Serafini v Gladstone Regional Council

[2012] QPEC 83

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Serafini v Gladstone Regional Council & Anor [2012] QPEC 83

PARTIES:

LUIS SERAFINI
(appellant)

v

GLADSTONE REGIONAL COUNCIL
(respondent)

FILE NO:

D60/2009

DIVISION:

Planning & Environment Court

PROCEEDING:

Hearing of an Appeal

ORIGINATING COURT:

Planning & Environment Court of Queensland, Brisbane

DELIVERED ON:

13  December 2012

DELIVERED AT:

Brisbane

HEARING DATES:

6, 7 and 8 November 2012; Submissions closed 30 November 2012

JUDGE:

R S Jones DCJ

ORDER:

The appeal is dismissed.

CATCHWORDS:

LEGISLATION:



 CASES:

PLANNING LAW – alleged conflict with the respondent’s Transitional Planning Scheme 1999 – alleged conflict with the IPA Planning Scheme of the respondent and alleged conflict with the provisions of State Planning Policy 1/92 re Good Quality Agricultural Land – fragmentation of rural grazing land – fragmentation of GQAL land –
PLANNING LAW – construction of Planning Schemes – construction of State Policy 1/92 concerning Good Quality Agricultural Land – whether in the event there was genuine conflict with the Planning Schemes sufficient grounds existed for approval despite the conflict – public need

Integrated Planning Act 1997 (Qld)

Sustainable Planning Act 2009 (Qld)

AAD Design Pty Ltd v Brisbane City Council [2012] QCA 102
Arpedco Pty Ltd v Beaudesert Shire Council (1980) Qd R 88
Barns v Maroochy Shire Council (2010) QPEC 2
Bassingthwaite v Roma Town Council & Ors (2010) QPEC 91
Bunnings Building Supplies Pty Ltd v Redland Shire Council (2003) QPEC 024
Isgro v Gold Coast City Council (2003) QPELR 414
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Stappen v BCC & Ors (2005) QPELR 466
Webster v Caboolture Shire Council [2008] QPEC 82
Weightman v Gold Coast City Council (2003) 2 Qd R 441
Westfield Management Ltd v Pine Rivers Shire Council & Anor (2004) QPELR 337
Woolworths Limited v Maryborough City Council (No 2) (2006) 1 Qd R 273
ZW Pty Ltd v Peter R Hughes and Partners Pty Ltd (1992) 1 Qd R 352

COUNSEL:

Mr AN Skoien with Mr R J Northcott for the appellant
Mr M Williamson with Mr Batty for the respondent

SOLICITORS:

IPA Law for the appellant
MRH Lawyers for the respondent

1. This proceeding is concerned with an appeal against a decision of the respondent Council to refuse a development application seeking a development permit for the reconfiguration of one large rural lot into 16 lots.  For the reasons set out below, the order of the Court is that the appeal is dismissed.

The site

1. The subject property is located some 46 kilometres in a southerly direction from the regional port city of Gladstone.  The nearest commercial and retail facilities are located at Tannum Sands about 30 kilometres to the north.  The closest general store is located at Turkey Beach and the nearest primary school at Bororen to the south.  Waste disposal and school bus services are available.  The land, more properly described as Lot 2 on RP 612473, comprises an area of just under 935 hectares.  It is bounded to the north-west by the waterway known as Colosseum Inlet and to the west by Twelve Mile Creek.  Entry to the site is via Gretel Street, an access road from Intrepid Drive that provides access to an existing rural residential style subdivision known as “The Foreshores” which lies to the immediate east. 

1. Generally speaking, the land could be described as being flat, containing no meaningful topographical features (excluding the adjacency to the waterways) and constitutes relatively poor quality timbered grazing land.  A significant steel towered electricity transmission line protected by an easement “doglegs” through the southern portion of the property.[1] 

   [1]See Exhibit 1, pp 1-2.

The proposal

1. Mr Serafini (the appellant) proposes to subdivide the parent parcel into a total of 16 lots varying in area from about 25 hectares through to 68 hectares.  The majority of the lots would be between 50 and 60 hectares.[2]  It is intended that the subdivision would be carried out in two stages:  stage 1: Lots 1 to 6 and Lots 13 to 16; stage 2: Lots 7 to 12.

   [2]Ibid.

1. Development would include the construction of a new road traversing the property in a generally north west direction.  For environmental reasons, some of which will be discussed in more detail below, buffer areas of varying widths are required to protect erosion prone land, building on the proposed lots are to be restricted to identified building envelopes and a 20 metre public reserve following the creek and inlet frontages was also intended to be dedicated.[3]

   [3]Ibid.

Issues in the appeal

1. On 10 February 2009, the development application was considered by the respondent which determined that the application ought be refused.  The grounds for refusal covered a wide range of issues,[4] many of which it is now acknowledged would not warrant refusal of the application[5] but would be the subject of conditions.

   [4]See Decision Notice, Exhibit 2 at pp 393-394.

   [5]E.g. acid sulphate soils, flooding and bushfires, proximity to midge and mosquito habitats and the impact on koala habitat etc. 

1. The remaining issues to be determined can be broadly categorised as:

   (i)          Alleged conflict with the State Planning Policy 1/92 dealing with Good Quality Agricultural Land (GQAL) and the fragmentation of GQAL;

   (ii)        Need for the proposed development;

   (iii)        Alleged conflict with the respondent’s Transitional Planning Scheme 1999 (under which the application was lodged) and alleged conflict with the respondent’s Integrated Planning Act1997 Planning Scheme; and

   (iv)       Grounds to justify approval of the application in the event of conflict with the respondent’s planning regimes.

2. The development application (DA) for the proposed development was lodged on 6 August 2004 under the Integrated Planning Act 1997 (“IPA”). Pursuant to ss 819(1) and 819(2) of the Sustainable Planning Act 2009 (“SPA”), which took effect on 18 December 2009, this appeal is to be determined under IPA as if the SPA had not commenced. Pursuant to s 4.1.50 of IPA, the appellant bears the onus of proving that the appeal ought be allowed.

1. While the appeal is to be decided according to the laws and policies that applied when the DA was lodged, pursuant to s 4.1.52(2)(a) of IPA, the Court may have regard to, where appropriate, new laws and policies that came into effect after lodgement. In this appeal, it is not in dispute that regard could be had to the Miriam Vale Shire Planning Scheme (“the IPA scheme”) which came into effect in February 2009. The primary focus during the conduct of this appeal was, however, the provisions of the transitional planning scheme. That was so because, save for some differences it is not necessary to dwell on in this appeal, the IPA scheme was seen by the parties to, insofar as is relevant to this appeal, “effectively mirror”[6] and be consistent with the transitional planning scheme.[7]

   [6]Appellant’s written submissions, p 8, footnote 16.

   [7]Respondent’s reply, para 7.

1. Because the DA was made under the respondent’s transitional planning scheme, it falls to be assessed and decided under ss 6.1.29 and 6.1.30 of IPA. Under the relevant law,[8]  the application is required to be refused if:

   [8]Sections 6.1.29 and 6.1.30 of IPA are to be read in conjunction with ss 5.1(6A) and 5.9(6) of the Local Government (Planning and Environment) Act 1990.

(a)        it conflicts with any relevant strategic plan or development control plan; and

(b)        there are not sufficient planning grounds to justify approving the application despite the conflict.

1. For there to be conflict with a Planning Scheme, there must be some real and identifiable variance or disagreement with it.[9]  If such conflict does exist, it is then necessary to consider whether the conflict or conflicts are sufficiently outweighed by the other relevant grounds of justification.  In Weightman v Gold Coast City Council,[10] Atkinson J said, in the context of s 4.4(5A) of the Local Government (Planning and Environment) Act 1990:

   [9]Webster v Caboolture Shire Council [2008] QPEC 82; (2009) QPELR 455 at para [110], citing with approval Woolworths Limited v Maryborough City Council (No 2) (2006) 1 Qd R 273.

   [10](2003) 2 Qd R 441 at para [36]; see also Stappen v BCC & Ors (2005) QPELR 466 at 473.

“In order to determine whether or not there are sufficient planning grounds to justify approving the application despite the conflict…. The decision maker should:

1.          Examine the nature and the extent of the conflict.

2.          Determine whether there are any planning grounds which are relevant to the part of the application which is in conflict with the Planning Scheme and if the conflict can be justified on those planning grounds.

3.          Determine whether the planning grounds in favour of the application as a whole are, on balance, sufficient to justify approving the application notwithstanding the conflict.”

1. As I observed in Bassingthwaite v Roma Town Council & Ors[11], notwithstanding the more recent decision of Woolworths Limited v Maryborough City Council (No2)[12] where Fryberg J, in considering the provisions of s 3.5.14 of IPA, expressed the view that in resolving a contest between conflict and grounds of justification it may not be necessary for the decision maker to formally identify and set out each area of conflict and that “… that purely mechanical application of the Weightman dictum should be avoided…”,  the observations of Atkinson J in Weightman still provide some useful guidance in the determination of this issue.

   [11](2010) QPEC 91 at para [30]

   [12](2006) 1 Qd R 273 at para [55]

1. It is well established that town planning documents must be construed as a whole and in a broad, practical and commonsense way which best achieves the apparent purposes and objects of the documents.[13]  As was observed by Chesterman JA in AAD Design Pty Ltd v Brisbane City Council,[14] “[p]lanning schemes, and the definitions found in them often lack clarity, contain ambiguities and sometimes appear contradictory.  The attempt to make sense of them gives rise, on occasions, to expressions of judicial exasperation….”  His Honour then went on to refer to the judgment of Thomas J (with whom Ryan and McKenzie JJ agreed) in ZW Pty Ltd v Peter R Hughes and Partners Pty Ltd: [15]

“To arrive at the so-called proper construction of such provisions involves a good deal of guess-work.  In the end Courts endeavour to give some meaning to such provisions and endeavour to adopt a commonsense approach, or the approach which seems to make the most sense out of provisions which may be contradictory as well obscure…”

[13]Arpedco Pty Ltd v Beaudesert Shire Council (1980) Qd R 88 at [94] per Dunn J; Westfield Management Ltd v Pine Rivers Shire Council & Anor (2004) QPELR 337 at [343] per Britton SC DCJ.

[14](2012) QCA 44 at para [18]

[15](1992) 1 Qd R 352 at [360]

1. In Project Blue Sky Inc v Australian Broadcasting Authority[16] the High Court said:

“The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute.  The meaning of the provision must be determined ‘by reference to the language of the instrument viewed as a whole.’  In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that ‘the context, the general purpose and policy of the provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed.’  Thus, the process of construction must always begin by examining the context of the provision that is being construed.
A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals.  Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions.  Reconciling conflicting provisions will often require the Court ‘to determine which is the leading provision and the subordinate provision, and which must give way to the other’.  Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme. 
….
However, the duty of a Court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have.  Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision.  But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or cannons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning….” (Footnotes omitted)

[16](1998) 194 CLR 355 at paras [69], [70] and [78]; cited in AAD Design Pty Ltd v Brisbane City Council [2012] QCA 102.

The Transitional Planning Scheme

1. Under the transitional planning scheme, the implementation criteria for rural areas identifies two objectives in particular:[17]

   [17]Exhibit 11, p4.

“Objective 1      
Further fragmentation of rural holdings will not be supported.
[…].
Objective 3
The development and subdivision of additional smaller rural allotments will not be supported except in accordance with the provisions of Subsection 1.5.3.  The preferred objective is to utilise existing allotments efficiently and effectively.

(a)Use of smaller rural allotments for appropriate non-residential activities in association with residential occupancy is supported […].”

1. Section 1.5.3 of the Transitional Planning Scheme then goes on to provide:

“(a)Subdivision within rural areas will not be supported other than where such subdivision clearly satisfies a demonstrated need and is associated with development which is in accordance with the provisions of the Strategic Plan.

(b)Development and associated subdivision within the rural areas may be supported in respect of proposals such as:

(i)          Appropriate expansion of urban areas;

(ii)        Economically viable agricultural, grazing or similar undertaking;

(iii)        Appropriate tourism or recreational development;

(iv)       Appropriate development within designated rural service centres; or

(v)        Limited additional rural-residential development in proximity to urban centres or rural service centres.

(c)Any further development and associated subdivision within rural areas, particularly for low density residential purposes, will only be approved by Council where such development truly reflects a demonstrated demand for housing or other appropriate development, rather than merely a sale of allotments.  In particular:

(i)          The number of allotments within each locality within the Plan Area, as detailed in the relevant local planning policy, will be monitored in respect of the current supply of allotments and the annual rate of dwelling completion and/or other appropriate forms of development on those allotments; and

(ii)        The development and subdivision of additional allotments will not be approved by Council where the resulting supply of vacant allotments within each locality exceeds a five (5) year demand, based on the average annual rate of development, determined pursuant to clause 1.5.3(c)(i) and in accordance with the relevant local planning policy.”

1. Pursuant to s 1.17.1 of the respondent’s Transitional Planning Scheme,[18] it is stated that rural areas within its region of control are intended to be developed for rural purposes.  Section 1.17.3(h) provides that any development of rural land will be assessed in terms of its likely impact on GQAL and in accordance with the State Planning Policy 1/92 (“SP1/92”)[19].

   [18]Exhibit 11 at p16; the protection of GQAL is also an important component of the IPA scheme (e.g. Ex 12 ss 2.1.15; 2.2.21; 4.1.2.2; 4.19.2.1, 4.19.2.2 and 4.40.2.1)

   [19]Exhibits 13 and 14.

1. The respondent’s intention to preserve rural land for rural purposes is reinforced in ss 1.17.6(a) and (e) which provide:

“(a)The predominant development within the rural area shall be for rural purposes such as agriculture and grazing.

[…]

(e)Subdivision within the rural area will be strictly controlled in accordance with the requirements of the scheme.  In particular, additional low density residential development is not supported.”

1. The provisions of the strategic plans dealing specifically with the conservation of GQAL are found in section 19:

“1.19.1 Intent

Good quality agricultural land includes areas which may be identified as such pursuant to a relevant site assessment.

1.19.2 Objective 1

Good quality agricultural land shall be conserved and protected in accordance with State Planning Policy No. 1/92.

1.19.3 Implementation

(a) Good quality agricultural land comprises land designated as Classes A, B and C by the Department of Natural Resources or similar Authority.These classes are recognised as good quality agricultural land in terms of the principles detailed in the Planning Guidelines to State Policy No. 1/92  – ‘Development and Conservation of Agricultural Land’.

(b)  Development will be assessed in terms of its likely impact on good quality agricultural land in accordance with the relevant state and local planning policies so as to ensure the protection of a sustainable and viable rural based economy and the maintenance of responsible rural practices.

(c)  Development for intensive animal husbandry and other non agricultural development within or in close proximity to good quality agricultural land must not adversely affect the continued viability of the agricultural area.

(d) Development must not:

(i) involve the continued subdivision of and consequent loss of land within good quality agricultural land from productive use; 

(ii)   involve the establishment of residential or other development in close proximity to good quality agricultural land where such development may hinder agricultural development and associated activities such as aerial spraying;

(iii) prejudice the continued viability of good quality agricultural land for rural activities; and  

be inconsistent with the objectives and requirements of the Scheme (iv)       

(e)    Separation between non-rural and rural uses, particularly in relation to good quality agricultural land shall conform with the provisions of any relevant guidelines to State Planning Policy No. 1/92.”

(Emphasis added)

GQAL

1. According to Mr Brown, the Town Planner relied on by the respondent, the proposed development is in conflict with the respondent’s Planning Scheme because it conflicts with, among other things, the provisions of the scheme intended to protect GQAL. 

1. Under the definition of GQAL, the guidelines to SP1/92 provide:[20]

   [20]Exhibit 14, s 2.2.

“Four classes of agricultural land have been defined for Queensland….  Class A land in all areas is considered to be good quality agricultural land.  In some areas, Class B land (where agricultural land is scarce) and better quality Class C land (where pastoral industries predominate), are also considered to be good quality agricultural land.” (emphasis added).

Table 1 to the guidelines identifies that Class C land is:

“Pasture land – land that is suitable only for improved or native pastures due to limitations which preclude continuous cultivation for crop production; but some areas may tolerate a short period of ground disturbance for pasture establishment.”

This description is expanded in Attachment 1 to the guidelines which provide:

“PASTURE LAND
Land suitable only for improved or native pastures
Limitations preclude continuous cultivation for crop production but some areas may tolerate a short period of ground disturbance for pasture establishment.
In areas where pastoral industries are the major primary industry, land suitable for improved or high quality native pastures may be considered to be “good quality agricultural land”. (Emphasis added)

1. Two experts were called during the hearing of this appeal to address the soil quality of the land.  Mr Napier for the appellant and Mr Waker for the respondent.  Both agreed that for the purposes of SP1/92 the predominant soil type was Category C.  The dispute between those witnesses essentially revolved around whether the land could be described as being better quality Class C land.

1. The land is not suitable for cropping and various limitations including vegetation, fauna habitat and erosion prevent any meaningful clearing of the land.  At present, the land carries about 100 head of cattle, a carrying capacity of just better than one beast per 10 hectares, with current limited infrastructure and management practices.

1. According to Mr Walker, with improved management including paddock fencing, water improvement and stock rotation the land might be capable of carrying up to 160 head in a “good” season.[21]   That the subject land may be a viable commercial grazing proposition is not determinative.  It is the quality of the land, as a natural resource, that is critical as to whether the land could be properly described as GQAL.[22]

   [21]T1-86, L40-50.

   [22]52.3, SP1/92 Guidelines; Barns v Maroochy Shire Council (2010) QPEC 2.

1. According to Mr Walker, even with his improvements and management practices in place, any improvement to native pastures would still be only “marginal” and “not significant” but “as good as they can be on that site”.[23]  It would be fair to say that Mr Napier’s opinion of the land is even less enthusiastic.

   [23]T1-75, L25-30.

1. In response to a question from Mr Skoien, counsel for the appellant, Mr Walker described the land in the following terms:[24]

“[W]hat we also have is that what uses can apply to that land are severely restricted, you know, because the landscape there is fragile.  As so the notion of any horticultural use there is not supported by me.  The only use that’s supported is the native low intensity – is grazing on low intensity native pastures.”

[24]T1-88, L10.

1. It was submitted on behalf of the respondent, as I understand it, to the effect that it was not necessary for the subject land to satisfy the requirements of SP1/92 to be protected as GQAL under the strategic plan because “…the scheme does not incorporate SPP1/92”. [25]

   [25]Respondent’s written submissions at [128].

1. If I am correct in my understanding of that submission, I reject it.  A common sense reading of the relevant provisions of the scheme make it sufficiently clear that what was intended to be protected was GQAL as defined in SP1/92 and its guidelines or as “designated by the Department”.   It would, with respect, make little sense to construe s 1.19 of the scheme as intending to protect all “Class C” land and not Class C land with sufficient inherent qualities to be considered by the relevant authorities to be GQAL. 

1. The evidence of both Mr Napier and Mr Walker lead me to conclude that the subject land could not be reasonably described as “better quality Class C land” or “land suitable for improved or high quality native pasture”.  The land is not good quality agricultural land.   Accordingly, the proposed development is not in conflict with SP1/92 or the respondent’s planning schemes insofar as the protection of GQAL is concerned.  This conclusion does not, however, finally dispose of the fragmentation or subdivision of rural land issue.  This is dealt with below when addressing the other alleged conflicts with the respondent’s planning regime. 

Need

1. The economists relied on by the parties in this appeal—Ms Bonwick for the appellant and Mr Leyshon for the respondent—identified two areas to be investigated by them.  First, the need for rural living in the Gladstone Regional Council area; and  second, the need for rural living in the locality of the subject site.[26]  These two topics were chosen because two of the respondent’s reasons for refusing the application were:

   [26]Exhibit 2, p 411 (first joint report).

“(i)The application has not demonstrated genuine demand or need for the proposed configuration …;

(ii)The need for the subdivision has not been clearly established in accordance with s 5.2.6(b) of the Transitional Planning Scheme.”

1. In considering the operation of s 1.5.3(c) of the Strategic Plan, Ms Bonwick and Mr Leyshon decided that the appropriate “study locality” was that including the Foreshores, Turkey Beach, Eurimbula, Iveragh and Rodds Bay Communities.[27]

   [27]Exhibit 2, p 412, fig 2.1.

1. It was Mr Leyshon’s initial opinion that there was no demonstrated need for the proposal.[28]  During his oral testimony, he did, however, accept that there would be some “weak”[29] or “low level”[30] of demand for the lots produced by the proposed subdivision. 

   [28]Exhibit 2, p 427.

   [29]T2-71, LL 1-10.

   [30]T2-73, LL 40-48.

1. According to Ms Bonwick, there was a “strong and obvious” need for the proposed development.[31]  According to Ms Bonwick, “obvious” in this context meant:[32]

“Obvious need is it is obvious to the market that this is a product that the people have sought in the Gladstone Regional Council area, that they are still seeking and I believe will continue to seek for years to come and that has been – and therefore I can – obvious on that basis.”

Development of this type was, according to her, “expected” in the region.[33]

[31]T2-5, L 55.

[32]T2-18, LL 48-52.

[33]T2-6, LL 1-10.

1. In reaching her conclusions about need/demand, Ms Bonwick seemed to have relied on five matters or inputs in particular:

(i)          Conversations with real estate agents;

(ii)        The valuer general’s property market movement report;

(iii)        The respondent’s housing need assessment;

(iv)       The Deep Creek Road development;

(v)        Sales and Limited supply of rural lifestyle lots.

1. Based largely on that information, Ms Bonwick stated in the second joint expert report that:[34]

   [34]Exhibit 2, pp 433-434.

“The proposed 16 lot subdivision would represent between one to two years supply of rural living land on the basis that:

a.      As identified in the joint report, there was an average of 32 lots between 20 and 100 ha sold in the Gladstone Regional Council area between January 2006 and August 2011;

b.      During the 2011 full calendar year, there were 28 vacant allotments between 20 and 100 ha sold within the Gladstone Regional Council area;

c.      The Deep Water Road [sic] subdivision represented an average of one lot sold per month;

d.      Demand for residential and housing solutions in the Gladstone Regional Council area is significant, placing increasing pressure on the residential market to deliver product to the market.  The subject property is within commuting distance of Gladstone and would offer a lifestyle choice for working families.

e.        This is a product that is currently sought by the market.”

1. Turning to the first of the matters identified in paragraph 34 above, the evidence is essentially to the effect that a number of real estate agents said that there would be a niche market for such a product.[35]  That is clearly hearsay evidence.  In fact, the conversations were between the agents and employees of Ms Bonwick’s office, not Ms Bonwick herself.  Perhaps more importantly though, I was not directed to any material to indicate that the agents were aware of the topographical features of the subject land and the limitations on it, such as those imposed on clearing, public reserves, prescribed building envelopes and the transmission line easement etc.  This evidence is far too general to be of any probative value.  Ms Bonwick herself conceded that it needed to be treated with caution.[36]

   [35]Exhibit 5, p 9.

   [36]T2-16, LL 20-35.

1. Turning to the second matter, the relevant findings of the report are set out in Exhibit 2 at p 432.  I am prepared to accept that industrial/mining growth in the region has caused a significant increase in the demand for land and housing and real estate prices in the “urban land sections” for single unit residential land and rural residential land.  I am also prepared to accept that there is a land supply shortfall in the Gladstone area.  However, I do not see, with respect to Ms Bonwick, how this provides any meaningful evidence about the level of need for 50 ha rural blocks more than 40 kilometres from Gladstone and relatively remote from even modest shopping and other services and amenities.

1. Next, as I mentioned above, Ms Bonwick considered that development of the type proposed was expected within the respondent’s area of responsibility.  It seems tolerably clear that a key consideration underlying this conclusion was the respondent’s rural living strategy[37] which relevantly provided under the heading “growth pressure”:

“The pressure for growth in the LGA is perhaps the most important issue for the future.  There is demand for both rural residential (rural fringe and rural living) and urban lots.  This is expected to continue as the further port and LNG developments occur in Gladstone.”  (Emphasis added).

[37]Exhibit FG1- Tab 6, p 42.

1. In this context, in Ms Bonwick’s initial report it is recorded:[38]

“The draft strategy also states that ‘one indicator of the demand for rural residential development is the number of new dwellings’. …  Information provided by the respondent from 2007 to 2012 has reported that there were 55 approvals for dwellings in the study area, five of which were on lots between 20-100 ha, representing some 9% of the approvals during this period.  This share of approvals is also consistent with the number of sales of vacant residential allotments within the Study Area adopted by the joint report (10% of vacant allotments sold between 2006 and 2012 current were for lots 20-100 ha).  A further 22 sales of lifestyle allotments between 20-100 ha in the reference area have been recorded with established dwellings during the period 2006-2011, or approximately 4.4 per annum.  Again, these ‘indicators’ of demand must be considered in light of the supply considerations within the local area.”

[38]Exhibit 5, p 8 at para 4.1.2.2.

1. In my opinion, this document provides very little evidence of need for the type of lots intended to be produced.  The study is, as one would expect from such a document, fairly broad-brush in approach.  Further, the relevant development opportunities identified by the study were for “rural fringe areas”.[39]At page 14 of the study, it is said in part:

“Rural fringe

Rural fringe development in Gladstone region is that land that is zoned to allow subdivision to lots of 1 ha.  The zones are located in the following areas: (various areas identified)

The location of them is shown on map 2.3.  It can be seen that the development is clustered around Gladstone, Agnes Waters and Miriam Vale. […]”

[39]Ex FG 1, p 42 “Supply of existing lots”.

1. From my reading of the material, the subject land is not zoned, and is not intended to be zoned, to permit subdivision of land to 1 ha and it does not fall within the various areas identified in the study.

1. Further, while the study recognised demand for “rural living”, as distinct from “rural fringe” living and the potential for further development in rural fringe areas, I was not taken to any part of the study that indicated a level of unsatisfied need or demand and lack of supply of land of the type intended to be produced here. 

1. In my opinion, the Deep Creek Road development is also of no real assistance to the appellant.  It may show some level of demand/need for larger rural lots in the Gladstone region.  However, it is located outside of the relevant study area many kilometres to the west, is some 12 to 15 kilometres closer to Gladstone and is much closer to meaningful services and amenities (13.5 kms to Calliope compared with 30 kms to Tannum Sands).  Further, while no expert witness had visited the Deep Creek site, it is sufficiently clear from the aerial photographs[40] that the two country types are vastly different.  The subject is relatively flat coastal country with significant salt water frontages.  Many of the Deep Creek lots have undulating topography with significant cleared areas more proximate to the Creek.  The lots to the north of the access road appear to have Creek frontage.  A number of lots, as is the case for the subject proposal, are affected by a transmission line easement.  There was no suggestion that on the Deep Creek development building works would be limited to prescribed building envelopes.

   [40]Exhibits 18A and 18B.

1. There is no doubt some merit in the observations by some of the witnesses to the effect that people who purchase these types of lots are more accommodating in respect of travelling distances for work, services and amenities, and that while some purchasers might be drawn to more inland pursuits, others would be drawn to boating and fishing activities.  Nonetheless, I consider that the locational and physical characteristics and limitations which differentiate (or might differentiate) the Deep Creek development from the subject land are so significant as to prevent any meaningful comparison and conclusions being drawn about need for the proposed development in its location.

1. The data relied on by Ms Bonwick[41] to contend that the proposed sub-division would represent about two years supply of rural living land is, with respect, too general and lacking in detail to provide any meaningful probative evidence and seems to ignore what was actually occurring in the identified area.  The respondent’s regional area of responsibility is large and covers a wide range of country types.  To say that there has been an average of 32 lots between 20-100 ha sold in the regional area between January 2006 and August 2011 and 28 solid in the full calendar year is, without more,[42] of little assistance.

   [41]Exhibit 2, p 433-434.

   [42]For example, information on location (including proximity to services and amenities), topography, limitations (if any) on development, and land improvements.

1. Turning to the issue of supply, the facts that there were only four vacant lots between 20-100 ha in the study area and that no lots fitting that profile were for sale when Ms Bonwick and Mr Leyshon carried out their investigations, provides no justification for Ms Bonwick’s opinion that the rural living market is constrained by a lack of supply of product and that current figures understate actual demand.[43]

   [43]Exhibit 2, p 436, para 3.5.

1. The historical figures for the study area of about 1.2 sales per annum of vacant land and building approvals of about one per annum[44] are, in the absence of evidence one way or the other, as consistent with a lack of need or demand, as with a lack of supply.

   [44]Exhibit 2, p 423, para 6.3.1 and T2-19.

1. On balance, I do not consider that the facts and circumstances relied on by Ms Bonwick justify her conclusions concerning need.  The probative evidence that was put before the Court supports the contrary opinion expressed by Mr Leyshon, namely that need in the location, if any, for the proposed subdivision would be “low level” or “weak”.

Conflict

1. The transitional planning scheme reflects a deliberate and legitimate strategy of preserving rural land for rural activities.[45]  To this end, the scheme was generally opposed to the fragmentation of larger parcels of land in rural areas.  To adopt Mr Schomburgk’s words (the town planner relied on by the appellant), the “starting point” of the strategic plan was to the effect that “there is no further subdivision of rural land”.[46]The subject land is a relatively large parcel of land located in a rural area being put to an agricultural/rural use.

   [45]A theme largely maintained under the IPA scheme: Exhibit 12, e.g. ss 2.1.1.5 and 4.40.2.2

   [46]T3-12, LL 35-60; T3-13, LL 1-30.

1. Section 1.5.6 of the transitional scheme provided that the subdivision of land into smaller rural allotments will not be supported except in accordance with the provisions of s 1.5.3.  The appellant is right when he says that it is not necessary to fall within one of the examples identified in s 1.5.3(b) to avoid conflict with the scheme.  The use of the words “such as” makes it clear that the list of uses set out therein is not exhaustive.[47]

   [47]Conclusions with which Mr Brown, the town planner relied on by the respondent, generally agreed with: T3-49 LL 7-27; T3-50, LL 11-17; T3-56 LL 20-57.

1. However, it is clear that, pursuant to s 1.5.3(a), unless a proposed subdivision “clearly satisfies a demonstrated need and is associated with development which is in accordance with the provisions of the Strategic Plan”, it will be in conflict with the clearly stated intent against the fragmentation of rural holdings.  While s 1.5.3(a) has its focus on subdivision, the preamble to s 1.5.3(c) focuses on, particularly with respect of low density residential purposes, a demonstrated demand for housing.  The focus on housing is consistent with the references to low density residential purposes and dwelling completions.  It may well be as the appellant contends that, having regard to the type of development proposed, it was not necessary to strictly satisfy s 1.5.3(c)(i) or (ii).  However, what is clear under ss 1.5.3(a) and (c) is that the respondent intended that, in rural areas, the fragmentation of rural land would only be supported in circumstances where a sufficient level of need or demand had been demonstrated.

1. The appellant contended to the effect that, because the proposed development is relatively small and would be responsive to a proven need, it would not be in conflict with the scheme but in fact was supported by it.[48]  Alternatively, if there was conflict, it was of a technical or minor nature.[49]

   [48]Ibid, paras 3.12-3.13.

   [49]Ibid, para 3.20(a).

1. While the subject land is not GQAL, it is productive rural land currently grazing 100 head of cattle and capable of grazing up to 160 head in a good season with only relatively modest improvements and management practices being put in place.  Further, as Mr Napier acknowledged, it could also be worked in conjunction with other rural holdings in the area.[50]

   [50]T1-43, LL 10-20.

1. While there was no direct evidence on the point, the evidence of Messrs Walker and Napier made it tolerably clear that, as a stand alone entity, the commercial viability of the current grazing enterprise was questionable.  However, under the transitional planning scheme, commercial viability was not determinative.[51] This tends to further emphasise the respondent’s commitment to the protection of rural land from unwarranted fragmentation.

   [51]S 1.17.3(f).

1. For the reasons given above, I consider that any need for the lots produced by the proposed subdivision is at a low to very low level.  I do not consider that such a low level of need is sufficient to displace the clear planning objective of protecting agriculturally productive rural land from fragmentation.  To put it another way, I do not consider that the evidence established a sufficient level of need or demand for the purposes of s 1.5.3(a) and/or (c) of the transitional planning scheme.  As Mr Schomburgk acknowledged, an absence of need for the proposal placed it in “significant/substantial conflict with the planning scheme.”[52]  The approach advocated on behalf of the appellant would effectively mean that a sufficient level of need would be demonstrated provided that any measurable level of demand could be proved.  Such an approach fails to have sufficient regard to the words “clearly satisfies a demonstrated need” where used in s 1.5.3(a).

   [52]T3-11, LL 35-60 l – T3-12, LL 1-35.

1. Finally on this topic, I should deal with some of the evidence concerning the potential productivity of the sub-divided lots.  The evidence on this topic was limited and equivocal.  It fell far short of establishing that it was reasonably likely that the proposed development would produce a number of rural lots which could be put to any meaningful agricultural use.  The physical characteristics of the land meant that any agricultural pursuit, be it grazing or otherwise, would be relatively limited.  Further, whether or not the land was put to any form of agricultural production would be a matter of choice for each of the individual owners.  In this context it is of some relevance that many residents would work “off farm”.  While there is insufficient evidence to determine this matter one way or another, it does tend to suggest that it is reasonably likely that a number of the lots may not have been put to any meaningful rural or agricultural uses at all.

1. For the reasons given, I conclude that the proposed development is in genuine conflict with the transitional planning scheme (and the IPA scheme) and that the conflict is significant, not technical or minor.

Sufficient grounds

1. A finding that the proposed development is in genuine conflict with the planning scheme means it is necessary to consider whether there are sufficient grounds to justify the approval despite that conflict.  In this context, “grounds” means matters of public interest.[53]

   [53]IPA Schd 10; SPA Schd 3.

1. In paragraph 3.20 of the appellant’s written submissions, it was submitted that sufficient grounds to justify approval despite any planning conflict included:

(i)          the size, design and layout of each of the lots was consistent with the rural character and amenity of the area;

(ii)        the creation of smaller lots in this location was appropriate given the range of urban services and infrastructure in the vicinity of the site;

(iii)        the proposed rural lots, with appropriate services and infrastructure, would provide a distinct housing choice in close proximity to Gladstone and nearby employment centres;

(iv)       the design and layout of the rural subdivision (including small, identified building envelopes) protected the environmental values of the site;

(v)        the proposed rural lots would potentially be more viable, with individual lot owners more readily able to employ site specific land management techniques, with access to “off farm” income, to improve agricultural outputs;

(vi)       the proposal involved the dedication of a substantial land area as a reserve for beach protection and coastal management … and a further 20 metre wide reserve inland of the beach protection and management reserve;

(vii)       the proposal would involve the imposition of covenants over the land to improve protection of ecological values …;

(viii)      there was an accepted demonstration of demand for this type of development in this locality (even if that need was identified as a low level demand) and, given that rural living is an identified housing choice for which there is almost no supply, a consequent need for this type of development.

1. Turning to each of those matters, but not in the same order:

1. There was insufficient evidence to draw any meaningful conclusions about   the potential viability and agricultural potential of the proposed lots. 

1. The matters raised in subparagraphs (iv), (vi) and (vii) overlap to a        significant         extent.  The conditions and steps outlined to deal with environmental issues do    address matters of public interest.  But, at least to an extent, they are mandated by           the consequences of the proposal itself.  That is, the introduction of up to 15      additional households onto the site.  I was not referred to any evidence that showed      that in the post development scenario, the land would be environmentally more            protected and secure.  Further, coastal erosion is a matter that can be       addressed by the State, including by way of a conditions requiring the surrender of        coastal land to the State.[54] While these matters clearly address public issues,      they do not individually or in conjunction, provide any meaningful benefit over and above that which    existed in the pre-development case.

(iii) As to the matters raised in subparagraphs (i) and (ii), they do not constitute        “grounds” in my view.  The features identified in (i) exist already.  Of themselves,            they add nothing and are, in that sense neutral.[55]  The creation of smaller lots in the      subject location is in conflict with the respondent’s planning schemes and would            offer no meaningful benefit to the community.  The proposed subdivision is not          “appropriate” in my view.

(iv) The matters raised in subparagraphs (iii) and (vii) are primarily concerned with    need and choice.  I found the level of demand to be a weak and of a low level.  I          am prepared to accept that the proposal would add to the choice available to potential purchasers, particularly those with an interest in fishing and/or boating.             However, the issue is whether the proposal would, on balance, improve the well-           being of the community.[56]  I consider that Mr Schomburgk summed the matter      up fairly when he expressed the opinion that while the proposal would add to     the choices available to purchasers, the positive impact might be considered       insignificant.[57]  That is a conclusion with which I entirely agree. 

[54]s 110, Coastal Protection and Management Act 1995.

[55]A proposition accepted by Mr Schomburgk: see T3-22, L30.

[56]Bunnings Building Supplies Pty Ltd v Redland Shire Council (2003) QPEC 024 at para [50]; Isgro v Gold Coast City Council (2003) QPELR 414 at 418.

[57]T3-23, LL 25-45.

Conclusions and orders

1. For the reasons given, I find that:

1.          The proposed development is, in genuine conflict with the respondent’s   planning schemes.

2.          I am not satisfied that the matters set out in paragraph 59, either separately                   or in combination, provide sufficient planning grounds to justify   approving the proposed development despite the conflict.

3.          Accordingly, the appeal ought be dismissed.

Order

The appeal is dismissed.