Rowley v Caloundra City Council
[2008] QPEC 99
•13 November 2008
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Rowley v Caloundra City Council [2008] QPEC 99
PARTIES:
REGINALD CHARLES ROWLEY
and
BERNICE ANN ROWLEY
(Appellants)
v
CALOUNDRA CITY COUNCIL
(Respondent)
and
DEPARTMENT OF MAIN ROADS
(Co-respondent)
FILE NO/S:
281 of 2007
DIVISION:
Planning and Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
Maroochydore
DELIVERED ON:
13 November 2008
DELIVERED AT:
Brisbane
HEARING DATE:
8 - 10 September 2008
JUDGE:
Searles DCJ
ORDER:
1. Appeal dismissed re condition 37;
2. Appeal allowed re conditions 5.2, 5.3, 11;
3. Matter adjourned to permit the resolutions of appropriate conditions.
COUNSEL:
S. Keim SC & C. Klease – Appellant
S. Ure – Respondent
SOLICITORS:
P&E Law – Appellant
DLA Phillips Fox – Respondent
This is an appeal against the imposition of certain conditions by the respondent Council in respect of its approval of a code assessable reconfiguration of Lot 1 SP145632 situated by 345 Pierce Avenue, Bells Creek, containing an area of 16.968 hectares.
The land falls within Caloundra South Planning Area[1] and within the Core Industry Precinct.[2] It forms part of the Urban Footprint in the South East Queensland Regional Plan and is within the Caloundra Regional Business and Industry Park earmarked in the Caloundra City Plan 2004 (City Plan). Adjoining the northern section of the subject site and immediately to its east is a tract of land owned by the Department of State Development and Innovation (DSDI) over which approval has been granted for the staged development of a large industrial subdivision, the construction of which has commenced.
[1]See map CCC2, p. 4-2 of City Plan
[2]See map CSP1, p. 4-9 of City Plan
The site runs north to south from Pierce Avenue and has four components:
1. The northern portion containing 4.418 hectares and comprising 20 lots, 19 industrial lots and one utility lot (pump station );
2. A second area of 4.486 hectares proposed as an environmental park;
3. A third portion of 2.729 hectares being proposed Lot 21, a single industrial lot proposed to be connected to the other industrial lots in the northern section of the site by Extended Road 2 along the eastern boundary which, together with Road 1, on the northern boundary, comprises 1.53 hectares.
4. Finally, in the most southern part of the land, an area of 3.805 hectares also proposed as an environmental park.[3]
[3]See Exhibit 7
The application for Development Approval for reconfiguration of the land was made on 6 October 2005[4] and a Response to an Information Request was lodged by the Appellants in or about 2 March 2007[5] providing the amended plan of development[6] upon which this appeal proceeded.
[4]See Acknowledgement Notice 19 October 2005 Exhibit 1 Volume 1 p. 276 and a Response to Information Request
[5]Exhibit 1 Volume 2 p. 299
[6]Exhibit 7
By Decision Notice of 29 October 2007 the respondent approved the Development Application subject to 49 assessment manager conditions and three concurrent agency conditions.[7] There is no issue regarding the latter conditions. The Appellants appealed 21 of the former conditions pursuant to s 3.5.30 of the Integrated Planning Act 1997 (IPA) but, following discussions, the issues to be resolved in this appeal relate to four issues only, namely:
[7]Exhibit 1 Volume 2 p. 467
Issues in Dispute
Issue Condition Number (a) Proposed Lot 21 and Proposed Extended Road No. 2 Condition No. 37 (b) Sewerage pump station access Condition No. 5 Part 2 (c) Battleaxe blocks – Lots 16, 17, 18 & 19 Condition No. 5 Part 3 (d) Road Figure No. 2 Footpath Condition No. 11[8] [8]See Appellant’s written submissions Appendix B – List of Disputed Issues
The Appellants’ object to the above conditions on the ground that they constitute an unreasonable imposition on the development. IPA s 3.5.30 provides:
“3.5.30 Conditions must be relevant or reasonable
(1) A condition must:
(a)Be relevant to but not an unreasonable imposition on, the development or use of premises as a consequence of the development; or
(b)Be reasonably required in respect of the development or use of premises as a consequence of the development.
(2)Sub-section (1) applies despite the laws that are administered by, and the policies that are reasonably identifiable as policies supplied by, an assessment manager or concurrence agency.”
Known history of land use of the site
Mr Friend, an expert witness called by the Appellants provided a report with a useful history of the land use since 1958 evidenced by a series of aerial photographs.[9] Those photographs show:
[9]Exhibit 9 Paragraph 3.3 Figures 4-12
1958 Photograph
· A portion of the northern area cleared of vegetation from the eastern boundary with the remaining portion of the property still in its natural state.
1967 Photograph
· Further clearing within the northern portion and a significant portion of the property south of the drainage line which clearing was indicative of clearing for agricultural purposes.
1971 Photograph
· The above northern and southern portions previously cleared as still cleared and with agricultural activity being undertaken in those areas.
1974 Photograph
· The cleared areas from the eastern boundary of the northern area as depicted in the 1958 photograph had not been increased and appeared still to be used for agricultural purposes.
1981 Photograph
· Evidence of a reduced intensity of previous agricultural activity with some indication of re-colonisation of some previously cleared areas. The area to the south of the drainage line still appeared to be actively worked and abandoned vegetation possibly regrowth Melaleuca Quinquenervia was found to the south of the above area still being actively worked.
1991 Photograph
· A cessation of agricultural activity within the area south of the drainage line, previously actively worked, being recolonised by taller vegetation. The land to the south of that was planted with Slash pine which was not mature enough to have invaded the site leading to the presumption that the regrowth within the site may have been substantially native vegetation.
1995 Photograph
· Re-colonisation of the land by vegetation had continued with no recommencement of vegetation clearing or agricultural activity. The bands of vegetation identified in the 1991 photograph was still prevalent, particularly in the area south of the drainage line.
2001 Photograph
· Evidence of the recommencement of agricultural activity and vegetation clearing with the complete area north of the Drainage Line completely cleared and the growing of sugar cane in this area. An additional area south of the Drainage Line has also been cleared, not planted with sugar cane but with a number of wind rows. Areas along the eastern boundary and linking to the Drainage Line, an area in the southeast corner and the small area in the south western corner have been retained and remained untouched.
25 July 2003 Photograph
· The cane growing area in the north still under production with some newer tree clearing in the southwest corner of the land. The untouched area in the southeast corner has been reduced but an area of this heath land vegetation type left undisturbed. This photograph suggests that no actual agricultural activity was undertaken within the southern area of the land as a result of the latest occurrences prior to 2001 and 2003.
The Planning Scheme Caloundra City Plan 2004
The City Plan divides Caloundra City into 16 planning areas designed to recognise and be responsive to the individual character and specific needs of the different communities within the city.[10] The relevant planning area for the subject site is Caloundra South Planning Area Code.
[10]City Plan s 4.1
The planning areas are then divided into precincts which are shown on the relevant Planning Area Precinct Map.[11] The relevant map is the Caloundra South Planning Area Precinct Map CSP1 and the subject site is included in the Core Industry Precinct shown on that map.[12]
[11]City Plan s 4.1.2(1); Table 4.1.2
[12]Exhibit 3 (City Plan p. 4-9)
One then moves to s 4.1.3(1) of the City Plan which identifies, by reference to Planning Area Overlay Maps, which overlays affect a particular piece of land and, by reference to those identified overlays, which applicable overlay code/s relate to the land.
At the time of lodgement of the application on 6 October 2005 the relevant overlay map was Caloundra South Planning Area Overlay Map CSP2.[13] That overlay map shows that parts of the subject land are affected by the following overlays with the result that the application is code assessable by reference to the following codes and Overlay Development Assessment Tables:-
[13]Exhibit 3 (p. 4-11)
Overlay Overlay Code Overlay Development Assessment Table Acid Sulphate Soils Overlay (Area 2) Acid Sulphate Soils Code – Table 4.1.3 Table 4.2.4A – Acid Sulphate Soils Overlay Development Assessment Table Aviation Affected Area Overlay Table 4.1.3 – Aviation Affected Area Code Table 4.2.4(b) – Aviation Affected Area Overlay Development Assessment Table Biting Insects Overlay Table 4.1.3 – Biting Insects Code Table 4.2.4(c) – Biting Insects Overlay Development Assessment Table Bushfire Hazard Management Table 4.1.3 – Bush Fire Hazard Management Code Table 4.2.4(d) – Bush Fire Hazard Management Overlay Development Assessment Table Habitat and Biodiversity Overlay Table 4.1.3 – Habitat and Biodiversity Code Table 4.2.4(i) – Habitat and Biodiversity Overlay Development Assessment Table
The Codes applicable to the proposed re-configuration are to be found in Table 4.2.3(a) of City Plan which renders the application code assessable given that the application complies with the minimum lot size requirement. The applicable codes, by reference to that table, are:-
1. Re-configuring a Lot Code;
2. Planning Area Code;
3. Parking and Access Code;
4. Civil Works Code;
5. Stormwater Management Code;
6. Landscaping Code;
7. Design for Safety Code;
8. Nuisance Code;
9. Structure Planning Code.
From all the above codes applicable to the application, it is not in dispute that for this appeal, the relevant codes are:-
1. Caloundra South Planning Area Code;
2. Habitat and Biodiversity Code;
3. Re-configuring a Lot Code; and
4. Structure Planning Code.
First issue in dispute - Lot 21 and Proposed (Extended) Road 2
This issue is the most significant dispute between the parties. The relevant conditions are 1 and 37, the remaining disputed parts of which are:[14]
[14]Exhibit 1, vol 2, p 473; Appellants’ written submissions Appendix B and respondent’s written submissions p 3 para 10.
“1.Prior to lodgement of an operational works application, the applicant shall submit an amended proposal plan, generally in accordance with Dwg. No. 746301-CD 12 prepared by Cardno and dated 26/02/2007, but reflecting the amendments required by conditions of this approval, including deletion of proposed Lot 21.
This plan will become the approved layout plan, and the land shall be reconfigured generally in accordance with that plan.
37.Proposed Lot 21 is not approved and that area must be dedicated as Environment Park. An amended development layout plan is to be submitted to Council’s delegate for endorsement which demonstrates the following:
· Removal of proposed (Lot 21 and Road 2 south of the frontage with Lot 11);
Turning now to a consideration of the relevant Codes.
Relevant Codes
Caloundra South Planning Area Code
It is common ground that there are two relevant Specific Outcomes in Code 09 and 020. Specific Outcome 09 provides:
Caloundra South Planning Area Code
6.4.3 Planning area Specific Outcomes
Specific Outcomes Acceptable Solutions for self-assessable development and Probable Solutions for assessable development
Habitat and Biodiversity
09 Land that has been investigated and confirmed to have significant vegetation, habitat for rare or threatened fauna or flora species or high biodiversity is maintained, protected, and rehabilitated where degraded 3
S9.1 Development complies with Probable Solutions S 2.2, S 2.3, S 2.4, S 3.2, S 4.1, S 4.2, S 5.1 and S 6.1 of the habitat and biodiversity code
S9.2 …
3
“The Habitat and Biodiversity Overlay covers land which studies indicate contains rare or threatened fauna or flora species, high biodiversity or critical habitat for all or part of the year. Other land not covered by the Habitat and Biodiversity Overlay may contain these attributes. Section 11.6.11 of the Overlays Planning Scheme Policy and the Environmental Assessment and Management Planning Scheme Policy provide guidance for achieving Specific Outcomes for habitat and biodiversity. “Significant vegetation” is defined in part 3 Interpretation.”
Significant vegetation is defined in City Plan at 3.3.2 as:
“Significant vegetation means vegetation supporting an eco system of local, regional or state significance as defined by application of the Common Conservation Classification System. The term includes vegetation identified on a Planning Area Overlay Map as being subject to the Habitat and Biodiversity Overlay.”
Habitat and Biodiversity Code
The Specific Outcomes and Probable Solutions for the Habitat and Biodiversity Code are:[15]
[15]Exhibit 3 pp 7-27, 7-32
Habitat and Biodiversity Code
Specific Outcomes Probable Solutions
01
Significant vegetation is protected to ensure its survival and ongoing contribution to Caloundra City’s biological diversity.
S 1.1
Significant vegetation identified on map 7.5 (Significant Vegetation) or map 7.6 (habitat and protected vegetation) is retained.
02
Significant vegetation is protected from the indirect impacts of developments (edge effects) and where necessary buffered and restored.
S 2.1
Significant vegetation shown on map 7.7 (habitat areas) as Core Habitat Areas or Broad Mosaic Areas or on map 7.8 (Habitat Corridors & Links) as Major Corridors or Special Remnants is retained in manageable configurations which retain viability and reduce edge effects.
S 2.2
Retained habitat is buffered to protect nature conservation values with fire management measures, controlled maintenance access and fencing provided to adjacent development.
S 2.3
Softer elements of developments such as landscaping and passive recreation areas are sited to provide additional buffering and linking of retained habitat.
S 2.4
Roads through or adjacent to retained habitat which is used by native fauna at risk from vehicles, incorporate traffic calming devices.
03
The habitat linkages and functional values of riparian areas and other existing and potential ecological corridors are maintained, protected and improved
S 3.1
Corridors and environmental links shown on map 7.8 (Habitat Corridors & Links), are retained, protected and buffered from development, and where necessary rehabilitated to facilitate wildlife movement.
S 3.2
Other ecological corridors and links identified by more detailed investigations are retained and enhanced.
04
Works associated with development avoids:
(a) Fragmentation of significant vegetation or habitat areas for significant flora and fauna species and other wildlife; and
(b) Creating barriers to faunal movement.
S 4.1
Roads, driveways, fences, buildings, structures, dams, sewer lines, park facilities and other infrastructure do not traverse significant vegetation.
S 4.2
Development within or adjacent to significant vegetation incorporates fences which allow for protected faunal movement, avoids use of species with recognised weed potential and controls unrestricted access of domestic cats and dogs.
05
Landscaping adjoining or supplementing significant vegetation, habitat areas or corridor links:
(a) Compliments, enhances and where possible links the significant vegetation;
(b) Causes no degradation of adjacent habitat or eco systems.
S 5.1
Site landscaping includes the following elements:
(a) Native plants of local provenance;
(b) Known food and habitat trees and shrubs;
(c) Replication of adjacent healthy remnant habitats, including under-storey vegetation;
(d) Enhancement of links between existing habitats; and
(e) No declared noxious plants or invasive plants likely to displace native flora species or degrade fauna habitat.
S 5.2
Plant species do not include those species listed as environmental weeds in Table 9.4 (Environmental Weeds) of the Landscaping Code
06
Significant vegetation associated with waterways and wetlands is not adversely impacted by changes in hydrological regime.
S 6.1
Earthworks and changes to drainage, ground water levels, flooding and tidal hydraulics are designed and constructed to avoid detrimental impacts on waterway and wetland habitat.
Principles governing Interpretation of planning schemes
Before turning to the provisions of the City Plan it is timely to revisit the approach courts have adopted in the construction of planning schemes usefully summarised in Westfield Management Ltd v Pine Rivers Shire Council[16] as:
[16](Unreported) Planning & Environment Court Brisbane 14 November 2003 1627/03 at pp 8-9; see also Kotku Education & Welfare Society Inc v Brisbane City Council & Ors [2005] QPELR 267 at [271]-[272]
“(a)They should be construed broadly rather than pedantically or narrowly and with a sensible, practical approach (ZW Pty Ltd v Peter R Hughes & Partners Pty Ltd [1992] 1 Qd. R. 352 of 360; Yu Feng Pty Ltd v Maroochy Shire Council [1996], 92 LGERA 41 at 73, 75, 78; Harburg Investments Pty Ltd v Brisbane City Council [2000] QPELR 313 at 318);
(b)They should be construed as a whole (Luke v Maroochy Shire Council & Anor [2003] QPELR 447);
(c)They should be construed in a way which best achieves their apparent purpose and objects (Luke v Maroochy Shire Council & Anor (SUPRA); Nordale Management Pty Ltd v Maroochy Shire Council [1995] QPLR 368 at 370; Acts Interpretation Act 1954 s. 14A);
(d)(They should be construed) in the light of the proscription against prohibiting development contained in IPA (s 6.1.2 (3));
(e)Statements of Intents or Aims or Objectives are intended to provide guidance for the task of balancing the relevant facts, circumstances and competing interests in order to decide whether a particular use should be rejected as inappropriate (Degree v Brisbane City Council [1998] QPELR 287);
(f) A Strategic Plan sets out broad desired objectives and not every objective needs to be met before a proposal can be approved (Lewiac Pty Ltd v Gold Coast City Council [1994] 83 LGERA 224 at 230;
(g)A Strategic Plan should be read broadly and not pedantically (Yu Feng Pty Ltd v Maroochy Shire Council) SUPRA);
(h)Although planning documents have the force of law they are not drawn with the precision of an Act of parliament;
(i)A conflict alone may not have the effect of ruling out a particular proposal (Fitzgibbon’s Hotels Pty Ltd v Logon City Council [1997] QPELR 208 at 212;
(j)Implementation Objectives must be read sensibly and in context. They are but a function of the principal objective. The purpose of the objective is better understood by reading all the implementation objectives and understanding the strategy that is inherent. (Jenkinson Pty Ltd v Caloundra City Council [2002] QPELR 527 at 528).”
Code Assessment
The subject application was code assessable and the approach to be taken in a code assessment is addressed in s 3.5.13 of the Integrated Planning Act 1997 (IPA) which provides:
“(1) This section applies to any part of the application requiring
code assessment.
(2)The assessment manager must approve the application if the assessment manager is satisfied the application complies with all applicable codes whether or not conditions are required for the development to comply with the codes.
(3)Subject to subsection (2), the assessment manager’s decision may conflict with an applicable code only if there are sufficient grounds to justify the decision despite the conflict, having regard to—
(a) the purpose of the code; and
(b)if they are not identified in the planning scheme as being appropriately reflected in the planning scheme—
(i)State planning policies, or parts of State planning policies; and
(ii)for the planning scheme of a local government in the relevant area for a State planning regulatory provision—the provision; and
(iii)for the planning scheme of a local government in a designated region—the region’s regional plan.
(4)However, if the decision is made under subsection (3)(a) and the assessment is against a code in a planning scheme—the assessment manager’s decision must not compromise the achievement of the desired environmental outcomes for the planning scheme area.”
Code assessment means the assessment of development by the assessment manager only against the common material and applicable codes (other than codes, or parts of codes, a concurrent agency is required to assess an application against).[17]
[17]Definition IPA Schedule 10; See also definition of Common Material and IPA s 3.5.4 circumscribing the material and assessment manager is restricted to in the assessment of a code assessable application
A code assessment is a bounded assessment as explained in the Explanatory Note to the IPA Bill:[18]
“Code assessment is a ‘bounded’ assessment – i.e. the application is assessed for its compliance with the applicable codes (see clause 3.5.4). An example of a code assessment under IDAS would be the assessment of building work for its compliance with the Standard Building Law (which will be recognised as a code for IDAS).
Impact assessment on the other hand is a wider assessment of the environmental effects of development having regard to a range of matters such as the planning scheme and relevant state planning policies (see clause 3.5.5). The terms ‘code assessment’ and ‘impact assessment’ are also defined in the dictionary in Schedule 10.”
[18]Page 81 Explanatory Note to Integrated Planning Act 1997 Bill
Of the three application assessment methods under the City Plan the first two namely self-assessable and code assessable are clearly consistent with the overall intention of the IPA to promote clear and simple guidance through the codification of as much development as possible.[19] Consistent with those aspirational concepts of clarity and simplicity in relation to, relevantly, code assessments is the further concept of certainty. Any planning scheme has the actual or potential consequence of limiting the use of freehold land by its owner. That restriction on unlimited use has long been accepted as a price landowners pay for living in a community with a structured planning scheme. It is a statutorily imposed limitation on the unrestrained use by the individual for the overall benefit of the community.
[19]See p. 88 Explanatory Note to Integrated Planning and Other Legislation Amendment Act 2003 Bill
But any such restriction to be found in a planning scheme must be clear in its language. In Craig Securities (No.2) Pty Ltd v Brisbane City Council,[20] when considering the impact of a Demolition Code, Griffin SC DCJ said:-
“[11]There is no doubt that the effect of the Demolition Code is to restrict a landowner’s right to demolish buildings identified by the Code. Such legislation restricting rights, as this Demolition Code purports to do, must express that interference clearly or by “necessary implication”[21]
[12]As was said in Wik Peoples v Queensland (1966) 187 CLR 1 at 155 per Gaudron J, Her Honour spoke of “the general and well settled rule of statutory construction which requires that clear and unambiguous words be used before there will imputed to the legislature and intent to expropriate or extinguish valuable rights relating to property without fair compensation.”
[20][2006] QPELR 601 at 602
[21]Melbourne Corporate v Barry (1922) 31 CLR 174 at 206
Two authorities of this court are frequently cited to assist in the approach to code assessable applications. They are STW Projects Pty Ltd v Gold Coast City Council[22] and Central Equity Ltd v Gold Coast City Council.[23]
[22][2007] QPELR 24 Decision of Rackemann DCJ
[23][2007] QPELR 356 a decision of Wilson SC DCJ
In STW Projects Rackemann DCJ said:[24]
[24][2007] QPELR 24 at paragraph [30]
“[46]The Codes in the 2003 Planning Scheme follow a familiar “performance based” structure, similar to codes in other IPA planning schemes. The codes commence with a statement of purpose. The codes also identify the development to which each applies and then contain “development requirements”, which are set out in a table of Performance Criteria and Acceptable Solutions. The planning scheme provides that:
‘Development proposals must comply with the performance criteria to meet the objectives of the planning scheme and ensure that the DEOs are not compromised…’
It is desirable that code assessable development comply with the acceptable solutions to ensure that each performance criterion is met. However, code assessable development may comply with an alternative solution, provided that the alternative solution can be demonstrated to meet the relevant performance criteria, to counsel’s satisfaction. When no acceptable solution is provided for a performance criterion in the code, the development must provide its own solution to meet that particular performance criterion.
[47]Statements to similar effect can also be found in other IPA planning schemes which adopt performance based codes. The performance criteria are generally outcome focussed, while the acceptable solutions indicate a ‘desirable’ way to ‘ensure’ compliance. The acceptable solutions however, are not the only solutions. Performance criteria generally ought not to be interpreted as requiring adoption of the acceptable solution, or even as requiring an alternative solution to be akin to the acceptable solution.
[48]It is not legitimate to regard departure from the acceptable solution as necessarily indicating non-compliance with the code. In this regard, acceptable solutions differ from development standards which were often a feature of town planning schemes under the former regime. Compliance with such standards was commonly required unless a relaxation or dispensation was granted. Under the performance based approach, the acceptance of an alternative solution does not represent a ‘relaxation’ or a ‘dispensation’. It is another way of achieving compliance with the relevant performance criterion.”
In the City Plan, as with others, the Caloundra City Council seeks to achieve the planning scheme outcomes identified in a cascading list from the general to the more specific commencing with the Desired Environmental Outcomes followed by overall Code Outcomes, Specific Code Outcomes and Probable Solutions for a Specific Outcome, or acceptable solutions for complying with a self-assessable code.[25]
[25]Plan s 1.4.7, exhibit 2, p 1.14.
In Central Equity Wilson SC DCJ explained the IPA assessment process in relation to code assessable applications and said:-[26]
“[11]Under s 3.5.4 of the Integrated Planning Act 1997 (IPA) assessment is undertaken against the applicable codes. The process is explained in s 3.5.13 which requires the assessment manager to, firstly, assess the proposal against the Acceptable Solutions. If it complies, approval must be granted. If not, the proposal is assessed, as an ‘alternative’ solution against the Performance Criteria of the Codes. If, according to this exercise, the proposal complies it is taken to satisfied the Codes and must, again, be approved. If it does not comply, the assessment manager must determine if conditions can reasonably be imposed to achieve that end. If so, approval may follow through this third avenue: s 3.5.13(2).
[12]If, at the end of these exercises, the proposal is still in conflict with the applicable Codes the assessment manager must consider whether there are sufficient grounds to justify the conflict, having regard to the purpose of those Codes. If those sufficient grounds arise, the proposal must be refused. If grounds do present, the assessment manager must consider whether the decision would compromise the achievement of the DEOs for the planning scheme area and, if compromise is found to arise, refuse the application. In the absence of compromise, the proposal may yet be approved.”
[26][2007] QPLER 356 at [357]
Central Equity involved an interpretation of the development assessed against the relevant codes which provided for Acceptable Solutions. Under the City Plan here under consideration the term used is Probable Solutions. Given the term ‘probable solution’ in the Caloundra City Plan the expressed mandated approval in Central Equity upon compliance with acceptable solutions, is not apposite here. Despite that difference, the force of His Honour’s statement that the application must be assessed against the applicable codes loses none of its force. In other words, despite the difference in nomenclature, I must determine whether the application satisfies the applicable codes in accordance with s 3.5.13 of IPA.
Meaning of Probable solutions
What then is the meaning of probable solution in context? The term is defined in s 3.3.2 of the City Plan as meaning:-
“A criterion that provides a guide for achieving a specific outcome in whole or in part, but does not establish compliance with a code.”
Section 1.4.8(1) provides:-
“1.4.8 Probable Solutions for Code Assessable Development
(1)A probable solution for a specific outcome provides a guide for achieving that outcome in whole or in part, and does not limit the assessment manager’s discretion under the Integrated Planning Act 1997 to impose conditions on a development approval (The Integrated Planning Act 1997, Chapter 3 (Integrated Development Assessment Systems) (IDAS) Part 5 (Decision Stage), division 6 Conditions.”
‘Probable’ in its everyday meaning[27] means “likely”. But it is clear to me that the definition of probable solution and s 1.4.8 above place important qualifications on that every day meaning of probable, so that to interpret compliance with a probable solution as likely in each case to constitute compliance with the specific outcome would be I think too simplistic. The Plan, in the use of the term probable solution, recognises that there may well be other considerations relevant to the issue of compliance with any specific outcome. The possible solution is but one guideline to be considered and called in aid of construction when determining compliance.
Different approaches of Appellants and Council to interpretation of Caloundra South Planning Area Code
[27]The Shorter Oxford English Dictionary on Historical Principles 3rd Edition; The Concise Oxford Dictionary of Current English 6th Edition and The Queen v Crabbe (1985) 156 CLR 469
There is a fundamental difference between the parties as to the correct approach to the interpretation of the codes. The Appellants say that the land referred to in Specific Outcome 09 is confined to land identified in the overlay mapping within the town plan and it is not permissible to rely upon any evidence outside that mapping in identifying the presence of significant vegetation on Lot 21 and Road 2. The Council takes the contrary view that it is not so confined, that it is open to lead evidence as to the actual state of the vegetation on the land and that the mapping is indicative only when considering the application.[28]
[28]Transcript 1.16 line 20; 1.28 line 50.
Specific Outcome 09 is set out in paragraph.15 above. It calls up certain of the Probable Solutions in the Habitat and Biodiversity Code. To better understand the appellant’s approach to the interpretation of SO 09 it is helpful to deal with them at this point
Probable Solutions in Habitat and Biodiversity Code called up by Specific Outcome 09 of the Caloundra South Planning Area Code
Probable Solutions S 2.2, S 2.3, S 2.4, S 3.2, S 4.1, S 4.2, S 5.1 and S 6.1 of the Probable Solutions set out in17 above are called up by Special Outcome 09 of the Caloundra South Planning Area Code.
Whereas S 1.1 and S 2.1 are not called up by SO 09, given the reference to “retained habitat” in those Probable Solutions called up, S 1.1 and S 2.1 are relevant to the contextual interpretation of that term.
The significant vegetation referred to in S 1.1 is that identified on map 7.5 (Significant Vegetation) or map 7.6 (Habitat) and (Protected Vegetation). Map 7.5 shows that vegetation only in the south west corner of the subject site none of which is on proposed Lot 21 or Road 2. There is no significant vegetation shown on map 7.6 (Habitat and Protected Vegetation).
On map 7.7 (Habitat Areas) the only vegetation shown is a small area near the southern boundary which is not on Lot 21 or Road 2. Similarly on map 7.8 (Habitat Corridors and Links) the only shown is that which is identical in its area to the significant vegetation shown on map 7.5.
Probable solution S 1.1 (not called up by SO 09) requires the significant vegetation on maps 7.5 and 7.6 to be retained. S 2.1 requires significant vegetation on map 7.7 and 7.8 to be retained in manageable configurations.
The Appellants argue that the only vegetation to be retained, in manageable configurations or otherwise, on a proper construction of S 1.1 and S 2.1, is that shown as vegetation on map 7.5, 7.7 and 7.8 which is restricted to that area in the south west corner of the site away from Lot 21 and Road 2. Accordingly retained habitat referred to in S 2.2 and the other Probable Solutions called up by SO 09 is defined by that vegetation.
On a strict reading of S 2.1 which refers to “significant vegetation shown as Core Habitat Areas or Broad Mosaic Areas (map 7.7) or shown as Major Corridors or Special Remnants (map 7.8)” an interpretation initially presents that those areas are themselves significant vegetation. I was at first attracted to further consideration of that interpretation. Given that neither party had contended for that interpretation, I invited further submissions. As a result of those further submissions I have concluded that the Appellants’ interpretation is the correct interpretation. One must be careful not to interpret individual sections of a code, or any partof the plan for that matter, pedantically or narrowly[29] and be mindful of the salutary caution of Brabazon QC DCJ in Des Forges v Kangaroo Point Residents and Brisbane City Council[30] who said:
[29]See footnote 16 above – Westfield Management Ltd v Pine Rivers Shire Council
[30](2002) QPELR 147 at para 32
“These town planning documents are largely the work of town planners. They are not the work of parliamentary counsel who have to consider a piece of legislation. If there are any ambiguities or inconsistencies, it is necessary to read the documents as a whole to discover their planning intent. They should be read and applied in a practical commonsense way, rather than in an overly technical way. They should be interpreted in a way which will best achieve their evident purpose.”
It follows that I agree with the Appellants that the retained habitat and significant vegetation referred to in S 2.2, S 2.3 and S 2.4 is the vegetation shown on maps 7.5, 7.7 and 7.8. But, as will become clear, I do not consider that, on the correct interpretation of SO 09, the terms significant vegetation and habitat therein used carry the same restrictive meaning.
Appellants’ Argument re Interpretation of Specific Outcome 09
The Appellants argue that, in the interpretation of SO 09, reference to significant vegetation and habitat carries the same restricted meaning as I have found in relation to the above called-up probable Solution of the CSPA code. They focus on the words “has been investigated and confirmed” and argue that this expression imports a requirement that any such investigation has to have been ratified or formally sanctioned in the sense that it has been formally adopted by the Council in its city plan or by State Government in its state planning policies, state regulatory provisions or regional plan.[31]They say that interpretation is consistent with the fact that planning schemes are dynamic and are required to be reviewed every eight years.[32] Hence, a local government’s expression of its knowledge base about land within its jurisdiction does not remain static with planning schemes and other documentary assessments being published and then left unchanged for decades at a time. They are living planning organisms.
[31]Appellants’ written submissions para 69.
[32]IPA s 2.2.1
The Appellants argue that this perpetually rolling planning scheme review concept is evidenced in this case by reference to the recent history of the City Plan subsequent to its commencement in 2004, namely:-
(a)The Council’s publication in 2006 of a Biodiversity Strategy[33] which included an assessment of the conservation significance of remnant vegetation in Caloundra City using Dr Olsen’s 2000 mapping which was at the 1:25 000 scale.[34] The Biodiversity Strategy used Common Nature Conservation Classification System Methodology;[35]
[33]Exhibit 24
[34]Exhibit 24 Appendix 3 Page 1
[35]In accordance with the definition of “significant vegetation” in s 3.3.2 City Plan
(b)that Biodiversity Strategy did not map any areas as having significant vegetation within the site additional to those shown on the relevant maps published when the City Plan commenced in 2004;[36]
[36]Exhibit 24 Appendix 4; Exhibit 25
(c)the experts engaged by the Council and by the Appellants, for the purposes of the present application provided reports to Council in relation to the site in 2005 and early 2007;
(d)the Council amended the City Plan in July 2007 but the amendments did not change the mapping of significant vegetation on the appellant’s site;[37] and
(e)prior to the adoption by the Council of the 2006 Biodiversity Strategy and the amendment of the City Plan in 2007, the Council had available to it the draft BAAM report (2005)[38] which was commissioned by the Council to specifically consider the ecological values of the appellant’s land;
[37]Exhibit 4
[38]Draft fauna and habitat assessment report by Biodiversity Assessment and Management Pty Ltd, exhibit 10, appendix 3.
The Appellants argue that the above history shows that the respondent Council could have updated its knowledge base and if it had done so by, for instance, mapping, on maps 7.5 to 7.8,all the subject land south of Lots 1 to 20 the court could have given weight to those mapping changes even though they post-dated the application.[39] as the fact that the Council failed to change the mapping should be seen as a firm planning decision that, in respect of the subject land, only the previously mapped land was intended to be “confirmed to have significant vegetation, habitat for rare or threatened flora or fauna species or high biodiversity”.[40]
[39]IPA s 3.5.6; s 4.1.52(2)
[40]S09
Finally, the Appellants argue that the interpretation contended for by the Council is at odds with the purpose of the IPA in seeking to achieve ecological sustainability by managing the process by which development occurs[41] and ensuring that decision making processes are accountable, coordinated and efficient.[42]
Council’s Argument re Interpretation of SO 09
[41]IPA s 1.2.1(b)
[42]IPA s 1.2.3(1)(a)
The Council’s response is that the relevant overlay in mapping is not cadastrally based, is indicative only,[43] and that was made clear to the Appellants in a letter from the Council to their town planner Mr Dillon of 27 February 2006 which said:[44]
“The Overlay maps within Caloundra City Plan 2004 relative to the Habitat and Biodiversity Codes and the Natural Waterways and Wetlands Codes are indicative only and are subject to scale constraints. They are also relevant to the vegetation mosaic at a whole-of-shire scale at the time of plan preparation. Vegetation is dynamic and the regeneration of the cleared portions of this site continues at the present time. …”
In short it says the mapping in City Plan, which is based on the remnant eco-system mapping, does not, and does not purport to, reflect the reality on the ground. Of course mere notification as above to the Appellants is not relevant to the validity of the argument.
[43]Respondents’ written submissions, para 52
[44]Exhibit 23, first page, last paragraph
The Council points to the definition of significant vegetation which is:[45]
“Significant vegetation means vegetation supporting an eco-system of local, regional or state significance as defined by application of the Common Conservation Classification System. The term includes vegetation identified on a Planning Area Overlay Map as being subject to the Habitat and Biodiversity Overlay.”
In particular it refers to the second sentence which extends the definition to include vegetation shown on an overlay map which inclusionary language, it says, demonstrates that significant vegetation is not intended to be confined to that shown on the mapping.
[45]City Plan p 3.21 – exhibit 2
Council points also to the notation on the bottom of the Caloundra South Planning Area Overlay Map CSP 2[46] which, inter alia, is in these terms:
“Land not covered by the Habitat and Biodiversity Overlay may contain rare or threatened flora or fauna species, high bio-diversity or critical habitat for part or all of the year.”
It points also to footnote 3 to SO 09 which is set out in paragraph 15 which identifies the fact that land outside the overlay map may contain rare or threatened fauna or flora species, high biodiversity or critical habitat for all or part of the year. That footnote also refers to the Overlays Planning Scheme Policy and the Environment Assessment and Management Planning Scheme Policy in s 11.6.11 of the City Plan which are designed to provide guidance for achieving Specific Outcomes for habitat and biodiversity in the Caloundra South Planning Area Code. The first of the abovementioned policies contemplates the preparation of an ecological assessment report by a competent person in appropriate circumstances.
[46]City Plan p 4.11
Finally the Council points to probable solution 3.2 in the Habitat and Biodiversity Code which refers to “other ecological corridors and link identified by more detailed investigations” which, as I understand the argument, stands in contra distinction to the corridors and links identified on map 7.8 referred to in s 3.1.
I am unpersuaded by the appellants’ argument I do not agree that, in the identification of the significant vegetation and habitat referred to in SO 09 the planning scheme intends that one should be confined to that identified in maps 7.5, 7.7 and 7.8. The scheme, read as a whole, intends a wider focus on the actual state of the land at assessment of any application. The points made Council are well made. If the identification of significant vegetation in SO 09 was to be confined to the mapping as the appellant’s contend, it could give rise to an absurd situation. If, for instance, the entire or most of, the land was in fact covered by significant vegetation but only a small part of that area was mapped as significant vegetation, on the appellants’ argument, the entire unmapped vegetation could be cleared so long as the mapped area was protected. On reading SO 09 in the context of the whole planning scheme that could never have been intended.
The Appellants’ reliance upon the Council’s publication of its 2006 Biodiversity Strategy and the availability to it of the draft BAAM (2005) does not alter my view. Dealing with the first in point of time, the BAAM report was a report commissioned by the Council in relation to the subject land to undertake a survey to assess the terrestrial fauna and habitat values of the land.[47] Whilst the commissioning document was not in evidence, it is clear to me from the report that it was no role of the authors to advise on remapping of any of the area. The existing mapping was relied upon but the absence of any recommendations as to remapping in that report does not support the Appellants’ argument that the authors was endorsing the mapping as representative of the then state of the land.
[47]Exhibit 10, appendix 3, p 1
As to the Biodiversity Strategy Report 2006, that was a comprehensive document designed to allow the Council to plan for the future protection, management, and restoration of its biodiversity.[48] Significantly the report developed a Biodiversity Action Plan[49] containing 57 action items. Item 3 was a recommended action plan to continue to provide input to State Regional Ecosystem mapping and Item 18 was expressed in these terms:
“Amend Caloundra City Plan 2004 to further improve biodiversity conservation mechanisms in the Habitat and Biodiversity Code, Development Design Planning Scheme Policy and overlay mapping (i.e. amend significant species list, amend pest species list, review and update vegetation, habitat and corridor mapping, incorporate further provisions for fauna, spotter/catcher requirements fauna sensitive design, habitat restoration and incorporate trans-location techniques).”
[48]Exhibit 24, p II
[49]Exhibit 24, p 32
Those extracts indicate to me that the Biodiversity Strategy 2006 represented the starting point, not the finishing point, for the future maintenance and improvement of the Council’s biodiversity including the improvement of its habitat and corridor mapping. It was not a document in which detailed re-mapping of overlay maps was contemplated or intended. I see the publication of the Strategy by the Council as reflecting its decision to address the Strategy through the action plan.
The Appellants relied on Elliott v Brisbane City Council[50] in support of their argument that the case should be decided on the basis of what was referred to in that case as “the presently legally effective mapping”. In that case there was a dispute over whether the official regional ego-system map appropriately mapped the subject site. The Appellants sought an adjournment to approach the body responsible for the preparation, maintenance and amendment of such maps so that the issue could be clarified. The adjournment was declined on the basis that the case should proceed on the basis of the existing mapping. That is a different point to the one here sought to be made. That case involved a challenge to the relevant mapping. Here the issue is whether or not that mapping, whether it be right or wrong in relation to the subject site, sets the parameters of the location of significant vegetation. That case does not alter the view I have taken.
[50][2002] 13 QPELR 425
In my view the investigation and confirmation contemplated in SO 09 does not carry the formal restricted connotation contended for by the Appellants. It seems tolerably clear to me, from the Policies referred to in footnote 3 to SO 09, that contemporary ecological assessment reports may well be necessary to allow the proper assessment of any application. The intent of the plan, as I read it, is to ensure that the best possible profile of the ecology of any land is known before any decision is made on an application that could impact adversely on that ecology. When one reads the definition of significant vegetation with footnote 3 to SO 09 it is obvious that the land referred to in SO 09 includes land covered by the Habitat and Biodiversity Overlay but is not confined to land so covered. To give such a restrictive meaning to land in SO 09 would be an unjustifiable limitation and at odds with the true intent of the plan.
Harmony between the wider interpretation of SO 09 with my interpretation of retained habitat and significant vegetation in the called-up Probable Solutions in the Habitat and Biodiversity Code is to be found in the concept of Probable Solutions. Take for example an application, where any part of the subject land possessing any of those qualities identified under SO 09 to be maintained, protected or rehabilitated, can be so maintained, protected or rehabilitated by the operation of the called-up Probable Solutions. In that case it may be likely that the probable solutions will become, in effect, acceptable solutions so as to achieve compliance with SO 09 subject of course to any conditions the assessment manager may seek to impose.
Applying that to the present case, had the only significant vegetation on the land been that shown in overlay maps 7.5, 7.7 and 7.8 so that, relevantly, no part of Lot 21 or Road 2 involved significant vegetation, then it would be more likely that compliance with SO 09 may be achieved by compliance with the subject called up Probable Solutions.
Where, however, that convergence of the limited presence of that significant vegetation with the utility of the called up probable solutions is absent, it would be unlikely that compliance with the called-up Probable Solutions will, of itself, secure compliance with SO 09 and the non-complying aspects would need to be addressed. That is the present situation.
In summary, I consider the land intended to be governed by SO 09 is not confined to that I have found to be governed by the Probable Solutions called-up by SO 09 in the Habitat Biodiversity Code. Further, I am not persuaded that any such investigation or confirmation contemplated by SO 09 must be a process undertaken by or adopted by the Council as a part of its planning scheme or by the State as contended by the Appellants. To my mind the City Plan contemplates contemporaneous investigations of any land the subject of an application to enable the best possible assessment to be made to allow the assessment manager to determine the land’s characteristics by reference to SO 09. That interpretation allows any delay between City Plan amendments by mapping updates or otherwise to be addressed so that any application can be assessed by reference to the then status of the land.
Appellant’s objections to evidence
Exhibit 17 contains objections taken by the Appellants to the admissibility of certain evidence. Mr Ure for the Council responded in writing to those objections. I have set out my rulings on those objections in Schedule A. In approaching the objections I have been conscious of the fact that most experts at one time or other tend to provide their view of the law and also to drift into areas not strictly within their expertise. Further they often rely upon other material including other experts’ reports. That is apparent if one goes to the reports in this case.
In dealing with the objections I have been conscious of the warrant that I do not rely upon evidence beyond the expertise of the witness or upon any legal interpretation offered by a witness. Having said that, I have been assisted by information and reports which does give context to the matters upon which the witness opined. Against that background I have endeavoured to address the objections of the Appellants.
Significant vegetation
Turning now to the issue of what, if any, significant vegetation is to be found on Lot 21 and/or Road 2. Agreement has been reached between the two expert botanists, Mr Friend for the Appellants and Dr Olsen for the Council. In the course of his inspection of the site, Mr Friend came to the view that the published mapping of the site did not truly reflect its current state as to remnant vegetation and he prepared a map[51] in which he drew a series of polygons identifying vegetation on the land. Dr Olsen adopted Mr Friend’s mapping as a more accurate depiction of the remnant vegetation than the current certified mapping.[52]
[51]Exhibit 9, Joint Statement of Experts, Attachment 2
[52]Exhibit 9, Joint Report, paragraph 45
Relevantly, two types of remnant vegetation were identified, both of which are to be found in Schedule 2 of the Vegetation Management Regulation 2000 enacted pursuant to the Vegetation Management Act 1999. The two vegetation types found were remnant vegetation 12.3.4 of concern[53] and remnant vegetation 12.3.13 of concern[54] which in Schedule 2 of the above regulation are described as:
[53]Transcript 1.36, Line 40; a Regional Eco-system is listed as “of concern” under the Vegetation Management Act 1999 if remnant vegetation is 10-30% of its pre-clearing extent across the bio-region; or more than 30% of its pre-clearing extent remains and the remnant extent is less than 10,000 ha – see Exhibit 24, para 6.1 p 13.
[54]Transcript 1.37, Line 25
Regional ecosystem Regional ecosystem number Melaleuca quinquenervia eucalyptus robust open forest on or near coastal alluvial plains 12.3.4 Closed heath land on seasonally waterlogged alluvial plains usually near coast 12.3.13
The above numbers are regional ecosystem identification numbers that allows one with reference to the relevant code or index to determine the floristic composition of the ecosystem.[55] Both vegetation types are Significant Vegetation within the definition of that term in s 3.3.2 of the City Plan as supporting eco-systems of regional significance.
[55]Transcript 1.36, Line 50
On Mr Friend’s mapping, there are two polygons containing the 12.3.4 of concern vegetation namely 4(a) and 4(b) and two containing the 12.3.13 vegetation being 6(a) and 6(b).[56]
[56]Exhibit 9; attachment 2 to Joint Statement of Experts
Lot 21 is identified in a map in Mr Friend’s report[57] as a blue four-sided, almost triangular figure,[58] Mr Friend agreed that, by reference to his mapping, the major portion of Lot 21 was occupied by the underlying 6(a) polygon[59] and that if that land was cleared and developed, that component of polygon 6(a) would be destroyed.[60] Even if one accepts the Appellants’ argument[61] that the amount destroyed would only be one half, that is still, to my mind, a sizeable and unacceptable quantity of loss. Far from meeting the obligations under SO 09 to maintain, protect and rehabilitate significant vegetation where degraded, the effect of the development of lot 21 would be to destroy a sizeable area of significant vegetation.
[57]Exhibit 9, p 53 Figure 14; see also attachment 2
[58]Transcript 1.37, line 50
[59]Transcript 1.38, line 5
[60]Transcript 1.39, line 1
[61]Appellants’ written submissions in reply at paragraph 1.
Polygon 4(a) runs north to south down the eastern side of the site following the route of the proposed Road 2. Mr Friend agreed that with the construction of Road 2, its culverts and its filling and battering the regional ecosystem 12.3.4 represented in polygon 4(a) in that location would be obliterated.[62] Again the antithesis of SO 09 would be achieved by construction of Road 2. I accept the evidence of Mr Friend that the use of culverts would reduce the width of the road and potentially the extent of the impact of polygon 4(a) on the eastern side which may thereby be destroyed but there was no suggestion that any such destruction would thereby be eradicated. It seems to me that the road would still follow the same line which would involve the removal of the vegetation in polygon 4(a) albeit possibly in a narrower strip. I am not persuaded that the impact on that vegetation would alter the descriptions of the roadworks as substantial destruction of significant vegetation.
Schoenus Scabripes
[62]Transcript, p 1.39, lines 10-15 & 45-50
Apart from the abovementioned vegetation, Dr Olsen gave evidence that there were also two substantial populations of the rare bog sedge (schoenus scabripes) found on the footprint of Lot 21 as depicted on Mr Friend’s mapping.[63]
FAUNA
Acid Frogs
[63]Page 147, lines 10-12, lines 30-40; p 1.5 line 35-45; p 1.51 line 50; Exhibit 14 paragraph 9
It was common ground that the focus concerning fauna was confined to three types of acid frogs, the wallum sedge frog, the wallum froglet and the wallum rocket frog, all of which are listed as vulnerable under the Queensland Nature Conservation Act 1992 and the first mentioned similarly listed under the Commonwealth Environment Protection and Biodiversity Conservation Act 1999.[64] The witnesses in relation to the frogs were Mr Warren[65] for the appellant and Mr Agnew[66] for the Council. Both witnesses rely on earlier information sources being reports by C&B Group (August 2005), Biodiversity Assessment Management Pty Ltd (November 2005) and Natural Solutions (March 2007).[67] In fact, the C&B Group and Natural Solutions reports are both the work of the same person, Dr Watson and the third report (BAAM), that of Doctors Ingram and Schell.
[64]Exhibit 13 p 6 paragraph 2.3.1
[65]Report Exhibit 10
[66]Report Exhibit 13
[67]Exhibit 10, Appendices 2, 3 & 4; Exhibit 13, p 6 paragraph 2.3.1
As to the location of the frogs on site, Mr Warren agreed that, whilst he relied upon the work of Dr Watson, the latter did not have GPS navigational records of where frog calls were heard. That means that Mr Warren’s mapping of frog locations relied upon the work of Dr Ingram of BAAM and Mr Agnew.[68]
[68]Transcript 2.30 lines 10-40
Mr Warren did himself undertake a visit to the site on Friday 5 September 2008 several days before the trial began.[69] He did zigzag walks over the site and heard wallum froglets calling in an area of ponded water which he marked on a map, Exhibit 22, which is a copy of Figure 8 to his report, Exhibit 10. Whilst he did not have a GPS device at the time of the inspection, he did locate the position of the wallum froglets calling, by reference to Exhibit 18. an aerial photograph upon which Mr Friend had, with the assistance of GPS, marked certain coordinates identified on the land with pink tape.[70] The location of the 5 September 2008 froglet callings was the buffer zone running northwest to southeast and forming almost a hypotenuse to Lot 21.
[69]Transcript 2.22 lines 30-50
[70]Transcript 2.22 line 55; p 2.23 line 22-30; p 1.35 lines 30-60
Apart from the 5 September mapping, Mr Warren’s other frog locational mapping, based on the work of Mr Agnew and Dr Ingram as mentioned above, shows two further sightings of frogs on Lot 21. They are chorusing wallum rocket frogs shown on the western boundary of Lot 21. As to Road 2, there was one frog location, that of a chorusing wallum froglet on Road 2 near its entrance to Lot 21.[71]
[71]Exhibit 10, Figure 8
Mr Warren expressed the view that the best habitat for frogs appears to be in and around the main drainage line at the northern end of the site[72] away from Lot 21 and Road 2 and that is where most of the frogs are.[73] In his report he identified those areas of the site considered as most likely to provide habitat for acid frogs and said that if core habitat for acid frogs occurred on the site it would occur in those areas.[74] Those are the areas dominated by a plant species known to be endemic to waterlogged soils namely hydrophytes. He mapped the site identifying those hydrophytes.[75] A significant part of Lot 21 contains hydrophytes.[76]
[72]Exhibit 13, Joint Report, paragraph 1
[73]Transcript 2.33, line 20
[74]Exhibit 10, p 15
[75]Exhibit 10, Figures 5 & 8
[76]Exhibit 10, Figure 8
So, as I understand Mr Warren, he accepted that the breeding grounds for frogs were important habitats and that the core habitat for the acid frogs occurred in hydrophyte areas. He agreed, however, that a significant number of the frog sightings relied upon by him were outside those areas identified by him as hydrophytes.[77] In explaining that, in relation to Lot 21,[78] Mr Warren firstly explained that acid frogs’ breeding habits required water which sits for at least 30 days where they lay their eggs which develop into tadpoles and into adult frogs. That water is required to sit there for the approximate 30 day period for that metamorphoses to occur. He explained that the male frog, which calls the female during the breeding cycle, did not necessarily call from water but rather from damp ground or underneath damp tangled masses of sedge. In relation to Lot 21, he said the majority of that land appeared to him to be more elevated than its surrounds and that is what he put down to the lack of records of the frogs calling from Lot 21. The elevation he said made the land drier than its surrounds.
[77]Transcript 2.3, line 1
[78]Transcript 2.35, line 40-60; 2.36, lines 1-30
Given that he was specifically addressing the area of hydrophytes on Lot 21 and the large part of Lot 21 he had mapped as hydrophytes, I detected some tension between his evidence of this elevated drier area and his description of hydrophytes as waterlogged soils.[79] Perhaps the answer lies in the evidence of Dr Agnew, to which I shall shortly refer, as to the changes in the topography resulting in water sitting for long periods in deep depressions.
[79]Exhibit 10, p 15
Mr Warren was asked about the wildlife corridor[80] running from a large area of State forest to the west of the site, through the site to a large conservation area being part of the DSDI development adjoining the subject site on the eastern boundary.[81] It was put to him that the construction of Lot 21 and Road 2 would result in significant obstruction of the eastern boundary of up to 60% of its lineal length if one draws a line across the bottom of Lot 21 until it intersects with that boundary.[82] He did not cavil with the proposition as to the extent of the impact on the eastern boundary of the land but did not accept that there would be any barrier to frog movement in the northern drainage line where he believed most of the frogs were.[83] Mr Warren’s view was that there would be very little barrier to frogs moving between the subject land and the DSDI land through the eastern boundary in the event of construction of Lot 21 and Road 2 provided multi-cell culverts were provided in the road construction. That proposition governed frog movement in the area south of the northern drainage line in which latter area he saw no real barrier to frog movement. He agreed that the construction of the whole of Road 2 on culverts would be an expensive construction method[84] but said that if the road was lifted above the ground using culverts there would be no need for there to be culverts every inch of the way.[85]
[80]Exhibit 10, p 18, Figure 6
[81]See Exhibit 15, Figure 2
[82]Transcript p 2.3 lines 1-10, 25-30, 45; p 2.33 line 5
[83]Transcript 2.33 line 20; p 2.36 lines 35-60; p 2.37 lines 1-10
[84]Transcript 2.32 line 20
[85]Transcript 2.37 lines 25-30
Whilst he was not advocating the construction of Road 2 without the use of culverts, he did make the point that if so constructed using fill and batters to compact the fill, frogs could still go across the roads and as they mainly move at night there would be no issue of road kill of frogs.[86]
Mr Agnew
[86]Transcript 2.34 line 10
Mr Agnew identified two primary differences of opinion with Mr Warren to be found in their joint statement.[87] In essence, as I have said, Mr Warren’s opinion was that the best habitat area for frogs, and where most would be found, was in the main drainage line to the north of the site and that the absence of recorded callings of frogs on Lot 21 results from its elevation and resulting drier environment. Mr Agnew, on the other hand said the southern two-thirds of the site south of the northern drainage line on which Lot 21 and Road 2 are located, support potentially suitable foraging and breeding habitats for the acid frogs and that there was a high likelihood that that area of the site supported resident populations of acid frogs contrary to the Warren view that current records do not support such a conclusion.
[87]Exhibit 10
Finally, Mr Agnew, whilst acknowledging there was a difference in the extent of the habitat in the southern two-thirds of the site, saw no notable characteristics in terms of vegetation or typography which would lead him to distinguish part of it as lower quality habitat. He saw the value of the habitat as homogenous across that two-thirds area south of the drainage line.[88] Whilst some issue was taken by the appellant that Mr Agnew was relying upon hearsay evidence in the form of Dr Olsen’s mapping to found his conclusions as to the distribution of hydrophytes, I am satisfied that those views are also supported by his own observations.[89] Both Mr Warren and Mr Agnew relied upon the work of others as well as their personal observations. As I have said, Mr Warren zigzagged across the land during his visit while Mr Agnew was restricted to the outer perimeters.
[88]Transcript 3.23 lines 55-60; 3.24 lines 1-5
[89]Transcript p 3.25 lines 50-60
Figure 1 of Mr Agnew’s report, Exhibit 13, is a diagram showing the location of sightings of the three acid frog species based upon previously mentioned BAAM 2005 Report (Dr Ingram) and the author’s personal observation in February 2008. At the hearing, an amended diagram Exhibit 13A was tendered. That did not add sighting locations but did add notations reflecting Mr Agnew’s interpretation of the Natural Solutions (2007) Report and his discussion with Dr Watson, the author of that report. The Appellants objected to my reliance upon Exhibit 13A because of the hearsay nature of the evidence from Dr Watson which they say differs from his report.[90] Despite my earlier views about hearsay evidence, it may have been more appropriate for Dr Watson to be called to amplify his report. But in any event I am content to rely upon Exhibit 13 which is the earlier figure showing frog locations without the further comments from Dr Watson set out in paragraph 13A.
[90]Appellants’ written submissions paragraph 103; Exhibit 10, Appendix 4 p 13, second paragraph
Exhibit 13 shows four sites within Lot 21 where acid frogs were recorded as calling. Mr Agnew’s personal observations of the calling of chorusing wallum froglets on 24 January 2008 are designated by two circular icons, one to the south of two stars on the western boundary and one to the northwest of the top star and further in to the block from the western boundary than the other. The other two sightings are those of Dr Ingram of BAAM represented by the two stars I mentioned both of which evidence wallum rocket frogs calling within Lot 21. They match Mr Warren’s Figure 8.[91]
[91]Transcript 3.26 lines 1-20
Mr Agnew explained that the frog calling or chorusing is restricted to male frogs, is a high energy output exercise and is designed to attract the female of the species to breed. He said the males call adjacent to or within the potential breeding sites. He said the two locations for the chorusing wallum rocket frog depicted in Mr Warren’s report[92] were breeding sites.[93] As to the evidence of Mr Warren as to the elevation of Lot 21, Mr Agnew agreed that portions of Lot 21 were a little more elevated than in other parts and indeed throughout the entire site there were changes in typography resulting in areas where water will sit for long periods and in deeper depressions. That applied to Lot 21 and areas outside Lot 21.[94]
[92]Exhibit 10 Figure 8
[93]Transcript p 3.27 line 30
[94]Transcript p 3.27 line 50
As to the frog’s mobility, he explained that they are quite mobile and, out of breeding season, will move quite some distance across the site, offsite and back onto the site for the purpose of foraging. He said they range over quite an area and the mobility is high during breeding seasons when food still has to be found.[95] As to the linkage between the land and the adjoining DSDI Conservation Area to the east, Mr Agnew said that with the loss of the vegetation and edge effects of Lot 21 and the Road 2, there would be a reduced functionality in that regard but agreed that, if Road 2 was constructed completely of culverts, that would be a substantial improvement to the issue of the road operating as a barrier for frogs moving onto the DSDI land.
Conclusion re Acid Frogs
[95]Transcript p 3.28
I accept the evidence of Mr Agnew that Lot 21 supports suitable foraging and breeding habitats for acid frogs and that there is a high likelihood that it supports resident populations of acid frogs. It is apparent that, certainly in breeding season, frogs foregather in wet areas and it may well be that the larger number find themselves around the northern drainage line as Mr Warren has said. However, one cannot ignore several things. Firstly, I think I can safely assume that frogs do not engage in breeding activity during every waking hour. As Mr Agnew said, they are very mobile, perhaps more so in breeding season. Next, for all the sightings of the acid frogs depicted in the diagrams of both Mr Warren and Mr Agnew, as to those located off Lot 21 it seems to me it would be unrealistic to think that they are located in sites to the north, south-east and west of Lot 21 but not on Lot 21.
I appreciate that the areas on Lot 21 relate to areas where the frogs were calling which is consistent with a breeding ground. However, Specific Outcome 09 speaks of the maintenance protection and rehabilitation of habitat for threatened fauna species which we are here dealing with. Habitat is not defined in the City Plan but some guidance can be found in its definition in the Queensland Nature Conservation Act 1992 pursuant to which the three frog species in question are listed as vulnerable. That definition is:
“Habitat of wildlife includes an area that is not presently occupied by the wildlife.”
That definition carries the clear implication that habitat is an area occupied by wildlife. I do not consider that the concept of occupation when dealing with the habitat of the acid frog should be restricted to breeding areas only. To my mind to satisfy that concept it is sufficient that the land is used by the frog for any purpose including foraging and travelling to and from breeding areas. I am satisfied that Lot 21 would be used by frogs to reach the various areas established by the evidence to have been their chorusing/calling locations on the site.
Water quality
Mr Sutherland, the agricultural and environmental scientist called by the Council identified three issues of water quality. He said:[96]
“The issues in this case are pH, alkalinity and nutrients. The receptors are alkaline-sensitive frogs and low-nutrient adapted vegetation. According to the ecologists, the consequences include non-viability of the sensitive ecosystem and its eventual demise. The likelihood of these consequences being realised has not yet been assessed by the Appellants and as such is unknown. However, in my estimation, the probably (sic) of detrimental impacts being realised is likely to be high given the known impacts of urbanisation, the site soils and the already impacted water quality downstream.”
[96]Report, Exhibit 16, p 4.6 line 75
He further said:
“ (a)Rainfall is slightly acidic by nature and when it hits concrete and starts dissolving it, the run-off water increases in pH resulting in an increase in alkalinity which will occur on Lot 21 during the construction phase;[97]
[97]Transcript, p 3.3, line 1
(b)Tests on the adjacent DDIS Industrial Development revealed a difference in pH of 10 times the natural condition;[98]
[98]Transcript, p 3.3, line 20
(c)Compliance with the Council’s water quality guideline will not be sufficient because they deal only with nitrogen, phosphorus and suspended sediment. The issue is the delivery of elevated pH waters into and through stormwater detention systems resulting in water in the receiving environment increasing in alkalinity causing a change in both the hydrological regime and a change in the near surface soil store.[99]
(d)No stormwater modelling has been carried out in relation to Lot 21 or any condition suggested by the Council in relation to stormwater on that block.[100]
(e)The pH regime in the northern detention basin (not in dispute in this case) would be alkaline.[101]
(f)No method to address the problem has been suggested by the Appellants notwithstanding his strong suggestion to their expert Mr Della to address the pH issue.[102]”
[99]Transcript, p 3.3, line 50
[100]Transcript, p 3.4, line 12
[101]Transcript, p 3.4, line 20
[102]p 3.8, line 30
The Appellants did not lead evidence addressing the specific issues raised but rather pointed to Council’s conditions 26 & 43, which they accept, which require an amended Stormwater Quality Management Plan to be approved prior to the lodgement of an application for Operational Works (Condition 26) and the preparation of a Reserve Management Plan for the Environmental Parks Drainage Reserve Areas to be submitted as part of any Development Application for Operational Works (Condition 43). Although Mr Sutherland agreed that the conditioning process would see his concerns addressed[103], his enduring concern, as I understood it, was that, having raised the problems, he did not have any solutions.[104]
[103]Transcript, p 3.16, lines 20-60; p 3.17, lines 1-5
[104]Transcript, p 3.18, line 35; p. 3.19 line 1
When it was put to him that the operational approval process would address his issues he raised another point and that was that, if approval for Lot 21 was granted at this point, there would be an expectation that there would then be development on that lot.[105] I take that, to mean that if approval is granted by the court, even though there are water quality conditions to be satisfied, nevertheless an expectation may arise in the minds of the Appellants and perhaps Council officers that development would then proceed come what may. I understand the point Mr Sutherland makes but would have grave difficulties in accepting that anyone could reasonably entertain such expectations given the history of this matter. I refer particularly to the basis upon which the Appellants cross-examined Mr Sutherland which was premised on the proposition accepted by them that, if the Council was not satisfied as to water quality that the development of Lot 21 would not proceed. For the Appellants to later argue an expectation to the contrary as Mr Sutherland was concerned with, would be untenable. To coin the vernacular, “they have their eyes open” and have acknowledged that.
[105]Transcript, p 3.16, line 10
The difficulty I have in deciding this issue is that the Appellants have not sought to meet the Council’s case in detail but have taken the position that the issue is premature in that they have not yet put the relevant management plans before the Council. There is merit in that argument. It would to my mind be quite unfair for me to decide the issue of water quality when I have only the evidence of one party, the Council, before me. The appropriate course is for the court at a later time to address that issue if it becomes necessary. On that basis I do not propose to deal with it further.
Appellants’ compliance with Specific Outcome 09
The Appellants’ case for compliance with SO 09 is their asserted compliance with the Probable Solutions of the habitat and biodiversity code called up by SO 09. That argument proceeded on the basis, which I have rejected, that the only vegetation to be retained is that in maps 7.5, 7.7 and 7.8 shown as vegetation. On that argument, no significant vegetation is to be found on Lot 21 and the requirements of buffering (S2.2), landscaping and additional buffering (S2.3), traffic calming devices through the retained habitat, retention and enhancement of ecological corridors and links (S3.2), avoidance of traversing significant vegetation with infrastructure (S4.1), appropriate fencing (S4.2), landscaping (S5.1) and earth works (S6.1) are all either complied with or can be conditioned so as to satisfy those Probable Solutions.[106]
[106]See Appellants’ written submissions, paragraphs 86-95
The evidence shows that development of Lot 21 would involve the clearing of an unacceptable amount of significant vegetation over a large portion of that lot and the destruction of further significant vegetation to make way for the construction of Road 2. That would be completely at odds with the intent of SO 09 to maintain and protect such vegetation. The Appellants argue that any obligation to maintain or protect significant vegetation under SO 09 should be read down to mean that it should be “reasonably” or “acceptably” maintained or protected.[107] Even if that was so, I would regard the clearing of the polygons (6a and 4a) on Lot 21 and Road 2 as neither reasonable nor acceptable having regard to what I consider is sought to be achieved by the planning scheme in relation to the protection of significant vegetation.
[107]Appellants’ written submissions, paragraph 43 - Multi-Span Australia Pty Ltd v Department of Main Roads & Anor [2008] QPEC 14 at p 2. See also Jedfire v Counsel of the City of Logan [1995] QLR 41 at 43H.
Further, such clearing of Lot 21 would involve the destruction of a significant part of the habitat of the acid frog population of the area. No conditioning of the proposed development could be effective to avoid those results. The concepts in the called up Probable Solutions in the Habitat and Biodiversity Code do not lend themselves to addressing the problems presenting here. The proposal does not comply with Specific Outcome 09.
Specific Outcome 020
For the same reasons, the Appellants have failed to satisfy me that they have complied with SO 020 which provides that the development must not adversely impact on environmentally sensitive areas. The Appellants rely upon Probable Solution S20.1(b) which provides for the retention of significant vegetation. Again, for the reasons above outlined, the significant vegetation in question here extends to vegetation which would be cleared on Lot 21 and Road 2 in the event of an approval.
For those reasons I find the proposal does not comply with the Caloundra South Planning Area Code with or without conditions and there is no basis for approval under IPA s 3.5.13(3).
Habitat and Biodiversity Code
I come now to consider this code and not just the Probable Solutions called up by SO 09. For the same reasons I have outlined above in relation to the clearing of Lot 21 and Road 2, and its impact on the Acid Frog habitat the Appellants fail to comply with this code which requires the protection of significant vegetation.
Conclusion re conditions 1 and 37
For the above reasons, I am satisfied that Condition 1 & 37 requiring deletion of proposed Lot 21 and Road 2 are relevant and not an unreasonable imposition on the proposed development and the Appellants’ appeal in relation thereto is dismissed.
Other conditions subject of appeal
Sewerage pump station site – Condition 5.2
This condition requires:-
“Proposed Lot 20 (sewerage pump station site) must incorporate an access trip to provide legal access from Road 2.”
Lot 20 adjoins the northern drainage base and is landlocked by Lot 13 to the west, Lot 12 to the north and Lot 11 to the east. The last mentioned lot abuts Road 1 which runs north-south along the eastern boundary adjoining the DSDI land to a point at the southeast corner of Lot 11 which is the commencement point of the proposed Road 2 which is an extension of Road 1.
The Appellants argue that the present access via the fire/maintenance access track along the drainage basin coupled with easement rights of access through Lot 11 is sufficient access to Lot 20.[108] The Council opposes this approach and says that the sewerage pump station is an important infrastructure item with public health and safety implications both of which dictate that there be access available at all times.[109]
[108]Appellant’s written submissions, paragraph 107(a)
[109]Respondent’s written submissions, paragraph 59
Mr Dillon for the Appellants conceded in cross-examination that owners of land over which easement rights have been granted may still tend to assume the land is unencumbered by the easement and to use the easement area for storage or parking.[110] That may well be the case but it is no reason not to address the appropriateness of easement rights in conjunction with the fire/maintenance track as an appropriate access route to the pump station.
[110]Transcript, p. 2.17, line 1
In my view, the proposal put by the Appellants[111] would adequately address this access issue, namely, a condition that the existing fire/maintenance track be dedicated to the Council and sealed with a further condition requiring the billing envelope and design for Lot 11 to incorporate an unimpeded thoroughfare to Lot 20. I consider this condition to be an unreasonable imposition on the development. It should be deleted and replaced with a condition in the abovementioned terms.
Battle-axe blocks
[111]Appellant’s written submissions, paragraph 109 & 110
Condition 5.3 provides:
“The lot layout and the area covered by proposed Lots 16, 17, 18 & 19 must be amended to eliminate battle-axe lots, with each lot having a minimum frontage of 27.5 metres to Road Figure 1.”
The Council makes the following points in support of the reasonableness of this condition:
“(a)The frontages of Lot 17 & 18 to Road 1 are only of the order of 4.9 metres each and the vehicle turning for those lots contemplates only cars and small service vehicles prohibiting larger articulated vehicles, heavy vehicles or even possibly medium rigid vehicles;
(b)Table 9.7 of the relevant reconfiguration of a lot code provides that in the core industry precinct a lot shall ordinarily have a minimum frontage of 30 metres, or if an irregular shaped lot, 25 metres.
(c)Table 9.8 of the same Code makes no provision for battle-axe blocks which it is said is the result of a conscious decision of the Council when formulating the Planning Scheme; and
(d)The condition is relevant and not unreasonable and hence does not offend IPA s 3.5.30.”[112]
[112]Respondent’s written submissions, paragraphs 61-66
Mr Perkins, who gave evidence for the Council[113], had three concerns. Firstly, he said the concept of battle-axe blocks in industrial areas was not contemplated in the Planning Scheme. Secondly, the issue of parking and finally the issue of utility, that is, whether or not the blocks were able to be used for their intended purposes determined by whether or not the sort of vehicles that were intended to access an industrial allotment can enter that allotment, manoeuvre on the allotment and then leave it in a forward gear.[114]
[113]Report, Exhibit 15
[114]Transcript, p. 2.4, lines 5-25
Table 9.8 (Access Strip Requirements for Rear Lots) of the reconfiguration of a Lot Code deals with access requirements for rear lots in the following precincts – Township Residential, Low Density Residential, Multi-Unit Residential, Mixed Use Residential, Rural Residential, Settlement and Rural. The core industry precinct is not mentioned and the Council argues that this omission reflects a conscious decision on the part of the Council in relation of its Planning Scheme to prohibit Rear Lots in the Industry Precinct.
To determine the force of that argument, it is necessary to consider the scheme as a whole. Section 1.4.7[115] provides:
[115]Exhibit 2, p. 1.14
“Planning Scheme seeks to achieve outcomes
(1)The Planning Scheme seeks to achieve outcomes that are identified according to the following levels:
(a) Desired Environmental Outcomes;
(b) Overall Outcomes for the Purposes of a Code;
(c) Specific Outcomes for a Code; and(d)Probable Solutions for a Specific Outcome, or acceptable solutions for complying with a self-assessable code.”
Section 9.9.1 of the Reconfiguring of Lot Code deals with Overall Outcome and s 9.9.1(2) provides:
“The Overall Outcomes sought for the Reconfiguring a Lot Code are that lot reconfiguration results in well designed development where:
(a)Lots are of suitable size and dimensions for the their intended purposes;
(b) Lots are provided with safe and appropriate access;
(c)The size, dimension and layout of lots is consistent with the Planning Area Overall Outcomes and Specific Outcomes for the Planning Area in which the development is located;
(d)….
(e)….
(f)….
(g)….”
Section 9.9.3 of the Code deals with Specific Outcomes and Probable Solutions and SO 03 dealing with Rear Lots has, as one of its Probable Solutions compliance with Table 9.8 (Access).
I have already dealt with the status of Probable Solutions within the Planning Scheme as being guides only to the issue of compliance with a specific outcome.
Mr Dillon made reference to Specific Outcome 01 of the Industry Code[116] dealing with area dimensions, parking, vehicle access and on-site movement amongst other things and noted that there was no Probable Solution prescribed for compliance with that Specific Outcome. If that was relevant to the question of rear access then the absence of a Probable Solution would mean that the development must provide its own solution to establish compliance with the Specific Outcome.[117] However, given the specificity of Table 9.8 in the Reconfiguring a Lot Code, I am not persuaded that the absence of the Probable Solution in the Industry Code assists me.
[116]Transcript, p. 215, line 50; Exhibit 2, p. 8.71
[117]See STW Projects v Gold Coast City Council [2007] QPELR 24, paragraph 46 per Rackemann DCJ
Having said that, however, I am not persuaded by the Council’s argument that the absence of reference to the Core Industry Precinct in Table 9.8 evidences a decision by the Council that there could never be a development of Rear Lots in that precinct. Such a blanket prohibition would, to my mind, need to be far more clearly evidenced than simply resting upon one possible inference founded on an omission in Table 9.8. Again, I am reminded that these schemes are not drawn with the precision of statutes and should be interpreted bearing that in mind. Table 9.9 clearly contemplates Irregular Lots within Core Industry and a battle-axe block is an irregular lot. It follows that I see no planning prohibition to battle-axe blocks in the subject development.
Carparking
Whereas Mr Perkins identified the issue of parking as one of his concerns,[118] in the result, I do not think this is an issue. I say that because Mr Perkins later[119] said, in effect, that, provided the provision for parking spaces complied with the Planning Scheme, that would be satisfactory to him. The evidence of Mr Dillon[120] was that the car parking provision had been assessed on the Planning Scheme provision which varied somewhat across the industrial uses. He said the majority of the provisions used a factor of one space per 50m2 up to 500m2 of fully developed floor area and then one space per 100m2. The Appellants had taken what he described as the worst case scenario and assumed that the building envelopes of Lots 17 & 18 would be fully developed to their areas of 750m2 [121] dimensions of each block (25m x 30m) which gave a car parking requirement of 13 spaces. That approach was not questioned by the Council. In fact, the present layout[122] shows fourteen spaces for Lot 18 and thirteen for Lot 17, though Mr Dillon did say that carspace 11 on Lot 18 and carspace 10 on Lot 17 may need to be revisited at design stage to address the issue of ingress and egress from them.[123] Overall, I do not see any difficulties with the current proposed parking.
Manoeuvrability of vehicles on-site
[118]Transcript, paragraph 2.4, line 18
[119]Transcript, p. 2.6, line 35
[120]Transcript, p. 2.2, line 10
[121]Exhibit 20
[122]Exhibit 20
[123]Transcript, p. 2.12, line 25
Mr Dillon accepted Mr Perkins’ concern that the battle-axe blocks only allowed turning circles for cars and small service vehicles and not articulated vehicles, heavy rigid vehicles or possibly even medium-rigid vehicles.[124] Said however that, although battle-axe blocks were not the most popular, they did have a function as being an affordable product and would be suitable for small fledging type industrial businesses such as carpet cleaning, electrical appliance repairs, mechanical vehicle repairs and fitting which can be operated on allotments as small as 1,000 m2.[125] He instanced the carpet cleaning example where there would not be a high volume of customer traffic.
[124]Transcript, p. 2.11, line 25
[125]Exhibit 11, p 20, paragraph (v)
He said one often sees industrial developments where the buildings are side onto the street with a number of tenancies down the side of the building.[126]He pointed out that if Lots 19 & 18 were amalgamated into one block it was conceivable that the building on that block would have a long driveway down the side which would be little different from the present proposal.
[126]Transcript 2.16, lines 15-25
In that event, and indeed with the present proposed battle-axe configuration, the suggestion by Mr Dillon[127] that the issue of the manoeuvrability of vehicles on Lots 17 & 18 could be conditioned by requiring each to grant reciprocal access easements to the other seems a sensible way of addressing any potential problems in that area. I do not see the limitation on the size of vehicles as a basis to prohibit the proposed configuration provided mutual easements are granted over lots 18 and 19 as Mr Dillon suggested.
Minimum of frontage
[127]Exhibit 11, p. 20, paragraph (iv)
The Council relies upon Table 9.9 (Minimum Frontage for Irregular Lots) which provides that the minimum frontage for an irregular lot in the core industry precinct is 25 metres to be measured six metres in from the street frontage.[128] That is 5 metres less than the equivalent for regular lots in Table 9.7. But that frontage requirement is not designed to govern access to rear blocks. The appropriate table to give guidance for those types of blocks is Table 9.8 which has minimum widths for common driveway combined for rear lots dealt with in that table. They vary from 6 metres to 10 metres. The present proposed reciprocal driveway of 7.81 metres is within that range.
Need
[128]Exhibit 2, p. 9.69 [Note: particularly Note 1].
Mr Dillon relied upon the Sunshine Coast Enterprise Needs Investigation prepared for the Office of Urban Management by Economic Associates Pty Ltd prepared in 2007[129] to support his own view of the general lack of sufficient industrial land on the Sunshine Coast, particularly in the Local Government Areas of Maroochy Shire and Caloundra City.[130] He referred to the Supply-Demand Balance 2011-2046 (hectares) schedule[131] and pointed to a predicted negative 397 hectares for the Sunshine Coast by 2026 with the Caloundra City Council’s share of that being 104 hectares. Closer to the present, the same table shows in 2016 Caloundra will have a surplus of 51 hectares with Maroochy and Noosa having deficits of 33 and 10 hectares respectively. I am not persuaded that this information lends much, if anything, to the equation given that we are talking about one addition industrial lot.
Conclusion re Battle-axe blocks
[129]Exhibit 11, pp 16 & 95
[130]Exhibit 11, pp 16 & 17
[131]Exhibit 11, p 108
Having considered all of the above factors and proceeding from the premise that the City Plan does not prohibit battle-axe blocks, I consider that Condition 5.3 is unreasonable and should be deleted and replaced with a new condition suggested by the Appellants in paragraph 117 of their written submissions.
Road 2 Footpath
Condition 11 provides:
“1.2 metre wide concrete footpaths, designed and constructed to Council’s current engineering standards, must be provided within the footpath verges on both sides of proposed Lots 1 & 2.”
Given my rejection of the appeal in relation to Condition 37 (Lot 21 and Extended Road 2) the only issue here is whether the eastern side of the present limited approved Road 2 abutting the DSDI development should have a footpath. Mr Perkins for the counsel says that because the road will now be shorter and end in a cul-de-sac with the DSDI development adjoining it on the eastern side, completeness calls for the footpath to be completed on the eastern side.[132] Mr Dillon for the Appellants does not accept the need always to have twin footpaths on a road if one would suffice given the expected pedestrian traffic. He sees the present requirement as an unnecessary cost but would not object to a well-grassed footpath and landscaping. He anticipates low through traffic given the cul-de-sac, and low pedestrian movements as well, so does not see the need for the eastern side footpath.[133]
[132]Transcript 2.7, lines 5-15
[133]Transcript 2.13, lines 10-30
I agree with the Appellants and consider the condition to be unreasonable and order that it be deleted and replaced by a condition, consistent with the evidence of Mr Dillon, that the footpath be well grassed and landscaped appropriately.
Summary of conclusions
In summary, the appeal fails in relation to Condition 37 (Lot 21 and Extended Road 2) and succeeds in relation to Conditions 5.2 (Sewerage Pump Station), 5.3 (Battle-axe Blocks) and Condition 11 (Road 2 Footpath) subject to new conditions I have mentioned. I invite the parties to provide agreed new conditions and I adjourn the matter to a date to be fixed for that purpose.
ANNEXURE A
APPELLANT’S OBJECTIONS TO EVIDENCE
DR OLSEN
| EXHIBIT 17 PARAGRAPH NO. | DECISION |
| 1 | The evidence is admissible for the reasons given by the Council. |
| 2 | The evidence is admissible for the reasons given by the Council. |
| 3 | The evidence is admissible for the reasons given by the Council. The issue of any possible change to the hydrology has been left to be considered as part of the operational works application. |
| 4 | Admissible for the reasons given by the Council. |
| 5 | Admissible for the reasons given by the Council. |
| 6 | Admissible for the reasons given by the Council. |
| 7 | Evidence inadmissible except to the extent that it relates to Lot 21 and Road 2. |
| 8 | Inadmissible to the extent that involves any legal interpretation. Otherwise admissible. |
| 9 | Inadmissible. |
| 10 | Inadmissible. |
| 11 | Inadmissible to the extent that it refers to the Coastal Protection and Management Act 1995. |
| 12 | Inadmissible to the extent it contains legal opinion. |
MR AGNEW
| 13 | Inadmissible as irrelevant. |
| 14 | Admissible as providing background to conclusion on fauna values and fauna assessment. |
| 15 | Inadmissible as irrelevant. |
| 16 | Inadmissible as irrelevant. |
| 17 | Inadmissible as irrelevant. |
| 18 | Relevant and admissible. Tendered by the Appellants as exhibit 24. |
| 19 | Inadmissible as irrelevant. |
| 20 | Inadmissible as irrelevant. |
| 21 | Admissible but note issue of alteration of hydrology left to operational works application. |
| 22 | Admissible for the reasons given by the Council. |
| 23 | Admissible on the basis that it deals with the question of habitat for rare and threatened fauna. |
| 24 | Inadmissible as irrelevant as to paragraphs 1-5 and the final paragraph. As to the balance inadmissible as beyond the expertise of the witness. |
| 25 | Paragraph 3 inadmissible as irrelevant . Paragraph 15 admissible to the extent it deals with the impact on fauna. |
| 26 | Paragraphs 10 and 20 inadmissible as irrelevant. Balance admissible. |
MR NEIL SUTHERLAND
| 27 | Inadmissible to the extent that it is relevant to condition 26 not in issue. |
| 28 | Inadmissible as irrelevant. |
| 29 | Inadmissible as irrelevant. |
| 30 | Inadmissible as irrelevant to the extent that it deals with condition 43. |
MR PERKINS
| 31 | Inadmissible as irrelevant. |
| 32 | Inadmissible as speculative. |
| 33 | Inadmissible to the extent that it involves statutory constructions or the swearing of the issue. Otherwise admissible. |
| 34 | Inadmissible as irrelevant. |
| 35 | Admissible as providing context. |
| 36 | Inadmissible as irrelevant. |
| 37 | Admissible. |
| 38 | Inadmissible to the extent it involves statutory interpretation. Otherwise admissible to give context. |
| 39 | Inadmissible to the extent to the extent it involves statutory interpretation. Admissible otherwise to give context. |
| 40 | Admissible. A question of weight. |
| 41 | Admissible. A question of weight. |
| 42 | Paragraph 88 – inadmissible as involving construction of the planning scheme. |
| 43 | Inadmissible on the ground it is a proposition of law. |
| 44 | Inadmissible as irrelevant. |
| 45 | Admissible as giving context. |
| 46 | Inadmissible as stating a conclusion of law. |
| 47 | Inadmissible as stating a legal proposition. |
| 48 | Inadmissible as stating a legal proposition. |
| 49 | Inadmissible as irrelevant. |
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