Quagliata v Cassowary Coast Regional Council

[2009] QPEC 105

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:	Quagliata v Cassowary Coast Regional Council [2009] QPEC 105
PARTIES:	MARIO QUAGLIATA (Appellant) v CASSOWARY COAST REGIONAL COUNCIL (Respondent)
FILE NO/S:	13 of 2009
DIVISION:	Planning & Environment
PROCEEDING:	Appeal
ORIGINATING COURT:	Cairns
DELIVERED ON:	23 October 2009
DELIVERED AT:	Cairns
HEARING DATE:	5-6 & 14 October 2009
JUDGE:	Everson DCJ
ORDER:	The appeal is dismissed
CATCHWORDS:	PLANNING – PLANNING AND ENVIRONMENT – reconfiguration of a lot – non compliance with codes – insufficient grounds.
COUNSEL:	D Morzone for the appellant T Fantin for the respondent
SOLICITORS:	Miller Bou-Samra Lawyers for the appellant P&E Law for the respondent

Introduction

1. The appellant is part of a prominent and long established cane farming family in the Feluga district near Tully in Far North Queensland. He manages the family farms in consultation with other family members. Over the past 15 years his family have been buying neighbouring properties to increase the size and productivity of their farms. They have aggregated a number of farms into a relatively large scale operation. The appellant has also been responsible for the creation of rural lifestyle allotments in the vicinity of the East Feluga Road. These are small lots which are not generally used for commercial agriculture.

1. This appeal arises as a consequence of the refusal by the respondent of the appellant’s reconfiguration application which the respondent contends would create yet another rural lifestyle allotment on East Feluga Road, contrary to its planning scheme.

The Proposal

1. The appellant and his mother own the large, irregularly shaped Lot 297 on S.P 210301 (“Lot 297”). It has frontages to both East Feluga Road to the north and Old Telegraph Road to the east. On the opposite side of Old Telegraph Road further to the east is the much smaller Lot 4 on R.P 719981 owned by a third party (“Lot 4”). Lot 297 has an area of 51.46 hectares and lot 4 has an area of 5.88 hectares. Lot 4 is constrained by high voltage power lines which traverse it via an easement. While Old Telegraph Road is unsealed, East Feluga Road is sealed providing, in the words of Mr Robinson who gave planning evidence on behalf of the appellant, “safe, convenient and flood free access to the employment and other opportunities available both at Mission Beach and Tully.”[1] Until recently both lots have been used to farm sugar cane, however at present Lot 4 is fallow. So far as lot 297 is concerned Mr Robinson makes the following observation:

   “In the immediate vicinity of the site, a very large proportion of the land fronting East Feluga Road is relatively small rural lifestyle allotments each containing a dwelling and a few hobby farm activities.”[2]

   [1] Ex 5 Para 10

   [2] Ibid para 21

2. Both lots are mapped as a containing Good Quality Agricultural Land (“GQAL”). In the case of Lot 297 it is mapped as class A1 and in the case of Lot 4 it is mapped as Class A2.

1. By his application the appellant proposes to reconfigure Lot 297 and Lot 4 to create Proposed Lot 2 with an area of 53.65 hectares and Proposed Lot 1 with an area of 3.69 hectares. Proposed Lot 1 is to be excised from Lot 297 and Proposed Lot 2 is to be created by amalgamating the balance of Lot 297 with Lot 4. As it is expressed in the Joint Report of Town Planners filed 2 September 2009 “Proposed Lot 2 would have two parts, and … be joined by vinculum across Old Telegraph Road.”[3] Proposed Lot 1 is intended to front East Feluga Road and be approximately 99 meters wide and 370 meters deep. It is described by Mr Robinson as a “tongue of land… sandwiched between two rural lifestyle allotments each containing a dwelling.”[4]

   [3] Para 6

   [4] Ex 5, para 19

The disputed issues

1. The appellant’s development application was code assessable. It was refused by the respondent because of conflicts with the Rural Zone Code and Reconfiguring a Lot Code in its Planning Scheme.[5] In his notice of appeal the appellant took issue with the respondent’s grounds of refusal. Pursuant to an order of the court made on 27 April 2009 the disputed issues in the appeal were identified as the issues notified in the notice of appeal and the further and better particulars of the respondent’s reasons for refusal filed on 30 March 2009.

   [5]Cardwell Shire Council Planning Scheme effective 9/7/07

The relevant planning provisions

1. In the respondent’s planning scheme the intent of the Rural Zone Code is stated in the following terms:

“The intent of the Rural Zone is to protect and conserve the viability of GQAL, the being land which is capable of sustainable use for Agriculture, with a reasonable level of inputs and without causing degradation of land or other natural resources”

1. The term “Agriculture” is defined as:

“Any land used to produce any crop or pasture for the production of food, fibre, energy or other use. The term includes the use of land for crop and animal production (grazing), but excludes intensive animal uses such as feedlots, piggeries and poultry farms which are separately defined. The term includes those activities considered incidental and ancillary to or necessarily associated with agriculture, including farm accommodation (maximum of 10 persons with shared kitchen and ablution facilities), road side stalls that do not exceed 20m² in floor area, machinery and packing sheds associated with the farming activity. The term however excludes central packing sheds which are separately defined in the Light Industry.”

1. In the Rural Zone the only self assessable uses are “Agriculture” and “Dwelling House”. Reconfiguring a Lot is code assessable. Section 4.1 identifies the Rural Zone Code and the Reconfiguring a Lot Code as applicable codes for assessing an application of the type the subject of this appeal, namely an application for Reconfiguring A Lot in the Rural Zone.

1. Relevantly the Rural Zone Code contains the Purpose Statement that an Outcome sought from the application of the code is that:

“Land in the Rural Zone is not reconfigured by a boundary realignment to create rural lifestyle blocks which have the potential to negatively impact on rural viability and the rural amenity and character of the area.”

1. Thereafter in the Table of Outcomes and Solutions, Outcome 4 states “Allotments are of a sufficient area and dimension to ensure that long term agricultural viability is maintained or achieved.” Corresponding Probable Solutions specify that on land classified as Class A on the Agricultural Land Overlay maps, which includes both Lot 297 and Lot 4, any reconfiguration results in lots which exceed 30 hectares, and that boundary realignments “do not result in the creation of small rural lots which are unviable and compromise rural utility, character and amenity.”

1. The Reconfiguring A Lot Code contains Purpose Statements that the purposes of the code are to ensure that “Lots are suitable for their intended purpose” and that “Lot reconfiguration in the Rural Zone does not result in the fragmentations or alienation of GQAL.” In the following Table of Outcomes and Solutions, Outcome 6 provides that lot sizes and dimensions are to be compatible with, inter alia, “the projected user requirements having regard to the agricultural quality of the land.” The corresponding Probable Solution states that “Lot areas will comply with the minimum area requirements specified in the Zones or Precinct Codes.”

1. Section 4.1.52 of the Integrated Planning Act 1997 (“IPA”) provides while the court must decide this appeal on the laws and policies applying to when the development application was made, it “may give weight to any new laws and policies the court considers appropriate.” The development application was made on 10 April 2008 and was ultimately refused by the respondent on 16 December 2008. The Far North Queensland Regional Plan 2009 – 2031 (“FNQRP”) came into effect on 13 February 2009. The FNQRP is described as “the pre-eminent plan for the FNQ region” taking precedence over all other planning instruments pursuant to chapter 2 Part 5A of IPA.[6]

   [6] FNQRP p5

1. The FNQRP places both Lot 297 and Lot 4 in the Regional Landscapes and Rural Production Area. In this area the policy evident in the respondent’s planning scheme to restrict the creation of small lots and to ensure the viability of rural land holdings is reinforced. Significantly S 2.6.4 states that “(b)oundary realignments should not be permitted to create new small lots for rural residential or rural lifestyle purposes.”[7]

   [7] Ibid section 2.6

1. Unlike in the respondent’s planning scheme where the term “rural lifestyle” is not defined, in the FNQRP it is defined as “land that is zoned rural in a local government planning scheme but has a lot size of 0.25 – 5 hectares and has the potential to be used a lifestyle block (sic).”[8] Pursuant to State Planning Regulatory Provisions which came into effect with the FNQRP, subdivision in the Regional Landscape and Rural Production Area which results in lots of less than 60 hectares requires referral agency assessment.

[8] Ibid p. 178

Relevant provisions of IPA

1. In Chapter 3 Part 5 of IPA a restricted assessment process for code assessable applications is set out. Of particular relevance is S. 3.5.13 which is in the following terms:

“(1) This section applies to any part of the application requiring code assessment.

(2) The assessment manager must approve the application if the assessment manager is satisfied the application complies with all applicable codes whether or not conditions are required for the development to comply with the codes.

(3) Subject to subsection (2), the assessment manager’s decision may conflict with an applicable code only if there are sufficient grounds to justify the decision despite the conflict, having regard to—

(a)   the purpose of the code; and

(b)   if they are not identified in the planning scheme as being appropriately reflected in the planning scheme—

(i)State planning policies, or parts of State planning policies; and

(ii)for the planning scheme of a local government in the relevant area for a State planning regulatory provision—the provision; and

(iii)for the planning scheme of a local government in a designated region—the region’s regional plan.

(4) However, if the decision is made under subsection (3) (a) and the assessment is against a code in a planning scheme—the assessment manager’s decision must not compromise the achievement of the desired environmental outcomes for the planning scheme area.”

1. The meaning of this provision was explained by Wilson SC DCJ in Central Equity Limited v Gold Coast City Council [9] in these terms:

“… The process is explained in s 3.5.13 which requires the assessment manager to, firstly, assess the proposal against the Acceptable Solutions. If it complies, approval must be granted. If not, the proposal is assessed (as an ‘alternative’ solution) against the Performance Criteria of the Codes. If, according to this exercise, the proposal complies it is taken to satisfy the Codes and must, again, be approved. If it does not comply, the assessment manager must determine if conditions can reasonably be imposed to achieve that end. If so, approval may follow through this third avenue: S. 3.5.13(2).

If, at the end of these exercises, the proposal is still in conflict with the applicable Codes the assessment manager must consider whether there are sufficient grounds to justify the conflict, having regard to the purpose of those Codes. If no sufficient grounds arise, the proposal must be refused. If grounds do present, the assessment manager must consider whether the decision would compromise the achievement of the DEOs for the planning scheme area and, if compromise is found to arise, refuse the application. In the absence of compromise, the proposal may yet be approved.”

[9] [2007] QPEC 006 at [11] – [12]

Discussion

1. It is uncontroversial having regard to S. 3.5.13 (3)(b) that all relevant State planning policies that were identified as being reflected in the respondent’s planning scheme and, as noted above, the FNQRP did not come into effect until well after the development application had been made. It is equally uncontroversial that while the planning scheme under consideration by Wilson SC DCJ in the passage quoted above used the terms “Performance Criteria” and “Acceptable Solutions”, the respondent’s planning scheme uses the equivalent terms “Specific Outcome” and “Probable Solutions” in each instance.

1. So far as Proposed Lot 1 is concerned there is a clear failure to comply with the Probable Solution to Specific Outcome 4 of the Rural Zone Code because Proposed Lot 1 does not exceed 30 hectares. There is a consequential failure to comply with the Probable Solution to Specific Outcome 6 of the Reconfiguring A Lot Code. Accordingly  the focus of the hearing turned to the likely fate of Proposed Lot 1 in the context of ensuring its long term agricultural viability and whether a rural lifestyle block was a likely outcome should the appeal be allowed. In the course of the hearing it was conceded by counsel for the appellant that the amalgamation of Lot 4 was only sought in the event the excision of Proposed Lot 1 was approved.

1. The appellant gave evidence that Proposed Lot 1 was difficult to farm as part of a larger sugar cane block for various reasons and it is currently cultivated with corn. He asserted that it was better suited for small cropping. Fortunately he has a friend, Mr Samperi whom he describes as being like a brother to him who is interested in purchasing Proposed Lot 1 for this purpose. Although no contract has been entered into between them, the appellant asserts that a sale of Proposed Lot 1 will enable the purchase of Lot 4 which can be efficiently worked as a cane paddock in conjunction with the balance of Lot 297.

1. Mr Samperi is a mechanic who runs a motorbike dealership in Tully. He gave evidence that he intends to continue live and work in Tully but would be interested in purchasing Proposed Lot 1 and farming it on a part-time commercial basis, with assistance from various family members. He is interested in growing zucchini, watermelons and pumpkins and ultimately building a packing shed and a house on Proposed Lot 1. Under cross examination Mr Samperi stressed that what was proposed was in very general terms and no final price had been agreed with the appellant. He also conceded that he had not discussed buying the similar sized adjoining block from the appellant which was created in 2006 and sold to a third party who built a house on it and does not commercially farm it. The appellant readily concedes that if he was successful in this appeal there is nothing consequential upon his discussions with Mr Samperi which would prevent him from selling Proposed Lot 1 on the open market. In a planning case the subjective intentions of individuals concerning their plans for the future use of land need to be regarded with scepticism and caution.

1. Evidence was given on behalf of the appellant by Mr Fitzgerald an agronomist who has previously worked with both the appellant and Mr Samperi. He stressed the benefits of incorporating Lot 4 into the sugar cane farming operation on Lot 297. He also emphasised that should Proposed Lot 1 again be cultivated with cane it may require aerial spraying every four or five years which may cause conflicts with the adjoining residents of the lot created by the appellant in 2006. The respondent also called an agronomist, Mr Thompson who stressed the increased amenity impacts to adjoining residents of intensively farming Proposed Lot 1 for small crops as opposed to cane farming which was much less intensive. In his view the reconfiguration of Proposed Lot 1 would lead to a loss of at least 2000 meters of farmed area for infrastructure requirements. Mr Thompson down played the incidence of aerial spraying describing it as a management tool of last resort.

1. Significantly Mr Thompson pointed out that any benefits obtained by increasing the area of cane under cultivation by including Lot 4 could be readily obtained by a commercial lease or share farming arrangement and that leasing in this manner was common throughout the local district. The same may be said of the area taken in by the Proposed Lot 1 which Mr Fitzgerald concedes would only be of interest to a part-time farmer. As he stated in the course of his evidence “if people are going into full-time farming they’ll be looking for a bigger piece of land, no question”.[10]

   [10] T 2-69 lines 20-30

1. On the evidence before me I find that the only arguable benefit of Proposed Lot 1 from a farm management perspective would be the likely elimination of the need to occasionally aerially spray this area in the event it is under cultivation with sugar cane. This eventuality can of course be eliminated by simply planting a different crop in this area such as corn which is the crop growing there at present. I find that there is no benefit in amalgamating Lot 4 with Lot 297 from a farm management perspective. If the appellant wants to farm it he can lease it or simply buy it and use it as a part of a larger block.

1. Mr Robinson, the town planner who gave evidence on behalf of the appellant stressed that how desirable Proposed Lot 1 would be as a rural lifestyle lot, achieving a consolidation of rural lifestyle activities in an existing conclave.[11] He noted that Proposed Lot 1 was a better proposition for a farmlet or a rural lifestyle allotment than Lot 4 which could potentially be used in this way as it currently existed. It is true that Lot 4 could be acquired and the purchaser could put a dwelling house on it as a self assessable use. It is also true that Proposed Lot 1 has better infrastructure for supporting such use, however the physical constraints on Lot 4 including the high voltage powerlines make it an unattractive proposition as a rural lifestyle allotment or a farmlet and its use in this manner is unlikely.

   [11] Joint report of Town Planners, 19/6/09 para 35

1. Ms Taylor gave town planning evidence on behalf of the respondent. She stressed the undesirability for further fragmenting GQAL by creating a further rural lifestyle lot. She noted that Proposed Lot 1 has the potential to be a very attractive rural lifestyle lot and that there was no guarantee that it would continue to be used for agricultural purposes.

Conclusion

1. Turning to the process set out in S. 3.5.13 of IPA as explained by Wilson SC DCJ in Central Equity Limited v Gold Coast City Council,[12] I have already found that the appellant’s proposal does not comply with a Probable Solution in the Rural Zone Code concerning minimal lot sizes. It follows that there is a corresponding non compliance with the relevant Probable Solution identified above in the Reconfiguring a Lot Code. I must now consider whether it complies with the relevant Specific Outcomes. I further find that it does not comply with the Outcome 4 of the Rural Zone Code or Outcome 6 of the Reconfiguring A Lot Code. Proposed Lot 1 will be so small that the agronomist who gave evidence on behalf of the appellant, Mr Fitzgerald conceded that it would only be suitable to a part-time farmer. I accept the evidence of Ms Taylor that it would be a very attractive rural lifestyle block. I conclude therefore that contrary to Outcome 4, Proposed Lot 1 would not be of a sufficient area to ensure that long term agricultural viability is maintained or achieved. Similarly it is not of a size to be compatible with a projected use as a viable farm contrary to Outcome 6 of the Reconfiguring of A Lot Code. This is particularly so when the projected losses of area for infrastructure identified by Mr Thompson are considered.

   [12] Op cit

1. The next step is for me to consider whether conditions can be reasonably imposed to achieve compliance with the above Specific Outcomes. The difficulty presented here is in drafting conditions that will “ensure that long term agricultural viability is maintained or achieved”. As noted above “Agriculture” is defined extremely broadly in the respondents planning scheme. The term “agricultural viability” is not defined. The Macquarie Concise Dictionary[13] defines “viable” as, inter alia “practicable; workable.” The task is whether conditions can be imposed to ensure that Proposed Lot 1 is workable as a farm in a realistic sense in the long term. In my view the restrictions in terms of arable area, it’s inability to support a full-time farming operation and its attractiveness as a rural lifestyle lot mean that the imposition of such conditions would prove futile. I find that on the evidence before me Proposed Lot 1 is not likely to be viable as a farm in the long term and the imposition of conditions by me is not going to alter that fact.

   [13] Fourth Edition, Macquarie University 2006

1. I must now consider whether there are sufficient grounds to justify the conflict, having regard to the purpose of the relevant codes. The relevant Purpose Statement on the Rural Zone Code seeks to prevent the creation of rural lifestyle blocks which have the potential to negatively impact on rural viability and the rural amenity and character of the area. The relevant purpose statements from the Reconfiguring A Lot Code seek to ensure that lots are suitable for their intended purpose, in this case a farm, and that the proposal will not result in the fragmentation or alienation of GQAL.

1. The approach to this task was set out by Brabazon QC DCJ in Westfield Management Ltd v Brisbane City Council & Anor[14] in the following terms:

   [14] [2003] QPELR 520 at 526- 527

“In order to determine whether there are sufficient grounds to justify a decision, when there is conflict with the code, the decision maker should:

(a)        examine the nature and extent of the conflict;

(b)        determine whether there are any grounds which development on part of the application which is in conflict with the code and that the conflict can be justified on those grounds (sic);

(c)        determine whether the grounds in favour of the application as a whole are, balanced, sufficient to justify approving the application not withstanding the conflict;

(d)        in any case, the decision must not compromise the achievement of the decided environmental outcomes for the planning scheme area.”

1. I have already concluded that Proposed Lot 1 is of a size and configuration that is unlikely to be viable as a farm in the long term and that it would be most attractive as a rural lifestyle block. It follows that it is not well suited for its intended purpose as a farm and likely to result in the alienation of GQAL. The extent of the conflict is significant. The only grounds relevant to the conflict outlined above are that a small part-time farm on Proposed Lot 1 or indeed a rural lifestyle block, would reduce the incidence of aerial spraying in the vicinity of an adjoining residence and that Proposed Lot 1 is a better site for such a use than Lot 4. For the reasons set out above these grounds are not sufficient to justify approving the application notwithstanding the conflict. There is therefore no need for me to consider whether there would be a compromise of the achievement of the desired environmental outcomes for the scheme area.

1. The relevant provisions of the FNQRP reinforce the extent of the conflict of the appellant’s proposal with the current planning intent for the area where the lots in question are located. They should be accorded considerable weight given the existing intent which is evident in the respondent’s planning scheme by virtue of the provisions discussed above.

1. The appeal is therefore dismissed.