Schlaefer v Redland Shire Council
[2005] QLC 21
•15 April 2005
LAND COURT OF QUEENSLAND
CITATION: Schlaefer v Redland Shire Council [2005] QLC 0021 PARTIES: Norbert Schlaefer
(applicant)v. Chief Executive Officer, Redland Shire Council
(respondent)FILE NO.: VC2004/0042 DIVISION: Land Court of Queensland PROCEEDING: Appeal against categorisation under Local Government Act 1993 DELIVERED ON: 15 April 2005 DELIVERED AT: Brisbane HEARD AT: Brisbane MEMBER Dr NG Divett ORDER: The Council has correctly categorised the subject lands as Category B lands for the relevant rating period of 1 July 2001 to 30 September 2001. The appeals are refused accordingly. CATCHWORDS: Categorisation for differential rating – Redland Shire – drainage problem area – availability of access – impact of flooding – insurmountable drainage problems – Local Government Act 1993 APPEARANCES: Mr N Schlaefer appeared on his own behalf.
Mr D Kevin, Solicitor appeared for the respondent
Background:
This matter relates to an appeal by Norbert Schlaefer (the appellant), against the categorisation of his lands by the Redland Shire Council (the Council). The subject lands are located at 88 and 102 Duncan Street, Wellington Point, and are described as Lots 31 and 34 on RP 14087, Parish of Capalaba. The subject lands have areas of 4,930 square metres (Lot 31) and 4,140 square metres (Lot 34), and are located about 1 km south-east of the Wellington Point Railway Station, and about 3 km from the Wellington Point Shopping Centre. The subject lands were categorised at the relevant date for rating purposes, pursuant to s.988 of the Local Government Act 1993 (the Act), as Category B lands. The relevant period for effect of the categorisation was for the quarter commencing 1 July 2001 to 30 September 2001. The appellant appealed on 2 March 2004, arguing that the lands should be included in Category A. The appellant further argues that the uses of the subject lands should be returned to those available under the previous Rural Non-Urban zoning.
Norbert Schlaefer appeared and gave evidence on his own behalf. Mr D Kevin, Solicitor of King and Co Solicitors, appeared for the respondent, calling evidence from Andrew Vitale, a consultant registered engineer, and Bruce Trevor Appleton, a registered engineer with the respondent Council. With the agreement of both parties, a joint inspection of the properties was undertaken.
History of the sites –
The subject lands were part of an old subdivision in 1897, and later marketed by property developers about 25 years ago, as the White Rails Estate. The original freehold title to the old estate lands was vested in the original landholder (Prior) in April 1859. Those lands have subsequently remained vacant to the present time. That estate generally included lands to the east of the current Cleveland Railway Line to Brisbane, following a realignment of that railway line in 1988-89. The realignment of the railway line has resulted in changes to the physical access to those undeveloped lands as discussed later.
On 7 August 2001 the Council issued rate notices to the appellant in respect of the rating period for 1 July 2001 to 30 September 2001, notifying that the subject lands had been categorised as Category B land (Exhibit 3). Those notices followed a resolution of the Council on 15 June 2001 to apply land categorisations for differential rating purposes across the whole of the Redland Shire for that period. The Category B lands are defined as "rateable land which has insurmountable drainage constraints such that it is unlikely that development permits or permits for the erection of a dwelling house on the land would be granted".
On 22 August 2001 the appellant wrote to the Council objecting against the Category B determination for the subject lands, and requested a meeting to discuss the matter (Exhibit 4). That objection argued that approximately 2,067 square metres of Lot 31 and 430 square metres of Lot 34 were above the relevant 2.4 metres AHD storm surge line, and that access was available from Duncan Street. The appellant now argues that he did not receive any formal response to objection until 21 January 2004, in a letter signed by the Chief Executive Officer of the Council (Exhibit 5). In that letter the Chief Executive Officer apologised for the delay in responding to the objection in 2001, and advised of the reasons for rejecting those objections, which related to the perceived "insurmountable drainage constraints" associated with vehicle access to the parcels during periods of severe climatic disturbances. Following that response from the Council, the appellant has appealed to this Court for a review of the categorisation of the subject lands.
In explaining the background to his appeals, Mr Schlaefer advises that he purchased the subject lands (Lot 31) for $8,000 in 1986 and (Lot 34) for $5,000 in 1989. He argues that because the Council had determined that it would no longer service properties or maintain the public roads in that area from 7 August 1980 (Exhibit 13), that the value of land had subsequently declined. He notes that the previous owner of Lot 31 had paid $9,900 for that parcel in November 1980, subsequent to that Council decision. Mr Schlaefer advises that he and several owners of neighbouring parcels near the subject lands had taken that decision by the Council to the State Ombudsman, but he provides no further evidence of the outcome of such actions.
However Mr Schlaefer argues that he had repeated discussions with officers of the Council in respect of possible access problems in that area. While he makes assertions in respect of advice from such officers, he does not provide substantiated evidence to support those claims. It is noted that Mr Schlaefer's contacts with the Council's officers related to his being referred to those officers by the letter of the Chief Executive Officer of 21 January 2004. In the end, without support of evidence on such opinions, I get no assistance from those assertions. I also note that when he purchased the subject land in 1986, Mr Schlaefer had made no enquiries of the Council in respect of the subject lands.
However he argues that physical access to his lands was satisfactory until the railway realignment of fencing cut off the direct access west along Duncan Street in 1987. With the subsequent major box culverts constructed for the railway line just prior to the opening for EXPO in 1988, the drainage along Noel Street started to degenerate until physical access became impossible for conventional vehicles. Mr Kevin argues that by June 2001, at the relevant period for this categorisation, physical access to Duncan Street had permanently deteriorated to the stage that any responsible assessment would have concluded that the subject lands were subject to "insurmountable drainage constraints".
As further background to these matters, it is noted that subsequent to the lodgement of the appeals against categorisation, both subject lands were resumed by the Council by gazettal notice of 23 July 2004 for "parks purposes". Now as Mr Kevin notes, while the appellant may feel that the results of these appeals against categorisation may provide some support in respect of any possible future claims for compensation by the appellant, that is entirely a separate matter.
Nature of the lands –
The nature and use of the two subject lands were fully explored in a previous decision of this Court on an annual valuation appeal in Norbert Schlaefer v Chief Executive, Department of Natural Resources and Mines (AV2000-0304 and 0305), 11 December 2001, unreported (Transcript 33). While the potential areas above the 2.4 metres AHD tidal surge height on those two subject lands may be a matter for later argument on any possible compensation matters, Mr Kevin agrees that effective building areas on those two parcels are not matters in contention in the current appeals. He advises that it is the lack of physical access along the current legal rights of way of Duncan Street, Noel Street and Station Street which is the major factor indicating the "insurmountable drainage constraints".
A matter of concern to the appellants was a reference by Mr Appleton to nearby lands affected by Ramsar agreement (Exhibit 7, page 3). However Mr Kevin confirms that agreement relates to an open area of State controlled land adjacent to the north of the subject lands, which forms part of the Hilliard's Creek flood path, and does not directly relate to the two subject lands. Mr Appleton explains that the Ramsar agreement relates to an inter-governmental agreement about habitat areas for migratory birds.
Impact of planning –
Before moving to the key issues of the quality of physical access to the subject lands, I consider first the matter of land planning controls upon the land. Mr Schlaefer argues that under the Redland Shire Council Planning Scheme of 1988, the subject lands had been designated as "Drainage Problem Areas". Those "Drainage Problem Areas" cover many areas of the Shire, including some offshore Islands. However his understanding at that time, following his representations to Council planning staff, was that a change of zoning was likely to have been possible, subject to the payment of an appropriate application fee. However he agrees that he did not pursue that option under s.4.3(1) of the Local Government Planning and Environment Act 1990 at that time.
His understanding had been that it could be possible to build upon lands seen to be "drainage problem" lands, if detailed investigations revealed that certain parts of those zones were "capable of being filled without adverse effects on other lands". He also agrees that as an owner-builder he had to get Council consent to build a dwelling, but he was not familiar with the differences between an "as of right" situation, and a "consent" approval situation. Until that time it had been his understanding that building was not permitted at all in "drainage problem areas". In respect of the zoning of the subject lands as "drainage problem" areas in 1988, Mr Schlaefer argues that had been undertaken by the Council without any consultation with owners at that time. He advises that the first time the Council officers inspected his lands was in 1990.
In his evidence Mr Appleton advises that prior to the 1988 town planning scheme, the areas of the subject land had been zoned as "Rural Non-Urban". In 1988, the Council adopted a new planning scheme, where all of the lots in the old "White Rails Estate" were zoned as "drainage problem" areas. Under that new zoning Mr Appleton advises that a dwelling is not an as of right use under the then Local Government Planning and Environment Act 1990, as it then was, and would require a "consent" use from the Council. He advises that currently under the effective planning legislation of the Integrated Planning Act 1977 (IPA), any material change of use requiring a new dwelling in such an area would require an impact assessment under s.3.2.1 of IPA. However he agrees that at the relevant date of 1 July 2001, the previous planning scheme under the Local Government Planning and Environment Act 1990 was the effective legislation at the relevant date (Transcript 54).
To support his professional opinion of the access problems in that area, Mr Appleton further advises of an application for development of the lands immediately south of Duncan Street (Stariha), which had been refused development approval by the Council in January 2001. That matter was then appealed to the Planning and Environment Court and was subsequently dismissed. (J and VJ Stariha v Redland Shire Council & Ors, [2002] QPEC 039, 5 June 2002, per Wilson J). However Mr Appleton concedes that there has been a subsequent application from another developer for a smaller number of new developed lots on that land which is currently still before the Council.
Mr Appleton concedes that, subject say to any offer by that developer to perhaps construct a new access from those lands along Duncan Street, Noel Street and Station Street, that application could become successful. But that is a matter much after the relevant date of 1 June 2001, and hence has no direct bearing on these matters. Mr Appleton further advises that under the 1988 planning scheme, there are no changes to the residential areas in the immediate vicinity of the subject lands, so that there was no likely potential for such higher density uses on the subject lands. It is also noted that a decision to effect a material change of use of the subject lands is a matter dealt with under IPA, and is not a matter for consideration in these matters.
Impact of flooding –
Mr Vitale provides evidence of flood studies undertaken by consulting engineers, Gutteridge Haskins and Davies (GH & D) of the subject area in 2003. From those studies he provides maps of the area (Exhibit 8). Those maps were based upon flood modelling for the 1 in 100 year projected floods, and also a 1 in 2 year event. Those flood predictions were then compared with ground surveys by consulting surveyors Saunders Havill and Associates in 1999 and 2002, to determine likely areas and depths of inundation at those two predicted events. The flood studies focussed upon the catchment areas of Hilliard's Creek, and while the flood predictions were uncalibrated, they compared conservatively with other levels from previous studies by other consultants, which predicted higher levels about 0.3 to 0.4 m. higher.
Based upon those predictions, Mr Vitale advises that the northern boundary of Duncan Street would probably be about 0.28 m. under water in a 1 in 100 year flood event. Because of a lack of ground truthing at the western end of Duncan Street near the Railway Reserve, Mr Vitale concedes that the southern boundary of Duncan Street could be clear of those flood waters. It is noted that the 1 in 2 year flood level is generally close by to the 1 in 100 year level for much of the areas of Hilliard's Creek south of the subject land, except near the intersection of Duncan and Noel Streets, where the 1 in 2 year flood is well removed from the 1 in 100 year line, indicating a less steep terrain in that small area. However the 1 in 100 year flood line coincides with the eastern boundary of the railway lane to about Station Street. Mr Vitale also agrees that for a 1 in 2 year or 1 in 10 year storm intensity, Duncan Street is unaffected by flood waters.
The key to Mr Vitale's advice really is that based upon those predictions, he believes that there would be a depth of water at the intersection of Long and Noel Streets of about 0.3 m. for a 2 year flood, 0.5 m. for a 10 year flood, and 0.72 m. for a 1 in 100 year flood. He further advises that at the intersection of Station Street and Noel Street, flood waters would extend to a depth of 0.25 m. for a two year flood, 0.4 m. for a 10 year flood, and 0.59 m. for a 100 year flood. Mr Vitale also advises that there is currently an open drain across the Noel and Lang Streets intersection so that flood waters would be even greater than the predicted levels in that drainage line.
Mr Vitale explains that the flood prediction modelling was based upon a critical rainfall duration for that catchment of 4½ hours, from the commencement of the rains to the peak height of the flood. He notes that typically the period of recession from the peak flood height can extend from two to three times the period before peak flood. Based upon that modelling he advises that the total flood inundation in that area could extend for about nine to twelve hours after the peaks.
An important issue of safety in such flood episodes is the effective safe trafficability within the flood waters, for both pedestrian and vehicular traffic. He advises that is normally referred to as a depth time velocity product, which reflects the combination of the depth of flow and the velocity of flow that can cause a pedestrian or vehicle to be washed off the road. He notes also that with muddied flood waters, any lack of visibility of the submerged road surface could further risk a dangerous passage of the area. Mr Vitale advises that the Council has adopted design standards from the Queensland Urban Design Manual, which record a maximum depth of flow within a road of 0.3 m. He notes that the Station and Noel Streets intersection would just satisfy the 2 year flood level, but would exclude safe trafficability for the 10 year and 100 year floods. The Noel and Lang Streets intersection meets none of that criteria at any of the three predictions.
In respect of the lands to the south of Duncan Street, Mr Vitale advises that further studies disclose some areas of that land (Stariha) are above the 100 year flood level. However he does not provide any further level information to support that conclusion. However he points to the flood map (Exhibit 8), and notes that the narrowing of the flood level to the south of Duncan Street demonstrates the higher nature of those lands. Mr Vitale further advises that the box culvert drain under the railway line enables waters from the catchment to the west of the railway line to pass into Hilliard's Creek. He argues that box culvert has no impact upon the flood recession times of Hilliard's Creek.
In his analyses of possible inundation of the two subject lands (Lots 31 and 34), Mr Vitale refers to a sketch plan supplied by AusPlan Research 2001, agreeing that some parts of those parcels would be above the 1 in 100 year flood level. However, because of some uncertainty about the accuracy of that sketch plan, and any conclusions which might be made about possible flood-free areas on those two parcels, it was agreed that was not a matter contested in the current appeals (see paragraph [10]).
Mr Kevin advises that it is the 10 year flood lines which are of concern to the Council in respect of safe trafficability. He agrees that parts of Duncan Street could be above that Q10 flood line, and therefore could have the capacity to be used for access. However he argues that Noel Street is the only form of practical access, and that road does not meet the Q10 safety criteria. Mr Vitale also agrees that the predicted flood levels would be further increased if there was any additional tidal surge from Moreton Bay as a result of increased tidal movements.
Availability of access –
Mr Schlaefer argues that when he acquired the subject lands in 1986, he could easily access those properties by conventional vehicle along Station, Noel and Duncan Streets. Following the railway resumption in 1987, alternative access westward along Duncan Street had been eliminated, but he had continued to use Noel Street as access. While Noel Street had slowly deteriorated, in view of the Council's decision not to provide maintenance services, access had been satisfactory along Noel Street until sewerage construction works by the Council for the main sewer line (Exhibit 12). That sewerage line was placed prior to the placement of the permanent survey mark required under the Survey Coordination Act 1952-1989, which occurred in December 1999. The sewer line is located in Lang Street, and crosses Noel Street, connecting eastward to Hilliard Street to the east of Hilliard's Creek. Exhibit 12 suggests construction about 1996.
Following the construction of the sewer line, Mr Schlaefer argues that the access road deteriorated even further following the commencement of construction on the artificial wetlands project by the Council in May 2001 (Exhibit 11). As a consequence of those earthworks, Mr Schlaefer argues that the previous piped culvert across Noel Street became ineffective, and siltation and erosion of the surface of Noel Street increased. Mr Schlaefer advises that the culvert above was on the drainage line which eventually becomes the main drainage channel passing along the rear of the subject land (Lot 31), and eastwards into Hilliard's Creek (Exhibit 8 - map 3160/D2).
Mr Appleton advises that to his knowledge the only legal point of access to the subject lands would be via the unformed dedicated roadways of Station, Noel and Duncan Streets. Because of their undeveloped condition, Mr Appleton suggests that upgrading and construction of acceptable carriageways along those streets was likely to be far too expensive for consideration by either the appellant, or the Council. He argues that the main disadvantage along those alignments would be their current failure to meet a 10 year flood frequency criteria for safety purposes as outlined in paragraph [20]. However he agrees that some latitude is sometimes applied in low points on short road alignments up to 300 m. in length, where there is a reasonably short duration of flooding. He argues that could not be considered for the subject lands.
To support that conclusion Mr Appleton provides photos of the current drainage situation along Noel Street (Exhibit 7, page 8). He notes also that the existing access track along the railway line has been constructed at a considerable height above the surrounding drainage areas in order to avoid a flooding problem as discussed later. Mr Kevin notes further that even a letter sent to the Minister for Transport in December 1986 confirms that Noel Street at that time was "cut by two deep creeks/drains making it totally unusable as a road" (Exhibit 9). Mr Kevin notes that even by his own correspondence, Mr Schlaefer has confirmed that physical barriers to access along Noel Street were in existence prior to June 2001.
Mr Schlaefer agrees that Noel Street was by then untrafficable to conventional vehicles, but argues that the existing culverts and drainage lines had been silted up and rendered ineffective, entirely as a result of actions by the Council to either refuse to undertake road maintenance, or by earthworks associated with the artificial wetlands. He argues that is really one of his two arguments in respect of the matter of access to the subject lands.
Another aspect of physical access to the lands is also the impacts of the decision by Queensland Rail to realign the railway line. As noted in his letter to the Minister for Transport in December 1986, Mr Schlaefer notes that the previous acceptable access westward along Duncan Street had been removed by the land resumption by Queensland Rail. While there had been no official response from the Minister to that letter, Mr Schlaefer argues that both he and Mr Stariha had continued to use the railway access track to enter their properties.
Mr Schlaefer advises that use had continued, with apparently Queensland Rail's agreement, until he later sought to formalise that access. Queensland Rail then installed a locked gate near the Station Street end, and an engineer personally explained that access had been withdrawn in view of possible legal actions in the event of an accident on that private access track. Mr Schlaefer agrees that he has no legal access to that track.
Following the "barred" access along the railway track, Mr Schlaefer approached the maintenance staff of the Council, who supplied him with a key to the gate for accessing the lands for bush fire prevention purposes. Mr Schlaefer agrees that the formed access track along the railway line on railway property was constructed during the building of the new railway line. He has no idea of the initial purpose of that track, but he believes it was associated with the letter that he and other owners in that area had written to the Minister in 1986. On that basis he believes he would have had a right of access to that track in an emergency, such as a flood or bush fire.
The matter of the impact of the railway resumption of lands in that area was indicated by the survey information supplied in Exhibit 8 (map 3160/D2), and also the original plan of survey of that area (Exhibit 14). On the survey plan No. 14087 (Exhibit 14), the western boundary of resub 23 of that plan is rectangular, and Noel Street is at right angles to Duncan Street. In the subsequent survey information in Exhibit 8, the alignment of Lot 23 on RP 219148 is clearly truncated to allow access to Noel Street from Duncan Street.
By inference, that suggests that legal access to the subject lands was contemplated to continue along the realigned Noel Street to Station Street. That information provides no assistance to conclude that the railway access track along the railway property was seen by Queensland Rail as a response to the interference of access to the subject lands. It could be assumed that the Minister saw no need for a formal response to the letter of December 1986, as he saw access along Noel Street as a local government responsibility. But those are really matters to be explored should any further compensation matters occur. There was no direct evidence supplied in this matter to clarify any intentions by Queensland Rail for the purpose of the access track. Mr Appleton advises that following discussions with Mr Stariha, he could speculate that the access track could involve some initial temporary access assistance for Mr Stariha, but he confirms he has no direct evidence of such a situation (Transcript 51).
In respect of any contribution to flooding as a result of increased drainage under the railway line through the box culverts, Mr Appleton agrees that would have contributed to the physical problems along Noel Street. Mr Schlaefer notes that the Council has subsequently approved the resumption of the subject lands as noted in paragraph [9]. As part of that resumption decision, Mr Schlaefer notes that Council also approved in principle the opening of a new 18 m. wide road reserve along the eastern side of the railway between Station Street and Duncan Street (Exhibit 10).
However Mr Kevin advises that the Council decision of 16 October 2002 occurred well after the relevant date in the current matter of 1 July 2001. Mr Appleton also advises that the Council has not to the current time taken any steps to place filling upon the proposed 18 m. wide road reserve, and there are no current moves to include such capital works in the 10 year capital works program.
Decision:
Before considering the evidence, I turn to the Local Government Act 1993, and note that the Council may establish criteria and categories for the levying of differential rating purposes under s.977(a) and (b). Section 979(2) directs that the rateable lands included in any category may be identified in any way the local government considers appropriate. The Council must then issue a notice to so effected owners advising of the rating category applicable to the access land (s.983(2)). Such notice must inform the owner of his right to object within 30 days of the issue of the notice, or within any further period that the local government allows (s.983(3)(c)(i)). It must also inform the owner under s.983(3)(c)(ii) as follows:
"983 Notice to owner of categorisation
(3)(c)(ii) that the sole ground on which the owner may object is that, having regard to criteria decided by the local government by which rateable land is categorised, the land should have been included, as at the date of issue of the rate notice, in another of the rating categories;"
The owner may then object under s.984, and following a decision on the objection by the Council, notice of that decision must be given to the owner within 60 days after the period within which the objection had to be made (s.985(3)), and must include the reasons for the decision. An owner aggrieved by that decision may then appeal to this Court (s.987) and the Court on hearing the matter, may then under s.990 set aside the decision, and decide the rating category to which the land should be included, or disallow the appeal.
Mr Appleton provides evidence (Exhibit 7, page 10) of the special meeting of the Council on 15 June 2001, at which it determined a criteria for Category B lands as follows:
"Category B
Rateable land which has insurmountable drainage constraints such that it is unlikely that a development permit or permit for the erection of a dwelling house on the land would be granted."
The land so designated as Category B lands are also delineated on maps IDG 1 to 17 for the purposes of that resolution. The evidence is that the subject lands fall as Category B lands on an insert on map 4 of those IDG maps.
On that understanding it is clear that the subject lands have been identified as Category B lands for the purposes of these appeals.
In line with those directions Mr Appleton concludes that, as residential use is not an as of right use in the drainage problem zoning, and Category A land could only be sustained where residential use could be approved, then any applications for residential use would require an impact assessable development application for a material change of use. Based upon the known problems for the subject lands in respect of flood immunity, all weather access, disposable septic and sullage waste, and accessibility to reticulated water supply, and the very extensive road and drainage works required to overcome those problems, the lands are seen as having insurmountable drainage constraints so as to make approval of development unlikely.
Now while Mr Schlaefer did not formally receive a decision on his objection to the categorisation until some two and a half years after the issue of the rating noting, that does not make the process illegal. Indeed the belated decision of 21 January 2004, while less than satisfactory for whatever reason, has retained his rights to seek resolution by this Court, which is now proceeding.
In respect of Mr Schlaefer's argument that the physical access to the lands resulted in part, from a 1980 decision of the Council to cease maintenance of the roads in that area, I note that is not contested. But I also note that such a decision is entirely within the powers of the Council, who must answer for any lack of public services to the community through the ballot box. It is not a matter for this Court. On the evidence I would agree with Mr Kevin that during periods of flooding, at least to the Q10 frequency, physical access along Station and Noel Streets was unlikely to be acceptable in accordance with the council's agreed design standards.
The nature of the lands –
While it is agreed that the nature of the subject lands is not contested in this matter, a review of the previous decision on this matter by this Court on 11 December 2001, reveals a consistent pattern to the evidence argued in the current matter, and also supports Mr Schlaefer's argument that access by conventional vehicle was available in late 2001 (paragraph [19]). However in that matter the Court also concluded that access would be most likely not be feasible via Noel Street during heavy rain (paragraph [52]). In the end the Court concluded that the subject lands at that time were only seen by a prudent buyer in the market place as suitable only for some grazing purposes (paragraph [59]). But the use of the land is not a matter for decision in the current matter, and I will focus only on the relevance of physical access.
I note Mr Schlaefer's concern with the relevance of the adjoining lands as Ramsar areas (paragraph [11]). I note also that the use of habitat areas for migratory birds on Ramsar areas was noted in the matter of M Stevens v Chief Executive, Department of Natural Resources and Mines (AV2003/0379), 6 December 2004, unreported at paragraph [36]. For the information for the appellant, I repeat part of those findings in respect of Ramsar matters.
Under the "Convention of Wetlands of International Importance especially as Wildfowl Habitat", agreed at Ramsar, Iran on 2 February 1971, certain wetland areas throughout Australia have now been set aside for habitat areas. Those matters were explored by the Federal Court of Australia in Minister for the Environment and Heritage v Greentree and Others [2004] FCA 74, 11 June 2004, unreported. In that matter clearing of certain protected wetlands unlawfully occurred in 2003, and were subsequently sown to wheat (paragraph [187]). In the Federal Court, Sackville J found that a serious breach of the law had occurred in a protected area, and imposed penalties against the owner, and granted possible remediation relief to the Minister. Clearly the matter of breaches of habitat control is now gaining significance throughout Australia, and any prudent purchaser of the subject land would be conscious of those restrictions under Vegetation Control legislation. But those issues have no relevance in the current matters.
Impact of planning –
I note that while Mr Schlaefer decided not to proceed with an application to seek rezoning of the subject land from Drainage Problem Areas, he could have proceeded with an application under s.4.3(1) of the Local Government (Planning and Environment) Act 1990, which specifically dealt under s.4.3(2)(a) with matters relating to an amendment to zoning. In considering an assessment of any such request for a zoning change, the Council would have had to consider, among others, whether the proposal would create a need for increased facilities (s.4.4(3)(a)(iii); and whether the land is so low lying as subject to inundation as to be unsuitable for use for all or any of the uses proposed (s.4.4(3)(d). On the evidence supplied, I believe it would be reasonable to have concluded that such a request for rezoning was unlikely to have had a successful outcome.
In respect of the decision of the Planning and Environment Court in Stariha v Redland Shire Council (supra), Mr Schlaefer seeks support in that decision in paragraph [50], where the Court notes that any problems associated with a new culvert on Noel Street, which might result in some changes to the flood levels, should not "weigh against the development". He argues that with appropriate construction works along Noel Street, physical access would be available to Duncan Street, and hence also to the subject lands in the current matter.
It is noted from that decision that the Stariha application proceeded with the Council between 1999 and December 2000, when it was refused by the Council in early 2001 (paragraph [5]). That was just prior to the current categorisation in the current matter. In the end Wilson J rejected the appeal noting also among others, some conflict with the strategic plan (paragraph [29]); some inconsistency with the designations in respect of proposals for outdoor recreation (paragraph [31]); and conflict with the policy on habitat areas (paragraph [42]). In the end Wilson J concluded that the development proposed did not constitute "planning grounds" sufficient to warrant approval. On balance I do not see that decision providing any conclusive findings either for or against the current categorisation as Category B lands.
Flooding –
In terms of flooding, Mr Vitale's evidence is both substantial and compelling. His flood predictions were seen as conservative compared to previous consultants works. On balance there is no doubt that predicted flood heights along Noel Street would be a significant traffic hazard for both pedestrians and vehicles. The decision of Queensland Rail to raise their access track along their boundary supports those concerns. While the subsequent decision by the Council of 16 October 2002 is well after the relevant date for categorisation, it supports the evidence that the Council has for some time seen the problems associated with physical access along Noel Street in a Q10 flood event.
Availability of access –
I turn then to what is clearly the key issue in this matter. While Mr Schlaefer has availed himself of the use of the private track along the railway line, that had no legal standing, and was at the goodwill of Queensland Rail. Whether that goodwill existed as a consequence of the resumption processes for the rail track realignment, would be a matter for consideration later in any potential compensation considerations. However it is noted that the resumption of the subject lands by the Council in July 2004 was not directly related to those railway resumption processes.
If Mr Schlaefer was to proceed along the basis of seeking compensations, say by claiming some direct loss of access as a consequence of that railway realignment, he would need to consider carefully the implications of The Housing Commission (NSW) v San Sebastian Pty Ltd (1978) 140 CLR 196, where it was determined that, where a restriction was placed upon land as a prior step to its resumption, then the effects of such restriction on the value of the land is not to be taken into account. But that is a matter for another place.
Summary –
In summarising this matter, what the Court has to decide is the compliance or otherwise by the Council of its policy in respect of applying a Category B categorisation to the subject lands for the period 1 July 2001 to 30 September 2001. The key to understanding that issue is to determine whether the subject lands can be seen as having "insurmountable drainage constraints such that is unlikely that development permits or permits for the erection of a dwelling house on the land would be granted".
If I look then at the words "insurmountable" drainage constraints, I find that "insurmountable" is taken to mean drainage problems that cannot be overcome. Now in the total sense of Noel, Station and Duncan Streets, the proposal by Mr Stariha did propose such a reconstruction of those streets, but at what cost? In Mr Appleton's professional opinion, at such a cost that would be unreasonable, and not cost effective, for either Mr Schlaefer or the Council for the purposes of providing access to the subject lands. Where access for the public to the wider artificial wetlands was concerned, apparently both Queensland Rail and the Council were prepared to consider such costly infrastructure. On balance I believe the problems of providing safe effective drainage solutions would be virtually insurmountable for the appellant for the purposes of those lands solely.
If I turn then to whether it was likely for a permit for the erection of a dwelling to issue, I note the evidence of Mr Appleton, where he outlines matters for consideration before a development could be approved. Such matters would include:
· Access via a public roads
· Provision of utility services
· Land available on site above the 100 year flood
· Other aspects arising from the Transitional Planning Scheme.
Having rejected suitability of access in paragraph [52], I turn to the provision of utility services. I note Mr Appleton's advice that gravity sewerage connections would not be possible to the pressure sewer line located in Lang Street. Clearly that sewer line is part of a major reticulation of lands to the east of Hilliard Creek. While the possibility of septic and sullage waste was not totally rejected, the permeability of the soils suitable for such discharge was not demonstrated by the appellant. The land is also not serviced by a reticulated water supply service, and extension of the existing Council's water service west of the railway line was seen as excessively costly. On balance, I would agree with Mr Appleton that, at the date of categorisation, it was unlikely that a building approval for the erection of a dwelling would have been approved. While the effective building area upon either of those two subject parcels was not challenged in this matter, I do not see that issue overriding the problems confronting the appellant in respect of access and services.
Conclusion:
Considering the evidence as a whole, I determine that the Council has correctly categorised the subject lands as Category B lands for the relevant rating period of 1 July 2001 to 30 September 2001. The appeals are refused accordingly.
NG DIVETT
MEMBER OF THE LAND COURT
0
2
0