Reibel Farms Pty Ltd v Whitsunday Regional Council
[2016] QPEC 44
•08 September 2016
PLANNING & ENVIRONMENT COURT OF QUEENSLAND
CITATION:
Reibel Farms Pty Ltd v Whitsunday Regional Council [2016] QPEC 44
PARTIES:
REIBEL FARMS PTY LTD
ACN 011 072 763
(Appellant)and
WHITSUNDAY REGIONAL COUNCIL
(Respondent)FILE NO/S:
D239 of 2013
DIVISION:
Planning and Environment Court
PROCEEDING:
Appeal
ORIGINATING COURT:
Planning and Environment Court, Townsville
DELIVERED ON:
08 September 2016
DELIVERED AT:
Townsville
HEARING DATES:
17 to 20 November 2014; Written submissions 03 December 2014; Listed for of Delivery of Judgment 19 June 2015; Request to re-open evidence 19 June 2015; Application to re-open evidence 04 September 2015; Review and directions hearing 16 November 2015; Final submissions 22 January 2016.
JUDGE:
Durward SC DCJ
ORDERS:
1. Appeal dismissed.
2. The Decision of the Whitsunday Regional Council refusing the Development Application is confirmed.
CATCHWORDS:
ENVIRONMENT & PLANNING – DEVELOPMENT APPLICATION FOR MATERIAL CHANGE OF USE (PRELIMINARY APPROVAL) – CONFLICT WITH PLANNING SCHEME – FLOODING – ECONOMIC NEED – CONFLICT - SUFFICIENT GROUNDS – development application for material change of use (preliminary approval overriding planning scheme) – proposed residential development - property partly in rural zone and partly in open space zone in planning scheme – where proposed development adjacent to a watercourse that has a flood mitigation purpose – whether residential development in hazard-prone area suitable – whether proposal creates risks of flooding of existing and /or proposed properties – where proposal contingent on upgrade by Council of existing adjacent road and watercourse culvert – whether proposed development complies with Residential Zone Code and Filling & Excavation Code - whether economic need to approve development – where planning scheme provides other future capacity for residential development - whether conflict with planning scheme or other relevant instrument, planning scheme DEOs or State Planning Policy 1/03 – whether compromise of DEO’s - whether sufficient grounds to warrant approval despite conflict with planning scheme or other relevant planning instrument.
ENVIRONMENT & PLANNING – HEARING – JUDGMENT RESERVED - RE-OPENING – FRESH EVIDENCE – where respondent post-hearing and prior to delivery of judgment resolved to upgrade adjacent road and watercourse culvert – where appellant’s application to re-open evidence granted – where further evidence and further submissions dealt with on the papers – whether upgrade satisfied the Q100 flood level and associated flood risk issue.
LEGISLATION:
Sections 3.1.1.6, 3.1.5 (1), 3.5.5A, 3.5.14, 4.1.52, 4.1.54 and Schedule 10 Integrated Planning Act 1997; Sections 241 (1), 242 (1) (b), 802 and 819 Sustainable Planning Act 2009.
PLANNING SCHEMES:
Bowen Shire Council Planning Scheme 2006; Whitsunday Regional Council Planning Scheme (Draft).
CASES:
Cut Price Stores Retailers Ltd v Caboolture Shire Council (1984) QPLR 126; All-A-Wah Car Park v Noosa Shire Council (1989) QPLR 155; Luke & Ors v Maroochy Shire Council & Anor [2003] QPELR 447; Intrafield Pty Ltd v Redland Shire Council (2001) 116 LGERA 350; Woolworths Ltd v Maryborough City Council & Anor [2005] QPEC 262; Delaview Pty Ltd v Redland Shire Council [1997] QPELR 250; Shardlow v Moreton Bay Regional Council [2012] QPEC 082; (2013) QPELR 246; Stockland v Sunshine Coast Regional Council & Ors[2013] QPEC 079; Koerner & Ors v Maroochy Shire Council & Ors [2004] QPELR 211; Handley v Brisbane City Council & Anor (2005) QPELR 80; Kotku Education & Welfare Society Inc v Brisbane City Council & Ors [2005] QPELR 267; Lewis v Townsville City Council & Ors [2012] QCA 99; Australand Holdings v Gold Coast City Council [2007] QPEC 29; Zanow v Ipswich City Council[2010] QPEC 050; [2010] QPELR 721; William McEwens Pty Ltd v Brisbane City Council (1982) 2 APA 165; Grosser v Council of Gold Coast (2001) 117 LGERA 153; Central Equity Limited v Gold Coast City Council (2007) QPELR 356; Aldi Stores v Redland City Council [2009] QPEC 27; Westfield Management Ltd v Pine River Shire Council & Anor. (2004) QPELR 337; Metroplex v Brisbane City Council [2010] QCA 333; [2011] QPELR 181; Weightman v Gold Coast City Council (2003) 2 Qd.R. 441; Woolworths Ltd v Maryborough City Council (2006) 1 Qd.R 273; SDW Projects Pty Ltd v Gold Coast City Council & Anor [2007] QPELR 24; Australian Retirement Homes Ltd v Pine Rivers Shire Council &Anor [2007] QPEC 85.
COUNSEL:
S N Ure of counsel for the Appellant
B D Job of counsel for the Respondent
SOLICITORS:
Connolly Suthers Lawyers for the Appellant
McCullough Robertson for the Respondent.
The development application
The Applicant lodged a Development Application for a Material Change of Use of Premises – Preliminary Approval overriding the Planning Scheme – section 3.1.1.6 of the Integrated Planning Act 1997 (“IPA”), for residential development consisting of 10.96 hectares of residential precinct R1 Zone land, 8,898m2 of residential precinct R2 Zone land and 3.2 hectares of Open Space (“the development application”) on or about 28 May 2009.
The Appellant applied to amend the development application by way of “minor change” on or about 08 June 2009, to confine the residential development to the north-east (the proposed residential precinct R1 Zone) part of the land and the Open Space Zone. The proposed crossing of Bells Gully to access and develop the south-west part of the land (the proposed residential precinct R2 Zone with a commercial element) was removed. The Whitsunday Regional Council (“the Respondent”) did not take issue with the minor change application and it was approved by the Court on 18 September 2014. This meant that the Rural Zone was to apply to the balance of the land and reconfiguration of the land was to form no part of the development application. Nevertheless, the Respondent maintains its position that the balance of the land, that is the “R1 Zone” and the “Open Space”, whilst not Good Quality Agricultural Land (“GQAL”) per se, nevertheless can be used for rural purposes, including farming.
Onus of proof
The onus to establish that the appeal be allowed rests on the Appellant: s 4.1.50(1) IPA.
Determining the appeal
Foe the determination of the appeal IPA provides as follows:
“4.1.52 Appeal by way of hearing anew
(1) An appeal is by way of hearing anew.”
“4.1.54 Appeal decision
(1) In deciding an appeal the court may make the orders and directions it considers appropriate.
(2) Without limiting subsection (1), the court may—
(a) confirm the decision appealed against; or
(b) change the decision appealed against; or
(c) set aside the decision appealed against and make a decision replacing the decision set aside.”
Varying the effect of a planning scheme
Rackemann DCJ discussed the approach to be taken by the Court when dealing with an application involving a request to vary the effect of a local planning instrument on the land in question, in Australand Holdings v Gold Coast City Council [2007] QPEC 29 at [29] and [30]. His Honour wrote at [30]:
“The Court is however, obliged to conduct the appeal by way of a hearing anew and, in effect, stand in the shoes of the local government for the purposes of deciding the variations in response to Australand’s application.”
Decision Notice
The development application was refused by the Respondent on 28 June 2013 and notified by Decision Notice dated 12 July 2013. The reasons for the refusal were:
“(a)The application does not adequately address Desired Environmental Outcome (c) in that the application does not appear to demonstrate that, based on the current flooding characteristics, the development does not increase risks to existing and/or proposed properties from inundation during a flood event;
(b) The application does not comply with Specific Outcome 014 of the Residential Zone Code as the applicant has not demonstrated that the land is above Q100 for the existing flood characteristics;
(c) The application does not demonstrate that the proposed development can be made to comply with the Filling and Excavation Code; and
(d) The application does [not] demonstrate that compliance with State Planning Policy 1/03 can be achieved for the current flood characteristics” (the insertion of the word “not” before the word “demonstrate” is necessary to give the statement its intended effect).”
Notice of Appeal
The Notice of Appeal was filed on 07 August 2013. The Applicant joined issue with the Reasons for Refusal: that is, that is that there would be no compromise or conflict in any respect as asserted and that in any event there were sufficient grounds to warrant approval of the development application despite any conflicts that may be found.
The land
The subject land is situated at 33 Argyle Park Road and Jilletts Road, Bowen and is described as Lot 1 on RP 712891, Lot 2 on RP 725646 and Lot 2 on RP 726165, County of Herbert, Parish of Pring, comprising an area of 16.04 hectares partly in the Rural Zone and partly in the Open Space Zone of the Bowen Shire Planning Scheme 2006 (“the land”).
Aerial view (taken in 2013) of the subject land [outlined in red] and the Queen's Beach and nearby residential localities. Argyle Park Road is to the East of the land, Jilletts Road is to the North of the land. Harrison Court is to the South of the land.
The local authority is the Respondent. The relevant planning scheme is the Bowen Shire Council Planning Scheme 2006 (“the planning scheme”).
The dominant feature in the land is Bells Gully, a defined depression or drainage channel running roughly north-west to south-east across it that accommodates flows from upstream catchments and runs to a floodway across Argyle Park Road. The latter feature is one of the issues for the court to consider in the determination of this appeal. The land is prone to flooding and filling is required to achieve a Q100 flood immunity within the land. Argyle Park Road is a primary point of access to the land and a preferred evacuation route for the existing beachside residential areas to the east of Bowen.
Bells Gully receives overflow floodwater from breakouts at the Don River and through a defined depression or drainage channel to an established outlet at King’s Beach. Argyle Park Road was one of four roads which were implicated in the overall work proposal. Each of those roads, whilst floodwater depth varied, involved depths of floodwaters that were not traversable by vehicles. Argyle Park Road had been identified as the best possible option to undertake an infrastructure upgrade project to create a safe access route by raising the road to a level above the Q100 flood height.
The Respondent applied to the government for funding for an upgrade where the floodway crosses Argyle Park Road to achieve a proposed ARI 100 or Q100 (as it may be referred to) flood event immunity level.
In June 2014 the Department of Local Government, Community Recovery and Resilience announced funding for the “Argyle Park Road Q100 Flood Immunity Cyclone Shelter Access” in the sum of $2,486,000.00, which was 100% of the eligible project costs.
The Argyle Park Road - Bells Gully Upgrade project was announced by the Respondent in September 2014 by way of public notice. The works were proposed to provide better access for Queen’s Beach area residents and emergency services in the event of flooding and for safe access to a cyclone shelter at the Bowen State High School.
However, prior to the conclusion of the appeal the Respondent had resolved on 20 November 2014 to place the Argyle Park Road ARI 100 Flood Immunity Project on hold subject to further review.
The further review and progress with the upgrade project primarily developed from the receipt by the Respondent of an engineering design report by Cardno Engineers in 2015 and the Don River Flood Risk and Mitigation Study – Flood Risk Management Report by AECOM in 2014 and 2015 and further advice provided by the consultants dealing with flood mitigation and flood risk assessment, AECOM.
AECOM, in a letter dated 05 May 2015 to the Respondent, addressed the upgrade project further and in an Engineering Report to the Respondent dated 13 May 2015 favoured the Cardno design upgrade, plus the future upgrades to Bells Gully between Argyle Park Road and Soldiers Road, on an assumption of a reduction of 200mm in flood level directly upstream of the crossing and the AECOM prediction of full immunity from flood for an ARI 100 event. The Respondent approved the project on that recommendation.
The conclusions of Mr Collins, read as recommendations in effect, formed the basis of the approval by the Respondent of the Cardno design upgrade at its meeting on 26 August 2015.
I first reserved judgment on 20 November 2014, subject to written submissions being provided by the parties.
Application to reopen and adduce “new” or “fresh” evidence
The reserved judgment was listed for delivery on 19 June 2015. However, an Application was filed on that day by the Appellant, prior to the judgment being delivered, seeking a reopening of the hearing to adduce fresh evidence about one of the primary issues in the Appeal, namely the risk of flooding from the Bells Gully watercourse making the land unsuitable for residential development.
The Appellant’s case was that an elevation of the Argyle Park Road culvert crossing of Bells Gully to an ARI 100 (or as sometimes referred to, a Q100) flood event immunity would provide an appropriate level of safety for evacuation from the land. The proposal to upgrade the crossing to achieve such flood immunity was put on hold on 20 November 2014 (the day after the appeal hearing concluded), the project having been a proposal only and not certain to proceed at that time.
The fresh evidence is about the Respondent having resolved to proceed with the project. It has since been completed. However, there is still a hydrology issue between the experts and the flood event immunity issue remains extant.
The fresh evidence was clearly not available at the hearing. It simply did not exist at that time. It was potentially relevant to a primary issue in the hearing. Judgment had not been delivered: see Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256. The lawyers for the Respondent, understandably, did not oppose the Application.
Accordingly, following the foreshadowing of the Application on 19 June 2015 an Application to reopen the hearing was heard on 04 September 2015 and the Application was granted. A number of reviews and directions hearings followed and further submissions on, what might be termed the hydrology issue and at my request further submissions on the economic need issue, were filed. Final submissions were filed on 22 January 2016.
Sustainable Planning Act 2009
Pursuant to sections 802 and 819 of the Sustainable Planning Act 2009 (“SPA”), the repealed IPA continues to apply and the appeal is to be determined against the provisions of the IPA.
“802 Development applications under repealed IPA
(1) This section applies to a development application made under repealed IPA, but not decided, before the commencement (an existing application).
(2)For dealing with and deciding the application, repealed IPA continues to apply as if this Act had not commenced”;
and
“819 Appeals to court—generally
(1) Subsection (2) applies if—
(a) a person has appealed to the court under repealed IPA, or repealed IPA as applied under another Act, before the commencement; and
(b) the appeal has not been decided before the commencement.
(2) The court must hear, or continue to hear, and decide the appeal under repealed IPA, or repealed IPA as applied under the other Act, as if this Act had not commenced.”
Issues
The appeal requires consideration of a number of disciplines, upon which expert evidence was called, that reflect the relevant matters considered by the Respondent:
1. Town planning: Mr Motti (Appellant) and Mr Ovenden (Respondent);
2. Hydrology: Mr Johnson (Appellant) and Mr Collins (Respondent);
3. Economic need: Mr Duane (Appellant) and Mr Norling (Respondent).
Bells Gully has been considered both in respect of the land per se and the current state of the floodway crossing of Argyle Park Road. That issue involves matters of town planning, economic need and of hydrology and implicates a number of planning and policy documents.
Statutory provisions: Integrated Planning Act 1997
The principal statutory provisions of the IPA in regard to the assessment of the development application in this appeal relate to impact assessment, preliminary approvals that over-ride the planning scheme, compromise and conflict with the planning scheme desired environmental outcomes of the planning scheme.
“3.5.5 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 must carry out the impact assessment having regard to the following —
(a) the common material;
(b) the planning scheme and any other relevant local planning instruments;
(c) if they are not identified in the planning scheme as being appropriately reflected in the planning scheme —
(i) State planning policies, or parts of State planning policies; and
(ii) for the planning scheme of a local government in the relevant area for a State planning regulatory provision—the provision; and
(iii) for the planning scheme of a local government in a designated region—the region’ regional plan; …”
“3.5.5A Assessment for s 3.1.6 preliminary approvals that override a local planning instrument
(1) Subsection (2) applies to 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.
(2) The assessment manager must assess the part of the application having regard to each of the following —
(a) the common material;
(b) the result of the assessment manager's assessment of the development under section 3.5.4 or 3.5.5, or both;
(c)…
(d) the consistency of the proposed variations with aspects of the planning scheme, other than those sought to be varied;
(e) if they are not identified in the planning scheme as being appropriately reflected in the planning scheme—
(i) State planning policies, or parts of State planning policies; and
(ii) for the planning scheme of a local government in the relevant area for a State planning regulatory provision—the provision; and
(iii) for the planning scheme of a local government in a designated region—the region's regional plan; …”
“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. …”
Paragraph 1.5 (2) of the planning scheme refers to “conflicts”, in the context of deciding applications for assessable development, in the following terms:
“(2)For the purposes of making a decision about an application requiring impact assessment in accordance with Section 3.5.14 of the Act, development that is identified in this planning scheme as inconsistent development conflicts with the planning scheme.”
“SCHEDULE 10
grounds, for section … 3.5.14—
1. Grounds means matters of public interest.
2. Grounds does not include the personal circumstances of an applicant, owner or interested party.”
Bowen Shire Planning Scheme 2006
The provisions of the planning scheme, relevant to the issues, are:
“Part 2 – Shire Wide Outcomes
Division 1 – Ecological sustainability
2.1 Achieving the Desired Environmental Outcomes
(1) The desired environmental outcomes are based on the elements of ecological sustainability defined by the Act and are the basis for the measures of the planning scheme.
(2) Ecological sustainability for the Shire will be advanced if each desired environmental outcome is realized to the extent practicable having regard to all other desired environmental outcomes.
2.2 Desired Environmental Outcomes
(1) The desired environmental outcomes for the Bowen Shire are:
(c) Risks to safety, property and the environment are not increased by the interaction of development and natural or other hazards, including flooding … storm surge, cyclonic weather events ……
(d) Development protects the economic values of natural resources including good quality agricultural land, extractive and mineral resources, vegetation and water.
(e) Development provides a benefit to and satisfies an economic demand of residents of the area in which it is located
(h) Bowen continues to function as the main business centre and administrative hub for the Shire.
(i) Growth and community development within the Shire focused on the existing Bowen and Collinsville urban areas to facilitate the efficient use, timely and orderly expansion and continued operation of infrastructure.
(l) Development occurs in an area:
(i) which is suitable and compatible with the nature of the development; and
(ii) in which services and facilities required in respect of the development are existing, planned or provided by the development.
(m) Development does not adversely affect:
(i) the community’s health and safety;
(ii) the amenity enjoyed by people in different areas of the Shire; and
(iii) the safe and efficient operation of the transport, energy and other infrastructure supporting the Shire and surrounding region.
(n) Development reflects the community’s reasonable expectations and harmonisers with the natural environment and does not prejudice the Shire’s existing scenic amenity, particularly along the coastal plain.”
“3.3 Rural Zone Code
(1) Purpose
(a) The purpose of the Rural Zone Code is the achievement of the overall outcomes sought for the Rural zone.
(b) The overall outcomes sought for the Rural Zone are:
(i) Land used for rural activities such as grazing, agriculture and horticulture is protected from development, which in Council’s opinion would significantly infringe on the landscape setting and rural amenity of the Shire;
(iii) Agriculture, including both extensive and intensive activities is protected from incompatible uses and land use conflicts resulting from the location of non-rural activities on rural land;
(iv) Uses and works are located and designed to maximise the efficient use and extension and safe operation of infrastructure;
(2) Elements
(a) Land use and development
(i) Consistent Uses
Specific Outcomes
01 (e) Only uses consistent with the overall outcomes for, and preferred for development within the Rural zone, are established in the zone.
(f) The following uses and use classes are consistent with, and preferred, within the Rural zone:
(i) All Rural Purposes
02 Provided the following …
Ø be compatible with surrounding Rural Purposes by being of similar scale, intensity and character; and
Ø support preferred uses; and
Ø not adversely affect the amenity of the locality; or
Ø provide recreational or community facilities that are more appropriately located in the Rural zone;
they are consistent uses within the Rural Zone:
(a) Residential Purposes comprising:
(iii) Dwelling house (where for the accommodation of the household involved with the dominant rural purpose undertaken on the premises);
(ii) Inconsistent Uses
Specific Outcomes
03 Uses other than:
Ø preferred uses nominated in O1; or
Ø consistent uses developed to comply with the provisos set out in O2;
do not establish in the Rural zone, do not comply with the overall outcomes sought for the Rural Zone and conflict with this code.
(iv) Density
Specific Outcomes
05 The density of residential development is compatible with local amenity expressed by the overall outcomes sought for the Rural Zone.
S5 No more than one (1) Dwelling house is constructed on a lot.
(v) Character and Amenity
Specific Outcomes
06 Uses and works are located, designed and operated to minimise adverse impacts on:
Ø The health and safety of people using the premises and adjacent premises; and
Ø Existing community infrastructure.
(x) Flood immunity
Specific Outcomes
014 Land on which buildings and structures associated with development nominated in Column 1 of Schedule 7 will be constructed, is immune from a flood event of at least the annual exceedance probability specified in Column 2 of Schedule 7 for the development.”
Brief commentary on the planning scheme
Schedule 7 (relevant to SO 014) provides for all residential purposes (Column 1) and for 15 probability of event (likely occurrence in any one year). This has since been replaced by TLP 1 and is no longer applicable. It remains a matter of weight for the Court.
Mackay, Isaac and Whitsunday Regional Plan 2012 and Whitsunday Regional Council Planning Scheme (draft).
The planning scheme is informed by the Strategic Framework, DEO’s and the Regional Plan.
The Regional Plan is a whole of region document. Bowen is historically developed as an urban centre servicing agricultural, commercial, fishing and port activities, subsequently supplemented by horticulture, tourism, light industry and the development of the Abbott Point port facility, although the latter has experienced diminished expectations in recent years.
The Regional Plan recognises the limitations to growth in Bowen of “the impacts of flooding and storm tide inundation” and “the need for protection of” GQAL as a planning and development constraint in the context of development of the town.
The draft Whitsunday Regional Council Planning Scheme is also relevant as a matter of weight. I will refer to that in the course of the discussion that follows.
State Planning Policies and Temporary Local Planning Instruments
State planning policies set out the State interests that must be addressed through local government planning schemes and regional plans.
In State Planning Policy 1/03 – September 2003 (Exhibit 16), there is specific reference to the mitigation of adverse impacts of flood and managing flood hazards to insure that they are adequately considered when making decisions about development.
The policy position is that, generally, the appropriate defined flood event (GFE), for determining a natural hazard management area (flood) is the 1% Annual Exceedance Probability (AEP) flood.
State Planning Policy July 2014 provides, in simple terms, that “the risks associated with natural hazards are avoided or mitigated to protect people and property and enhance the community’s resilience to natural hazards”.
Bowen’s “Temporary Local Planning Instrument 02/2013” has an updated Hazard Mapping and Associated Code Instrument (Exhibit 13) for Bowen flooding and storm time regulation. The Natural Hazards Trigger Map identifies likely high velocity of floodwaters of greater than 3m/s in Bells Gully over the land.
It has an overall outcome that, inter alia, only development which is compatible with the nature of flood is located within the Natural Hazard Management Area (NHMA) and that the safety of people and property is protected from unacceptable risk from flooding.
Bowen’s “Temporary Local Planning Instrument 01/2014” – in draft and not released or adopted at the time of the hearing – (Exhibit 14) provides further updates. There is a new “Flood Hazard Code” and Schedule for “Flood Immunity for Specific Purposes”. Suffice to say that it further develops the management of flood risk within Bowen.
The Regional Planning Scheme
Insofar as the draft Whitsunday Regional Council Planning Scheme is concerned, Bells Gully as it traverses the land is classified as “medium hazard”, although on the eastern side of Argyle Park Road it is classified as “high hazard” (Coastal Protection Overlay map CPI-10D, at p153). Bells Gully is classified as “Predicted 1% Flood Event” in the Flood Hazard Overlay map FH-10D, at p157 and the land as a “Flood Hazard Area”.
The land remains zoned as “Rural” in the Zoning Map (ZM-10D at p146).
The Regional Plan referred to investigation in the long term of the capacity for growth of the township to the south of Bowen (page 14 in Exhibit 15) and referred to the need to consider through planning the impacts of flooding in storm tide inundation in existing developed areas in the township. It also referred to “the need for protection of good quality agricultural land” limiting potential urban expansion.
The Argyle Park Road Crossing Upgrade
The Respondent commissioned a number of reports from engineers about the upgrade of the Argyle Park Road crossing.
AECOM in Revision 2 of their Report to the Respondent dated 02 December 2014, considered the flood risk assessment for the Don River in a study which assessed existing flood risk by the Don River and the Euri Creek catchment events. Flood impacts arising from local catchment events and storm surges were not part of the study.
The study demonstrated that “the behaviour of regional flooding across the study area is complex due to flow breakouts form the Don River and Euri Creek, hydraulic controls including road and rail crossings of the floodplain, and morphological changes.” The hydrologic model calibrations undertaken demonstrated a number of uncertainties in the data and other information that was studied, including calibration and validation of the modelling. It is apparent from the report that the complexity of the flood events in the catchment areas gives rise to numerous uncertainties in the validity of information contained and the consequences that might result from the various phases of modelling undertaken and in respect of which advice was given to the Respondent.
AECOM concluded that:
“the Don River is deemed to pose a significant existing flood risk for the communities in Merinda, Bowen and Queen’s Beach due to the relatively short warning time, dynamic nature of the river system, high velocities and flood depths. Isolation of several communities can occur during flood events due to the limited availability for evacuation as a result of the low existing immunity of key transportation links.
There is a need to identify, assess, compare, make recommendations and report on options to improve risk management for the community. This will be undertaken in the Stage 2 Flood Mitigation Assessment Report.”
In the Don River Flood Risk and Mitigation Study – Flood Risk Management Report completed on 28 April 2015 and provided to the Respondent, AECOM made a number of assessments based on identified assumptions, drawing on the Cardno Engineering Report.
The Study concluded that in an ARI100 design event, peak outflow discharge from the Don River into Bells Gully of 90m3/s would predict an inundation of the upgraded crossing (in terms of that recommended in the Cardno Report) by one metre in such an event.
The Cardno design was based on a peak outflow of 10m3/s, 20m3/s and 30m3/s (or in each of those peak hour flows respectively, free board of 70mm, inundation of 450mm over the crossing and inundation of 700mm over the crossing).
AECOM developed a further scenario (on an assumption of Argyle Park Road being raised at the Bells Gully crossing to 4.3m AHD) involving a peak outflow of 90m3/s at which a predicted inundation of 900mm was made. A reassessment of the study calculations produced inundations of 550mm at 30m3/s and 300mm at 20m3/s. If the Bells Gully crossing at Argyle Park Road was raised to 5.2m AHD and an increased culvert capacity was constructed, the Report predicted an immunity at 90m3/s, but with increased water surface levels impacting nearby locations, including at Harrison Court. Hence additional works in Bells Gully between Argyle Park Road and Soldiers Road were recommended to improve the outcome in that scenario.
On 21 August 2015 the Respondent’s hydrology consultant, Mr Collins, wrote to the Respondent and inter alia, based on his review of the AECOM Reports, the Cardno studies and construction drawings amongst other materials concluded as follows:
“(a) the actual immunity level of the proposed Argyle Road upgrade crossing is dominated by the frequency of major Don River flood event breakouts into Bells Gully.
(b) the proposed crossing will provide ARI 100 year immunity for local Bells Gully catchment flood events when river breakout does not occur, albeit tested without debris blockage.
(c) the proposed crossing will provide in the order of ARI 20 year trafficability against Don River breakout floods, without breakout blockage.
… and
(e) the proposed crossing upgrade does provide considerable benefit and there will be a significant improvement over the current circumstances, raising the immunity of the crossing from approximately ARI 2 year (local flooding) to ARI 100 year on local flooding, and ARI 20 year on Don River flooding events. Council will need to implement a suitable maintenance regime to avoid excessive debris blockage build up.”
The other conclusion by Mr Collins related to further significant raising of the crossing over what was proposed in the Cardno design and the likely significant and unacceptable adverse flooding impacts adjacent and downstream from the Bells Gully crossing. Hence, he appears not to have been prepared to recommend a further raising of the crossing level in the upgrade design unless significant further works were carried out to alleviate the consequential flood impacts that would follow from the latter.
The first tranche of documents about the Argyle Park Road and Bells Gully Crossing upgrade (Exhibit 8) is informative when considered in context with the upgrade project that was subsequently completed. In the application by the Respondent council for state funding for what was described as a flood mitigation project, the project was at that time (in mid-2014) to comprise an “upgrading of the existing culvert structure and road formation at Argyle Park Road to increase flood immunity to 1 in 2 years to 1 in 100 years in order to provide a safe access route to the recently constructed Cyclone Shelter and alternative higher ground locations and emergency services”.
In regard to the Respondent council’s Disaster Management protocol and the warning alert for residents, it was reported in the application that “the current rain gauge for the Bowen area only updates rainfall every 6-12 hours and in the instance of a recent weather event the road was already cut before the need to evacuate was declared”.
In the Cardno Project Plan (at page 27) for the Bells Gully Upgrade Project, the executive summary records as follows:
“Hydrological studies analysing the impacts of the Don River when in flood and subsequent overflow into Bells Gully have been undertaken with the most recent completed in November 2011. Recommendation from the most recent study outlined the need for significant work to be completed on the Bells Gully overflow to divert the flood water from the Don River, through a defined drainage channel, to an established outlet at King’s Beach. The alignment of the drainage channel crosses 4 significant road networks [Argyle Park Road being one of those]” and “at each of [the] road crossings, the floodwater depth varies, however each is to a depth that is not traversable with vehicles.
To give the residents within the study area a safe access route to the Cyclone Shelter and to higher ground during natural disasters, one of the affected roads requires the crown level to be reconstructed above the Q 100 flood height. Argyle Park Road [was] identified as the best possible option to undertake an infrastructure update to create a safe access route.
The current road height at Bells Gully Crossing on Argyle Park Road is approximately RL 3.00AHT. To bring the road height above the Q 100 flood level at the Bells Gully Crossing, Argyle Park Road will have to be raised to RL 4.90AHT.”
Harrison Court
The Harrison Court residential development is to the south boundary of the land and its construction was approved in about March 2010 by the Respondent subject to conditions, the development proposal was considered to be inconsistent with the planning scheme due to its rural zoning. The rationale of the recommendation for and approval of the development application was the provision of “infill residential development” (given the surrounding residential developments in the area); “… the efficient use, timely and orderly expansion and continued operation of infrastructure” in the existing Bowen urban area; and the provision of a “an alternative housing choice within walking distance to services and facilities” (for example, the Bowen High School and shops).
Whilst Harrison Court was approved despite conflict with the planning scheme, its location is on the township side of the land and no crossing of Bells Gully is required for access or egress.
The Evidence
Mr Reibel(1)
The Appellant’s principal, Mr Reibel, is an experienced crop farmer. He farms in various locations in the Bowen area, including the land, the latter having been bought in 2006 and used for sorghum and other cropping. The land was then adjacent to Rural Zones to the south and west.
Harrison Court is now a residential development. The building of residences close to the boundaries of the land has resulted in complaints from residents about long grass and aesthetic matters, dust generated by use of machinery, noise from early morning operations and the unsuitability of using crop sprays because of their proximity to urban forms of development. Mr Reibel deposed that it was not possible to operate intensive farming operations on the land.
During September 2011 Mr Reibel carried out earthworks to the west side of Bells Gully with the result that the gully has a flat bottom and bevelled banks to facilitate better farming and farm management.
In cross-examination, Mr Reibel said that he had not known that the introduction of a new planning scheme was imminent in 2006. He knew the land was rural and knew of its soil and water characteristics. There were two houses associated with the land which were excised from it. He bought the land to farm it. He talked to developers in 2006 and took advice about a development on the land which he said was “favourable”. He decided to “take a punt”. He knew about the Harrison Court residential development at that time but did not think it would impact on his farming activities. He believed residential development on the land was likely to be favoured by the Council.
The work he carried out in 2011 to level the land took about six or eight weeks and some 30,000 cubic metres of fill was moved. He did not propose to grow grass in the gully itself once the proposal was approved and development had commenced.
(2) Town Planning
Points of agreement
In their Joint Report, Mr Motti and Mr Ovenden agreed that the substantive issue was the effect of flooding and storm water. Those matters are within the field of other experts.
Points of disagreement
The points of disagreement, in the strict planning context, were the extent and significance of any conflict with the planning scheme, particularly the DEO’s and the Rural Zone Code. I will therefore deal with those matters with greater specificity.
Mr Motti
Mr Motti considered that the proposal acknowledged characteristics of the locality, provided an integration with existing urban community and provided a housing choice that was well connected by its location to employment and community services. He did not consider there was conflict with the DEO’s, on the basis of what he referred to as a “balanced” consideration. He considered that the proposal responded in an appropriate way to the Mackay, Isaac and Whitsunday Regional Plan. He considered that approval of the proposal would provide certainty for further investment infrastructure, citing Argyle Park Road as a specific instance.
With respect to the issue of sufficient grounds, Mr Motti considered there were sufficient grounds to warrant an approval, with emphasis on the development providing community benefit by way of assistance in the development of a regional stormwater and floodwater solution and the provision of housing choice.
In cross-examination, Mr Motti agreed that the initial “temporary approval” given by the Respondent to the Development Application, which was subsequently changed, was made against the Respondent’s Officers’ and Agency advice. The Development Application had since changed. He believed the conditions on the original Development Application could possibly have been met, as distinct from being “not achievable”, which was why the minor change in June 2009 was made. He agreed that the Strategic Framework was “indicative” and not a basis for detailed planning and that it contained merely broad, illustrative mapping. He agreed that the upgrade to Argyle Park Road would be a reasonable condition to place on any Preliminary Approval. He also agreed that one should not impose a condition that was uncertain: that is, in the context of any Argyle Park Road upgrade. Of course, that uncertainty was subsequently resolved by the construction of the upgrade of the Argyle Park Road crossing, albeit subject to the competing views expressed by the hydrologists about the flood risk issue.
Mr Motti was referred to the draft new planning scheme (the “Whitsunday Regional Council Planning Scheme”) and said that he was aware that there was a new urban area indicated south of Bowen towards Whitsunday Shores. In the Shire outline map in the [current] planning scheme, Whitsunday Shores and Harrison Court were shown as “rural”.
In the course of the hearing, the proposed new planning scheme was acknowledged to be very early in its preparation. Of course, there is a “question” about what weight should be given to it. Mr Motti said that conflict with the planning scheme was not surprising and that a detailed investigation would follow any Preliminary Approval.
Mr Ovenden
Mr Ovenden referred to the DEO’s primarily in respect to DEO (c). This DEO focuses on the flooding and stormwater issues addressed by the hydrology experts. He considered that the proposal conflicted with the Regional Plan with respect to natural hazards. He highlighted the fact that the Respondent (or its predecessor, the Bowen Shire Council) had introduced a Temporary Local Planning Instrument dealing with the limitation of development on the floodplain and public safety and risk management.
Mr Ovenden considered that the proposal conflicted with “a raft of Planning Scheme provisions” and would compromise the achievement of a number of DEO’s. He considered there was no need for the land to be developed residential purposes, there being sufficient supply of land available for residential purposes. He did not consider there were sufficient grounds to approve the application in face of the conflicts with the planning scheme and other planning instruments.
Mr Ovenden said that the [current] planning scheme had not been overtaken by events. He referred to other farming activity upstream in Bells Gully and characterised the locality as being largely rural. There had been signs of the land itself being a working farm when he visited it. He said (whilst this is a matter for other experts and inferentially he defers to them) there was no planning need to convert this rural site to residential.
Conflict with the Rural Zone Code
Mr Motti accepted that the proposed development does conflict with the Rural Zone Code in that the proposed development introduces non-rural development to part of the land. Mr Ovenden agreed with Mr Motti but put weight upon specific outcomes O4, O5, and O14 of the Code which he said are also relevant to consider.
(3) Hydrology
Points of Agreement
In their Joint Report (which preceded the decision of the Respondent to complete the Upgrade project), Mr Johnson and Mr Collins agreed on three matters, predicated on resolving any differences arising out of flood level reports and modelling:
1. The site and adjacent Bells Gully crossing of Argyle Park Road are subject to flash flooding in Bells Gully, break-out flooding from the Don River and from storm tide back-up inundation;
2. In a flash flooding event, vehicle and pedestrian access from the Queen’s Beach area to the centre of Bowen is compromised; and
3. The upgrade of Argyle Park Road floodway is a proposal that is currently qualified, in so far as the prospect of that project proceeding is concerned.
Of course, Point 3 is no longer a relevant consideration.
In the more recent reports (post-completion of the project) of Mr Johnson and Mr Collins, no further Points of Agreement have emerged.
Points of disagreement
The Three points of disagreement were far broader as between Mr Johnson and Mr Collins:
1.
Mr Collins considered that the development would further increase the burden on emergency services during flood events and even if Argyle Park Road was upgraded at the floodway it would not be trafficable in a 100 year flood event. Mr Johnson considered that in the event of such a flood event there would be significant warning time to residents for the purposes of evacuation.
2. Mr Collins considered that the land is a Natural Hazards Trigger Zone and that placing additional people in the floodplain, on land that has been filled, where it is isolated with no current suitable means of evacuation, would adversely affect the safety of people. Mr Johnson maintained that the Cardno flood modelling had demonstrated flood levels less than those shown in previous analyses, which the planning scheme relied upon. He accepted that the land would still fall within the Natural Hazards Trigger Zone but that an upgrading of Argyle Park Road would significantly improve access and evacuation capability for the proposed development and existing residential areas. He considered that the flood risk was adequately managed by the proposed filling on the land and the upgrade of the road crossing.
3. Mr Collins considered the development to be incompatible with the flood hazard and gave rise to unacceptable risks. Mr Johnson considered that the existing proposed works on the land and the upgrade of Argyle Park Road would deal with any hazards.
Mr Johnson
Mr Johnson said that the originally proposed development would have resulted in unacceptable increases in flood level both upstream of Jilletts Road and upstream of the north-west corner of the land. However, after the minor change there would be only minor increases in flood levels “adjacent to the land”. He therefore considered the development as now proposed was acceptable.
He maintained that the Cardno flood modelling demonstrated that the proposed development would have no adverse impacts beyond the land. He considered that only minor regrading of the land would be required to achieve flood immunity. He did not think that flooding at the DFE level was likely to be caused by severe cyclonic activity (rainfall) but rather primarily through break-outs from the Don River or from storm tide. He therefore did not accept that the development would be unsafe in a flood protection context. He gave evidence that the land could be filled to the required level to protect it from flooding at the Q100 level, without unacceptable impact on flood levels external to the land.
Mr Johnson’s report was predicated upon the Argyle Park Road upgrade being undertaken and completed. He made a number of concession sin the course of cross-examination that arguably are relevant even though the upgrade project has now been completed.
Mr Johnson considered that there were no flooding or drainage reasons why the development should not proceed and that there was nothing that, in effect, could not be met by appropriate conditions on an approval.
With respect to the Cardno flood modelling, Mr Johnson said that flooding within the land is almost entirely confined to the water course and that the proposed development would have no impact on flooding. However, the modelling was qualified, as I understand in the sense that applies to all modelling, by a number of [what Mr Johnson described as] minor instabilities. He referred to minor increases of 10 to 50 mm in areas that already experienced significant depth of flood inundation (more than 500 mm) external to the land, on the basis of the current development proposal being approved.
Mr Johnson in an affidavit filed on 12 October 2015 referred to the AECOM documents (but not the Cardno design report) and to Mr Collins’ affidavit and the Respondent’s resolution of 13 May 2015.
Mr Johnson referred to both parts of the AECOM Flood Risk and Mitigation Study the second part of which of course was completed after the hearing of the appeal had concluded in December 2014.
He noted that Mr Collins did not accept the AECOM modelling as being accurate in respect of flood behaviour implicating Bells Gully but rather accepted the Cardno figures.
Mr Johnson expressed the view that the ARI 100 year event would involve 0.45m overtopping of the upgrade crossing rather than one metre as Mr Collins had assessed. At his 0.45m assessment the crossing would be trafficable.
He considered that the breakout from the Don River did not all go down Bells Gully and he expressed the view that much of the flow would divert back to the river. Hence, on that prediction, AECOM’s modelling of 12m3/s relocation was more reliable. At that rate he considered that the upgraded crossing would not be overtopped at all. With respect to the 90m3/s assessment, he considered that to be an overestimate. The upgrade would provide in his view “an appropriate level of immunity”.
Mr Collins
Mr Collins in an affidavit filed 04 September 2015 addressed the AECOM further report and correspondence, the Don River Flood Mitigation Study, considered the Don River Flood Impact Assessments and Queen’s Beach Drainage Study and the Bureau of Meteorology “Flood Warning System for the Don River” publication.
He considered that a breakout from the Don River to Bells Gully could be as high as 350m3/s in an ARI 100 flood event and that a breakout would be “significant”. In the Bureau of Meteorology publication he noted reference to large floods having occurred in 1946, 1970 and 1980 in the Don River with major breakouts into Bells Gully. The average of major flood events was one every nine years (there being 16 in total since 1869) or every 20 years on an average for major river breakouts.
He referred to what he considered to be the key points in the AECOM Reports, namely that with an upgrade to the crossing flood immunity level was not able to be determined primarily because of uncertainty and the level of breakout to Bells Gully from the Don River through major flood events. Two scenarios were considered, 10m3/s and 90m3/s. In the former scenario it was predicted there would be no over topping of the crossing and in the latter scenario overtopping of one meter was predicted. No debris blockage was considered in either scenario.
Mr Collins had considered the Cardno design of March 2015 in two respects: firstly, the upgrade alone would involve offsite flooding of 20mm to 250mm, but generally at the lower level; and secondly, the upgrade with future major channelization works in Bells Gully between Argyle Park Road and Soldiers Road, there would be a reduction of flood levels on the second scenario of 90m3/s that would nevertheless produce a 0.8m overtopping in the ARI 100 year event, in which case Argyle Park Road would not be trafficable.
Mr Collins concluded his opinion, as it was then, as follows:
“(a) the actual immunity level of the proposed Argyle Road upgrade crossing is dominated by the frequency of major Don River flood breakouts into Bells Gully.
(b) the proposed crossing would provide ARI 100 year immunity for local bells Gully catchment flood events when river breakout does not occur, albeit tested without debris blockage.
(c) the proposed crossing will provide in the order of ARI 20 year trafficability against Don River breakout floods without debris blockage.
(d) any further significant raising of the crossing, over what is currently proposed, is likely to result in a significant and unacceptable adverse flooding impact, unless properly investigated with consideration given to how adjacent and downstream landowners are appropriately managed and mitigated. There are likely to be substantial cost considerations that will need to be taken into account by council to further improve flood immunity from that which will be provided by the proposed crossing and, in my assessment, the achievement of a ARI 100 year immunity against Don River breakout floods is likely to be cost prohibitive and subject to a number of constraints.
(e) the proposed crossing upgrade does provide considerable benefit and there will be a significant improvement over the current circumstances, raising the immunity of the crossing from approximately ARI 2 year (local flooding) to ARI 100 year on local flooding, and ARI 20 year on Don River flooding events. Council will need to implement a suitable maintenance regime to avoid excessive debris blockage build up.”
He concluded that the upgrade would provide “greatly increased immunity road access” from beach areas to an area of safety (on higher ground or the cyclone shelter).
Mr Collins gave evidence that the subject land is susceptible to flash flooding within the local catchment and that filling of the site associated with the proposed development would not mitigate risks to property to an acceptable level for events up to Q100. Flash flooding would result in isolation of the proposed development along with existing development within the Queen’s Beach area.
He said that flood warning lead times are as short as three hours and up to nine hours (according to the Bureau of Meteorology figure, to which I have referred) due to rapid stream rises and very high velocities in the lower Don River. He said that the land is susceptible to flooding due to overflows from the Don River which occur when the river levee system is over-topped or if the levees are breached. In those circumstances a rapid increase in flood discharge through Bells Gully, with very little warning time to allow safe evacuation, would result. He said that despite the filling of the site to raise the level for the proposed residential development, there would nevertheless be a significance risk to life for that residential community as a consequence of isolation, which was not mitigated in the development proposal.
Mr Collins described the Don River as a “particularly dangerous and unpredictable river during floods” and referred to its major stream migration, changes in sandbanks, major bank erosion and formation of standing waves that had been evident in the past. He said the levee banks were not fully engineered structures and were likely to breach under extreme flood conditions. In his view the proposed development relied on an assumption that the levee system would remain intact and that river flood break-out could be controlled. However, he considered that extreme flooding of the river was such that this assumption could not be relied upon. Hence residents of the proposed development would be placed at an unreasonable level of risk.
He referred to Argyle Park Road as being one of the main evacuation access routes for existing Queen’s Beach community with all of the road crossings (the four of them) being of a similar low standard of immunity. Argyle Park Road at Bells Gully [had been] low lying and inundated approximately every two years on average.
In his view, in his report and in his evidence at the hearing, the proposed development would therefore add to the burden on emergency services because of the isolation of residents.
Mr Collins said that the existing flood risks were not appropriately managed given the degree of isolation of Queen’s Beach. He said that “In my professional opinion, responsible floodplain management avoids ad hoc development in areas at risk of flooding. Ad hoc decisions now may significantly compromise the ability to manage risks to the existing community effectively in the future”.
He gave evidence that the State Planning Policy (Natural Hazards Risks and Resilience) required development to support and not unduly burden disaster management response or recovery capacity and capabilities. He said that it was inappropriate for new development in Queen’s Beach to increase the number of people who are potentially isolated during flood events which then places additional burdens on emergency personnel for assisted evacuation and rescue. He said the development proposed was not in accordance with current flood risk management practice.
Mr Collins said the highly variable nature of the Don River morphology meant that floods were not consistent and past floods would not necessarily provide an indication of future flood behaviour. Although there was a relatively good warning system for rising flood levels in the Don River, he said warning times could be as short as three hours without levee failure and over-topping and it was much more difficult to predict such over-topping of the river levees into Bells Gully.
With respect to the upgrade of Argyle Park Road, he gave evidence that the Q100 flood depths over the floodway were, before the upgrade, about 1.7 metres. The proposed level in the preliminary upgrade designs were still considerably below the Q100 flood level.
It could not be raised higher at least, due to difficulties with traffic engineering at the entrance to Harrison Court. A higher level crossing on Argyle Park Road would have provided a better solution, but the completed upgrade did not reach that level.
With respect to the Cardno flood modelling, to which Mr Johnson referred, it had not been exhaustively reviewed and was therefore of questionable value.
Mr Collins concluded that the fundamental flooding issues associated with the development of the site were:
1. It is flood effected in the DFE. Proper practise is design for risk and safety for events exceeding the DFE and filling is therefore required to provide acceptable flood immunity and level of risk.
2. Access to and from the site was presently inundated in an ARI two year event. Even if access was improved, warning times to enable safe evacuation of the site may not be adequate.
3. He considered there were risks which were unacceptable from a floodplain risk management perspective associated with the development on the land, implicating both future residents and emergency services personnel. The risks are related to attempts by residents and personnel to cross a flooded Argyle Park Road crossing and to residents who remained within the confines of the land where they may be inundated by severe flood events.
Mr Collins in his recent reports about the upgrade to Argyle Park Road (and more specifically to the Cardno flood modelling, which he quite clearly thought was unsatisfactory) said the upgrade, which was based on the Cardno flood modelling, was about 670 mm below the Q100 flood level.
He also expressed the view that the number of culverts, their dimension and the pedestrian handrail that would be required in the upgrade would act as an impediment to objects (flotsam) being carried in flood waters, which would potentially cause blockages. If that occurred then floodwater would be diverted around the handrails towards Harrison Court. Therefore he considered that there was a significant potential for an unacceptable flood impact upon adjacent properties. Mr Collins’ view is that the road would not be trafficable in a Q100 event.
Sufficient grounds
In Weightman v Gold Coast City Council (2003) 2 Qd.R. 441, the Court of Appeal held that the requirement imposed by s 4.4(5A) of the repealed legislation was mandatory and not merely directory. Atkinson J applied the following test:
"In order to determine whether or not there are sufficient planning grounds to justify proving the application despite the conflict, as required by s. 4.4(5A)(b) of the P&E Act, the decision maker should:
1. Examine the nature and extent of the conflict;
2. Determine whether there are any planning grounds which are relevant to the part of the application which is in conflict with the planning scheme and if the conflict can be justified on those planning grounds;
3. Determine whether the planning grounds in favour of the application as a whole are, on balance, sufficient to justify proving the application notwithstanding the conflict."
In Woolworths Ltd v Maryborough City Council (2006) 1 Qd.R 273, the Court of Appeal analysed the issue of conflict between the decision and the planning scheme and the test applied in Weightman:
"[23] 'Conflict' in this context means to be at variance or disagree with. It describes a quality of a relationship between the subject (the decision) and a part of the predicate (the scheme). Unlike 'compromise' in para. (a), it implies no particular impact by a subject upon an object. A determination that there has been a breach of the requirement that 'the assessment manager's decision must not … conflict with the planning scheme' requires the identification of the decision, the identification of some part or parts of the scheme with which the decision might be said to conflict and a decision whether the former conflicts with the latter. Only if such a determination has been made is it necessary to consider whether there are sufficient planning grounds to justify the decision.
[24] Section 3.5.14(2)(b) differs in several respects from s. 4.4(5A) and s. 4.13(5A) of the Local Government (Planning & Environment) Act 1990,provisions which may be regarded as its predecessors. Under those sections the subject of the putative conflict was under the application; here it is the assessment manager's decision. Under those sections the object of the conflict was any relevant strategic plan or development control plan; under the present section it is the whole planning scheme. Under those sections (if they applied) the result was a refusal of the application in the absence of sufficient planning grounds; here the result in the same circumstances is simply a non-conflicting decision. Under those sections what required justification was approval of the application; under the present section what requires justification is the decision. Moreover, the grammatical structure of the two sections is significantly different. These differences mean that care must be used in applying the cases decided under those provisions to the present section."
Fryberg J (with whom Holmes J agreed) referred to the process approved in Weightman in respect to the repealed section. However, he said it would "[be] a mistake to treat the relevant passage in that judgment as if it were a mode for the determination of justification"; and [T]he purely mechanical application of the Weightman dictum should be avoided, particularly when dealing with the current statute rather than the one under consideration in that case" (at page 286 and 296 respectively).
In Luke & Ors v Maroochy Shire Council & Anor [2003] QPELR 447, Wilson SC DCJ referred to the sufficiency of planning grounds, notwithstanding conflict with the planning scheme:
"[103] IPA s. 3.5.14(2)(b) provides that the assessment manager's decision (or, in this case, the decision of this Court) must not conflict with the planning scheme unless there are sufficient planning grounds to justify the decision. The existence of conflict is a question of law. Any conflict said to arise must be plainly identified but that is a process undertaken by looking at the scheme as a whole, rather than isolated provisions. The word 'sufficient' refers to the weight to be afforded on any particular ground which is advanced as a reason for approval, despite conflict; and the phrase 'sufficient planning grounds' refers to those planning grounds of sufficient weight to justify approval, despite the conflict, and includes any grounds which relate to the merits of the application."
See also SDW Projects Pty Ltd v Gold Coast City Council & Anor [2007] QPELR 24 at [46] to [48]; and Australian Retirement Homes Ltd v Pine River Shire Council & Anor [2007] QPEC 85 at [19], [20] and [28].
One of the differences between the expression "sufficient grounds", used in lieu of the former expression "planning grounds", is that it is arguable that "sufficient grounds" implies a wider test under the Act. Nevertheless, "Grounds" is relevantly defined in the Act for the purposes of s3.5.14 to mean "matters of public interest" and does not include the personal circumstances of an applicant, owner or interested party.
In a case such as this the correct approach requires the Court to consider the decision and to identify the nature and extent of the conflict and to assess, in the context of the planning scheme as a whole, whether there are planning grounds of sufficient weight to justify approval, despite conflict and bearing in mind the proscription in the Act against prohibiting development.
Conflict and grounds to justify.
I find that the proposed development conflicts with the planning scheme and that the conflicts are not minor but rather are substantial. I have considered whether there are grounds to justify a Preliminary Approval of the proposed development notwithstanding the conflict with the planning scheme. However, the Appellant has not satisfied me that there are sufficient grounds to justify approval of the development application, even at its preliminary approval stage, despite the conflict. The land is flood prone and in a Hazard Risk Area. Whilst it is not GQAL, it remains rural land and has a role in flood mitigation that will not change in the future without major and likely prohibitively costly re-modelling of Bells Gully. I accept the submissions of Mr Job in regard to conflict.
Resolution
The land is subject to a real risk of flooding which has the potential for placing residents at personal risk to their health and safety, increase the burden on emergency services and may adversely affect land outside the boundaries of the subject land. The construction of residential development on a floodplain such as Bells Gully, which by its very nature has a specific purpose of taking water flow in flood times and, indeed undoubtedly, stormwater to the ocean at the outfall at King’s Beach, is one that should be discouraged under the planning scheme. The land is rural land and I note that under the draft planning scheme continues to be rural land. A residential development on the land is incompatible with proper planning principles.
There is no need established on the evidence for this proposed development. It is not part of the residential area under the planning scheme and would not contribute other than modestly to the supply of land for residential purposes into the future. The planning scheme already adequately provides for any reasonable projection of growth in Bowen.
The conflict with the planning scheme is significant in a number of respects, and the proposed development is inconsistent with the planning scheme DEOs.
The Argyle Park Road upgrade has been completed to its current level, but not a Q100 flood immunity level. No doubt the Respondent took that into account in its approval of the upgrade, but the fact remains that it is now what it is in terms of flood immunity. Such an event must be taken into account in the planning context. It cannot simply be disregarded as being an unlikely occurrence, even though the Q100 designation might signify that it is expected to be a rare event.
A preliminary approval, if granted, would lead to further detailed planning of the development and does not give a developer the right to proceed immediately. A Preliminary Approval can be contingent upon many planning and design factors and indeed be subject to conditions that must be met before any development was to proceed. However, as I have written above, the obstacles to an approval cannot be overcome by the appellant now or in the future because of the factors to which I have referred that are beyond its control or influence.
In any event, the application of proper planning principles would not permit a Q100 flood level in the context of the land, its location and the historical behaviour of the Don River and its breakouts to be ignored. The Bells Gully crossing as it is presently constructed does not provide sufficient safety in the event of a Q100 event.
Conclusion
I have concluded that there is a potential for a flooding event that makes the proposed development untenable, primarily because of its location and its situation on the Bells Gully floodplain. None of the proposals including filling the land to a greater height overcome this issue. Further, the upgrade did not extend to alleviate flood inundation to adjacent or downstream areas. There is no economic need in Bowen for this development in this location. The development proposal conflicts with the planning scheme and I do not consider that there are sufficient grounds to justify the proposed development notwithstanding that conflict.
Orders
Appeal dismissed.1.
The Decision of the Whitsunday Regional Council refusing the development application is confirmed.2.
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