subdivide land for residential, commercial or industrial use, whether or not by way of a staged subdivision, that –

(a)        An area of land be provided for use as a park; or

(b)        A monetary contribution be paid to the local government in substitution for the provision of that area of land; or

(c)        Works be provided for the improvement of land for use as a park (including the development of recreation facilities); or

(d)        Any combination of paragraphs (a) to (c) be implemented.”.

1. Subsection (2) provides:

(a)        “The area of land to be provided pursuant to subsection (1)(a) is to be suitable for the type of park proposed and is to be the area provided for in a local planning policy but not exceeding –

...

(b)        In any other case – an area that is 10% of the area of land to be subdivided”.

1. The Town Planning Scheme (in s.16.7.2(1)) provides that the land proposed to be offered for use for the purposes of public garden or recreation space should:

“Be comprised of land that is a fair average of the type of land to be subdivided”.

Section 16.7.3(1) provides:

“Where the Council considers that an area of the land to be subdivided need not be provided for use as public garden or recreation space, it may require the applicant to pay to the Council an amount for each allotment proposed in the plan of subdivision, which amount shall be determined by a local planning policy adopted by Council from time to time”.

1. The evidence given in the appeal did not really establish whether or not at least .89 hectares of the land proposed to be dedicated was a fair average of the type of land to be subdivided but it would appear to be more steeply sloped than the areas intended for use for residential allotments.  The “contribution in lieu” was not attacked on the basis of quantum but on the ground that this was not a case where it could be fairly considered that:

“An area of the land to be subdivided need not be provided for use as public garden or recreation space”.

1. The answer to that question must now be provided by this Court and it must be given against the background of the community’s interests.

1. Because of the latitude offered by s.5.6(1) (particularly (d)) and the advantages to the local community of an improvement in accessibility to the already existing open space area, it is difficult to say that the result would not be a reasonable one.  For these reasons I would not reject the proposal on this ground.

1. On the whole of the evidence I am satisfied that the onus of showing that the application is one that should be approved has been discharged.  Accordingly the appeal will be allowed but I will adjourn the matter to enable appropriate conditions of approval to be settled.