Rainbow Shores Pty Ltd v Gympie Regional Council
[2013] QPEC 26
•12 June 2013
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION: Rainbow Shores P/L v Gympie Regional Council & Ors [2013] QPEC 26 PARTIES: RAINBOW SHORES PTY LTD
(Appellant)V GYMPIE REGIONAL COUNCIL
(Respondent)And CHIEF EXECUTIVE DEPARTMENT OF
ENVIRONMENT AND RESOURCE MANAGEMENT
(Co-respondent)And J. LAWLER & ORS
(First respondent by election)And FRASER ISLAND DEFENDERS ORGANISATION
LIMITED
(Second respondent by election)And RAINBOW BEACH COMMERCE AND TOURISM
ASSOCIATION INC
(Third respondent by election)And GREGORY DAVID WOOD
(Fourth respondent by election)And FIONA HAWTHORNE
(Fifth respondent by election)And VIVIEN GRIFFIN
(Sixth respondent by election)And NATIONAL PARKS ASSOCIATION OF QUEENSLAND (Seventh respondent by election) And COOLOOLA COAST CARE ASSOCIATION INC
(Eighth respondent by election)And CHIEF EXECUTIVE DEPARTMENT OF MAIN
ROADS
(Ninth respondent by election)FILE NO: 2768 of 2009 PROCEEDING: Appeal ORIGINATING
COURT:Planning and Environment Court, Brisbane DELIVERED ON: 12 June 2013 DELIVERED AT: Brisbane HEARING DATE: Site inspection on the 12 and 13 December 2011 Trial on the 16, 17, 18, 19, 20, 23, 24, 25, 27, 30, 31 January; 1, 2, 3, 27, 28 February; 21, 22, 23, 25, 28, 29, 30, 31 May; 1, 4, 5, 6, 7, 8, 11, 13, 14, 15 June 2012
Submissions on the 11, 12, 13, 16 July 2012 Further written submissions received November 2012 Further oral submissions heard 27 November 2012 Further material and written submissions received to 14
February 2013Further hearing on 28 March 2013 Further exhibits and written submissions received to 8 June
2013JUDGE: Rackemann DCJ ORDER: The appeal is dismissed CATCHWORDS: LOCAL GOVERNMENT– TOWN PLANNING – Development Application for preliminary approval for an integrated resort/commercial village within a broader residential community offering a range of housing styles and densities supported by retail, business services and community infrastructure and within vegetated community
open space – application under Transitional Planning Scheme – weight to be afforded to existing planning scheme and draft
planning scheme – Wide Bay Burnett Regional Plan – State Coastal Management Plan 2001 – Queensland Coastal Plan 2012 – Draft Coastal Plan State Planning Regulatory
Provision 2012 – Coastal Plan State Planning Regulatory Provision 2013, Temporary State Planning Policy 2/12 – Draft State Planning Policy – whether amendments to draft planning scheme colourable – need, economic, community and social benefit – weight attributed to a failure to demonstrate sufficient need – impacts on fauna, flora and biodiversity – importance of site to geological sciences –
exposure of the site to erosion, storm surge and climate change related sea level rise – bushfire management –
wastewater reuse and groundwater – impact of proposal on
beach access – sufficiency of planning grounds or grounds to
warrant approval – whether proposal to dispose of effluent
for the ―whole of the community‖, in addition to those on thesubject site, an extraneous consideration. COUNSEL: Mr G Gibson QC with Mr J Houston for the appellant Mr S Ure for the respondent Mr D Gore QC with Mr M Williamson for the co-respondent Mr Lawler as agent for the first respondent by election Mr Elms as agent for the third respondent by election Mr Wood in person and as agent for the fifth to eighth respondents by election
SOLICITORS: Herbert Geer for the appellant King & Co for the respondent Crown Law for the co-respondent
Introduction .......................................................................................................................... 5
The issues ............................................................................................................................. 6
The site ................................................................................................................................. 7
History and background ....................................................................................................... 8
The role of the co-respondent ............................................................................................. 10
The assessment and decision making regime ..................................................................... 11
The plan of development .................................................................................................... 16
The Statutory Planning Documents .................................................................................... 19
Documents in force when the application was made ......................................................... 20
1997 Transitional Planning Scheme ................................................................................... 20
The State Coastal Management Plan (August 2001) .......................................................... 27
Subsequent statutory planning documents ......................................................................... 29
2005 IPA Planning Scheme ................................................................................................ 29
Wide Bay Burnett Regional Plan ....................................................................................... 34
Draft Gympie Regional Council Planning Scheme ............................................................ 36
Coastal Planning ................................................................................................................. 43
Temporary State Planning Policy 2/12 – Planning for Prosperity ..................................... 52
Draft SPP ............................................................................................................................ 55
Summary of planning documents ....................................................................................... 60
Need and benefit ................................................................................................................. 61
Need for tourist facilities .................................................................................................... 64
Need to accommodate residents ......................................................................................... 71
Economic, community and social benefit .......................................................................... 77
The weight to be attributed to the failure to demonstrate a sufficient public or community
need. ................................................................................................................................... 80
Fauna, flora and biodiversity .............................................................................................. 83
Landscape Character and Natural Amenity ...................................................................... 105
Geology and Geomorphology .......................................................................................... 106
| Erosion .............................................................................................................................. | 112 |
Storm surge/climate change/sea level rise ........................................................................ 114
Consequences of erosion and storm surge issues ............................................................. 116
Wastewater reuse and groundwater .................................................................................. 117
Access to the beach .......................................................................................................... 122
Bushfire management ....................................................................................................... 123
Sufficient planning grounds or grounds ........................................................................... 124
| Conclusion ........................................................................................................................ | 133 |
| Annexures ......................................................................................................................... | 135 |
Introduction
This appeal concerns the proposed future development of a relatively large
integrated resort and residential community within the attractive, but modestly
developed, locality of Rainbow Beach and Inskip Peninsula on the Cooloola Coast.
The proposal envisages extensive development on a large site on the eastern (beach)
side of Inskip Peninsula, which lies to the north of the current town centre of
Rainbow Beach and to the South of Fraser Island, to which there is access by vessel
from Inskip Point.
Rainbow Beach has its own very attractive beach and lies in close proximity to
places and features of great natural beauty, interest and attraction. Existing
development for both residents and tourists is modest, although there are substantial
camping areas at Inskip Point. The existing permanent resident population of
Rainbow Beach is approximately only 1,000. Tourist numbers swell during holiday
times when up to 3,000 campers descend upon Inskip Point. The subject proposal
envisages faster growth and greater development in the future, resulting in a
maximum population (tourists and residents) on the subject site alone of up to 6,550
persons.
The appellant is the disappointed applicant for a preliminary approval for a material
change of use for an ―integrated resort/commercial village within a broader
residential community offering a range of housing styles and densities supported by
retail, business services and community infrastructure set within vegetated
community open space‖. That development is proposed to be governed by a plan of
development.
The application was refused by the respondent, at the direction of the co-respondent,
on the basis of perceived environmental impact. The respondent did not call any
evidence at the hearing and ultimately submitted that the appeal ought to be allowed
and the application approved. It was surprising that, in a case where conformity or
otherwise with the Council‘s planning documents was in issue, and where the
Council had been represented throughout the lengthy hearing, no substantive
submission was made, on the Council‘s behalf, about the planning documents, save
for an erroneous (and later withdrawn) submission concerning an irrelevant
provision of the 1997 Planning Scheme and submissions about the weight to be
placed on the Council‘s new draft planning scheme and amendments thereof
(discussed later). Refusal of the application was vigorously advocated by the co-
respondent.
The development application generated much interest and a large number of
submissions, both for and against. Some of those submitters elected to become
parties to the appeal. The third respondent by election supports the proposal,
chiefly because of the perceived economic advantages of the substantial
development contemplated by the proposal, should it come to fruition. The first and
fourth to eighth respondents by election oppose the appeal on a number of grounds.
The second respondent by election withdrew. The ninth respondent by election
took no active part in the hearing, as the traffic issues were resolved (subject to the
imposition of conditions on any approval) prior to trial.
The issues
The issues in dispute were the subject of notification, particularisation and
supplementation over an extended period. Copies of the relevant correspondence
and other documents filled a volume, which became exhibit 4. Mercifully, in the
1
course of the hearing, the parties produced a relatively brief list of agreed issues . 2
The issues pursued at the hearing may be summarised as relating to: Town planning Need and benefit
Flora, fauna and biodiversity Landscape character and natural amenity Geology and geomorphology
Coastal processes, erosion and storm surge Waste water reuse and ground water Beach access Bushfire management Sufficiency of grounds or planning grounds to warrant approval The site
The land the subject of the development application, which is referred to as
Rainbow Shores Stage 2 (RS2):
(a) is located at Inskip Avenue, Rainbow Beach, on the Inskip Peninsula north of the established town centre;
(b) is more particularly described as Lot 22 on Plan MCH803497; (c) contains an area of approximately 200 hectares; (d) is rectilinear in shape, with a long western frontage, of approximately 4.5 kilometres, to Inskip Avenue;
(e) is bounded to the east (beachside) by unallocated State land which provides a beach protection area between the subject site and the beach proper;
(f) is largely covered by vegetation which has achieved remnant status; (g) provides habitat for important flora and fauna species; (h) was subject to earlier sand mining and disturbance around the mined areas over a total of approximately 14% of its area; and
(i) is part of a larger area held by the appellant under a development lease granted
for business, residential, tourism and recreational purposes, entered into with
the State of Queensland in November 1984 (‗the development lease‘). That
lease is due to expire next year. The development assumes that the appellant
will ultimately be successful in obtaining an extension or renewal of the lease.
Part of the area under the development lease is in the process of being developed as
a ―residential community comprising units, dwellings, retail and commercial
establishments with a maximum resident population of 4,100 persons‖. This area,
which lies approximately 1.5 kilometres to the south of the subject site, is known as
Rainbow Shores Stage 1 (‗RS1‘). The RS2 site is separated from the RS1 site by
Lot 24 on MCH5478 (referred to as the ―green belt‖) which is unallocated State
3
land and contains an area of about 53.6 hectares . The locations of RS1 and RS2 appear on annexure 1 to these reasons. History and background
The appellant‘s pursuit of development under the development lease and of the
subject development application has a long and somewhat tortured history. The site
(together with other parts of Inskip Peninsula) was once sand mined. Those
activities ceased in the 1970s. It would appear that the development lease was
granted in the context of the relinquishment of sand mining rights.
In 1987, Mr and Mrs Krauchi acquired the shares in the appellant company, with a
view to exercising the rights under the development lease. The Krauchi family has
controlled the appellant ever since. In 1989 the area covered by the development
lease was varied so as to create the two separate sites known as RS1 and RS2,
separated by the green belt that was transferred to the Crown.
In 1989 an application was made to rezone the RS1 site. That was successful, with
the rezoning being gazetted in 1991. Various plans of subdivision were
subsequently registered and the development of RS1 commenced, although it is still
far from complete, some 20 years later.
The residential development in RS1 features 35 metre wide ―green fingers‖ of
retained vegetation which separate the backyards of detached houses facing one
street from the backyards of those facing the next. The extent of tree retention more
generally within RS1 is uncommonly high by the standards of typical suburban
subdivisions. It was said that this provides an illustration of what is contemplated
within RS2.
Planning for the development of the much larger RS2 site commenced in 1992 with
the submission of an overall design plan to the Land Administration Commission.
It was not until 1999 however, that a pre-application report was submitted to the
Council and to the Department of Natural Resources (‗DNR‘).
In 2000 the DNR was requested to provide ―owners consent‖ to permit the appellant
to make its development application over RS2. The DNR delayed in doing so. It
first wished to examine various merit-based issues in relation to the substance of the application. Ultimately it took some four years for the appellant to secure the
consent which it needed before it could lodge its development application. The
development application was lodged on 11 August 2004. It was met with an
extensive information request which was not responded to until 2006. In the course
of discussions, the referral agency assessment period was ultimately extended until
August 2009.
In early 2007 the State approached the appellant to open negotiations for a ―land
swap‖ which would have seen the appellant develop other land instead of the RS2
site. Negotiations proceeded for some two years until, in 2009, the appellant was
informed that the State no longer wished to proceed with a land swap. In the same
year, the co-respondent, as a concurrence agency for the development application,
directed the Council to refuse the development application for the RS2 site. It has
resisted the subsequent appeal on bases which, if accepted, would mean the RS2 site
has, at best, more modest development potential, given its environmental values.
The co-respondent has been vigorous in its opposition to the proposal. It also
provided public funding to some of those co-respondents by election who are
opposed to the development, so that they could engage experts in the fields of town
planning and economics.
In the circumstances one might be forgiven for having a degree of sympathy for the
appellant. The State was content to grant a development lease in the context of the
relinquishment of mining rights. It was content for development to proceed on RS1.
Subsequent attempts by the appellant to pursue an application for similar
development (albeit on a larger scale) on the RS2 site were, however, delayed for
four years (before ―owners consent‖ was given to the making of the application)
before being refused at the direction of the co-respondent. The State, through the co-
respondent, now asserts that RS2 has environmental values which at least
significantly diminish its development potential. It so contends notwithstanding
that, with the demise of the mooted ―land swap‖ proposal, the appellant would be
left with no ―in kind‖ compensation.
Ultimately however, the decision in this matter cannot be driven by notions of
sympathy. Rather, it must be the result of a dispassionate assessment of the relevant
considerations. Further, as was submitted on behalf of the co-respondent:
(a) The development lease is not a town planning document; (b) The development lease put the onus upon the appellant to obtain the necessary town planning approvals;
(c) The decision to grant the development lease cannot validly fetter statutory planning discretions conferred under separate legislation; and
(d) There is no relevant coincidence of identity, function or time in respect of the grant of the development lease and the direction to refuse the development
application. The development lease was granted by the Governor-in-Council
in the exercise of a legislative authority to deal with the occupation of Crown
land, while the direction to refuse development was made by the Chief
Executive of a Department pursuant to separate statutory powers.
The role of the co-respondent
The development application was referred to the Environmental Protection Agency
(which was subsequently absorbed into the co-respondent) as a concurrence agency.
The referral jurisdiction was described in the relevant regulation as:
―Coastal management, other than amenity and aesthetic significance or
value.‖
In the course of the hearing the co-respondent relied on a range of issues including
matters made relevant by the statutory town planning documents. The connection
between such matters and the co-respondent‘s referral jurisdiction is perhaps not
immediately obvious. As was pointed out for the co-respondent however, ‗coastal
management‘ is a term of wide import and s 3.3.15 of the Integrated Planning Act
1997 (‗IPA‘), in stating how, at the relevant time, a referral agency was to assess an
application, provided, in part as follows:
―(1) Each referral agency must, within the limits of its jurisdiction, assess the application—
(a)
against the laws that are administered by, and the policies that are reasonably identifiable as policies applied by, the referral agency; and
(b) having regard to—
(i)
any planning scheme in force, when the application was made, for the planning scheme area; and
(ii)
any State planning policies not identified in the planning scheme as being appropriately reflected in the planning scheme; and
(iii) if the land to which the application relates is designated land— its designation; and
(c) for a concurrence agency—against any applicable concurrence agency code.
...‖[4] [4]
Section 3.3.15 therefore obliges a concurrence agency, such as the co-respondent, to
assess the development application within the limits of its jurisdiction, but having
regard to the planning scheme and State planning policies. Having directed
Council‘s refusal of the development application, the concurrence agency became a
co-respondent for the appeal, with an entitlement to be heard as a party.
The assessment and decision making regime
The development application was made during the currency of the IPA. For the
purposes of the development application, provisions of the IPA continue to apply as
if the Sustainable Planning Act 2009 (‗SPA‘) had not commenced5.
There are two aspects of the development application before the court, namely:
(a) A development application for preliminary approval for material change of use; and
(b) A request to vary the effect of a local planning instrument for the land.
The development application for the preliminary approval for material change of
use was made during the currency of the Council‘s now superseded 1997
Transitional Planning Scheme. For the purposes of that planning scheme, the land
was included in the Rural Zone where commercial premises, hotel, multi-unit
accommodation, shop and shopping centre were prohibited development. In the old
terminology, a rezoning would have been required for the material change of use
6
aspect. As the application would have required a rezoning under the repealed Act
(‗PEA‘)7 and, in turn, would have required public notification, the application was
8
to be processed as if it were an application requiring impact assessment .
The application for the preliminary approval for a material change of use is to be
assessed pursuant to s 6.1.29 of the IPA which relevantly provides, in part:
―6.1.29 Assessing applications (other than against the Standard Building
Regulation)
(1)
This section applies only for the part of the assessing aspects of development applications to which a transitional planning scheme or interim development control provision applies.
(2) Sections 3.5.4 and 3.5.5 do not apply for assessing the application. (3) Instead, the following matters, to the extent the matters are relevant to the application, apply for assessing the application—
(a) the common material for the application; (b) the transitional planning scheme; ...
(e) all State planning policies; (f) the matters stated in section 8.2(1) of the repealed Act; ...
(h)
if the application is for development that before the commencement of this section would have required an application to be made under any of the following sections of the
repealed Act—
(i) section 4.3(1)—the matters stated in section 4.4(3);
…
(i) any other matter to which regard would have been given if the application had been made under the repealed Act‖9.
Section 8.2(1) of the PEA provided as follows:
5
Sustainable Planning Act 2009 (Qld) s 802(2).
6
The Local Government (Planning and Environment) Act 1990 (Qld).
7
See The Local Government (Planning and Environment) Act 1990 (Qld) s 4.3(1).
8
IPA s 6.1.28(2)(a).
9
IPA s 6.1.29.
―8.2 (1) Without derogating from any of its powers under this Act or any other
Act, a local government, when considering an application for its approval, consent, permission or authority for the implementation of a proposal under this Act or any other Act, is to take into consideration whether any deleterious effect on the environment would be occasioned by the
implementation of the proposal, the subject of the application.‖
The matters stated in s 4.4(3) of the PEA were as follows:
―4.4(3) In considering an application to amend a planning scheme or the
conditions attached to an amendment of a planning scheme a local government is to assess each of the following matters to the extent they
are relevant to the application—
(a) whether the proposal, if approved, or buildings erected in conformity with the proposal, or both the proposal, if approved, and the buildings so erected would—
(i) create a traffic problem, increase an existing traffic problem or detrimentally affect the efficiency of the existing road network; (ii) detrimentally affect the amenity of the neighbourhood; (iii) create a need for increased facilities; (b) the balance of zones in the planning scheme area as a whole or that part of that area within which the relevant land is situated and the need for the proposed planning scheme amendment; (d) whether the land or any part thereof is so low-lying or so subject to inundation as to be unsuitable for use for all or any of the uses permitted or permissible in the zone in which the land is proposed to be included; (e) whether, having regard to the permitted or permissible uses of the land and the potential for subdivision in the zone in which it is proposed to be included water, gas, electricity, sewerage and other essential services should be made available to the land and to each separate allotment thereof if the land were subsequently subdivided; (f) the impact of the proposal on the environment (whether or not an environmental impact statement has been prepared); (g) the situation, suitability and amenity of the land in relation to neighbouring localities; (i) the advice given by it, in respect of any consideration in principle concerning the relevant land pursuant to section 4.2;
(j) whether any plan of development attaching to the application pursuant to a requirement of the planning scheme should be altered; (k) where the land is land prescribed pursuant to section 8.3A, the site contamination report in respect of the land; (l) such other matters, having regard to the nature of the application, as are relevant.‖
The 1997 Planning Scheme included a list of matters to be taken into account, to the
10
extent they are relevant to the application. Those included : ― 6 when considering an application to amend the scheme, whether there is a need for the
proposal
11 the extent to which the proposal is affected by State Planning Policies
12 the impact of the proposal on the environment …‖
The application for the material change of use is decided pursuant to s 6.1.30 of the
IPA which relevantly provides:
“6.1.30 Deciding applications (other than against the Standard Building
Regulation)
(1) This section applies only for the part of the deciding aspects of a development application to which a transitional planning scheme or interim development control provision applies. (2) Sections 3.5.13 and 3.5.14 do not apply for deciding the application. (3) Instead, the assessment manager must, if the application is for development that before the commencement of this section would have required an application to be made under any of the following sections
of the repealed Act—
(a) section 4.3(1)—decide the application under section 4.4(5) and (5A);
……‖
Sections 4.4(5) and 4.4(5A) of the PEA provided as follows:
―4.4(5) In deciding an application made to it pursuant to section 4.3 a local
government is to—
(a) approve the application; or (b) approve the application, subject to conditions; or (c) refuse to approve the application.‖
―4.4(5A) The local government must refuse to approve the application 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.‖
With respect to s 4.4(5A) of the PEA, White J (as she then was) observed in
11
Grosser v Council of the City of Gold Coast : ―Section 4.4(5A) is a simple two-stage process which first requires the
identification of conflict with the Strategic Plan, then, if conflict is present, the application must be refused if there are not sufficient planning grounds to
justify approving the application despite the conflict.‖
That aspect of the application seeking to vary the effect of a local planning
12
instrument is to be assessed having regard to s 3.5.5A of the IPA .
That aspect of the application seeking to vary the effect of a local planning
instrument is decided having regard to s 3.5.14A of the IPA which provided, in part,
that:
―(1)
In deciding the part of an application for a preliminary approval mentioned in section 3.1.6 that states the way in which the applicant seeks the approval to vary the effect of any applicable local planning instrument for the land, the
assessment manager must—
(a) approve all or some of the variations sought; or (b) subject to section 3.1.6(3) and (5)—approve different variations from those sought; or
(c) refuse the variations sought.
(2) ….‖
The appeal to this court proceeds as a hearing anew of the merits of the
development application. The court must decide the appeal based on the laws and
policies applying when the development application was made, but may give weight
13
to any new laws and policies the court considers appropriate . The appellant bears the onus. The plan of development
The proposed development of RS2 would be governed by a Plan of Development
(POD), which would vary the effect of the planning scheme. The proposed POD
sets out the approval framework that would apply to the RS2 development. Future
applications for development permits would be assessed against the POD. The
POD includes provisions dealing with levels of assessment and a series of codes.
The POD seeks to achieve ―triple bottom line‖ development, which it describes as
follows:
―The development will incorporate state of the art ESD principles and systems, designed to preserve and enhance the natural assets of the site,
particularly the sensitive foreshore dune ecology;
The development will incorporate new urbanist town planning principles adapted to the site‘s Queensland coastal context: principles that promote pedestrian permeability over reliance on cars; access to dedicated open space corridors; and the provision of amenities that encourage social interaction amongst visitors and residents. The town centre and resort will be designed to enhance the sense of community; and The development will provide a balance of opportunities for permanent residents and short term holiday accommodation, with the inclusion of commercial, recreational and institutional facilities required for an economically sustainable community. Jobs created from the tourist related components of the resort development and ancillary services are expected to offer a major boost to the local economy.‖
The overall outcomes for RS2 are said to be:
―The location, extent and mix of development, including open space, is generally in accordance with the Plan of Development Precinct Plan;
The location and nature of roads are generally in accordance with Plan of
Development Indicative Vehicle Access Plan; The location and nature of pedestrian and bike access ways are generally in accordance with the Plan of Development Indicative Pedestrian Access Plan. Rainbow Shores Stage 2 planning area will accommodate up to a maximum
population of 6,550 persons. The amenity of the Rainbow Shores Stage 2 planning area is maintained
providing an attractive place to live, work and visit. Development is undertaken having regard to significant environmental areas. Natural coastal processes continue to occur with minimal interference from
development; and Buildings and structures in the Rainbow Shores Stage 2 utilised materials and forms appropriate to the surrounding natural setting.‖
The Plan of Development Precinct Plan divides the site into four precincts as well as
a number of sub-precincts as follows:
(a) Housing precinct – which is to accommodate up to 4,900 persons in a range of housing styles and at variety of densities across four sub-precincts as follows:
H1 – sub-precinct 1 – providing single detached houses on lots of 450 m[2] to
[2]
2
1250 m . H2 – sub-precinct 2 – providing attached housing comprising duplex
dwellings and townhouses.
H3 – sub-precinct 3 – providing low density resort style bungalows.
H4 – sub-precinct 4 – providing high density apartments.
Sub-precincts H3 and H4 are also intended to accommodate low key small scale commercial entertainment and convenience retail uses.
(b) Resort Precinct – which is to accommodate up to 1,122 persons in resort style 2
accommodation together with up to 1,500 m of retail and commercial space.
(c) Mixed Use Precinct – which is to accommodate a maximum of approximately 2
5,500 m of retail and commercial space together with accommodation for 330 persons.
(d) Community precinct – C1 – sub-precinct 1 – providing for community facilities.
C2 – sub-precinct 2 – providing community open space.
The various precincts and sub-precincts are shown on the Plan of Development
Precinct Plan, a copy of which is Annexure 2 to these reasons. The overall future
development pattern, across the site, is shown indicatively on the ―Indicative Land
Use Plan‖ a copy of which is Annexure 3 to these reasons14.
Figures 2-4 and 2-5 in the POD, copies of which are annexures 2 and 3 to these
reasons, are plans for ―standard lot development‖ for dwelling houses and multi-
residential developments respectively. They show the incorporation of ―green fingers‖ of retained vegetation, similar to those provided in RS1. At 25 m wide,
they are narrower than provided in RS1, but reliance is placed upon controls on
clearing in the adjoining backyards of developed lots. These ―green fingers‖ are
relevant to the appellant‘s case on the environmental issues, discussed later.
It is intended, as a first step towards realising development, that a Master Population
Distribution Plan (MPDP) would be prepared and submitted as part of an
application for another preliminary approval affecting the whole of the site. This
would show how the intended maximum population is to be distributed across the
site, between precincts of different types and in different locations.
Following approval of the first MPDP, each development application for a
Reconfiguration of a Lot (ROL) (where development for a house or other form of
accommodation on a lot is intended to occur subsequently by self-assessment or
code assessment without a further ROL approval) would be accompanied by a
Vegetation Management Plan (VMP) a Development Envelope Plan (DEP) and a
Local Population Distribution Plan (LPDP).
The preparation of a VMP would be informed by a survey of existing trees with a
diameter of 30 cm at 1.3 m above ground level. The DEPs are intended to restrict
the area of any individual site which may be cleared of vegetation for development.
It is intended that, at the ROL stage, aspects of the development such as the
alignment of streets and the size and location of individual allotments and the
development envelopes within them could be varied in order to be sensitive to the
15
preservation and protection of valuable on site vegetation .
It was pointed out, on behalf of the co-respondent, that the POD makes the
protection of vegetation subject to the realisation of development as otherwise
contemplated in the POD. For example, it provides as follows (emphasis added):
14
That document is not part of the Plan of Development but shows, indicatively, what might be
expected.15
Exhibit 11C p.61 s 4.3.3.
―A VMP optimises the protection of vegetation that is valuable for habitat
purposes and other reasons having regard to the development outcomes
required for the site of the proposed lot reconfiguration 16.‖ ―A DEP optimises the protection of vegetation that is valuable for habitat
purposes and other reasons and has been identified in the VMP vegetation
survey …having regard to the development outcomes required for the site of
the proposed lot reconfiguration…[17].‖
[17]
Further, if the probable solutions to the relevant performance criteria in the
applicable codes are to be adopted then lot reconfiguration plans, DEPs and
VMPs lodged in support of ROL applications in its mixed use, resort and
housing precincts should (emphasis added) ―optimise the retention of
vegetation on the development site having regard to the imperative to
develop the site‖ for the relevant purpose.[18]
[18]
What constitutes vegetation of value is undefined in the POD. That is presumably
to be left to professional judgment consequent upon the vegetation survey. The
significance of these matters in determining the sensitivity of the proposal to the
values of the site is discussed later in the context of the fauna, flora and biodiversity
issues.
The Statutory Planning Documents
It has already been observed that this Court must decide the appeal on the basis of
the laws and policies applying when the application was made (11 August 2004),
but may give weight to later laws and policies. The planning scheme in force when
the application was made was the 1997 Transitional Planning Scheme. The State
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Coastal Management Plan (August 2001) was also in force .
The later statutory planning documents discussed in this case are:
(a) the 2005 IPA Planning Scheme; (b) the Wide Bay Burnett Regional Plan (2011); (c) the State Planning Policy 3-11 and the Queensland Coastal Plan (February 2012);
(d) Temporary State Planning Policy 2/12 (August 2012); (e) the Draft Coastal Protection State Planning Regulatory Provision – October 2012 (2012 DCPSPRP); and
(f) the Coastal Protection State Planning Regulators Provision – April 2013 (CPSPRP)
Further, the Council has published a draft new planning scheme, to which regard
20
may be had pursuant to the Coty principle . The State has also published a draft State Planning Policy. Documents in force when the application was made
1997 Transitional Planning Scheme
The Transitional Planning Scheme was prepared under the now repealed PEA and
adopted on 19 December 1997. This development application was made towards
the end of its life.
The RS2 land was included in the Rural Zone under the Transitional Planning
Scheme. The intent of that zone relevantly provides (emphasis added):
―This zone is intended to conserve areas of agricultural, open space and
scenic significance and to allow for the conduct of a broad range of rural activities. It is also intended to preserve some land for future urban, rural residential or other purposes designated in the Strategic Plan or a Development Control Plan. In such cases, favourable consideration will only be given to applications for development or subdivision which do not
compromise the use of the designated area for its intended purpose.‖
It has already been observed that the uses for which preliminary approval is sought
include those which were prohibited in the Rural Zone. The Statement of Intent
however, acknowledges that, for some land, the Rural Zone was used as, in effect, a
―holding zone‖ (pending eventual rezoning) for future urban or other purposes
designated in (relevantly) the Strategic Plan. Accordingly, it is the Strategic Plan to which reference must be directed to determine whether the proposal is consistent
with the Transitional Planning Scheme.
The Strategic Plan recognises that ―the Cooloola Coast comprises nationally
significant environments and tourist attractions‖. The goals of the Strategic Plan
are:
―To provide throughout the Shire, a broad range of interesting, safe and comfortable environments for living, working and visiting;
To enhance the economic, cultural and social wellbeing of the Shire; To provide for orderly and efficient development of the Shire and promote public and developer confidence in Council‘s development intentions; To ensure that development respects the principles of ecologically sustainable development.‖
Insofar as the achievement of those goals is concerned, the Strategic Plan provides:
―The goals are to be achieved by dividing the Shire into Preferred Dominant
Land Use designations, setting objectives for development in each, managing development in accordance with implementation criteria developed to satisfy the objectives and implementing the provisions of the Planning Scheme. Preferred Dominant Land Uses embody the preferred development strategy for the Shire. They guide the Council and its decisions on land use matters,
but do not confer land use rights in themselves.‖
The Strategic Plan includes an ―Urban‖ PDLU designation which:
―Comprises the Shire‘s substantial established urban areas and indicates the
preferred direction and extent of their growth during and beyond the life of
this planning scheme.‖
The RS2 site is not within the urban PDLU.
The Strategic Plan also includes a Tourism PDLU designation, but elements of that
designation are not identified on the Strategic Plan Map. The Statement of Intent
for the Tourism PDLU acknowledges the significance of Rainbow Beach:
―because it is the principal entry point to Fraser Island, the Great Sandy
National Park and Inskip Point and a coastal resort in its own right.‖
As Mr Summers (the town planner called by the fourth to eighth respondents by
election) pointed out, ‗Rainbow Beach‘ is there discussed as distinct from Inskip
Point, to which it is an entry point. That does not mean that tourist development is
not to occur on Inskip Peninsula. At least that part of the Inskip Peninsula which is developed as RS1 contributes to the tourism role of Rainbow Beach, while other
provisions of the Planning Scheme (discussed below) envisage that some form of
ecotourism/residential development might be appropriate on RS2.
The objectives and implementation criteria for the Tourism PDLU envisage that the
tourist role of Rainbow Beach will be enhanced. Section 1.13.3.2 provides:
―Rainbow Beach is a small modern coastal resort town. It does not portray
any definite character other than a consistent low rise form in its built environment and obvious visual links and convenient access to the beach. Its continuing tourist role will be enhanced by fostering development of low rise but higher than the existing shopping centre and by encouraging modern light and airy themes in the architecture which emphasises its holiday environment. In assessing applications for motel or holiday accommodation within the tourist accommodation precinct, Council will endeavour to ensure
these aims are met.‖
The RS2 site is within the ―Environmentally Significant Areas‖ PDLU designation
on the Strategic Plan Map and has an ―Opportunity Area‖ overlay. The statement of
general strategy for the Environmentally Significant Areas PDLU includes the
following:
―The Environmentally Significant Areas Strategy aims to identify, manage
and protect valued habitats and stands of remnant vegetation significant to the
Shire‘s ecological sustainability, areas representing the intrinsic character of a
locality and/or landscape elements of outstanding significance.‖
The first of the objectives for such areas is as follows:
―1.10.3.1 To protect, manage and enhance the Shire’s important natural
environments.
The protection of fauna and flora habitats and corridors is essential to the
maintenance of the Shire‘s biodiversity and the aesthetic appeal of its natural
environments. Much can be achieved through education and sound ecological management, however the field in which the Strategic Plan is influential relates to managing the impacts of development on land
comprising or neighbouring designated Environmentally Significant Areas.‖
The second objective relates to the beach and foreshore. It provides as follows:
―1.10.3.2 To preserve the beach and foreshores as a major public
recreational resources and natural open space area of visual significance and to ensure inappropriate development does not occur in areas subject to natural coastal processes
Council recognises the value of the Shire, and particularly to the tourism industry, of retaining high quality beaches supported by beach protection buffer zones with reasonable access.
To preserve and enhance the natural character and features of the Cooloola Coast as a recreational setting, Council in conjunction with the beach protection authority and other relevant government departments aims to prevent development that would detract from the natural character, and to impose suitable planning controls on land use and development to ensure the
natural attributes are protected.‖
[60] The implementation criteria include that, in considering applications for
development, Council will seek, amongst other things, to require the dedication or
maintenance of beach protection buffer zones, which are adequately sized, on ocean
beaches.
The Strategic Plan goes on, in the provisions dealing with the Opportunity Area, to
acknowledge that the RS2 site is the subject of a development lease and has some
development potential as well as environmental sensitivity. It seeks to ensure that
any development is compatible with the environmental values and character of the
area and that it occurs in accordance with the principles of ecologically sustainable
development. In that regard, s 1.10.3.3 provides (emphasis added):
―1.10.3.3 To retain the unique features of Inskip Peninsula and
surrounding areas and ensure that any development is compatible with
the environmental values and character of the area, and occurs in
accordance with the principles of ecological sustainable development.
An opportunity area has been mapped on land designated as an
environmentally significant area at Inskip Peninsula. While detailed planning for this area shall be addressed through the Cooloola Coast Development
Control and possibly a local area plan, Council recognises both the site‘s
potential for development considering existing development leases and its environmental sensitivity. While the site presents substantial development opportunities, because of its favourable location, opportunities are
constrained in a number of ways including, uncertainty as to future availability of water resources for reticulation, the requirements of the Great Sandy Region Management Plan, the erosion prone areas and the need to
conserve natural values.
Any application for development over this site may be considered to be premature prior to the gazettal/adoption of the Development Control Plan/Local Area Plan, however, Council envisages that a low density, low
key, low rise, style of eco tourism resort/residential development(s) with significant retention of private and public open spaces may be appropriate for the site, providing appropriate planning and environmental management strategies and practices are devised, and community and planning need can be
demonstrated.‖
The implementation criteria for that provision are as follows:
―In considering development applications in this area Council will:
have regard and take into account the recommendations of the Great Sandy Management Plan, and any subsequent Development Control Plan and/or Local Area Plan;
ensure that the provisions and requirements of ss 1.10.3.1 and 1.10.3.2
are followed and implemented; liaise with other statutory authorities to ensure their interests are
considered and protected as appropriate;
require the applicant to demonstrate the proposed development areas will not experience unacceptable impacts from natural hazards including cyclones, storm surges, long term changes in water levels, ground water discharge and other natural events of concern in coastal eco systems;
require urban design principals to be incorporated which seek to ensure the scale, bulk, design and character the development reflects and is sympathetic to the existing amenity and where possible enhances the natural beauty of the area;
require that development is designed to maintain a ―sense of place‖ through limiting the intensity of development to within the environmental carrying capacity of the area, attention to the retention of visual focal points and buffers, incorporates design themes which draw from the natural characteristics of the area, including strict controls on the bulk, scale and height of any structure and the retention of significant portions of the site in open space areas;
require the submission of an environmental assessment report or such other environmental analysis and management planning as is considered appropriate which identifies existing environmental attributes, systems and current trends in natural processes, the potential impacts of the proposed development and any alternative options which could be considered, and measures proposed to minimise or ameliorate these impacts during the construction and ongoing use of the site;
ensure public access to the beach and foreshore is provided at appropriate locations and provisions for public facilities (eg car parking, public toilets, emergency services, recreational facilities and parks) are made;
Encourage the incorporation of best management practices in the service reticulation and waste management systems installed in
conjunction with, or as a result of, the development.‖
The Great Sandy Region Management Plan (1994-2010), to which reference is
made, contained a bullish statement about future potential growth as follows:
―The future land use on Inskip Peninsula will have a major influence on the future
management of the Region. The population of Rainbow Beach/Inskip Peninsula is expected to grow to between 5 000 and 8 000 making the centre a substantial holiday
destination and the southern gateway to Fraser Island.‖
In relation to the land the subject of development leases, it also states:
―Proposals for resort and residential development cover substantial areas of the
Peninsula under development leases. These leases were granted in compensation for surrendered sand minding interests on Fraser Island, Moreton Island, Cooloola and on the central Queensland coast.
Reservations have been expressed about the extent and type of development proposed for Inskip Peninsula. Key areas of concern relate to the supply of water, disposal of sewage and waste, traffic management issues and the impacts of the projected population and proposed development on the values of the Region particularly in
relation to the area‘s fisheries.‖
As discussed later, nothing like that extent of growth has occurred, or is likely to
occur in the near future.
Whilst the stated objective recognises that the RS2 site has development potential it
also recognises its environmental sensitivity and that the development opportunities
of the site are constrained. It does not provide any specific support for the extent of
development for which the appellant seeks a preliminary approval.
The Objective contemplates that greater guidance would be given by creation of a
Development Control Plan or a Local Area Plan. That did not eventuate during the
life of the 1997 Plan. The reference to development applications potentially being
premature prior to the gazettal or adoption of such a plan should not, in the
circumstances, stand in the way of a consideration of the subject proposal.
It was submitted that serious conflict with s 1.10.3.3 arises by reason of the proposal
being beyond the ―low density, low key, low rise, style of eco tourism/residential
development/(s)‖ description of what council ―envisages‖ may be appropriate. The
expressions ―low density‖, ―low key‖ and ―low rise‖ are relative notions. Whether
the subject proposal fits those descriptions should be judged in the context of the
planning scheme in which those terms appear and the site and area to which they
apply.
The proposal is obviously large, particularly in the context of Rainbow Beach. I
acknowledge, as the appellant pointed out, that the site over which the proposal is
spread is also large and that the POD contains a number of provisions which aim to
ensure that development ―fits‖ with its context, including by limiting the height of
buildings in the various precincts to prevent visual dominance of the landscape
21
setting .
It was also pointed out that the provisions make reference to the Great Sandy
Region Management Plan which, amongst other things, seeks to direct new tourist
and commercial development towards Hervey Bay, Maryborough and Rainbow
Beach and away from Fraser Island itself.
Notwithstanding those observations, there are, quite apart from the quantum of
development for which preliminary approval is sought, components of the proposal
which make it difficult to describe what is envisaged, in its entirety, as simply a low
density, low key and low rise eco-tourism resort/residential development. I note,
for example, that the POD makes provision, in sub-precinct H4 of the Housing
Precinct, for what it accurately refers to as ―high density apartment style housing‖.
The resort precinct contemplates the possibility of multi-residential development to
six storeys, subject to impact assessment. Substantial (particularly in the context of
Rainbow Beach) commercial development is provided for. There is also significant
opportunity for education, health and community services in the community
precinct.
I have not approached the matter on the basis that the strategic plan necessarily sets
its face against any proposal which, in any way, departs from the description of
what the ―Council envisages … may be appropriate‖ in the absence of the
anticipated Development Control Plan or Local Area Plan. Had conformity with
that description been intended to be mandatory, then stronger language would have
been expected. Further, I note that the expression was not carried forward into the
2005 Planning Scheme, to which substantial weight should be afforded in this case.
I accept that departure from what the Council ―envisages … may be appropriate for
the site‖ does not itself establish conflict and is, in this case, far from determinative.
Mr Summers was of the opinion that the proposal does not exhibit an appropriate
relationship with the Rainbow Beach township and does not represent orderly
planning. He regarded both the 1997 Planning Scheme and the 2005 Planning Scheme (discussed later) as establishing a relationship or hierarchy which the
22
proposal offends. In the joint report he said: ―Mr Summers concludes that there is a clear order within the Strategic Plan in the
1997 Transitional Planning Scheme, where Rainbow Beach is centre and staging point for journeys to Fraser Island, the Great Sandy National Park and Inskip Peninsula, where the Inskip Peninsula because of its wilderness feel is a recreational resource and character area and Lot 22 has some capacity to support development; however the extent and intensity of that development:
(a) Is of a scale that does not warrant an Urban Area PDLU, as applied to
Rainbow Beach and Rainbow Shores 1; and
(b) Should be subservient to Rainbow Beach.‖
That reads a little too much into the Planning Scheme. The decision not to apply an
Urban Area PDLU to RS2 is unsurprising, given the unresolved constraints to
achieving development. In the absence of a Development Control Plan/Local Area
Plan, the provisions of the scheme do not qualify the extent of development
potential of RS2 in either absolute or relative (relative to Rainbow Beach township)
terms, beyond the unspecific description of what ―Council envisages … may be
appropriate‖.
Ultimately, the consistency or otherwise of the proposal with the Transitional
Planning Scheme turns on whether it is consistent with the provisions dealing with
the Opportunity Area overlay in the context of the underlying Environmentally
Significant Areas PDLU and having regard to the intent for tourism in Rainbow
Beach. That raises issues which are considered later.
The State Coastal Management Plan (August 2001)
The co-respondent, as a concurrence agency, assessed the development application
against the State Coastal Management Plan, which was a statutory instrument
created under the Coastal Protection and Management Act 1995. The reasons for
refusal of the subject application, as directed by the co-respondent, related to three
policies within the SCMP namely policies 2.1.2, 2.8.1 and 2.8.3.
Policy 2.1.2 seeks, amongst other things, to ensure that:
―To the extent practicable, the coast is conserved in its natural or non-urban
state outside of existing urban areas. Land allocation for the development of new urban land uses is limited to existing urban areas and urban growth is managed to protect coastal resources and their values by minimising adverse
impacts.‖
RS2 is not in an existing urban area.
Policy 2.12 also provides, in part, that:
―Urban growth is managed to protect coastal resources and their values by
minimising adverse impacts‖
Whether the site has coastal resources worthy of protection and whether the
proposal minimises adverse impacts is discussed later.
Policy 2.1.2 also states, in part, that:
―Growth of urban settlements should not occur on or within erosion prone areas, …
sites containing significant coastal resources of … ecological value, or areas
identified as having or the potential to have unacceptable risk from coastal hazards.‖
As discussed later, RS2 has significant ecological value and, in part, is subject to
potential erosion and storm surge.
Policy 2.8.1 relates to areas of State significance (natural resources). Areas of State
significance include areas comprising ―significant coastal dunal systems‖. That is a
defined term. The relevant policy states, in part:
―Land identified to be developed in the future for urban … uses in regional
plans, planning schemes … is to be located outside of ‗areas of state
significance (natural resources)‘. Existing urban … uses within ‗areas of
State significance (natural resources)‘ will not expand in these areas unless it
can be demonstrated that there will be no adverse impacts on coastal resources and their values. If a use or activity that has adverse effects is to
occur within ‗areas of State significance (natural resources)‘, it must have a
demonstrated benefit for the State as a whole …‖
Four ―areas of state significance‖ (natural resources) are identified in policy 2.8.1 of
which the relevant one is ―significant coastal dune systems‖. Whether the RS2 site
is part of a ―significant coastal dunal system‖ and, if so, whether it would have
adverse impacts and, if so, whether it has been demonstrated that there would be a
net benefit for the State as a whole from it proceeding are matters discussed later.
Section 2.8.3 seeks to safeguard biodiversity on the coast ―through conserving and
appropriately managing the diverse range of habitats including … dune systems
…‖. It states that the following matters are to be addressed to achieve the
conservation and management of Queensland‘s coastal biodiversity:
―(a) the maintenance and re-establishment of the connectivity of ecosystems,
particularly remnant ecosystems;
(b) ensuring viable populations of native species continue to exist throughout their range, by maintaining opportunities for long-term survival, genetic diversity and the potential for continuing evolutionary adaption …
(c) the retention of native vegetation wherever practicable
…‖
The proposal involves substantial destruction of native vegetation on RS2. The
impact of the proposal on biodiversity is discussed later.
While the State Coastal Management Plan was a relevant document for assessment
of the application, its significance, particularly as a ‗stand alone‘ planning
document, has been overtaken. First, the relevant Minister identified the State
Coastal Management Plan as having been appropriately reflected in the 2005
Planning Scheme. It is the provisions of that planning scheme, as they relate to the
subject application, to which weight should be attached in the assessment of the
application. Weight should not be given to the State Coastal Management Plan in a
way which departs from the manner in which it was reflected in the 2005 Planning
23
Scheme . Secondly, and more recently, the Coastal Management Plan was superseded when State Planning Policy 3/11 (discussed later) came into effect.
Subsequent statutory planning documents
2005 IPA Planning Scheme
The current Planning Scheme took effect on 31 March 2005, some seven months
after the Development Application was made. It has been in effect for eight years
and, indeed, is near the end of its life. It was uncontroversial that, as between the 1997 Planning Scheme and the 2005 Planning Scheme, it would be unrealistic to
deny the latter primary weight. The 2005 Planning Scheme did not, however, take a
radically different approach to the subject site.
The Desired Environmental Outcomes for the Cooloola Shire include:
―(4) the role of Rainbow Beach as a major coastal tourist destination in the shire is
reinforced;… (7) the amenity, cultural heritage, ecological and recreational values of significant natural features including the Great Sandy National Park, Inskip
Point and other coastal areas… are protected and enhanced;
…
(9) adverse effects on the natural environment are minimised with respect to the loss of biodiversity and significant natural vegetation, soil degradation, interference with natural coastal processes and water pollution due to erosion, chemical contamination, acidification, salinity, effluent disposal and the like.‖
The 2005 Planning Scheme includes a Strategic Framework, the provisions of
which are not intended to provide a basis for development assessment, but are a
guide for development related decisions of Council, developers and the community
generally. Section 1.2.3 of the Strategic Framework identifies relevant outcomes for
residential development. The preferred settlement pattern is said to be indicated by
the ―Urban‖ nodes on, relevantly, Strategic Map SM2, Cooloola Coast. The RS2
site is outside the Urban designation on that map.
Section 1.2.6 of the Strategic Framework identifies that the following outcome is
sought by the Planning Scheme for tourist orientated development:
―Rainbow Beach and Tin Can Bay are the major tourist centres on the
Cooloola Coast. Tourist orientated development including accommodation, of an appropriate scale, retailing and services are appropriate within the identified tourist service areas of both towns. Mixed use development is encouraged particularly commercial and service uses on ground level and
accommodation above or to the rear.‖
The RS2 site is not included within an identified tourist service area.
Section 1.2.10 of the Strategic Framework identifies the following outcome which
is sought by the Planning Scheme for environmental protection:
―The Planning Scheme identifies some areas having environmental
significance because of existing values and actual or potential land degradation, including salinity, erosion and acid sulphite soils. Some of these
areas are shown on … Strategic Map SM2, Cooloola Coast, and others are
shown on overlay maps, and actual hazard maps or advisory maps. Development within or near some of these areas is subject to specific codes to
protect the Shire‘s natural features and resources.‖
The vast majority of the RS2 site is mapped as being of regional ecosystem value on
Overlay Map OM4 and the proposed development is therefore subject to the
relevant applicable code. The Scheme provides that, to the extent of any
inconsistency, a provision in an overlay code prevails over a provision in any other
24
code .
The Planning Scheme area is divided into three parts. The RS2 site falls within the
Cooloola Coast Planning Area. That area is, in turn, divided into zones. The RS2
site is included in the Rural zone.
Division 5.4 of the Planning Scheme contains a Cooloola Coast Planning Area
(excluding Rainbow Shores Precinct) Code. The Overall Outcomes for the Code
include that significant environmental areas are conserved and protected from
25
adverse effects of development . Specific reference is made to the RS2 site as follows: ―Lot 2, MCH 803497 remains an undeveloped urban development lease area
until conflicting issues about:
(A) The environmental significance of the site; (B) Water availability and supply for Cooloola Coast; (C) The site‘s susceptibility to natural hazards; (D) The potential for development of the site whilst maintaining its
natural values;(E) The need for further urban development at the Cooloola Coast
to service projected population; and,(F) Other State interests are resolved, allowing Council to consider the sensitive development of the site, in accordance with sound town planning and urban design principles, and best management practices for water and sewerage reticulation, water conservation, waste disposal and construction
methods.‖
The Planning Scheme envisages that the RS2 site is to remain undeveloped until
those conflicting issues are resolved. Those issues include the environmental
significance of the site, its susceptibility to natural hazards and the need for further
urban development. The implied acknowledgment that the land might be suitable
for some form of urban development, if and when the conflicting issues are
resolved, suggests that, as was the case with the earlier Planning Scheme, the Rural
zone is potentially performing something akin to a holding zone function with
respect to the RS2 site. The provisions however, do not provide any specific
support for development of the scale and intensity proposed.
Table 5:13 of the 2005 Planning Scheme sets out the specific outcomes and
probable solutions for the Cooloola Coast Planning Area (excluding Rainbow
26
Shores Precinct) . Specific Outcome SO1 identifies commercial premises, multi- residential and shop uses as inconsistent uses in the Rural Zone. As with the 1997
Planning Scheme, the minimum lot area for sub-division is 100 hectares. Those
provisions however, need to be read in the context of the role which the Rural Zone
plays with respect to the RS2 site. They should not be seen as an insurmountable
hurdle to development of an appropriate kind, provided the conflicting issues
referred to in the Overall Outcomes are resolved.
The RS2 site is also subject to the Conservation Significant Areas Code. The
Overall Outcomes for the Code include an intention that ―areas identified as having
conservation significance are protected from development or the effects of
development that may cause degradation of those areas‖ by, amongst others, ―loss
of ecosystems, habitat or connectivity value‖.
Further, an Overall Outcome for the Conservation Significant Areas includes that:
―(b) Sensitive design maximises the retention, protection and enhancement of: (i) Vegetated remnants and minimises their edge to edge perimeter ratios to enhance the potential for the long term survival of significant fauna and flora species;
(ii) Connectivity value areas to maximise the general genetic dispersal of significant flora and fauna species; and
…‖
Two specific Outcomes for the Conservation Significant Areas provide, in part:
―SO1 development within State or Regional Ecosystem Value Areas is
avoided.
…
SO14 development within Endangered, Vulnerable or Rare Flora or Fauna
species Habitat Value Areas is avoided.‖
The RS2 site is mapped as having regional ecosystem values across the vast
27 28 29
majority of the site and EVR habitat values at the north-western end .
It was submitted, for the appellant, that the specific outcomes of the Conservation
Significant Areas Code should be read in conjunction with other provisions of the
Planning Scheme and, in particular, the provisions of the Cooloola Coast Planning
Area (excluding Rainbow Shore Precinct) Code, which contemplate that the RS2
site might be capable of urban development in the event that conflicting issues are
resolved. It was submitted that:
―In context, if the criteria listed in s.5.4.3(2)(q)(ii) are satisfied, so too will be the
requirements of SO-1 and SO-14. Were it otherwise, the fact that the RS2 site is
mapped as ―Regional Ecosystem Value Area‖ on Overlay Map 4 sheet 2 would,
together with SO-1 and SO-14, deny s.5.4.3(2)(q)(iii) any operation. Further, it would confer on SO-1 and SO-14 an operation prohibiting development in the circumstances
to which they apply. Plainly, that could not have been intended.‖
As was submitted on behalf of the co-respondent however, not only does the
Scheme give primacy to the Conservation Significant Areas Code (as an overlay
code) in the event of any conflict with the provisions of any other code, but those
two parts of the Planning Scheme are, in any event, not necessarily inconsistent.
The probable solutions for SO1 and SO14 envisage that development may be
appropriate either where development does not occur within the mapped areas or
where, following on-site investigations, that part which is to be developed is found
not to have the relevant values.
There is a small proportion of the site (in the formerly mined area) which is not
within the mapped regional ecosystem area, but the proposed development extends
more generally across the site. Substantial on-site investigations of values have been
performed for the purposes of this case. Those are discussed later. The proposal
envisages substantial development within parts of the site which are not only
mapped as having regional ecosystem value but which, following the onsite
investigations, have been established as supporting vegetation of regional ecosystem
value. There is conflict with the Code. The proposal also envisages substantial
development in parts of the site which have been demonstrated to provide habitat
for rare or vulnerable fauna and near threatened flora.
Wide Bay Burnett Regional Plan
The Wide Bay Burnett Regional Plan (WBBRP) is the pre-eminent planning
30
document for the region . It took effect on 29 September 2011 under the SPA. The regulatory provisions however, in Part E, have ceased to operate in
consequence of Parliament‘s failure to ratify them. Further, the 2012 DCPSPRP and
its successor, the CPSPRP, suspended the operation of Part 2.2 of the Regional
Plan. The provisions of the Regional Plan otherwise however, are provisions to
which the Court may give such weight as it thinks fit.
Part B of the Regional Plan describes the regional framework. This includes three
components: a strategic direction; regional settlement patterns; and sub-regional
narratives. The relevant sub-regional narrative applying to Rainbow Beach
acknowledges that nature-based tourist hospitality is a locally relevant industry in
Rainbow Beach. Further diversification of local employment and economic activity
will be supported where appropriate. The narrative also notes the ―limited
opportunities‖ for broad hectare residential growth within residential towns and that
―the expansion of urban activity, particularly residential development beyond
existing urban areas, is severely limited‖.
Part C of the Regional Plan states the Desired Regional Outcomes for the plan area.
The RS2 site is included in the Regional Landscape and Rural Production Area and
31
is also mapped as being of High Ecological Significance . The intent of the Regional Landscape and Rural Production Area is set out in Part D as follows:-
―Regional Landscape and Rural Production Area:
Intent – the RLRPA identifies land with regional landscape, rural production
or other non-urban values. It protects this land from inappropriate
development, particularly urban or rural residential development.These areas support the lifestyle and wellbeing of the regional population, primarily located in the Urban Footprint.
Description
The RLRPA includes land with one or more of these values.
Significant biodiversity. Regional eco systems that are endangered or of concern. National parks, conservation parks, resources, reserves or other
conservation areas. Significant fauna habitats.‖
The intent and description of the Regional Landscape and Rural Production Area
stand in stark contrast to the intent for the Urban Footprint, which is said to identify
land that can meet the region‘s projected urban development needs to at least 2031.
The Regional Plan gives no support to development of the extent proposed on the
RS2 site.
The inclusion of the site within the Regional Landscape and Rural Production Area
remained in the final version of the document notwithstanding a submission, made
by Mr Humphreys (the appellant‘s town planning consultant), on behalf of the
appellant, that the then 2010 draft Regional Plan should be amended so as to include
RS2 in the Urban Footprint.
It was submitted, on behalf of the appellant, that it would be unfair to give the
document much weight having regard to the fact that it was not made until
approximately seven years after the application was made and indeed, when
preparation for the appeal was at an advanced stage.
As with the current Planning Scheme, the designation which is applied to the RS2
site in the Regional Plan recognises its values. The transitional, current planning
schemes and draft new planning schemes contemplate that the site is to remain
undeveloped unless and until development can be shown to be justified having
regard to, amongst other things, its ecological significance. An apparent difference
is that the prospect of issues being resolved so as to permit urban development of
RS2 is not recognised in the Regional Plan. In the circumstances, I would not give
determinative weight to that, if the conflicting issues referred to in the planning
scheme were indeed resolved. Further, I note, as is observed later, that the Minister
has identified the WBBRP as being reflected in the Council‘s draft planning
scheme, the site specific provisions of which (added by amendment) mirror those of
the current planning scheme.
Draft Gympie Regional Council Planning Scheme
On or about 13 October 2012, the respondent, Gympie Regional Council, gave
public notice of a draft new planning scheme. Submissions received in response to
the public notification were considered. The Council has made some amendment to
the draft. The Minister has advised that the respondent may now adopt the new
scheme, in its amended form. The Council is due to meet at noon on 12 June for
that purpose.
The Minister has also advised of the extent to which the draft planning scheme
appropriately reflects state planning instruments. Those identified as reflected
appropriately include the WBBRP and Temporary State Planning Policy 2/12
(discussed later). The Coastal Protection State Regulatory Provision (discussed
later) is not identified as appropriately reflected and would continue to apply for
development assessment purposes.
Under the draft planning scheme:
(i) The RS2 site is designated Rural on the Strategic Plan Map; (ii) The whole of the RS2 site is in the Environmental Management and 32
Conservation Zone ; (iii) The RS2 site is in:
(a) A Conservation Significant Area on Conservation Significant Area Overlay Map 4; and
(b) Bushfire Hazard (Medium Risk) Area in the Bushfire Hazard Overlay Map 5;
(iv) Consistently with the Regional Plan, GQAL Overlay Map 5 shows the RS2
site as outside the urban footprint.
(v) Of the ‗Rainbow Shores‘ land, only RS1 is included in the Tourist
Accommodation Zone;
(vi) There are zone codes for each zone; s.6.2.4(2) of the Tourist
Accommodation Zone Code provides:
―The local government purpose is to facilitate the on-going development
of Rainbow Shores in accordance with historic approvals issued over the
land.‖
The reference to ‗Rainbow Shores‘ is a reference to RS1 and the reference
to ―historic approvals‖ is a reference to the approvals referred to in
acceptable outcome AO1.1 in Table 6.4, which refers to the rezoning
approval of 8 May 1990, POD No 1/90 and the rezoning deed of 28 June
1990 in relation to the RS1 site. Specific reference is made to the maximum
resident population for RS1 of 4,100 persons that was the subject of that
1990 approval;
(vii) Tables dealing with growth projections up to 2026 and beyond (to ―ultimate
development‖) deal with ―the assumed scale of development‖ that ―has been
determined to reflect the realistic level (scale and intensity) of development
having regard to the land use planning provisions of the planning scheme,
site constraints and development trends‖ (s.4.2.6(1) – see also s.4.2.6(4)).
These refer to-
an ―ultimate development‖ population for Rainbow Beach of only 4,417, with a projection of 3713 by 2026;
a total net development area for dwellings at Rainbow Beach at the ultimate development stage of 72.4 hectares; and a total net development area for non-residential uses at Rainbow Beach at the ultimate development stage of only 8.7 hectares. At first blush those figures do not sit well with an expectation of
development at RS2 of anything like what is proposed. As Gibson QC pointed out however, those figures are derived from tables in the part of the
Draft Scheme dealing with the priority infrastructure plan. RS2 sits outside
the priority infrastructure area boundary. Further, insofar as infrastructure
planning is concerned, the proposal will provide for its infrastructure.
(viii) Strategic Plan Map 1 shows two ―New Urban Areas‖ within the locality, neither
of which are within RS2.
(ix) Map CS-DT-6 shows the planning assumptions for housing at Rainbow
Beach. It extends beyond the priority infrastructure boundary. It anticipates
further housing towards the southern end of RS1 in the period 2016-2026
and at the northern end of RS1 beyond 2026. It shows nothing north of RS1;
(x) the strategic framework (which is the dominant provision in the planning
scheme33), in dealing with the ―settlement pattern‖ for ―coastal settlements‖,
notes that tourist activity at Rainbow Beach is relatively ―low key‖, with the
The proposal would not conflict with the provisions upon which Mr Lawler relies.
Bushfire management
Bushfire management was not formally identified as an issue, but was referred to in
joint expert reports of the town planners (Mr Humphreys and Mr Summers) and the
flora experts (Dr Olsen and Dr Daniel).
The appellant appointed Mr Friend of Rob Friend & Associates Pty Ltd as its expert
on fire management issues. His recommendations include the establishment of fuel
reduced zones within setbacks within lots abutting vegetated areas including:
(a) the unallocated State land to the east of the RS2 site; (b) the ―greenbelt‖ to the south of the RS2 site; and (c) the proposed greenfingers.
This has the potential to result in some loss or modification of vegetation as has
been discussed in the context of the flora, fauna and biodiversity issues.
Sufficient planning grounds or grounds
It was submitted, on behalf of the appellant, that in the event conflict is found with
either the 1997 or 2005 planning schemes, there are ―sufficient planning grounds‖
or ―sufficient grounds‖ to justify approval despite the conflict. The expression
―sufficient planning grounds‖ is that used in s 4.4(5A) of the PEA, which applies by
reason of s 6.1.30 of the IPA. It is the test with respect to judging approval
notwithstanding conflict with the applicable planning scheme which, in this case, is
the 1997 scheme.
The expression ―sufficient grounds‖ is that which would apply by reason of
provision of the IPA or the SPA, had the application been made after 2006. Since
the 2005 Planning Scheme is a matter of weight only, the requirement to refuse the
application in the event of conflict does not apply, with the consequence that the
―sufficient grounds‖ test is not engaged. Nevertheless, the matters put forward by
the appellant potentially affects the weight which should be placed on any conflict
with the 2005 scheme.
The grounds relied upon by Mr Humphreys, at para 201 of the joint town planning
report, may be summarised as follows:
(a) the site is subject to a development lease that expressly requires the site to be developed for the proposed purposes;
(b) the lease was recognised in the 1991 Commission of Inquiry Report and its purpose approved as desirable;
(c) the appellant has to the extent practicable satisfied its obligations under the development lease;
(d) as the planning processes intended to resolve the issues related to the final scale and form of development have not progressed, the
development application was the only course of action available to
the applicant;
(e) there is a demonstrated planning need; and (f) any adverse impacts can be effectively ameliorated or minimised within acceptable limits.
It was conceded on behalf of the appellant that, of those, only subparagraph (e) was
capable of being a sufficient ground. It should be noted however, as I have already
observed, that subparagraph (d) is a sufficient reason to overcome any suggestion
that the application is premature by reason of the absence of a Development Control
Plan or Local Area Plan of the kind contemplated by s 1.10.33 of the 1997 Planning
Scheme. As to subparagraph (e), I have found that no sufficient planning need has
been demonstrated.
It was pointed out, in the appellant‘s submissions, that the grounds relied on go
further than those referred to by Mr Humphreys in the joint report. The grounds are
fully set out in paragraphs 6 to 13 of the ―amended grounds for approval‖[154] and
[154]
may be summarised as follows:
(i) Consistency with the development lease, which was granted in
exchange for relinquishment of mining leases, thereby enabling
preservation of areas of environmental significance;
(ii) The provision of residential and tourism development adjacent to
Fraser Island, removing development presence from that Island
and contributing to Australia‘s discharge of its obligations under
the UNESCO Convention Concerning the Protection of World
Cultural and Natural Heritage;
(iii) Realisation of ―the only significant opportunity‖ for urban
expansion for Rainbow Beach;
(iv) A strong and demonstrated economic, community and planning
need for the proposed development;
(v) Likely community benefit in terms of access to services and
facilities, the provision of economic activity, employment and
services, and substantial monetary contributions in freeholding
payments (to the State);
(vi) Providing for the master planned, sensitive and integrated
development of the site;
(vii) Provision of additional housing choice;
(viii) Provision of additional capacity, choice and variety of tourist
accommodation
(ix) Advancement of the objectives of various tourism studies and
documents;
(x) Provision of retail and commercial development affording greater
choice and variety, reducing travel time and cost for trade area
residents (including reducing the need to travel to Cooloola Cove,
Tin Can Bay and Gympie for higher order services), promoting
competition in price and service and creating local employment
opportunities;
(xi) Generation of employment during construction;
(xii) Adoption of environmental best practice for water supply, sewage
treatment and water sensitive urban design;
(xiii) Contribution to the upgrade of Council‘s sewage treatment plant;
(xiv) Environmental and community benefits from implementing all or a
substantial part of the ‗whole of community‘ option for disposal of
effluent for Rainbow Beach; and
(xv) Achievement of ecologically sustainable development.
I do not consider that those matters, considered individually or collectively, warrant
approval in this case. In that regard:
The development lease, and the circumstances of its grant, do not lead to the conclusion that the application ought be approved, for the reasons previously
given. The appellants submissions did not press that ground.
While, in theory, there are a number of benefits which might flow from
significant urban residential, tourism, retail and commercial development in the
Rainbow Beach locality, I have found that there is no sufficient economic,
community or planning need for the extent of development now proposed on
RS2. If approved, it would be unlikely to be realised, in full, for a very long
time, if at all. In the meantime, opportunities for further development exist
within the undeveloped part of RS1.
I am not satisfied that the proposal would have a significant effect in terms of relieving development pressure on Fraser Island (there is little evidence of such pressure at present) or in enabling the nation to meet its UNESCO obligations. That is particularly so given that it is unlikely that the more tourist-oriented parts of the development would be developed in the short to medium term. For the reasons already discussed, the proposal, while incorporating some
aspects of best practice, is not sufficiently sensitive and is not ecologically
sustainable.
The benefits from the sewerage upgrade and ‗whole of community‘ disposal
option are considered below.
Particular matters of benefit relied upon by the appellant as justifying approval, in
the face of any conflict, are those to be had by reason of the appellant‘s
preparedness to contribute to upgrading the Council‘s sewage treatment works and
its commitment in relation to disposal, by way of irrigation on RS2, of the treated
sewage not only generated by the RS2 development but also that generated by the
whole Rainbow Beach community, or at least as much as is possible. That would
provide a significant community benefit, given the difficulties, from an
environmental perspective, which exist with the Council‘s current treatment and
disposal of effluent.
The Council‘s existing treatment plant lies on the western side of the peninsula,
adjacent to the environmentally significant Tin Can Bay. The irrigation area about
it is low-lying (only approximately 10 hectares is above 2.0 metres AHD) and the
water table is close to the surface. In their sixth joint report, the effluent disposal
experts recognised that:
―Council‘s irrigation area is constrained and suffers from waterlogging
across its area, particularly in wet season summer months.‖
Mr Fredman‘s evidence is that the Council‘s current treatment plant only has a
limited life before Council starts running into licence problems with respect to the
discharge.
In this context, the proposal, to dispose of effluent, treated to an upgraded A+
standard, from the whole of community onto land in the RS2 development has obvious attractions for the Council and at least substantially explains its support for
the proposal. The Council‘s formal position is as follows:
―‗The respondent supports an approval of the proposed development which,
in respect of effluent disposal, involved the disposal, on the Rainbow Shores 2 site, of the maximum quantity of whole of the community effluent that can be appropriately disposed of on the Rainbow Shores 2 site. The
respondent‘s support is subject to conditions, including appropriate
conditions already agreed to by the experts and conditions based upon commitments made by the appellant and accepted by the respondent, as
referenced below.‘
The commitments referred to therein include:
(i) ‗Because the upgrade requirements are significant and the
developers demand on the public water and sewerage infrastructure will require significant upgrades to this infrastructure, it would be appropriate for the infrastructure upgrades to be funded by the applicant through infrastructure charges and direct contributions under an infrastructure agreement. This would include any investigation, approval, design, construction and commissioning costs. This would be a
matter of conditioning any development approval.‘
(ii) ‗The cost of constructing, maintaining or operating the sewerage
scheme will not impact adversely on the sewerage rate in the
existing approved township area of Rainbow Beach‘.
(iii) The full capital and ongoing operating costs of the upgrades will be met by the Rainbow Shores Stage 2 development, such that there will be no adverse impact on the rate payers outside of the Rainbow Shores Stage 2 development area over and above the rating levels which would otherwise have applied if the proposed development had not proceeded.
(iv) ‗Our client is prepared to enter into an infrastructure agreement
with your client in relation to services provided by the Council, including sewerage and associated effluent disposal. The proposed sewerage infrastructure agreement would require our client to:
(a) provide a works contribution for the following non-trunk sewerage infrastructure necessary to service the proposed development: (i) a sewer main to transport effluent from the
proposed development to the Council‘s sewage
treatment plant;
(ii) a sewer main to transport treated effluent from
the Council‘s sewage treatment plant for use in
dual reticulation within the development and for
land based disposal;(iii) dual reticulation and a land based disposal system within areas consistent with any development approval for the proposed development;
(b) provide a works contribution or a financial contribution to meet the costs of providing trunk sewerage infrastructure to upgrade the Council‘s sewage treatment plant
necessary to service the proposed development;
(c) provide a financial contribution to meet the costs of providing any trunk sewerage infrastructure as determined by Council that:
(i) manages the effects of sewerage from the proposed development taking into account relevant social, environmental as well as economic factors; (ii) is necessary to service the proposed development; and (iii) is the most efficient and cost-effective solution for servicing the proposed development.
If the proposed development is approved by the Court, our client would accept a condition of approval which requires compliance with the
sewerage infrastructure agreement.‘‖
It was pointed out that RS2 has qualities which make it particularly suitable to
provide an irrigation area. In particular, the sub-surface conditions provide, in
effect, a substantial natural sand filter, draining east to the ocean. As Mr Sutherland
pointed out (emphasis added):
―… this land form, this sand dune is effectively a sand filter, it is a joint
sand filter, and sand filters now for many thousands of years have been used for this particular purpose, to treat water prior to drinking, but also to treat effluent as well. The reason that it is so good is that it responds
rapidly to shock loads. So if suddenly it has effluent and it hasn‘t had
effluent for a while, the bacteria that perform this denutrification function and perform this treatment function suddenly explode in population and they use nitrate to do so and they use carbon and nitrate N allows them to perform this miracle of cleaning the water up. It just so happens that we have a land form here that, if we disperse the irrigated recycled water adequately, we have this diffuse discharge of very low concentration water.
So a more ideal land form for the disposal of Rainbow Beach‘s effluent you
could not wish for.‖
There is no other area on the Inskip Peninsula which is the equal of this site, in
terms of its desirability from a groundwater perspective, because the easterly flow to
the ocean separates the areas to the west of the Inskip Peninsula road. There is a
buffer in the groundwater where there is treatment because of the extra soil depth
155
east of the divide . It should be noted however, that the evidence did not go so far as to establish that irrigation on the RS2 site is the only possible viable way in
which the Council may acceptably deal with sewerage disposal into the future.
The offer to use the RS2 land for this purpose is obviously only made on the basis
that the proposed development proceeds. The co-respondent submits that the offer
to dispose of effluent beyond that generated by RS2 should be disregarded as
irrelevant on the basis that it is akin to the matters considered by the Full Court in R
156
v Brisbane City Council; ex parte Read .
Read’s case involved a decision, pursuant to the City of Brisbane (Town Planning)
Act (‗CBTPA‘), to propose to approve a re-zoning application, made by D, to
facilitate the expansion of a quarry on land at Ferny Grove. The Full Court held
that the Council‘s decision had been influenced by irrelevant considerations.
Prior to the re-zoning application, part of D‘s land had been resumed by the
Council, as the intended site of a water reservoir. There was an extant unresolved
claim for compensation with respect to the resumption. By its application, D sought
to re-zone the existing reservoir lands (which had been resumed), to ―Extractive
Industry‖ so as to carry out quarrying operations. The proposed reservoir would be
relocated to another area of D‘s land. D executed a re-zoning deed with the Council
by which D would, in the event of the Governor-in-Council ultimately approving
the re-zoning, abandon its claim for compensation in respect of the earlier resumed
land and transfer to the Council, free of cost, the new proposed reservoir lands (‗the
land swap agreement‘).
At the same time, the Council was dealing with companies associated with D in
respect of unattractive gravel plants which had been operating on the south bank of
the Brisbane River near the William Jolly Bridge. Agreement was reached for
closure of the existing treatment plants, to permit the extension of the South Side
Riverside Drive and Beautification Scheme (‗the plant closure agreement‘).
The plant closure agreement, and the land swap agreement were finalised
concurrently as part of a ―package deal‖. de Jersey J (as he then was), with whom
McPherson J agreed, was not prepared to infer, from the land swap agreement, that
the Council had been substantially influenced by irrelevant considerations, but
reached a contrary view with respect to the concurrent finalisation of the agreement
for closure of the plants near the William Jolly Bridge as part of a ―package deal‖.
He concluded that:
―It does in my view emerge clearly from the material before us that in
proposing to approve the Ferny Grove re-zoning, the Council was substantially influenced by the prospect of securing by agreement the closure of the William Jolly Bridge Gravel Plants. Desirable as that object might generally be with regard to the interests of the rate payers of Brisbane, it must patently have been irrelevant to the question whether or
not the Ferny Grove lands should be re-zoned to ―Extractive Industry‖.
Section 8(5) of the City of Brisbane (Town Planning) Act sets out some of the factors to be taken into consideration by the Council in dealing with a re-zoning application, factors which may broadly be described as relating to town planning matters. Those factors of course have to be considered by reference to the land the subject of the application. It could not sensibly be suggested that in this case the re-zoning of the Ferny Grove land necessitated or made desirable the cessation of the William Jolly Bridge gravel operations; there is obviously no relevant relationship between the two. A requirement of the latter could not be imposed as a condition of the
former… I therefore conclude that in proposing to approve the re-zoning
application, the Council were substantially influenced by an extraneous
consideration…‖
There are obvious factual differences between this case and those in Read. It was
submitted for the co-respondent however, that the situation is analogous. That
cannot be the position in relation to the upgrading of the Council treatment works,
because that is required to deal with the additional load associated with the RS2
development and the need to have that wastewater treated appropriately. There is
also an obvious and relevant connection between the proposed development and the
construction of infrastructure, on RS2, capable of disposing of treated effluent.
It was submitted however that, to the extent the appellant agrees to make the
irrigation infrastructure, on RS2, available to dispose of the treated effluent for the
whole of the community, thereby assuming the Council‘s responsibility for
disposing of the effluent produced by those beyond RS2, (and solving an existing
problem of the broader community), the benefit is extraneous and cannot properly
be considered. It is not, it was submitted, something which has a relevant nexus, which could support a condition of approval (it is proposed to be the subject of an
infrastructure agreement).
It should be remembered that the touchstone for the scope of relevant considerations
is the relevant statute. de Jersey J (as he then was) in Read determined the scope of
relevant considerations by reference to those set out in the CBTPA, which he
broadly described as relating to town planning matters.
It has already been observed that the material change of use component of this
application must be assessed having regard to the considerations which applied
under the now repealed PEA and be decided under the relevant provisions of that
Act. Reference to the provisions of the PEA does not lead to a materially different
conclusion in relation to the range of relevant considerations. The range of matters
to be considered under s 4.4(3) is comparable to (although extended upon) that
under the CBTPA. The ―grounds‖ which may justify approval are expressed as
sufficient ―planning‖ grounds.
The situation might arguably be different for decisions to which 3.5.14 of the IPA or
ss 326 or 329 of the SPA apply. What must now be demonstrated are not ―planning
grounds‖ but simply ―grounds‖. Grounds are, in turn, defined as ―matters of public
interest‖, an expression which arguably broadens the range of relevant
considerations to include matters of public benefit which might once have been
thought to be extraneous.
There is a closer connection between the proposed development of RS2 and the
―whole of community‖ disposal option than between the proposed Ferny Grove
quarry and the South Brisbane plant closure in Read’s case. The appellant proposes
to solve the Council‘s existing problem not in a way which is unconnected with the
RS2 development but rather by using the treated wastewater (for toilet flushing,
washing cars and other external use) and irrigating parts of the RS2 site which are to
remain vegetated, by use of infrastructure which is required to dispose of treated
effluent generated by the RS2 development, in any event.
On the other hand the evidence does not justify a conclusion that the ―whole of
community‖ effluent is needed to supply sufficient water for the development to
proceed. It was submitted, for the co-respondent, that the acceptance of the
additional wastewater is, in reality, more of a liability which the appellant is
prepared to assume, than some sort of benefit to, or requirement of, the
development.
Ultimately it is unnecessary for me to reach a concluded view about whether this is
a relevant consideration. Even assuming its relevance, it would not, on balance,
cause me to alter the conclusion at which I have otherwise arrived. That is not an
opinion which I have reached lightly. I recognise the magnitude of the problems
confronting the Council in dealing with sewage treatment and disposal and I can
understand the attractiveness to the Council of the appellant‘s offer, but I remain of
the view that it is, nevertheless, on balance, undesirable to grant an approval of the
subject application.
Conclusion
For the reasons given I have concluded that:
(a) there are no bushfire management, beach access, wastewater reuse or groundwater issues which warrant refusal; and
(b) the proposal would not have an unacceptable impact on landscape character and natural amenity; and
(c) the impact of the proposal on the value of the site to geosciences is part of its likely adverse environmental impact, but not
determinative; but
(d) the proposal
(i) would adversely impact on the flora, fauna and biodiversity values to an unwarranted extent;
(ii) would consequently conflict with the provisions of various
planning documents, including the superseded, existing and
draft planning schemes; and
(iii) is not supported by sufficient economic, community or
planning need; and
(e) the matters relied upon by the appellant are not sufficient to warrant approval otherwise.
The appellant has not discharged its onus. The appeal is dismissed.
1
See exhibits 68, 68A, 142 and 142A.
Water supply issues were dropped by Mr Lawler following completion of the evidence.
3
Exhibit 7, tab 3.
Integrated Planning Act 1997 (Qld) s 3.3.15 in force on the DA submission date of 11 August 2004.
10
Cooloola Shire Council Planning Scheme 1997 s 15.10.6.
11
[2002] QPELR 207 at [49].
12
That section was inserted in the Integrated Planning and Other Legislation Amendment Act 2003
(No. 64), which was assented to on 16 October 2003, but relevantly did not commence until 4
October 2004. The subject application was made within that period, in August 2004. Section 3.5.5Aof IPA is relevantly prospective in operation, in a case such as the present.
13
Integrated Planning Act 1997 (Qld) s 4.1.52.
16
Exhibit 11C p.60 s 4.2.3.
Exhibit 11C p.61 s 4.3.3.
See the Plan of Development Codes for the Mixed Use Precinct PS-7, Resort Precinct PS7 and
Housing Precinct PS9; exhibit 11C p.25 & p.33.
19
State Planning Policy 1/03, mitigating adverse impacts of flood, bushfire and landslip (SPP 1/03)
was also in force, but did not feature in the debate on the issues pursued at trial.
20
Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117.
21
See, for example, S0-2 of the Mixed Use Precinct; exhibit 11C p.21-22.
22
Exhibit 5 tab 15 para 163.
23
Celledoni v Johnstone Shire Council [2008] QPEC 104.
24
Cooloola Shire Council Planning Scheme 2005 s 2.7(2).
25
2005 Planning Scheme s 5.4.3(2)(b).
26
The Rainbow Shores Precinct covers RS1, but does not extend to RS2.
27
2005 Planning Scheme OM4/1 sheet 2.
28
Endangered, Vulnerable or Rare Fauna or Flora Species.
29
2005 Planning Scheme OM4/2 sheet 2.
30
To allege that does not mean that it must be given decisive weight in relation to the application.
31
Map 4 – which is said to ―indicatively‖ show areas of ecological significance across the region (see
pg 58)
32
Gympie Regional Council Planning Scheme Draft, Zoning Plan Map 9.
33
Draft Planning Scheme p.4 s.1.5(5)(a).
(1996) 92 LGERA 41 at 62.
T39-48, lines 39-41.
36
T39-48 to 49.
37
SPA s 41.
38
See SPP 3/11 s 2.1.1.
39
Exhibit 120 – maps.
41
The word ‗significant‘ did not appear in the corresponding provision of SPP 3/11, but that
qualification has little bearing on the consideration of this case.
42
SPA s 19(1).
43
IPA s 4.1.52(2).
44
SPA s 43.
See definition of ―threatened wildlife‖ in the Schedule to the NCA.
Ex 5 tab 15 p.40 para 102.
47
Ex 5 tab 15 p.42 para 104.
48
Intrafield Pty Ltd v Redland Shire Council (2001) 116 LGERA 350 at 354.
52
Exhibit 5 tab 1 p.18 para 68.
53
Statements of Ball, exhibit 35.
54
T9-61.
55
T9-88, lines 25-36.
T11-39, lines 25-26.
57
T9-85, line 41.
62
See exhibit 81.
63
T10-5, line 40-45, corrected at T10-6, 35-40.
64
Exhibit 5 tab 1 p.6 para 19.
65
The 66 dwellings occupied by residents is an estimate of the economists. I note that Vyvian Dobkins (exhibit 35), a resident, puts the number of houses occupied by permanent residents at only 34. The difference is not critical to the conclusion. In either case, the historical take up rate in RS1 by
permanent residents makes Mr Norling‘s projections appear optimistic.
66
Exhibit 39, para 10.
T37-72, lines 51-52.
68
Norling T10-66, 68, 73, 88, T11-14,18.
69
See eg Palmwoods Residents and Ratepayers Association Inc v Maroochy Shire Council & Anor
[1997] QPELR 331 at 334-5.
70
T9-81.
71
T9-80, lines 25-30.
72
Ex 243 p.10.
73
Exhibit 5, tab 1, para 108.
74
Exhibit 80 – Environmental Economic Valuation – An introductory guide for policy-makers and
practitioners.
T13-56, lines 6-8.
79
T13-43, lines 18-40.
80
T13-44 to T13-45, line 28.
81
T25-69 to 70.
The platelets discovered on the site could be those of a different species, but it was conservatively
and appropriately assumed that they related to the black-breasted button-quail.
Exhibit 104.
Exhibit 5, tab 15, p.21, para 34.
Exhibit 29, para 52.
86
Exhibit 29, p.29, para 87.
87
Exhibit 29, para 89.
88
T30-23, line 19.
89
T12-92, lines 28-48; T13-31, lines 35-45.
90
T35-7.
91
T24-70 to T24-72.
T25-11.
T24-72.
Exhibit 178, p.13-14, PR P.7.
99
See Exhibit 32, para 4.7.17.
100
[2009] QPEC 110; [2010] QPELR 270.
101
Because of the issue of a PMAV over the site.
102
Exhibit 5, tab 10, p.12.
Exhibit 5, tab 10, p.11.
104
Exhibit 5, tab 10, p.11 and T31-14, line 45.
105
T30-46, 47-54 and Exhibit 33, p.31, para 5.28-5.29 and T31-17 & 18.
106
T31-18, lines 17-19.
107
Exhibit 33, p.30, para 5.27 and T31-17.
108
It should be noted that habitat is not limited to the mature trees but, includes the ground level
vegetation and leaf matter, particularly for the ground level species.
109
T31-12, 10-59 & T31-14, 45-58.
T30-72, lines 31-32.
Exhibit 33, p.33, para 5.47.
112
Exhibit 33, p.29, para 5.9.
Exhibit 5, tab 11, p.4.
114
T33-35.
T31-84.
116
Exhibit 5, tab 11 p.3.
117
T36-94, lines 43-55.
118
T31-9, lines 42-43.
119
T31-9, lines 43-45.
120
T31-10, line 4.
121
T31-10, lines 18-20.
T31-12, line 8.
123
T31-14, lines 46-56.
124
T32-23, T33-6, T33-18 to 20.
125
Exhibit 148, fig 4.
126
T32-39.
130
Although they are not, as the appellant pointed out, planning policies of the kind created under that
Act.
131
Exhibit 5, tab 15, p.51, para 138.
132
T8-45 to 46.
133
T2-65, line 18.
134
T2-65, lines 5-15.
135
The erosion prone area may be amended pursuant to s 71.
136
Mr Lawler thought that it should be greater, but I am not persuaded that his contention should be
preferred to the 175 metres set pursuant to the statutory provision.
137
Exhibit 117, p.70; exhibit 268, p.9; exhibit 275, s 3.2.2.
138
T22-11.
139
See exhibit 158.
140
I note that it was referred to in the State Coastal Management Plan, although that part of the SCMP
was not notified as an issue by the co-respondent.
141
Exhibit 232, s 2.1.
142
See the definition of coastal hazard area.
147
[2012] QPEC 6.
148
See Walker v Noosa Shire Council [1983] 2 Qd R 86.
149
Exhibit 23, p.30, policy 2.3.
150
Exhibit 79, p.61, policy 2.2.3.
151
Exhibit 117, Principle 6 and policies 6.2 and 6.3.
152
Exhibit, 275, s 3.2.5.
153
Exhibit 274, pg 27.
Exhibit 242.
155
T21-73, lines 1-15
156
[1986] 2 Qd R 22.
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