Southtip Pty Ltd v Brisbane City Council
[2002] QPEC 70
•7 November 2002
PLANNING & ENVIRONMENT COURT OF QUEENSLAND
CITATION:
Southtip Pty Ltd v Brisbane City Council [2002] QPEC 070
PARTIES:
Southtip Pty Ltd Appellant
v
Brisbane City Council Respondent
FILE NO/S:
3861 of 2001
DIVISION:
Planning and Environment Court
PROCEEDING:
Appeal
ORIGINATING COURT:
DELIVERED ON:
7 November 2002
DELIVERED AT:
Brisbane
HEARING DATE:
29 July 2002 – 2 August 2002; 19 August 2002 – 21 August 2002; 5 September 2002
JUDGE:
Judge P D Robin QC
ORDER:
Appeal dismissed
CATCHWORDS:
Developer appeal against refusal of application under 1987 Town Plan for Material Change of Use and Reconfiguring a Lot – proposed residential subdivision of 114 lots on 13 hectare site – site in vicinity of Rochedale landfill and part of a larger area considered in an earlier (unsuccessful) developer’s appeal – site specific provisions in City Plan 2000 indicate current unsuitability for high intensity residential development, that the “constraint” would be removed “as the landfill is rehabilitated to the north”, whereupon “the land will be reclassified as an Emerging Community Area” – Appellant argued that proof of greatly improved management of the landfill had resolved former odour and noise concerns, and the “constraint” (although rehabilitation had not occurred) - issues included landfill impacts on 100 new households (which appellant failed to show could be disregarded), environmental (flora and fauna) issues – proposal in conflict with “old” and “new” Strategic Plans – Respondent ordered to pay certain costs of unsuccessful appellant, because of late introduction of new evidence, requiring response
Integrated Planning Act ss. 2.4.1(2), 4.1.23, 4.1.27, 4.1.50(1), 6.1.22
State Planning Policy (1997) ‘Conservation of Koalas in the Koala Coast’
Ribpark Pty Ltd v Brisbane City Council (2001) QPELR 204
Norris Clarke & O’Brien v Brisbane City Council (1996) QPELR 262COUNSEL:
Mr S Ure for the appellant
Mr P Lyons QC and Mr M Rackemann for the respondent
SOLICITORS:
King and Company for the appellant
Brisbane City Legal Practice for the respondent
Under Section 4.1.27 of the Integrated Planning Act 1997 (IPA), Southtip appeals the Council’s refusal of its Application for Development Permit for a Material Change of Use and a Development Permit for Reconfiguring a Lot and a Preliminary Approval for Carrying out Operational Work with respect to a 12.97 hectare site with frontages to Mt Gravatt-Capalaba Road and Grieve Road, Rochedale. The subject parcels are Lots 2, 4 and 5 on RP 84957, Lot 32 on RP 858163 and Lot 661 on S 312946, Parish of Tingalpa. The Appellant has in mind development of a residential estate of 114 allotments with lot sizes generally between 600 square metres and 900 square metres, although there are a few larger lots (of which some would permit the preservation of existing houses).
Southtip’s application was made at a time when the subject land was included in the Future Urban zone under the 1987 Town Planning Scheme. The Intent for that zone provided (6.1):
“Land included in the Future Urban zone is comprised mainly of land which is generally suitable for urban or suburban residential purposes in the future. This zone represents the stock of land which is intended to be developed at some time in the future for residential and associated purposes.
…
It is the intention of the Council to preserve areas of significant historic, architectural, topographic, landscape, scenic, bushland, ecological, social or cultural interest and to protect or preserve fauna habitats and fauna movement corridors and wetlands and waterways corridors. While land included in the Future Urban Zone is comprised mainly of land which is generally suitable for urban or suburban residential purposes in the future, some land or parts of land in the Future Urban Zone is unsuitable for such purposes and such unsuitability may be due to one or more of the aforementioned matters. The circumstances under which development will or may be disallowed for any of the reasons outlined in this paragraph are contained in a Planning Policy.
…
Many of these areas which will require specific consideration are also included in or adjacent to the Brisbane Green Space System, or as “Land with Environmental or Scenic Constraint” in the Strategic Plan or specifically identified in Local Area Outline Plans. Where land in this zone is located close to, or in areas included in the Brisbane Green Space system or “Land with Environmental or Scenic Constraint” in the Strategic Plan, or identified in Local Area Outline Plans development will only be approved where it is consistent with the intent of the relevant part of the Brisbane Green Space System or the relevant Local Area Outline Plan. Development proposals will be required to identify and provide for the retention and protection of these features.”
Planning Policy 6.01 lists in s.1 the circumstances in which land within the Future Urban zone will be considered unsuitable for urban or suburban development, including:
“(h)the land provides habitat for flora species listed as endangered, vulnerable, rare, poorly known or of special interest at the State level as defined in publications of the State Government, particularly the Department of Environment and Heritage;
(i) the land contains vegetation communities whose structure and species composition are generally intact and therefore provide viable, good quality, representative samples of one or more of the full range of original vegetation communities within the City;
(j)the land contains representative samples of vegetation communities occurring on particular substrates, whether or not similar vegetation communities occurring on different substrates are well conserved within the City of Brisbane;
(k)the land contains fauna habitat areas which support species listed as endangered, vulnerable, rare, poorly known or of special interest under the provisions of the Fauna Conservation Act or the Nature Conservation Act;
(l)the land contains a fauna movement corridor or part thereof which serves as a connection between areas of significant bushland or ecological interest and is of suitable dimensions and topography to allow for fauna movement;
(m)the land is within the vegetated riparian zone as defined in Planning Police 19.22 – Brisbane Waterways;
(n)the land is within a waterway corridor, being that area … of a river, creek or stream including the bed and extending to the high floodway bank and riparian zone, as well as associated wetland areas, as illustrated in Planning Policy 19.22 – Brisbane waterways;
(o)the land contains wetland, being that land subject to either freshwater or saltwater inundation on a regular or periodic basis for long enough periods to support aquatic plants;
Section 2 states that land in the zone “may be considered unsuitable for urban or suburban development” if :
“(a) the land contains flora species –
(i)at serious risk of disappearing from the wild state in Brisbane City within ten to twenty years if present land use or causal factors continue to operate. This includes species with populations too small to survive even if in proclaimed reserves; or
(ii)not presently endangered but at risk over a longer period through continued depletion, or which largely occur on sites likely to experience changes in land use, either of which would threaten the survival of the species in the wild state in Brisbane City; or
(iii)which are rare within Brisbane City but not currently considered endangered or vulnerable. Such species may be represented by a relatively large population in a relatively restricted area or by smaller populations spread over a wider range or some intermediate combination of distribution pattern; or
(iv)which otherwise contribute to the City’s biological diversity at either the species, subspecies, geographical variant or other levels of difference; or
(b)the land contains fauna habitats or area of ecological interest with respect to fauna, including areas which contain or contribute to habitats supporting or likely to support fauna species and populations, representative of those occurring in the City or which otherwise contribute to part of the City’s biological diversity at either the species, subspecies, or geographical variant levels of difference.”
Matters that might trigger such provisions were ventilated in the Appeal. The provisions flesh out Strategic Plan provisions. The Statement of Intent provides, given that the subject land is allocated to the Urban preferred dominant land use:
“3.3.2.1 Statement of Intent
While all the Urban Areas designated in the Strategic Plan will not be fully developed by the year 2011 this preferred dominant land use contains those areas which may be developed for urban purposes within this planning horizon, subject to the considerations set out below and the intents for the zone concerned. Urban and suburban residential development will only be allowed in those areas designated as Urban Areas.
Some Future Urban zoned land within the Urban Areas is unsuitable for urban or suburban development as it is intended to protect or preserve areas of significant historical, architectural, topographical, landscape, scenic bushland, ecological, social or cultural interest, and to protect or preserve fauna habitats and fauna movement corridors, and wetland and waterway corridors. These matters will be required to be assessed in detail for a particular site when its development is proposed.
Where development is proposed on land which is partly unsuitable for such development due to these considerations, it will be necessary to demonstrate that the particular values of the site and locality have been properly considered and protected.
Within Urban Areas, land shown as having Environmental and Scenic Constraints on Strategic Plan Maps 1 and 2 may be developed only in a manner which is compatible with the Brisbane Green Space System values which apply in a particular case.”
The subject land also has a designation of “lands with environmental or scenic constraints”, defined in 3.3.1.1. as “lands for which the preferred dominant land use is not Green Space Area, but where, in the assessment of any subdivision or development proposal, all reasonable measures should be employed to protect the nominated environmental values.”
As to these, 3.3.1.4 provides:
“Lands with Environmental or Scenic Constraints form an important element of the Brisbane Green Space System.
This element includes lands in zones which could allow development to higher densities than their current uses.
However, these lands or part of these lands contain areas of significant historic, architectural, topographic, landscape, scenic, bushland, ecological, social or cultural interest. They may also be considered significant for the retention of flora and fauna habitat, wetlands and waterway corridors and therefore unsuitable for development. These lands are located throughout the City and often occur adjacent to large tracts of bushland and semi rural areas.
In any subdivision or development of the land, sites or parts of sites which are unsuitable for development, by reason of any one or more matters referred to in the paragraph above, must be identified and either excluded from the development or developed in such a way that the Green Space System values of the site are preserved.
Lands with Environmental and Scenic Constraints are generally zoned Future Urban or Future Industry.”
As Mr Ure (who appeared for the Appellant) submitted, the designation does not preclude development. What it requires is that the Green Space System values of the site be preserved. His submission was that the subject proposal achieves this aim, a matter as to which (and generally in the appeal) his client bears the onus of proof (IPA Section 4.1.50(1)). It may be accepted that, physically, the land is suitable for residential development. Most of it is cleared, some is used for small cropping. The site is gently undulating with a drainage depression running approximately east/west across the site which is located more or less at the extremity of the Bulimba Creek Catchment.
Across Mt Gravatt-Capalaba Road due north is a large residential estate, Gainsborough Park, west of which is another residential estate, McKenzie’s Rise, presently under construction. South of Grieve Road, uses are generally rural/residential. There are two new houses of substantial proportions at 57 Grieve and 2 Gardner Road. Further to the south is the Brisbane City Council landfill which at its closest point (the witnesses agreed) is something like 150 metres from the closest corner of the site fronting Grieve Road.
The site is convenient to schools, to shopping centres such as Garden City, Carindale and Capalaba Central, and has ready access to locations further afield by the South Eastern Freeway and the Gateway arterial road.
It is the Rochedale landfill which gives rise to major issues in the Appeal, to do with potential noise and odour impacts that might be encountered by residents of the proposed development.
In circumstances of the development application’s having been lodged (on 8 May 2000), on the “eve” of the coming into force in October 2000 of City Plan 2000, proper notification of which had taken place, and the application’s having been decided on 20 July 2001, it was appropriate that “heavy weight” be given to the provisions of City Plan 2000: Ribpark Pty Ltd v Brisbane City Council (2001) QPELR 204, 20. Just as under the 1987 arrangements, the site was designated Urban Area, also Land With Environmental or Scenic Constraint (Strategic Plan Map 1), as having habitat value (Strategic Plan Map 2, showing Brisbane Green Space System Values), and also in Strategic Plan Map 3, (showing the Green Space System) as land with environmental or scenic constraint, under City Plan it is included in the Rural Area, one of the five Green Space areas. Strategic Plan map A shows the land within the Brisbane Green Space System; Strategic Plan map B (Green Space System Values) designates it as having bio-diversity value and Strategic Plan map C (Brisbane Green Space System) shows it within the Rural Components Designation.
Whether or not the history of an earlier development proposal for the site and other land (specifically land south of Grieve Road) in Norris Clarke & O’Brien v Brisbane City Council (1996) QPELR 262 had anything to do with it, City Plan 2000 indicates a specific planning intent for land to the north of the Rochedale Landfill, which includes the subject land. Chapter 3, page 21 provides in the Intent Provisions for the Rural Area:
“Land to the immediate north of the Rochedale landfill is currently unsuitable for higher intensity residential development. As the landfill is rehabilitated from the north, this constraint will be removed and the land will be reclassified as an Emerging Community Area.”.
In the appeal mentioned, Judge Quirk at 266-67 recognised the landfill activity as an essential component of metropolitan living, for which a suitable site is difficult to find, and as “an existing and lawful use of land which is of considerable importance to the City and can be expected to continue for some time”. His comments are still apposite, and supported by evidence before me. The relevant planning instruments are all consistent with preserving the landfill’s ability to continue to serve its important function – which the court must not lose sight of in this appeal.
The Council is the Planning Authority for Brisbane, not this court. I agree with Mr Lyons QC (for the Council) that the planning intent is that any more intensive residential development than is there at the moment not occur until the land is reclassified an Emerging Community Area, that further residential development should not occur while it remains in the Rural Area.
The Level of Assessment table (Chapter 3) in 3.4.3 of City Plan applies to both the Environmental Protection Area and the Rural Area. Impact Assessment – Generally Inappropriate includes “Reconfiguring a lot where any resulting lot is less than 10 ha” and “any other material change of use”.
In Chapter 2 (the Strategic Plan) 4.1.2.2 provides:
“Rural components include land that defines the City’s edges, acts as a buffer between incompatible land uses and can provide pleasant vistas along Movement Networks. These components will be retained for the ongoing operation of rural and semi-rural activities and their landscape value will be enhanced where possible. Fragmenting this land has detracted from its landscape and agricultural production values and is no longer considered appropriate. This practice will be discouraged.”
Generally Inappropriate Impact Assessable Development (Chapter 3) in 2.5.2 Impact Assessment (page 6) states:
“Other impact assessable developments are usually inappropriate and not specifically envisaged by the Plan. In assessing this development the proposal will need to demonstrate that it accords with the Strategic Plan in Chapter 2 and that there is a social, economic or environmental need for the development that could not be met in an Area where land has been allocated for that use under the Plan.”
No attempt was made on the part of the Appellant to demonstrate a need met by its proposal that could not be satisfied elsewhere. I agree with the Council’s submission that the Appellant does not show that the strict tests which must be satisfied before approval can be given of development which is impact assessable, generally inappropriate have been satisfied.
The Appellant’s approach is to seek to establish that the concerns underlying the postponement of development until reclassification of the site as an Emerging Community Area can be identified as odour and noise and that favourable developments have ensured that the landfill is being and will be operated in such a manner that the concerns may be disregarded. The difficulties which confronted the appellant company in Norris Clarke & O’Brien were said to have been overcome. A number of witnesses in that appeal gave evidence in this one. While there are indications that the operation of the landfill (inspection of which was made by the court) has improved to the extent that nuisance in areas to the north from odour and/or noise has been enormously attenuated, in particular a much reduced incidence of complaints, the court cannot feel satisfied that sufficient assurance yet exists that the amenity of residents of the proposed development would not be impaired by such nuisances on occasions. Odour sampling, measurement and modelling is a developing area of science. There has been progress towards standardization to reduce variability in measuring results, but variability remains. The evidence suggests that physiological sensitivity of people to odour varies enormously from person to person, some being 100 times more sensitive than others. There is relevant evidence of odour nuisance in recent times (see Exhibits 44 and 45) indicating to my mind that, were hundreds of new residents introduced to the site, the prospect of odour impacts destructive of the amenity of a good number of people cannot be disregarded.
As to noise, while I assessed the noise attenuation methods employed at the landfill adjacent to areas where work took place to be surprisingly effective, I think it is right to be conservative in this respect, and cautious about declaring that no problem exists. It is known that in months and years to come, the trucks and machinery will be operating at much higher levels vertically, as the landfill achieves its ultimate profile. It is difficult to reach a confident view as to what the noise impact might be, especially in a “worst case scenario” where all of the equipment envisaged might be operating simultaneously, whether or not within noise limits fixed by the licence which the operator of the landfill has from the Environmental Protection Authority. While the court would ordinarily assume that licence conditions would be complied with, whether by a local government or private operator, it is questionable, in my view, whether in a context such as the present, which looks towards introducing more than a hundred new households to a nearby area, total compliance at all times in practice can reasonably be assumed.
It is a close question in this appeal whether the Appellant has demonstrated that the situation at the landfill has so improved that the potential adverse impacts on residential amenity, concern about which doubtless underlay the provision made in City Plan 2000 regarding the site, have come to be managed in such a way that the purposes intended to be served by the planning provisions have been taken care of. Given what I assess as genuine differences of opinion between “opposed” experts eminently qualified in their fields, I am unable to regard the Appellant as having succeeded in satisfying the onus of proof which it bears in this respect.
More fundamentally, I am unpersuaded that a planning provision which is effectively site specific in such a recent town planning document as City Plan 2000 can properly be set at nought by the court. It should not be forgotten how prominently this specific planning provision features in the statement of Intent for the Rural Area in s. 3.5.1 of Chapter 3 of City Plan 2000 which is (omitting only a sentence about protection of good quality agricultural land):
“The Rural Area is privately owned land and accommodates residential and rural uses that are respected and preserved provided the DEOs are met.
Some broad hectare, low intensity uses may also be accommodated in this Area where they have low environmental impacts, such as riding schools and camping grounds.
Land is held in larger lots of at least 10ha with larger sizes where sites are excessively steep, i.e. slopes over 1 in 3, or have other significant constraints and limitations.
Land to the immediate north of the Rochedale landfill is currently unsuitable for higher intensity residential development. As the landfill is rehabilitated from the north, this constraint will be removed and the land will be reclassified as an Emerging Community Area.”
The last paragraph will be recognised from paragraph [13] above. The intention to restrict private owners in what they may do with their land is express, and deliberate.
The condition upon which the constraint associated with the site will be removed has been expressly set out and is in terms of rehabilitation of the landfill (an event which no one contended has happened yet – indeed, it is apparently years away from happening), rather than in terms of the achievement of whatever benefits to amenity might have been assumed to accompany rehabilitation. The significance of rehabilitation, once the landfill has attained its ultimate profile, is that real impacts from the landfill (psychological impacts or perceptions may be another thing) have come to their end.
The anticipated involvement of Emerging Community provisions presents another difficulty for the Appellant. The statement of Intent in City Plan 2000, Chapter 3, s.4.1 commences:
“The Emerging Community Area is generally suitable for urban purposes at some future time. These Areas have not been fully investigated and many contain pockets of land unsuitable for development because of scenic or environmental constraints. All land in this Area requires the preparation of a neighbourhood structure plan before development can occur.”
Success of the Appellant’s application would constitute “spot” planning, subversive of the express intention that planning on a wider scale take place through preparation of a neighbourhood structure plan. This consideration suggests another basis on which the application is premature.
Further, there are serious issues as to whether parts of the site are “unsuitable for development because of the scenic or environmental constraints.” A great deal of evidence (to contradictory effect) was given on flora and fauna issues. As to the latter, Dr Olsen, a field botanist and ecologist who gave evidence for the Appellant, was successful in forcing a certain amount of revision by Mr Warren of his original report. The site has been considerably disturbed, and while there are examples of some rare species, it may not warrant protection on that account alone.
As regards fauna, the site constitutes koala habitat. It is affected by State Planning Policy 1/97 Conservation of Koalas in the Koala Coast. Such policies must be noticed and applied under the IPA. See s. 2.4.1, especially sub-s. (2), which confers on them the force of law, and s. 6.1.22. The site falls within the Koala Conservation Area. The Policy calls for development to be compatible with conserving koala habitat values, unless there is a “development commitment” (I am not persuaded there is any here) or some overriding public need for the proposal which cannot be satisfied by some other reasonably available suitable site is shown. No attempt was made to embrace the latter possibility.
The Appellant sought to demonstrate compatibility by relying upon its proposal to plant trees suitable for koalas in the central section of the site where four dams in a line presently are. It appears that while appropriate work is done there to enable this part of the site to carry out another intended function of draining (and also retaining for “polishing”) surface runoff water, there would be disruption of the substantial vegetation already there.
Speaking generally, the more substantial trees there are growing on the walls of the dams and would present a safety hazard, on the evidence, which consisted in part of unchallenged material downloaded from the Internet. Assuming for the moment that rehabilitation and the intensive planting envisaged by Dr Olsen were achieved, so that the site in theory might become again home for as many koalas as are accommodated presently (no more than a few), the Court is not prepared to hold Southtip’s solution acceptable on the evidence before it.
Southtip’s problem lies in the multiple demands proposed to be made upon this nature or conservation strip. Assuming that there is no watercourse or anything similar to concern the Court, the area is, nevertheless, integral to drainage arrangements proposed, which, to be effective, will, I think, require that planting be less dense than “compatibility” for the purposes of the Policy would require. That is not an end of the role of the area under consideration, which is offered as satisfying the 10% parkland contribution. For practical purposes, the minimum contribution is offered. If the park is to be of use for ordinary activities such as children playing games, a certain amount of open space will be expected, inconsistently with what koalas might require. As to these matters, I accept the evidence of Dr Carrick. The Court shares his (and other witnesses’) misgivings that the proposed park will live up to Southtip’s expectations. The likely loss of the koala habitat hitherto offered by the site is significant. It adjoins to the east a large Council site disparaged to an extent as a disused grovel reserve, but which is largely covered with mature vegetation and is now usefully managed for conservation purposes, although degraded in parts. An instance of the uncertainty of impacts of the project as proposed concerned the high fencing to be erected for acoustic reasons along Mt Gravatt-Capalaba Road and Grieve Road. Dr Ingram (p.239) could not say whether the fences would tend to preserve koalas or disadvantage them by preventing movement.
The site’s value for koalas is substantial (partly through its connection with superior land further to the east), but will be impaired, in my view, if the proposed development goes ahead. In my view the Court should be conscious of the implications of approving isolated developments which might contribute to “death by a thousand cuts”.
While the Court in Norris Clarke & O’Brien “would have found it very difficult to reject (a similar proposal) on environmental grounds”, the present appeal is decided after the IPA has come into force, and a different (I think stronger) State Planning Policy with regard to koalas. s. 4.4(3A) of the Local Government (Planning and Environment) Act 1990 had said the decision maker “must have regard to relevant State planning policies”, which his Honour took to allow “flexibility” in application, as did the very use of the description, “Policy”.
Also, for reasons already stated, City Plan 2000 must be given significant weight in this appeal. It is difficult to avoid concluding that the Policy would be much better served in the course of planning for a somewhat larger area than the site.
It seems unnecessary to go at length into the bio-diversity/environmental (that is, flora and fauna) issues which were ventilated at such length during the appeal. Although in the end Mr Warren resiled from his original expansive view as to what fauna might use the site, and from an assertion of sighting a jacky lizard there in particular, the koala issue alone creates problems for Southtip.
As things appear, its project involves destruction of confirmed koala habitat, which is not going to be compensated for in the future, should development occur, unless the site’s future is sensitively planned as part of a rather wider planning area.
I think the Court has to be alert to the danger of ad hoc decisions pursuing a philosophy that a small loss (here, of koala habitat) on the periphery of a major habitat area should generate no particular concerns. That similar developments have occurred immediately to the north is not a justification for this one.
So far as flora is concerned, part of the debate concerned whether the south eastern corner of the site contained “remnant vegetation”, an expression defined in the “Vegetation Management Act 1999” but not necessarily in a way which would indicate the meaning of “important remnant vegetation” in Clause 3.3.1.1 of the 1997 Strategic Plan and Clause 4.2.2.1 of City Plan 2000. I think the Council presented the more persuasive case on this aspect, and that it is difficult to feel persuaded by the Appellant’s witnesses’ view that the large amount of she-oak (or Casuarina) regrowth that has occurred on the site renders the tall Eucalypts that remain of negligible value.
Mr Lyons QC summarised the Council’s case as follows:
“It is submitted that the Application should be refused on the following grounds:-
(a) it is inconsistent with the planning intent for the area;(b)it is likely that adverse impacts from the landfill will be experienced by some residents of the proposed development;
(c)the proposal is inconsistent with the planning principle of separating incompatible land uses;
(d)the Applicant has failed to demonstrate that satisfactory provision is made for the control of the quantity and quality of stormwater runoff;
(e)the proposed development is inconsistent with the Strategic Plan found in the 1987 Town Plan, and the Strategic Plan and City Plan, in that it fails to protect the flora and fauna values of the site;
(f)the proposed development is inconsistent with State Plan Policy 1/1997.”
I am not particularly convinced of (c)(treating it as an issue independent of (b)), and Mr Wolfe’s evidence in my view prevents the Council’s contending it has made out (d). It is noted that enlargement of culverts in Grieve Road may be necessary to accommodate storm water runoff if Mr Wolfe’s proposals be implemented. However, I am satisfied that implementing Mr Wolfe’s proposals will render the area where appropriate works are carried out of little value so far as concerns the other benefits Southtip claims would accrue from that area. Otherwise, I think Mr Lyons is correct.
Mr Ure presented a powerful case that the Council itself favours residential development of the site. The Council’s Report responding to submissions during the public exhibition of the Brisbane Draft City Plan in 1999, to the effect that land in the vicinity should be included in the emerging community area (Appendix C, exhibit 1), expressed the view it was “irresponsible to expose more people to the impacts of the landfill in the short-term”.
If one were adopting a cynical approach, one might wonder whether the other “environmental” objections raised by the Council would be persisted in, in the long-term. Whether or not the Council is sincere in presenting those arguments at this stage, they appear to me valid arguments, and sufficient in all the circumstances to require the refusal of this appeal, because of the Southtip’s inability to show the impacts of development in accordance with its proposal are acceptable in terms of the relevant planning instruments, or of general planning principles. The concerns addressed by those arguments will be more effectively dealt with as part of the planning of a wider area when the time envisaged in City Plan 2000 for classification of the site in an Emerging Community Area has arrived.
Although the appeal fails, I am persuaded that the way in which the Respondent presented its case has been responsible for Southtip’s incurring costs that might have been avoided.
I propose under s. 4.1.23 (2)(e) of the IPA to order the Respondent to pay the Appellant’s costs incurred in consequence of the late introduction of exhibit 56, and of the landfill development plan shown exhibits 14A and 14B.
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