Regional Land Development Corporation No. 1 Pty Ltd) v Banana Shire Council
[2008] QPEC 124
•19 December 2008
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Regional Land Development Corporation No. 1 Pty Ltd) v Banana Shire Council & Anor [2008] QPEC 124
PARTIES:
REGIONAL LAND DEVELOPMENT CORPORATION NO. 1 PTY LTD (“RLDC”)
(Appellant)
v
BANANA SHIRE COUNCIL (“the Council”)
(Respondent)
and
VELCOURT PROPERTIES PTY LTD (“Velcourt”)
(Co-respondents)
FILE NO/S:
BD2924 of 2007
DIVISION:
Planning and Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
Planning and Environment Court at Brisbane
DELIVERED ON:
19 December 2008
DELIVERED AT:
Brisbane
JUDGE:
Griffin SC DCJ
ORDER:
Appeal dismissed
COUNSEL:
D Gore QC for co-respondent
D O’Brien for appellant
S Ure for respondent
SOLICITORS:
HWL Ebsworth Lawyers
King and Company
Bain Gasteen
The present appeal is by a submitter, a commercial competitor, against the decision of the respondent council to approve an application by Velcourt Properties Pty Ltd for a material change of use which is impact assessable to facilitate a conventional residential development consistent with the town zone – residential precinct and for the reconfiguration of a lot to create 208 standard size residential lots and a public park area.
The proposal approved by the council seeks to change the use of the land subject of this appeal from its current designation broad hectare grazing land, a rural use in a rural residential precinct to residential use and a residential precinct. The proposal is for 208 residential precinct lots ranging in size from 800m2 to 1,121m2 together with a park of just over one hectare and the balance is an allotment which is described as Lot 142 on SP199402.
The subject site is situated to the south of the Dawson Highway over 2 kilometres to the north-east of the Biloela Township. The parcel of land has been subdivided into two lots - Lot 141 on SP199402 having a total area of 24.59 hectares Lot 141, the subject site, is elevated attractive land comprising a parcel of rare elevated land in the Biloela area. To the north of the subject site is Valley View Drive which runs to the Dawson Highway and at that intersection a significant roundabout and drainage works are presently underway. At that intersection there is also a large park of approximately 5.7 hectares.
The application is impact assessable according to the Integrated Planning Act 1997 (the IPA). In particular, section 3.5.14 provides:
“3.5.14 Decision if application requires impact assessment
(1)This section applies to any part of the application requiring impact assessment.
(2)If the application is for development in a planning scheme area, the assessment manager’s decision must not—
(a)compromise the achievement of the desired environmental outcomes for the planning scheme area; or
(b)conflict with the planning scheme, unless there are sufficient grounds to justify the decision despite the conflict.
(3)If the application is for development outside a planning scheme area, the assessment manager’s decision must not compromise the achievement of the desired environmental outcomes for any planning scheme area that would be materially affected by the development if the development were approved.
(4)Subsections (2)(a) and (3) do not apply if compromising the achievement of the desired environmental outcomes is necessary to further the outcomes of any of the following if they are not identified in the planning scheme as being appropriately reflected in the planning scheme—
(a)State planning policies, or parts of State planning policies;
(b) for the planning scheme of a local government in the relevant area for a State planning regulatory provision—the provision;
(c)for the planning scheme of a local government in a designated region—the region’s regional plan.”
The appeal is brought by a submitter pursuant to s 4.1.28 of the IPA and it is for the applicant to establish that the appeal should be dismissed.
The subject land is subject to a planning scheme and the provisions of IPA. That scheme commenced on 7 October 2005.
It is notable that, according to council’s witness, Mr Gannon, no specific land or housing study was undertaken as part of a planning scheme review. As to the allocation of the land in either the residential or rural precinct, Mr Gannon said that rather than the land being reviewed in a particular way and allocated in those categories rather, the rural residential precinct of which this land is comprised follows a cadastral boundary and which reflects the distinction between the residential zone and the rural zone in a previous 1997 planning scheme. To this extent the rural classification applies in a rather haphazard and entirely accidental context.
Issues in the appeal
The issues in the appeal as argued may be identified as follows:
(a) Conflict with the provisions of the scheme and to what extent?
(b) Are there sufficient grounds in the event of conflict to justify approval of the application?
(c) Is there a need for the proposed development?
(d) Are there other grounds which justify the proposed development?
The appellant argues that the proposed development compromises desired environmental outcomes to be achieved under the scheme and further gives rise to significant and major conflicts with the scheme. The conflict was summarised in a joint report of town planning experts in this way:
“The planning scheme does not intend the subject land to be developed for urban residential allotments, but for rural residential allotments. The reasons for this intent are contained in the provisions with which the council proposed the conflicts…”
The conflicts are clearly significant. Furthermore, the appellant makes significant criticism of the council’s planning expert Mr Gannon, whose methodology it is said describes incorrect approach in assessing the application. It is correct I think that the proper methodology which appears to have been adopted by town planners Gaskell and Reynolds is assessment of the application against the provisions relevant to the precinct in which the land was located under the relevant scheme. The issue in this appeal is in a practical sense a rezoning one.
The appeal must be assessed pursuant to the provisions of IPA which inter alia focus upon considerations of conflict with the planning scheme, Desired Environmental Outcomes for the development and if there is clear conflict with the scheme whether sufficient grounds are made out by the applicant to justify the development approval.
A function of this application which seeks to change rural residential to residential land under the present scheme presents a conflict with the scheme. This is not seriously in contest amongst the parties. However, that is not an end of the matter and other issues such as Desired Environmental Outcomes (DEO) must be examined in order to ascertain a multiplicity of issues that call for consideration in determining whether sufficient grounds have been demonstrated by the applicant.
Conflict with the scheme
Before considering any issue of conflict it is relevant to note that the development has been approved and therefore I infer has the support of the council. It is correct I think to take that approval in a general way into account as being an approval that expresses the view of the relevant responsible planning authority. The amended notice of appeal alleges conflict with respect to three different parts of the planning scheme:
(a) Four separate DEOs;
(b) In Division 4 – Town Zone:
(i) two of the general overall outcomes;
(ii) four of the overall outcomes for the town-rural residential precinct;
(c) In Division 13 – reconfiguring a lot (IOL) Code:
(i) three general overall outcomes;
(ii) three groups of specific outcomes and probable solutions.
However, by the time of the appeal some of these provisions were not referred to by Mr Reynolds or were abandoned in the joint report[1]. The remaining issues therefore relate essentially to arguments concerning land use, change from rural residential to residential with further argument as to issues relating to parkland provided within the development and interface issues.
[1]For example CDEO4(0); ROL Code overall outcomes 1,2 – not referred to by Reynolds in Exhibit 8; ROL Code probable solution P12.1 (joint report: planners agree is ‘illogical’ – Exhibit 4 p.54)
It is relevant to deal with two further issues which may be thought to have arisen in the evidence of the witness Reynolds for RLDC.
In relation to DEOs s 3.5.14(2)(a) of IPA establishes that the issue is not one of conflict with the DEO but whether an approval would “compromise the achievement” of a DEO. Such compromise however must be “an obvious and significant cutting across of a DEO in such a manner that its achievement on a shire-wide basis would be regarded as being compromised[2]. The DEOs the subject of this appeal are in their terms expressed in a general way.
[2]See Wilson SC DCJ in Koerner v Maroochy SC 2004 QPELR 211, 215
Further, if there was a tendency in Mr Reynolds’ evidence to treat failure to satisfy a particular acceptable solution in one of the relevant codes as establishing conflict with the planning scheme that is an impermissible approach[3].
[3]See Aria Property Group Limited v Maroochy SC 2008 QCA 169 at [19] and [63]
In this case the planning scheme covers the entire Banana Shire and ‘probable solutions’ provide a ‘guide for achieving specific outcomes’. This does not equate with establishing compliance with the relevant code. The specific outcomes envisaged under this scheme are statements of ‘desired outcomes’ which ‘require the exercise of discretion’ in order to test whether a particular proposed development is compliant with that relevant part of a code.
In this matter the relevant and only conflict is the proposal for rural residential precinct land to be used or converted for urban residential use. The fundamental question is the extent of that conflict, the conflict having been plainly identified looking at the scheme as a whole[4].
Is there compromise of the DEOs
[4] See Weightman v Gold Coast City Council [2003] 2 QdR 441, 453
DEOs relevantly provide in relation to Social Elements:
“4(a) Social elements – the shire’s residential communities are preserved in character, well serviced, enjoy high levels of safety and amenity, able to accommodate growth and offer a range of housing options to meet the diverse needs of all members of the community.
4(d) Social elements – the park and the creation of opportunities for residents and visitors of the Shire have been enhanced and expanded.
4(e) Social elements – rural residential areas are located and consolidated to provide suitably serviced alternative rural living options that are close to townships.”
It is argued by the appellant that the proposal as approved places urban residential allotments in a rural residential area thus reducing the amount of available rural residential land to be developed for rural residential purposes in the Biloela township area. The evidence is that the subject land is in an elevated location. However there is other land, for example Lehwood Gardens Estate which is a rural residential development. The mere fact that formally rural land in a prime situation has been converted into urban residential land does not of itself in my view compromise any social element of the DEO for the Shire.
DEO 4(e) is said to be compromised by the diminution of 25 hectares of the best rural residential land in the sense that this works against the notion of consolidation in 4(e). To that is added the further argument that the interface between the proposed urban residential and rural residential allotments results in a reduced amenity between the two areas because the straight line as it presently exists between rural residential and urban residential because of the proposed configuration will present a meandering and jaggered boundary resulting in pocket areas of rural residential land being stuck between urban residential allotments. I do not accept that the DEO is compromised in this way by the proposal.
It is argued that DEO 4(d) is compromised in that the park and recreation opportunities for residents and visitors are not enhanced by the development. The park is approximately 4% of the total area of development compared with 10% which is required under probable solution P4.1 of the reconfiguring lot code. As to the latter code, the probable solution is adequately addressed by the contemplated provision of an appropriate sum of money together with the allotted dedicated space as park. Furthermore, there is a perfectly adequate park of considerable size located at the corner of Valley View Road and Dawson Highway (The Jim Hooper Park).
This together with the proposal cannot on any view compromise the relevant DEO. The park itself from the proposed residential development is some five to ten minutes walk.
In all the circumstances it is not a proposal which conflicts with any relevant DEO. In my view it cannot be said according to the proper approach in Koerner[5] that this proposal compromises any relevant DEO. The criticisms such as they are, are both minor and inconsequential and do not amount to a true ‘compromise’ of the relevant DEOs.
Conflict Overall Outcomes for town plan
[5] See supra
The proposed site is located within the Town Zone 15 of the zoned Shire areas within the town zone. Various districts are described including residential and rural residential areas. The town zone describes a number of outcomes which are sought to be achieved. The relevant outcomes subject of criticism are:-
1. Outcome 3 – the precincts each perform a different function within the Town Zone and represent distinct areas or groupings of compatible land uses.
2. Outcome 4 – the availability of land, the amenity and the operational needs of different uses in each precinct are not compromised by the inclusion or encroachment of inappropriate development.
3. Outcome 6 – the overall outcomes specific to each of the precincts within the town…are achieved.
Outcome 3 focuses upon ‘distinct’ areas. This is achieved, I think, on Gaskell’s evidence as he explains by the proposed boundary line being in accordance with the topography of the area. Although the scheme itself adopts a rather arbitrary and blunt distinction between residential and rural residential the topographical boundary is in my view not inconsistent with Outcome 3. Although there may be some transitional or gradual changes between the areas according to Mr Gaskell, the boundary is sufficiently ‘distinct’ to satisfy the requirements of Outcome 3.
As to Outcome 4 rural residential lots will have residential lots on contiguous boundaries. Furthermore, the lot sizes will be different (for 800m2 compared with 3,000m2 to 4,000m2 lots). There is to a minor degree, issues of overlooking and privacy involved in all of this. The development does however overall perform the function of a rural residential area within the town zone even though the lot sizes are somewhat smaller than contemplated. I do not regard the development in this way as such a hybrid development as to offend against Outcome 4.
As to Outcome 6 that overall outcome of the town zone code is provided in this way: that the overall outcomes specific to each of the precincts in the town zone are achieved.
Conflicts with the Overall Outcomes of the town – rural residential precinct
Pursuant to section 4.4.2(2), 6.1 the overall outcome sought for the town – rural residential precinct are:
Outcome (i) – land is predominantly used for dwelling houses on small rural lots.
Outcome (ii) – low population densities in the zone mean that people enjoy a rural lifestyle with accessibility to community facilities.
What tension there is between the proposal and Outcome 6 is as I have already said a function of that “re-zoning” of the proposed development for standard residential lots instead of rural residential lots.
The following factors I regard as relevant in a consideration of this issue namely:
1. There is a relatively minor difference in the planning scheme between the requirements for allotments in the rural residential precinct and allotments in the residential precinct – that difference being between the minimum land area at 3,000m2 to 4,000m2 for rural residential and 800m2 for residential. Furthermore, there is in fact no change to the basic use of the land which in both cases is essentially residential.
2. The site itself importantly is adjacent to a large area of land in a residential precinct and the proposal represents to my mind a logical and natural extension at that precinct. The area of land involved (about 25 hectares) is relatively small compared to the adjacent overall residential area which it adjoins.
Furthermore I note, looking at the strategic plan as a whole there is nothing in the plan which specifically provides against a re-zoning of rural residential land to residential.
Alleged conflict with the Reconfiguring a Lot Code
The purpose of the ROL Code attempts to achieve a number of overall outcomes relevantly Outcome 5 provides:
“The creation of additional lots provides lots that:
(a) Are of an area, dimension and nature that are consistent with the outcome sought for the zone in which it occurs for potential uses and any approved uses.
(b) In outcome sought for the town zone for the subject site, any additional lots should be of an area, dimension and nature consistent with the outcomes sought for the town-rural residential precinct.”
While the land the subject of this DA is undoubtedly of a residential character the lot sizes and frontages are smaller than contemplated for rural residential allotments. Mr Gannon suggested that there was no conflict because the proposed lots ‘are of an area dimension and nature that are consistent with the outcomes sought for the residential precinct’.
I, however, regard this approach as erroneous which seems to judge whether any conflict exists against the ‘rezoned’ area. The conflict however I regard as relatively minor because the allotment sizes, although smaller than contemplated, are nonetheless essentially residential in character.
The appellant argues that there is conflict with specific Outcome 4 which as typical in such planning schemes provides a probable solution (P4.1).
I have already dealt with the issue as it relates to the park intended on the subject development near the Telstra tower. Although the park is underneath and around the vicinity of the Telstra tower and does not link to any other parkland or open space the parkland created as intended by the development together with the monetary fund paid is entirely consistent with specific Outcome 4 and I do not consider there is any conflict with the scheme.
The appellant alleges conflict with specific Outcome 9 which provides that:
“Lots are of an appropriate size and configuration to sustain the intended uses for the zone, to ensure necessary separation of uses, and to maintain rural residential character; whilst having regard for whether the proposed lot boundaries are derived from one or more of the following...probable solution T9.1 and T9.2 refer to lot sizes of 3,000m2 or 4,000m2 and two 30 metre road frontages.”
As I have already said, the essence of the application before this court is effectively to remove land from the classification of rural residential precinct controls and develop it in accordance with the residential precinct controls. It is as submitted by the council, inevitable that there are inconsistencies between the provisions otherwise it would be unnecessary for an application to have been made.
In the result the predominant use contemplated by the scheme in each of the precincts is similar being residential dwelling houses on discrete allotments. Whatever conflict there is I regard as minor on the basis that the use proposed for the subject land and the uses contemplated for rural residential precinct land are essentially the same in character. Furthermore, the land is suited, on the evidence, for residential precinct uses. I accept the evidence in this regard.
Apart from the obvious conflict with the scheme of converting rural residential land to residential land I do not accept the submission of the appellant that there is a significant conflict with the scheme in nature, style and extent.
Sufficient grounds to justify the application?
Conflict with the scheme having been determined, the applicant must attempt to establish that there are sufficient grounds (not simply planning grounds) to justify the approval of the proposed development despite that conflict. Essential to the resolution of this question is the issue of need.
Need issues discussed
The appellant’s case is that not only has the applicant failed to establish any ‘need’ for the development but what evidence is relied upon is essentially evidence demonstrating merely a “contrived need”. It is worthwhile examining the principles relating to the issue of need.
These principles may be stated as follows:
1. There should be demonstrated at the time of application the existence of a latent unsatisfied demand on the part of persons affected by the planning scheme which is not being met at all or not being adequately met by the planning scheme in its present form[6];
[6]Williams McEwins Pty Ltd v Brisbane City Council 1981 2 APA at 165 approved in Arksmead Pty Ltd v Gold Coast City Council 2001 1 QdR 347 359
2. There must be an existing need, not something that may be ‘built up in time’ if the proposed development was approved[7];
[7]See Die Galerie Pty Ltd 1972 SALCR 97 at 105
3. The issue of need is to be determined by reference to the community, not the commercial need of a developer or the needs of those who opposed the development;
4. The issue of population calculation is of prime importance in determining need[8].
[8]See All-a-Wah Carpark v Noosa Shire Council 1989 QPLR 155
5. The regional success of the development is a relevant question in determining need. Planning need is not established merely by evidence of increase in choice and net improvement in facilities that a development may produce.
6. The notion of need suggests an objectively perceived need for the development and connotes the idea that the physical wellbeing of a community or some part of it will be better and more conveniently served by providing the means for ensuring the provision of that facility.
Essential to the appellant’s argument is the contention advanced that Velcourt’s intent in pursuing the development application is simply to secure a long-term commercial plan for its site regardless of the lack of present or reasonable future need for additional residential lots. As such, issues relating to population growth, housing affordability in Biloela, present availability of land for development and available residential lots are of considerable importance in determining this question.
The issue of need may be summarised in this way:
“Need in planning terms is a relative concept. It does not connote pressing urgency, but rather relates to the general wellbeing of the community. A proposal is needed if it would, on balance, improve the services and facilities available in a locality[9].”
[9]See Moodie v Albert SC 1983 QPLR 316
For example, more recently in Woolworths Limited v Maryborough City Council & Anor[10], Robertson DCJ said:
[10]2005 QPELR 412 at 439
“(a)In ordinary parlance one hears reference to phrases such as ‘a person in need’ which conveys as a matter of objective fact the idea that that person is not in distress is nonetheless deprived to the extent that his wellbeing is at risk. One cannot sensibly translate that concept into the town planning context. Need in planning terms is a relative concept…it is firstly a community need not in the sense that there is an element of urgent community necessity for a facility or for land so zoned on which the facility can be provided rather, it connotes the idea that the physical wellbeing of a community or some part of it can better and more conveniently be served by providing the means for ensuring that the provision of that facility…includes all consideration that the wellbeing of a community also depends significantly on an acceptable residential amenity.
(b)Need in cases such as this does not mean pressing need, critical need, widespread desire or anything of that nature. A thing is needed if its provision taking all things into account improves the physical wellbeing of the community.
(c)Need in planning terms is a relative concept. It does not connote pressing urgency but rather relates to the general wellbeing of the community. A use is needed if it would on balance improve the services and facilities available in a locality.”
The joint report of experts in relation to need describes that there were 19 vacant standard residential lots for sale in Biloela as at 16 June 2008. Land described as the Howard land includes a 23 lot development at Earlsfield Street which has a development approval permit but no operational works have been approved or commenced. The Regional Land Development Corporation has approval for 22 standard residential size lots and one large lot for 11 multiple dwelling units but no operational works have been approved. Another development adjacent to the subject site the Brigalow Lakes stages 5 to 8 have preliminary approval. However access to that area is problematic as the evidence discloses there is a ‘missing-link’ to Valley View Drive and that has not been completed. Although this development has preliminary approval no development permit has yet been granted.
Of significance is the balance of what has been described in evidence as Howard land. Lot 5 on RP 887936 has a potential for some 500 residential lots but at this stage no application has been made for its development. It likewise has access issues relating to the continued development of Valley View Drive.
Eight residential lots described as being in Harcla Street have been referred to in evidence but they are I think not logically able to be taken into account as they have been already sold to private buyers.
The witness Norling took into account potential allotments at Wahroonga Retirement Village but because of their character I accept Mr Brown’s evidence that it is inappropriate to count them in a potential residential supply calculation. As to the issue of future demand for dwellings, the witness Norling adopted an average of 30 dwellings per annum as being the future demand for housing in Biloela over the next 40 years.
Witnesses Brown and Gannon adopted a higher demand figure of approximately 40 dwellings per year although Brown suggested that the figure could be as high as 45 to 50 in his report. He opined at p 6:
“In practice a higher figure should be used to accommodate unexpected growth as well as creating a surplus to allow market competition and thus I believe a minimum of 45 to 50 dwellings per year should be used. In the worst case scenario, if none of these additional 5 to 10 dwellings per year were required this would only represent 5% vacant stock.”
Dr Brown’s evidence I think should be accepted. I regard him as a highly qualified impartial witness. There is no reason not to include a calculation for unexpected growth or competition although as he says this will increase vacant demand by only about 5%.
As to the supply of land in terms of likely future developments I accept Mr Howard’s evidence that he intends to pursue development of all land (both 23 lot and 500 potential lots). However although he said in evidence he intends to do this effectively as soon as possible, the history of the matter and his pursuit of development has not been aggressive and I regard the actual development of this land being developed in the near future as rather questionable and vague and without any practically identifiable time-frame.
Essentially in the joint report both Brown and Gannon argue that there is a very limited ownership and competition in developing standard residential allotments in Biloela. The only two owner developers are RLDC and Howard of land for new residential development.
The subject approval will satisfy now and into the future a demand which I regard on the evidence as being required for residential lots in Biloela.
A co-relative issue in relation to demand is that of population growth. A great deal of evidence was devoted to that issue.
As to the needs issue the applicant has attempted to demonstrate that the land is possessed of attractive qualities for residential development and that there would be a demand for such allotments in the particular attractive and elevated easterly position which the land has.
Furthermore I note and place some weight upon the fact that it is common ground between the three experts called in relation to need that there is actually a need for the proposed development.
The differences amongst them appear to relate to the level of that need. In fact Mr Norling in evidence on behalf of the appellant acknowledged that ‘the community will be better off with the approval … than without it and that the benefit was positive’.[11] Mr Norling’s reservation in fact was that the need was a ‘minor planning need’. Mr Norling acknowledged that the need was present because of the level of competition which it would introduce. Mr Gannon for the Council opined that there was a demonstrable and significant need for the development. Some weight I think should be attached to Mr Gannon’s opinion because of his personal knowledge gained over some years within the Shire and particularly in Biloela.
[11]See day 4 T7020-30.
Mr Norling’s evidence should be discounted on two bases which are I conclude, erroneous. The first is that there is presently the equivalent of 30 to 40 years supply and secondly that there was a reasonable degree of competition with four major residential developers.
The first conclusion was based upon Mr Norling taking into account rural residential market land together with standard residential land. The inclusion of rural residential land in Mr Norling’s calculation is the inclusion I think of a misleading and erroneous factor blending different types of property in terms of land area, development potential, establishment costs, character, amenity and price.
In relation to the issue of reasonable present degree of competition with four major residential developers, that is significantly diminished when the present market circumstances are examined. Without Velcourt as a competitor there will I think be substantial periods when the market is essentially controlled by only one of the two existing developers. First RLDC until the Valley View Drive is connected to the Howard land and then Howard effectively indefinitely after RLDC has sold its entire estate. The virtual monopoly thereby created is contrary to a proper notion of competition in the field.
As to the issue of supply in relation to rural residential land Mr Norling conceded[12] that there is a more than adequate supply of rural residential land. The need experts in their report referred to 469 lots and based on a calculated take-up rate of 10 allotments per year gives a supply of about 48 years. The area of land devoted to the subject development is 25 hectares and taking a broad view, the loss of that area of land is relatively inconsequential.
[12]Day 4 T 56.5.
On the issue of design and layout I accept that a positive feature of the proposed development lending the approval the character of strategic and orderly planning is the creation of an extension to Valley View Drive which will provide access for the continued development of Brigalow Lakes and other development to the west providing access which is presently required but unavailable.
In relation to the issue of supply concerning standard residential lots both Brown and Gannon adopted an approach referred to in the joint report. The approach was based upon the relative lack of competition discussed above concerning RLDC and Howard. Their approach I think is appropriate and I accept it on the basis of what they said.
It is worth noting the context of their opinion:
“38Brown and Gannon claim that there is very limited ownership and competition in developing standard residential allotments in Biloela. There are only two owners/developers (RLDC and Howard) of land for new residential development in Biloela. The 19 current for sale lots would be increased by 56 if both the RLDC’s Clarke Drive and Howard’s Earlsfield Street approvals are advanced. For this exercise it is assumed that both these developments are available for sale by end of 2009. There is no certainty about the timing of RLDC’s stages 5 to 6 and 7 to 8 and less certainty about the development of the balance of Howard’s land. On the conservative basis of 40 dwelling standard residential lots per year the combined current 19 for sale lots plus the projected 56 lots i.e. 75 lots, represents about two years’ supply with no certainty for further lots. If the 10 undeveloped, “not for sale” lots at the Harcla Street area were included, the supply time would not alter significantly.”
A great deal of evidence was devoted to the issue of population growth. Specifically there was significant disagreement amongst the experts as to the anticipated population growth specific for Biloela. Any estimates or projections of population growth will naturally depend upon assumptions and predictions.
In this case I regard Dr Brown’s reliance upon the 2006 census figure as being a more accurate and reliable foundation for calculation than the ABS 2007 estimate. The ultimate conclusion of Dr Brown in relation to this aspect of the evidence which I accept is that the population of Biloela will continue to grow thus supporting the requirement for future residential allotments to be available and specifically supporting the figure of at least 40 dwellings per year demand.
Evidence was given by a local real estate agent, Mr Munroe who said that there was a real demand for rural residential allotments but there were effectively none available and taking the figures of 40 dwellings sales per year (if that was the appropriate figure) a significant proportion of those would be the subject of rural residential sales if such property was available.
There is a speculative quality to Mr Munroe’s evidence on the basis that no such sales are presently taking place and I therefore reject that evidence as having any real bearing on the question of residential sales and the need for residential property.
Submissions were made by the appellant concerning both choice and competition issues. I accept the submission that the notion of choice contemplates differentiation however the ultimate submission was made that what Velcourt was offering was “more of the same”. This however is misconceived. The Velcourt development land is attractively positioned with a good aspect and in particular is elevated land. Furthermore its presence on the market amongst other potential properties for example Brigalow Lakes and the Howard lots will in reality present real choice to be made amongst those seeking residential lots.
Further as to the question of competition it is sufficient to say that I consider it is a proper inference to draw that the presence of another commercial developer and which therefore will be a competitor with RLDC and Howard will bring about a benefit by that fact of competition to the community in general and in particular for those seeking residential-type allotments.
Demonstration of sufficient grounds
There are in my view a variety of factors which collectively support approval of the development application in the face of what I regard as conflict with the planning scheme, that is the conversion of rural residential to residential land. These factors may be summarised as follows:
1. On the evidence the subject land appears to be attractive and appropriate residential lot type development which will have suitable connections to existing or expanding services including roads, suitable land form and good views amongst other things.
2. The approval of the development would be in the community’s interest having regard to the general trend to an increase in growth and in population in the Biloela area. The latter finding is to a large extent based upon the evidence which I accept from Brown.
3. The approval of the development of attractive land will provide greater accessibility to these attributes to a greater number of people by virtue of the division into residential lots.
4. The development will also be an efficient use of existing and proposed infrastructure. This is also to the community benefit thus advancing purposes of IPA ensuring as it would that there is a prudent use of the land encouraging urban development in an area where adequate infrastructure exists or is proposed.
5. It is common ground between the need experts that there is a need for the proposed development which includes the need for an appropriately competitive market within the area.
6. The proposed development would increase the choice of particular product in the market place. In accepting the evidence of Dr Brown in terms of population growth and take-up of 40 dwellings (at least) for a year there is disclosed a need within the community and which would benefit the community particularly in circumstances where there is uncertainty as to timeframe in the development of the Howard land both for 23 lots and the potential 500.
7. Although the proposed development will actually have the effect of facilitating a connection between Valley View Drive from the Dawson Highway to the Brigalow Lakes Development that I think is a matter of little consequence in weighing up what are truly sufficient factors in this consideration
The conclusion which I have therefore reached is that sufficient grounds to allow the development have been established. The appeal is therefore dismissed.
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