Rich v Central Highlands Regional Council

[2010] QPEC 36

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:Rich & Anor v Central Highlands Regional Council [2010] QPEC 36

PARTIES:HARVEY JOHN RICH AND MARY ANNE RICH (Appellant)

v

CENTRAL HIGHLANDS REGIONAL COUNCIL
  (Respondent)

FILE NO/S:  963 of 2009

ORIGINATING COURT:     Brisbane

DELIVERED ON:                 21 April 2010

DELIVERED AT:                  Brisbane

JUDGE:  Rackemann DCJ

ORDER: That the appeal be dismissed

CATCHWORDS:                   PLANNING AND ENVIRONMENT - subdivision of rural land in Emerald –good quality agricultural land – whether subdivision would compromise the desired environmental outcomes of the Planning Scheme for Emerald Shire or otherwise conflict with the Scheme – sufficient grounds – need – viability  

COUNSEL:      Mr Ure for the respondent (King & Co Solicitors)

Mr Favell for the appellants (Purcell & Associates)

HIS HONOUR:  The question in this appeal is whether a 40 hectare parcel of rural land situated at Harts Road, Emerald, ought be permitted to be subdivided into five, eight hectare lots for rural residential style or "rural living" lots. 
It is common ground that the land is mainly classified as good quality agricultural land, as follows: 

·        10.4 hectares of Class A1 crop land;

·        15.6 hectares of Class A3 crop land;

·        1.1 hectares of Class B limited crop land;

·        12.6 hectares of Class C1 pasture land; and

·        0.9 hectares of Class D non-agricultural land.

It has, for some time, been well recognised that good quality agricultural land is a finite resource which requires appropriate conservation and management for the longer term. So much was expressly recognised in State Planning Policy 1 of 1992.  That policy, in turn, is identified as being appropriately reflected in the 2007 Planning Scheme, which is the scheme relevant to the determination of the application the subject of this appeal.

The desired environmental outcomes of that scheme include the following: 

(q)      the long-term viability of agricultural industries on both irrigated and rain fed country and significant animal industries within the Shire is enhanced through measures to protect productive agricultural land from excessive fragmentation and encroachment of incompatible uses;

(r)     natural resources and areas of economic value such as Good Quality Agricultural Land, extractive materials, the Gemfields and mineral resources and native forests are protected and utilised sustainably.

The site is included, on the agricultural land class overlay within the Planning Scheme, as being good quality agricultural land, although the particular class which is attributed to it on the map is not accurately recorded.  It is said against the proposal that, by subdividing the land into eight hectare lots, its viability for horticulture will be effectively removed, rather than enhanced, and that the ability for it to be used sustainably for those purposes will be lost.  It was contended that, as a consequence, the proposal would compromise the stated desired environmental outcomes, and would otherwise conflict with provisions of the Planning Scheme, which will be discussed later in these reasons.

The significance is that, in accordance with section 3.5.14(2) of Integrated Planning Act 1997, which continues to apply to this appeal notwithstanding the commencement of the Sustainable Planning Act 2009, the decision on the application 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 is sufficient grounds to justify the decision despite the conflict."

For the appellants to succeed they must demonstrate that this proposal would not compromise the DEOs, and that any conflict with the Planning Scheme can be overbourne by sufficient grounds to justify approval.

The overall outcomes sought for the agricultural land class overlay include that: 

"(a) agricultural, intensive agricultural and animal husbandry that continue to make a significant contribution to the Shire's economy, are sited on land-appropriate capability and suitability and are the dominant land uses in the overlay area;

(b) all productive agricultural land is protected from the encroachment of incompatible uses and from excessive fragmentation into lot sizes that are not viable for agriculture;

(c) incompatible non-rural uses are excluded from the overlay area to protect their amenity, and particularly to protect against the effects of aerial spraying and other impacts as a result of intensive cropping..."

Consistently with that, the site is included within the Rural zone in the Planning Scheme.  That zone contains those areas of the Shire predominantly used for agriculture and animal husbandry uses and other rural uses. The overall outcomes sought for rural zoned land include that agricultural and animal husbandry uses are the dominant land uses within the zone and that rural character, including rural and agricultural landscapes, are protected.

Within the zone, reconfiguration to create new lots as small as eight hectares is not generally envisaged by the Planning Scheme.  The Planning Scheme does provide for some small allotments within the Rural zone, however.

The scheme's DEOs include that: 

"(f) rural residential areas are located and consolidated to provide suitably serviced alternative, rural living options that are close to Emerald and Gemfields settlements."

Consistently with that, the Rural zone is said to contain a sub-area called the Rural Living Area.  The planning scheme states that:

"Spatially, this area is a relatively minor part of the Rural Zone and this is to be predominantly used for rural residential development on lots over 8 hectares. Development is not to lead to any incompatibility issues with surrounding rural businesses."

The overall outcomes sought for these Rural Living Areas are as follows: 

"(a)land is predominantly used for houses and associated structures on small hobby farm-sized lots with minimal urban services;

(b) land in this area has been determined as being not practically available and useful for viable commercial agricultural or animal husbandry purposes;

(c) land is efficiently connected to the Shire's road network;

(d) land is not provided with reticulated water and sewerage services;

(e) overall water quality is maintained and enhanced where possible by the protection of natural features such as watercourses, soil landscapes, and vegetation and the spread or increase of weeds and pest animals is prevented;

(f) development in this area is not to adversely impact on neighbouring lawful agricultural and animal husbandry activities."

The Planning Scheme nominates a particular rural living area at Big John Road.  The Reconfiguration of a Lot Code provides for reconfiguration to lot sizes as low as eight hectares for rural-zoned land in that sub-area.  That is, however, the only such area nominated in the Planning Scheme for such development. The subject site is not within that sub-area. 

That presents the most obvious hurdle to the application.  That is, it is, in effect, a rural living subdivision proposed for an area outside that set aside by the scheme for such development.

Given that the site is not within the Rural Living Area, the applicable provisions of the Reconfiguration of a Lot Code dealing with lot size and configuration provide in part as follows: 

"S4.  Lots are of an appropriate size and configuration to sustain the utility and productive capacity of the land for rural purposes; to ensure separation of uses; and to maintain rural character; whilst having regard to whether the proposed lot boundaries are derived from one or more of the following:

...

(2) the nature of any existing use on the land or intended use of land in the Rural zone;

(3) the existence of any natural topographical features such as water courses and gullies which traverse or constrain the land;

(4) the location of existing road reserves and access to proposed and existing lots;

…

(6) a detailed assessment of the agricultural quality of the subject land prepared in accordance with the Planning Guideline:  ‘The Identification of Good Quality Agricultural Land’ by a suitably qualified person which demonstrates that the subject land has agricultural potential different to that as mapped on the Economic Resources Overlays Maps RES 1 agricultural land class overlay;

(7) there is an overriding need for the development and alternative sites are not available..."

The probable solution in respect of good quality agricultural land with classes A, B and C1, as mapped on the overlay maps, is that 2000 hectares is the minimum lot size.

Given that the land is identified as a good quality agricultural land on the overlay, the following specific objective is also relevant:

"S1 land uses and newly created lots are located and designed so as not to limit the productivity, viability or use of Good Quality Agricultural Land for agricultural purposes.

Notes:  proponents may demonstrate through a detailed assessment of the agricultural quality of the subject land prepared in accordance with the Planning Guidelines; 'The Identification of Good Quality Agricultural Land' by a suitably qualified person that the land has agricultural potential different to that as mapped on the Agricultural Land Class Overlay Map RES-1:

Land uses and newly created lots are located on Good Quality Agricultural Land where: 

(a) there are no impacts on existing adjacent rural uses due to the use of separation distances or buffers;

(b) it has been demonstrated that there is an overriding need for the development in terms of public benefit and no other site is suitable and available for the purpose."

There was some debate about the compatibility of the proposed eight hectare lots with surrounding rural parcels.  However, I am satisfied that, subject to the imposition of appropriate conditions, those matters could be satisfactorily dealt with.

The essential issue is the conflict, asserted by the council, on the basis that lots of the size proposed would not sustain the utility and productive capacity of the land for rural purposes, and would limit the use of the good quality agricultural land for agricultural purposes. It is obvious that subdivision into lots of the size proposed would be inconsistent with sustaining whatever utility or productive capacity the land may have for such purposes and would certainly not sustain the productive use of good quality land for agricultural purposes.

In that regard, the appellants seek to establish that the land, in truth, has no substantive utility or productive capacity for those purposes.  It is largely on that basis that they contend that there is no conflict with the DEOs on which the council relies or indeed upon other provisions of the planning scheme. That contention is something which I will turn to a little later.

The relevant provisions, however, also envisage that development may be justifiable where there is an overriding need for the development in terms of public benefit and no other site is suitable and available for the purpose. In this respect, the planning scheme mirrors provisions of the State Planning Policy. I will deal with the question of need a little later in these reasons. A difficulty for the appellant in addressing this criteria, however, is in demonstrating that, in any event, there is no other site suitable and available for the purpose. The purpose, in this case, is development for what may be generally described as large rural residential or, in the context of this scheme, rural living allotments.

As the state planning policy itself acknowledges, development of this nature is locationally flexible. That is, it is not the type of development which necessarily has to be located on a particular parcel of land or in a particular area within the Shire.  It can be accommodated in a number of different locations.

In this case, the planning scheme sets aside an area in Big John Road for development of this kind.  The evidence shows that sub-divisions are occurring in that area and that there is further land in that area which is available for sub-division.

In this respect, counsel for the appellant suggested that the use of the word "available" meant that one should seek to identify a parcel of land which was on the market and could be purchased for sub-division purposes. In my view, that is construing the provision too narrowly. What the provision is concerned with is whether the overriding need for development can be otherwise accommodated on suitable and available land. The evidence demonstrates that there is other suitable land and that that land is available to be both sub-divided and brought to market by the owners. As Dr Brown pointed out, if there is a significant need for such allotments, one would imagine that they would be brought to market to respond to that need.

In addition to the area set aside by the planning scheme, the evidence shows that there are other areas, particularly in the Glengallan Road area, where sub-division to allotments of this size is occurring and can potentially occur, even though they are outside the area nominated in the planning scheme.

Ultimately the onus, in this regard, rests upon the appellant, and I am not satisfied that this is a case where no other site is suitable and available for the relevant purpose. Indeed, the appellant's own town planner, Mr Craven, was inclined to accept as much and to seek to justify approval, not on the basis that the proposal complies with the scheme, but rather on the basis that the DEOs are not compromised and that there are sound planning reasons to justify approval notwithstanding the conflict with this part of the scheme.

In the joint report of the town planners it was agreed that need, in a planning sense, is an important issue in the appeal. Need for rural living type allotments was examined by the economic experts, being Ms Bonwick, who was retained by the appellant, and Dr Brown, who was retained by the respondent. Their evidence demonstrates that, while there is a demand for rural living lots, the demand represents a relatively small or niche segment of the market.  Historically that demand has been at around the 3 per cent mark or around six dwellings per annum.

Ms Bonwick was of the view that there is some latent unsatisfied demand such that more supply would stimulate further demand.  For that reason, she thought that the need should be assessed at around 5 per cent of the market.

Dr Brown, whilst conceding that there is an interest in such Lots, considered that such interest is unlikely to necessarily correspond with higher demand, because the price of allotments of this kind is relatively high. Further, he pointed out that the growth of the market is mainly driven by younger people locating to the area as a consequence of growth or employment opportunities in the mining sector.  He thought that those people were unlikely to be driving a higher demand for allotments of this kind.

Hence, there was some disagreement between the two experts in relation to the likely level of future demand.  Whilst I prefer the evidence of Dr Brown in that regard, the difference between them, in this regard, is not critical to the conclusion in this case. On either view there are not only rural living allotments which are on the market now, but there are also other rural living size allotments which have been approved for sub-division and which, as Dr Brown pointed out, can be expected to be brought to market to respond to demand.

At the time of doing the joint report, there were some 25 such allotments that were available in that sense.  Since the completion of the reports, further allotments have been identified so that the number is now 32.  This means that there is something of the order of three years supply on Ms Bonwick's approach or something of the order of five years supply on Dr Brown's approach. In addition to that, there is further land in the Big John Road area nominated by the Planning Scheme as well as the Glengallan Road area in respect of which subdivision could be anticipated.

Ms Bonwick emphasised the need to have an appropriate level of supply into the future to service the need.  However, it must be remembered that, in this local government area it is expected that the Planning Scheme will be either modified or a new scheme will come into operation within the next few years, which is very likely to deal with the issue of what, if any, further areas are to be identified for rural living.

In that context, and given the existing supply which exists, the potential for further supply, and given that the sub-division in this case would only add another five lots, it is difficult to conclude that there is any strong need for further development of this kind at this time.

I accept the evidence of Dr Brown that the need is low in a market sense.  I also do not consider that there is any significant planning need to make further provision for development of this kind at this site at this time. I am certainly not satisfied that there is any overriding need, as that term is used in the planning documents.

Another factor relied upon by the appellants was the contention that the area within which the subject site falls has been identified, if not committed, to further development of this kind.  Indeed, that was a matter which Mr Craven, in his oral evidence, acknowledged was a significant factor in his assessment.  It was also something which was referred to by Mr McClurg.

It does appear as though the Council is alive to the need to provide, in a timely way, for rural living areas within the Rural zone.  In June 2006 the Council engaged consultants to report on potential areas in the Shire that would be suitable for rural living development.  The purpose of the report was to guide the Council and others on preferred areas for such  development within the Shire.  That report endorsed the Glengallan Road area, in addition to the Big John area, as appropriate areas for such development.

At its meeting on 2 April 2007 a resolution was passed to the effect that proposed amendments to the Planning Scheme should be prepared which:

"explicitly detailed the suitability of the three following areas for current development as Rural Living Type residential lots:  Big John Road area; Glengallan Road area; and, the Talafa/Harts Access Roads area". 

The report, which was considered by the Council before adopting that resolution, referred to the "existing fragmented nature of the cadastre in this area and the consequent loss of this good quality agricultural land to potentially economic commercial agriculture," as justification for the suitability of the area for rural living type development.

The report went on, however, to say that Council would be favourably disposed to such development "provided" that the application addressed the requirements of the IPA under the Planning Scheme and the State Planning Policy. The resolution did not identify the precise extent of land in this area which was thought to be potentially suitable for rural living type development. 

Notwithstanding the passing of that resolution, however, no amendments to the Planning Scheme have been drawn, nor made subject to any of the processes in the Act which would be required for the adoption of the new scheme or for the amendment of the existing scheme.

The matter came back before the Council for consideration at its meeting on 5 October 2009.  At that time the following resolution was passed: 

"(1) Council undertakes a review of the Emerald Shire Rural Living Areas Study 2006 to ascertain the current level of demand for rural living allotments to inform any further Planning Scheme amendments and/or consolidated Planning Scheme; 

(2) A further report be presented to Council advising of the outcome of the Rural Living Area review; and

(3)Council proceeds with the preparation of the consolidated Planning Scheme and/or proposed amendments to the Planning Scheme for the inclusion of Glengallan Road area and Talafa/Harts Road area." 

The review referred to in the first paragraph of that resolution has not been concluded.  The further report referred to in paragraph 2 has not been undertaken. No proposed amendments of the Planning Scheme have, as yet, been formulated. There has, in the meantime, been some subdivision permitted in this area.  However, those lots which have been subdivided have been on the Talafa Road frontage, rather than on the Harts Road frontage. 

It might be that the council ultimately formulates amendments to its Planning Scheme which would permit the further subdivision of this entire area, including the subject site, for further rural living allotments. However, the process is at a far too preliminary a stage to conclude that such a decision has been irrevocably taken, or to give any substantial weight to that proposal, in the context of determining this appeal.

It has already been noted that a cornerstone to the appellant's case is that the subject land does not, they contend, in truth, have any productive capacity for agricultural use.  That has more to do with viability issues than it does with the ability of the soil to support the growth of crops, subject to appropriate inputs. 

The land has a type of soil which, it is common ground, can support a diverse range of crops.  It is friable, well-drained red soil.  The surrounding land uses do not create a significant impediment to the use of the land for agricultural purposes.  In order to support crops the land does require irrigation. However irrigation infrastructure is close at hand and there is a water market for people to purchase water rights.

While the land itself is not a large holding, I accept the evidence of Mr Thompson that there is no technical reason why sustainable crops could not be produced on the property. Indeed Mr Rich gave evidence that, in the past, he has grown crops on the subject land and achieved good production rates.

The matters upon which the appellants rely relate more to factors which impact upon economic viability, than on the productive capacity of the land.  As the State Planning Policy itself recognises, one must be careful when approaching the issue of viability.  Whilst matters which impact upon viability can sometimes fluctuate from time to time, the return of land to agriculture is seldom practicable after it has been subdivided in the manner which is proposed.

In this case, however, the appellants rely not so much upon market fluctuations or other such variables, but more on what they say are continuing disadvantages of the land in relation to its potential use for viable agriculture.  Two things were particularly relied upon.  First was the south sloping nature of the land.  The consequence of this is that it is difficult, if not impossible, for table grapes to be produced on the land and harvested in time to bring to market to coincide with the peak price period.  As Mr Thompson acknowledged, bringing small crops to market at the most advantageous time is an important aspect of farming.  Mr Rich gave evidence that it was this difficulty which effectively made his efforts to grow table grapes unviable.

The second factor which was particularly relied upon was the somewhat sandy nature of the soils.  The consequence is that a greater quantity of irrigation water needs to be applied relative to other soil types.  This, it was said, places farming on this land at an economic disadvantage. 

Mr Rich gave evidence of attempts to grow some other crops, without success in the financial sense.  He also gave evidence of difficulties he has had in marketing the land to agricultural users.  His pessimistic view about the viability of agricultural use of the subject land was shared by Mr McClurg.

Mr Thompson, on the other hand, was not nearly so pessimistic. He pointed out that soils of this kind support a diverse range of potential crops.  He pointed out that other areas with similar soils had a history of productive use, and he was left unpersuaded that the limitations referred to are so severe as to remove the potential of this land for viable agricultural purposes.  As he pointed out, matters which go to viability include the management inputs of the operator.  It is always problematic to rely upon the difficulties experienced by one operator in order to conclude that land could not otherwise be viably used for agricultural purposes. 

Whilst Mr Rich's evidence received support from Mr McClurg, I prefer the evidence of Mr Thompson to the effect that he could see no reason why a viable and sustainable crop could not be produced, given the quality of the soils.

I prefer the evidence of the expert witnesses who were called by the respondent, to those called by the appellants.  I am satisfied that the proposal would conflict with the Planning Scheme, if not also compromise the achievement of the DEOs, and I am not persuaded that there are sufficient grounds to justify approval, notwithstanding the conflict.

The appeal is dismissed.