Sibi Girgenti Holdings Pty Ltd v Atherton Shire Council

[2008] QPEC 108

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:	Sibi Girgenti Holdings Pty Ltd v Atherton Shire Council & Anor [2008] QPEC 108
PARTIES:	SIBI GIRGENTI HOLDINGS PTY LTD (Appellant) v ATHERTON SHIRE COUNCIL (Respondent) THE CHIEF EXECUTIVE, DEPARTMENT OF MAIN ROADS (Co-Respondent)
FILE NO/S:	99 of 2007
DIVISION:
PROCEEDING:	Appeal
ORIGINATING COURT:	Planning and Environment Court, Cairns
DELIVERED ON:	7 August 2008
DELIVERED AT:	Cairns
HEARING DATE:
JUDGE:	White DCJ
ORDER:	Appeal dismissed
CATCHWORDS:
COUNSEL:	Ms T Fantin for the appellant Mr S M Ure for the respondent
SOLICITORS:	Marino Moller Lawyers for the appellant Lilley Grose & Long for the respondent

1. This is an appeal against the refusal by the respondent Council of an application for a development permit for a material change of use for a Rural Residential development and a development permit for reconfiguring a lot on land described as Lot 12 on SP 177753 Parish of Barron and situated on the southern side of Banchio Road, between the Kennedy Highway and Rocco Road.  It has an area of 49.64 hectares.  Its location is conveniently observed on various maps which have been tendered as exhibits and in particular, exhibit 2.  The subject land is approximately a parallelogram in shape.  It is located north of the township of Tolga on the Atherton Tableland.  The subject land has a physical boundary to Banchio Road to its north.  To the south it adjoins other allotments of land.  To the east it has what appears to be a frontage to the Kennedy Highway, however between the eastern boundary of the subject land and the highway itself is the Mareeba/Atherton railway line.  To the north it has a boundary to what is described as Rocco Road.  However Rocco Road is in reality a disused stock route.  It is significantly wider than the usual road reserve.

1. The appellant’s proposal is to develop the subject land into 103 Rural Residential allotments of approximately 4,000 square metres (.4 of a hectare) in size.  The formal application to the respondent Council was to develop 19 of those allotments in the south eastern corner of the subject land leaving the balance as a single parcel for future subdivision.  The layout of the initial proposal is illustrated at page 25 of exhibit 1.  The ultimate proposed subdivision is illustrated at page 21 of exhibit 1.  There have been very minor alterations to the layout since the initial application.  However, nothing turns on the layout of the proposed subdivision so far as this appeal is concerned.  The relevant Planning Scheme of the respondent Council came into force on 24 June 2002.  It was prepared and introduced pursuant to the provisions of the Integrated Planning Act 1997 as amended. The provisions of the scheme dealing with the Rural Planning Area places land within that area into two categories:-

·Rural (where GQAL)

·Rural (where not GQAL)

1. The rural planning area map places the subject land in the rural (where GQAL) category.  GQAL stands for “Good Quality Agricultural Land”.  At the forefront of the reasons for the respondent Council’s refusal of the application and therefore prominent in this appeal, is that –

(a)        The subject land is good quality agricultural land

(b)        The Planning Scheme aims to preserve good quality agricultural land for agricultural use.

(c)        The appellant’s proposal would alienate the subject land from agricultural use and is therefore contrary to the relevant provisions of the Planning Scheme.

1. This gives rise to a factual issue, namely whether or not the subject land is good quality agricultural land.  It also gives rise to a question of law, namely the various provisions to which the Council, as assessment manager, and therefore this Court must have regard, in determining the planning consequences if the subject land is in fact good quality agricultural land.  Also of critical relevance to this issue is State Planning Policy 1/92 – Development and the Conservation of Agricultural Land.  In order to determine whether the subject land is GQAL, it is necessary to ascertain the meaning of the term, Good Quality Agricultural Land.  It is therefore appropriate to deal with the question of law first. 

1. SPP 1/92 commenced on 18 December 1992 pursuant to the provisions of the Local Government (Planning and Environment) Act 1990 as amended (the repealed Act). Section 6.1.22 of IPA provides as follows:-

“Each State Planning Policy made under the repealed Act and in force immediately before the commencement of this section continues to have effect and is taken to be a State Planning Policy made under this Act.”

Therefore SPP 1/92 is a State Planning Policy for the purposes of IPA.  Section 2.4.1 of IPA provides as follows:-

“(1) A “State Planning Policy” is an instrument made by the Minister under this part about matters of State interest. 

(2) A State Planning Policy is a statutory instrument under the Statutory Instruments Act 1992 and has the force of law.”

It is common ground that the appellant’s application was impact assessable.  Therefore s 3.5.5 of IPA applied.  So far as is relevant it provides as follows:-

“(1) This section applies to any part of the application requiring impact assessment.

(2) If the application is for development in a Planning Scheme area the assessment manager must carry out the impact assessment having regard to the following:-

(a) the common material

(b) the planning scheme and any other relevant local planning instruments

(c) if they are not identified in the planning scheme as being appropriate reflected in the planning scheme –

(i)          State Planning Policies or parts of State Planning Policies.”

Schedule 10, the dictionary to IPA, defines “local planning instrument” as follows:-

“means a planning scheme, temporary local planning instrument or planning scheme policy.”

Section 2.1.23 of IPA provides as follows:-

“(1) A local planning instrument is a statutory instrument under the Statutory Instruments Act 1992 and has the force of law.”

1. Schedule 1 to IPA provides a legislative scheme for the introduction of a planning scheme.  Section 18 of Schedule 1, in particular subsections (5) and (5A), provide a regime for formally recording whether or not a State Planning Policy is identified in a planning scheme as being appropriately reflected in the planning scheme under subsection 3.5.5(2)(c).  The certified copy of the Atherton Shire Planning Scheme records as follows:-

“The Minister for Local Government and Planning has identified the following State Planning Policies as having been appropriately reflected in this Planning Scheme:

1.   State Planning Policy 1/92 – Development and Conservation of Agricultural Land.”

I am therefore satisfied that State Planning Policy 1/92 is identified in the Planning Scheme as being appropriately reflected in the Planning Scheme. 

1. In my view on the proper construction of subsection 3.5.5(2)(c) the expression “if they are not identified in the Planning Scheme as being appropriately reflected in the Planning Scheme” constitutes a condition precedent to the requirement that the assessment manager must carry out the impact assessment having regard to State Planning Policies.  In this case I would go further.  As I will set out shortly the Atherton Shire Planning Scheme contains provisions relevant to the conservation of agricultural land.  By reason of subsection 2.1.23(1) the Planning Scheme has the force of law.  Therefore, in my view, in carrying out impact assessment the assessment manager, and therefore this Court, must apply the provisions of the Planning Scheme as having the force of law, unless there are provisions in the Planning Scheme or IPA which permit the assessment manager or this Court to depart from the provisions of the Planning Scheme.  It would be superfluous to have regard to provisions of the SPP which are consistent with the provisions of the Planning Scheme.  It would contrary to law to have regard to provisions of the SPP which are inconsistent with the Planning Scheme where the SPP is “identified in the Planning Scheme as being appropriately reflected in the Planning Scheme.”

1. At page 18 of the Scheme there are provisions concerning the rural planning area in which the subject land is contained.  I will only set out those matters which I consider to be relevant.  In subsection 2.2.1 Intent, the following appears:-

“There is some potential for Rural Residential subdivision in the rural planning area subject to meeting certain criteria.  Preferred locations for such development are adjacent to existing key Rural Residential nodes and are shown on the structure plan map.”

The subject land is not included in areas designated potential Rural Residential on the Structured Plan map.  The Structure Plan map does show some areas designated potential Rural Residential not far from the subject land.  However, when one looks at the rural district plan map for major Rural Residential areas (Map 5(a)) it is tolerably clear that the reason why those particular areas have been designated as proposed Rural Residential areas are:-

(a)        Much of the area is designated Rural (where not GQAL)

(b)        All of the land is immediately adjacent to land already designated Rural Residential.

1. In subsection 2.2.1 Intent the Planning Scheme provides as follows:-

“This Planning Area is intended for Rural uses and is to assist in reinforcing the role of the rural sector in the ongoing development of the Shire.”

The section then goes on to set out a number of rural objectives which I take to be objectives calculated to achieve the intent for the Rural Planning Area.  In relation to each rural objective there are a number of assessment criteria.  I will set out only those objectives and assessment criteria which I consider relevant to this appeal.

“2.2.2 Rural Objective 1
To recognise the economic, social and historical significant of the primary industries in the Shire and, specifically, to protect good quality agricultural land (GQAL) from alienation as a consequence of development.

Assessment Criteria
Whether the proposal:

(a)        Maintains primary industries as the economic base for the Shire

(b)        Maintains the contribution of primary industries to the identity of the Shire’s community.

(c)        Conserves and protects GQAL, unless an overriding, long term, community benefit is demonstrated, having regard for State Planning Policy 1/92 – Development and the Conservation of Agricultural Land.

(d)        In the case where there is the potential for incompatibility provide a separate distance and a buffer of an appropriate width from any land used for intensive agricultural having regard for the guidelines to State Planning Policy 1/92 – Separating Agricultural and Residential Land uses.

2.2.3 Rural Objective 2

To foster and facilitate the establishment of new sustainable rural industries or activities in order to broaden the economic base of the shire.

Assessment Criteria

Whether the proposal:

…

(b)      Conserves and protects GQAL, unless an overriding long term community benefit is demonstrated having regard to State Planning Policy 1/92 – Development and the Conservation of Agricultural Land.

…

2.2.5 Rural Objective 4

To ensure that future Rural Residential subdivision in the Rural Planning Area occurs only in response to genuine community need.

Assessment Criteria

Whether a proposal:

(a)      Satisfies rural Objective 1

(b)     Is in response to a demonstrated community need, evidenced by:

·   The take up rate of lots for permanent housing during the previous three years in the vicinity of the site and in the Shire as a whole.

·   The rate at which existing Rural Residential lots in the vicinity have been developed with housing for permanent occupation.

·   The number of vacant lots in the vicinity of the site and in the Shire as a whole.

…

(b)   Has regard for the different rate of demand that exists across the Shire.

2.2.6 Rural Objective 4

To ensure future Rural Residential use in the Rural Planning Area is appropriate located to minimise adverse impacts.

Assessment Criteria

In the case of a proposal for a Rural Residential subdivision outside the Rural Residential Planning Area the following matters are to be addressed:

(a)     Impacts on existing and future rural industries, including extractive industries.

…

(d) Logical and natural boundaries to clearly contain the subdivision.

1. The first factual issue for consideration therefore is whether or not the subject land is good quality agricultural land.  At page 136 of the Planning Scheme the term is defined as follows:-

“Has the meaning assigned to it under State Planning Policy 1/92 and its associated planning guidelines.”

Section 2 of the planning guidelines to SPP 1/92 provides as follows:-

“2.1 Good Quality Agricultural land is land which is capable of sustainable use for agriculture with a reasonable level of inputs, and without causing degradation of land or other natural resources.  In this context agricultural land is defined as land used for crop or animal production, but excluding intensive animal uses such as feed lots, piggeries, poultry farms and plant nurseries based on either hydroponics of imported growth media.

2.2 Four classes of agricultural land have been defined for Queensland (refer Table 1 and Attachment 1).  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.

2.3 Agricultural land classes are based on an assessment of the agricultural suitability of the land for specified agricultural uses.  Agricultural land suitability is a rating of the ability of land to maintain a sustainable level of productivity.  The factors used to assess agricultural land suitability are the soil, topographic and climatic limitations which determine sustainable productivity.  Explicit evaluations of economic factors, such as the size of production units, are not included as they are not considered relevant to the quality of the resource.  Methods of agricultural land suitability assessment have been published by the Department of Primary Industries (DPI).

1. Table 1 is as follows:-

CLASS	DESCRIPTION
Class A	Crop land – Land that is suitable for current and potential crops with limitations to production which range from none to moderate levels.
Class B	Limited crop land – Land that is marginal for current and potential crops due to severe limitations; and suitable for pastures.  Engineering and/or agronomic improvements may be required before the land is considered suitable for cropping.
Class C	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.
Class D	Non-agricultural land – Land not suitable for agricultural uses due to extreme limitations.  This may be undisturbed land with significant habitat, conservation and/or catchment values or land that may be unsuitable because of very steep slopes, shallow soils, rock outcrop or poor drainage.

Class B land on the Atherton Tableland is not scarce.  Nor is it an area where pastoral industries predominate.  Therefore if the subject land is Class A land it is good quality agricultural land.

1. In my respectful view the evidence in this particular case has been unduly technical and complicated.  What must be borne in mind in my view are the following particular passages in paragraph 2.3 of the Planning Guidelines:-

   (i)          Agricultural land suitability is a rating of the ability of land to maintain a sustainable level of productivity.  The factors used to assess agricultural land suitability are the soil, topographic and climatic limitations which determine sustainable productivity.  Explicit evaluation of economic factors such as the size of production units are not included as they are not considered relevant to the quality of the resource.

   I feel bound to say that it is regrettable that no regard may be had to economic factors in assessing whether land is good quality agricultural land, that is the financial viability of a parcel of agricultural land.  If I were permitted to take such a factor into account I would be driven to the conclusion that the subject land, by reason of its size, is not a viable farming unit and will never be capable of being so.  On the other hand however, having regard to soil, topographic and climatic limitations, this land is clearly Class A good quality agricultural land.  The soil is of a reasonable level of fertility.  Although the land is sloping, that slope is not so steep as to create undue problems with erosion.  The climate is such that the subject land enjoys relatively abundant rainfall, although the rainfall tends to fall mostly in the late spring, summer and early autumn. 

1. The evidence of Mr Fred Ciranni sets out the history of the subject land.  His parents were Italian immigrants.  In 1972 they bought the subject land which was then part of a larger parcel of land.  In February 2007 the land was subdivided and they sold Lot 12 to the appellant.  Mr Ciranni parents still own Lot 11 and live on it.  When the Cirannis first purchased the farm there was no allocation of irrigation water.  However, they were able to grow maize and peanuts under dry land farming.  Unsurprisingly, the yield of such crops was not as great as that which occurred when they were able to irrigate at a later time.  Mr Ciranni confirms that the farm size was not large enough to be viable so as to provide his family with a complete living.  His mother and father worked off the farm in order to support the family.  However, it is one thing for a particular farming unit to be inadequate to provide a reasonable income to a family.  It is another thing for the quality and suitability of the soil, taking into account topography and climate, to be profitable at all.  The fact is that the Cirannis have farmed the subject land throughout the period of their ownership.  Even after Lot 12 was sold to the appellant, sugar cane has been grown on the land.  I have no doubt that in recent years the lack of more water allocation for irrigation has reduced crop yield.  But nevertheless crops have still continued to be grown on the subject land year after year.  As between the expert witnesses Mr Walker and Mr McClurg I prefer the evidence of Mr McClurg because I consider that Mr Walker has allowed economic factors to invade his assessment of the agricultural quality of the subject land. 

1. I feel bound to say that in my respectful opinion the SPP and the extent to which it is incorporated into the Atherton Shire Planning Scheme does not serve many members of the farming community well and in fact is detrimental to them.  This is a perfect example of that.  There is a real risk in my view that by the unrealistic attempt to interfere with market forces, unviable small parcels of what might be good quality agricultural land in terms of productive capacity, will be rendered sterile.  The policy of course recognises that such land might be used productively in a larger farming unit.  However, there will be instances, such as this one, in which no interest at all will be shown in acquiring a small parcel of good quality agricultural land to be used productively as part of a large farming unit.  It seems likely to me that the minimum lot size of 40 hectares in the rural area (where GQAL) is probably far too small to realistically keep good quality agricultural land in productive and profitable production.  However, as has been repeated time and time again, it is for governments to make planning policy and for local authorities to make planning schemes.  This Court is not the planning authority.  This Court’s function is to apply planning policy and schemes in the form provided by the statutory planning authority.  Having come to the conclusion that the subject land is good quality agricultural land Class A there is only one basis upon which the subject application could be allowed and that is as provided for by the assessment criteria for the Rural Planning Area in relation to Rural (GQAL) land namely:-

Unless an overriding, long term, community benefit is demonstrated having regard to State Planning Policy 1/92 – Development and the Conservation of Agricultural Land.

I have been referred to a number of cases concerning the issue of overriding need.  For example, in McCosker v Council of the Shire of Emerald [1996] QPELR 114 his Honour Judge Quirk at page 116 said:-

“Section 4.4(3A) of the Local Government (Planning and Environment) Act provides that regard must be had to the provisions of this policy (SPP 1/92) when the application is being decided.  Nonetheless it retains its status as a policy and in its own terms there must be a balance struck between competing considerations.  While recognising that the guidelines set out to provide some assistance in determining whether there is an “overriding need” in a particular case I do not see that concept as meaning more than a position where the community’s interests which are served by the proposal can be seen to outweigh the community’s interest in preserving the land for agricultural use.”

It is pointless to embark upon a discussion about the weight to be given to a State Planning Policy, whether SPP 1/92 or any other, in the application of the provisions of the repealed Act.  As I have pointed out above once the provisions of a State Planning Policy are incorporated into a Planning Scheme in such terms that they have been formally identified in the Planning Scheme as being appropriately reflected in the Planning Scheme they take on the force of law.  In my view it is not just a matter of concluding that the need for the rural Residential subdivision proposed by the appellant is greater than the need to preserve the subject land for agricultural production.  If that were the case I would have no difficulty concluding that there is no need to preserve the subject land for agricultural production, simply because on the evidence I consider that very little useful purpose would be served in preserving the subject land for agricultural production.  In my view proper weight must be given to the Planning Scheme and, in particular, to the means specified therein for determining whether or not there is “an overriding, long term, community benefit” demonstrated.  Further, that benefit must be demonstrated having regard to the SPP.  The determination of “overriding need” is dealt with at page 4 of the Planning Guidelines to the SPP as follows:-

“4.13 Determining “an overriding need in terms of public benefit depends upon the circumstances of the particular proposal.  Some obvious cases of “overriding need” which are likely to justify the loss of the agricultural land illustrates the principles.

4.14 State Planning Policy 1/92 cites the example of a tourist development that could provide the opportunity to diversify the economic base of an area and support a growing State industry.  A mining proposal is likely to offer similar advantages locally, as well as providing significant export revenue for the State as a whole.  Finally, major infrastructure (for example roads, railways, aerodromes and dams) usually have specific siting/location requirements that might require the loss of some good quality agricultural land.

4.15 These examples should not be regarded as a justification for every proposal involving such development.  Each proposal should still be assessed on its merits to determine the degree of community advantage.

4.16 Instances of proposals for residential development on good quality agricultural land are likely to be more frequent.  In such cases the need for the development should be established in the context of other undeveloped land designated for urban or residential development by the Strategic Plan.  Also relevant is the availability of alternative sites that are not of good agricultural quality, but could be serviced reasonably and could meet the same housing demands.  Where an area is reasonably close to a local authority boundary, consideration of suitable alternative sites should include those in the neighbouring local authority. 

4.17 Employment/commercial developments and other non-rural proposals should be assessed in a similar way.”

Against that background I turn now to consider the evidence of need.

1. Evidence of need came from two experts, Mr Norling for the appellant and Mr Carstairs for the respondent.  The experts agreed that the underlying demand for Rural Residential dwellings in the Atherton Shire would have reached 32 dwellings per annum over the next four years and 36 dwellings per annum thereafter.  This would total 164 Rural Residential dwellings over a period of five years.  The period I have chosen, namely five years is somewhat arbitrary.  However, in my view in order to demonstrate an overriding need in the context of this particular case the appellant would need to show that the need presently exists.  This, of course, does not mean that the availability of Rural Residential allotments on the very day of the hearing should fall short of the demand for Rural Residential allotments which exists on the day of the hearing.  On the other hand, it must be accepted that it is the council which is the planning authority.  It is the function and duty of the Council to plan for the long term Rural Residential needs in the Shire.  It is not the function of this Court.  This is particularly so in a case like this where the structure plan of the Planning Scheme anticipates the future needs for Rural Residential allotments and identifies preferred areas for the location of those Rural Residential allotments in the future.  Those areas include parcels of land which the Council considers appropriately located for future subdivision into Rural Residential sized allotments.  The council is therefore in the better and most appropriate position to be determining whether additional land outside those parcels already identified are appropriate for future Rural Residential subdivision in light of the various planning policies upon which the Planning Scheme is based. 

1. On the evidence I am satisfied of the following immediate potential for vacant allotments of land already designated in the Planning Scheme for Rural Residential sized allotments:-

(a)        There is an area designated Rural Residential opposite the subject land on the eastern side of the Kennedy Highway at Tolga.  In my view there is a potential for 68 allotments in that area by reason of further subdivision of existing allotments.

(b)        Lot 176 is located close to existing Rural Residential land.  It is designated for future Rural Residential subdivision in the structure plan.  Some of that parcel of land is designated good quality agricultural land, the other part of it is not.  The current owner of that land, Mrs Weiss, suffered a personal tragedy not long before the hearing of this appeal.  It is understandable that she would not want to, at that stage, be expressing definitive views about the future of Lot 176.  However, she did express the view that it would be subdivided.  There is a potential for 135 Rural Residential allotments from Lot 176.

(c)        In the Structure Plan there is an area to the north of the presently designated Rural Residential area on the western side of Tolga.  That area is referred to as the Filippo Close area.  It is classified Rural (not GQAL) and therefore is not subject to the restrictions on the alienation of good quality agricultural land in the respondent’s Planning Scheme.  It has fairly recently been subdivided into 8 hectare allotments and is occupied by a series of hobby farms.  However, there is on the evidence, an intention on the part of a number of owners in the Filippo Close area to further subdivide their hobby farms into Rural Residential sized allotments.  It is expected that any such applications would be approved in light of the designation of that land in the structure plan.  Mr Carstairs assigned a capacity of 118 allotments to this area.  I think that this should be discounted to some extent for the possibility that some owners of land in Filippo Close area will not want to subdivide and possibly for some other development constraints.  However, in my view, there is the potential for at least 59 allotments of Rural Residential size to come into existence in that area in the next few years.

(d)        There are areas near Atherton township conveniently referred to as the Cuda allotments and the Rockley Road area.  An argument developed about the appropriateness for Rural Residential subdivision of this land by reason of the effect of odour from a nearby piggery.  However, I am satisfied that at least part of these areas will not be affected by odour from the piggery.  In my view there is a capacity of at least 40 allotments of Rural Residential size from that area.

In addition to those specific areas there is a potential for further development of Rural Residential allotments in the Carrington Road area.  It may well be that in the not too far distant future the local authority may find that demand for Rural Residential allotments exceeds short term supply.  The local authority may find that it is necessary to expressly designate further areas for Rural Residential subdivision.  It may even be necessary to resort to designating good quality agricultural land in the Rural area for Rural Residential subdivision.  As I have said, that is the function of the planning authority and not the function of this Court.  At the present time I am not satisfied that there is a need for the subject land to be subdivided for Rural Residential purposes.  This is even more so when one considers the flavour of the provisions of the SPP incorporated into the Planning Scheme for assessing “an overriding, long term, community benefit” as required by the Planning Scheme.  The result must be that the appeal will be dismissed.