Sumvista Pty Ltd v Redland Shire Council
[2005] QPEC 2
•19 January 2005
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Sumvista Pty Ltd & Ors v Redland Shire Council & Anor [2005] QPEC 002
PARTIES:
SUMVISTA PTY LTD, PAUL DAVID WRUCK and MARGARET ANN WRUCK
appellant
v
REDLAND SHIRE COUNCIL
respondent
And
TABTILL No. 2 PTY LTD
co-respondentFILE NO/S:
BD 2933 of 2004
DIVISION:
Planning & Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
Brisbane
DELIVERED ON:
19 January 2005
DELIVERED AT:
Brisbane
HEARING DATE:
13-16 December; submissions 23 December 2006
JUDGE:
Skoien SJDC
ORDER:
Appeal dismissed
CATCHWORDS:
MCU and reconfiguration; rural use to residential use; buffers; traffic; stormwater, prematurity
COUNSEL:
Mr S M Ure for the appellant
Mr B D Job for the respondent
Mr R S Litster with him Mr M A Williamson for the co-respondentSOLICITORS:
Walters & Co for appellant
MacDonnells for respondent
IPA Law Planning Lawyers for co-respondent
This is a submitters’ appeal by Sumvista and Mr and Mrs Wruck (“Sumvista”) against the decision of the Council to approve a development application made on behalf of Tabtill for a development permit for a combined material change of use (re-zoning from the Rural Non Urban zone to the Residential A zone) and reconfiguration of land at Main Road Wellington Point.
The Site
Two lots (lots 1 and 2) together make up a roughly rectangular site of 3.362 ha which is oriented east-west. The small lot 1 is in the north-west corner of the site. It exists as a separate lot because it contains a single family residential dwelling. The balance of the site, lot 2, is used for crop farming and it also contains a single family residential dwelling in the south west corner of the site. The western boundary of the site, 115m in length, is along Main Road.
The site has a slight cross fall from south to north and is bisected by a natural drainage depression running approximately south to north in about the centre of the site. Part of the northern boundary is located along a 2 to 3 metre embankment which falls to the land to the immediate north, owned by Sumvista. Along the bank is a mix of exotic plants (for example, camphor laurel trees and lantana bushes) together with some eucalypts. The site has ready access to all urban services and amenities.
The site is zoned Rural Non Urban and is contained within the Specific Planning Intent No 1 designation in the Strategic Plan Preferred Dominant Land Use map.
The locality is undoubtedly an area in transition from rural to urban in character and use. Since the mid to late 1990’s, residential land use has fragmented the once rural area into smaller parcels. Although the land immediately to the north, south and east (all owned by Sumvista) remains in rural use, virtually all of the land further afield to the north, south, north-east and south-west is now suburban residential land.
The likely future of the land owned by Sumvista is relevant. In May 2002 Sumvista applied, in respect of the land immediately to the north of the site, for a material change of use to permit the creation of a building to sell, to tourists, the fresh market produce grown on the land and also to create an area of residential development. Sumvista has now abandoned the residential aspect of that application but is persevering, through an appeal, with the former.
The Sumvista land to the immediate south of the site, is the subject of two development approvals for residential development. The first, dated 12 November 2002 and expiring on 12 November 2006 unless extended, is a development permit for a material change of use (Rural Non Urban to Residential A) and reconfiguration to 11 lots of the land fronting Plumer Street which runs east-west. Established housing is on the other side of Plumer Street.
The second approval, dated 5 April 2004 and expiring on 5 April 2008 unless extended, is a development permit for a material change of use (Rural Non Urban to Residential A) for the balance area of that land, that is immediately to the south of the site. There are two approved plans for the development to take account of development both independently of, and in contemplation of, development to the immediate north, on the site the subject of this appeal.
The land to the immediate east of the site fronting Starkey Street is the subject of a development approval (issued on or about 19 October 2004) for material change of use to residential use and reconfiguration of a lot (2 lots into 42 lots). That approval should expire around October 2008 unless extended.
The Application
The application is a combined application for a material change of use and reconfiguration to convert the two existing Rural Non Urban zoned allotments into 32 Residential ‘A’ zoned allotments and a park. The proposed lots range in size from 570m2 to 929m2. Proposed Lots 1, 3 and 4 which front Main Road are intended to incorporate a “No development” buffer, ranging in depth from 10 to 15 metres. These setbacks take into consideration the two existing dwellings on the site. The proposed park is located in the north east of the site with an area of 3193m2.
A temporary road connection to Main Road is proposed in the south western corner of the site. It is intended that this road connection remain in place until a permanent road connection can be constructed to future roads to the north and/or the east, in conjunction with expected development of that land for residential purposes.
The application was accompanied by a Structure Plan. It is usual for the Council to request a Structure Plan be submitted with an application where there are adjoining tracts of vacant land with development potential. An approved Structure Plan is typically not binding and is conceptual in nature. A Structure Plan must demonstrate that adjoining lands are not disadvantaged or landlocked, and that development in a locality occurs in an orderly and sustainable manner.
This Structure or Precinct Plan was approved in principle, in conjunction with approvals to the south. The layout proposed by this application, together with the proposed Structure Plan, is generally compatible with the Structure Plan already approved for the land to the south.
Statutory Provisions
The planning scheme was gazetted in 1998 and is therefore a transitional planning scheme, IPA ss 6.1.2; 6.1.3. Accordingly, the development application and Appeal are to be decided as if the repealed Act had not been repealed, s 6.1.30(3). As the application is tantamount to one for rezoning and subdivision under the repealed Local Government (Planning and Environment) Act 1900 (“PEA”), it is to be assessed against sections 4.4(3) and 5.1(3) of the PEA (See IPA s 6.1.29(3)(h)). The combined effect of IPA, ss 6.1.28, 6.1.29, PEA s 3.4.2, 4.11 and 4.1.28 is to make both aspects of the application impact assessable, and appellable.
The land’s Rural Non-Urban zoning reflects the transitional nature of the area. The intent of the zone includes:
“Included in the zone is land which is expected to be required for urban development, following rezoning, during the life of the town planning scheme. Also included is land which is designated for urban development in the Strategic Plan but which is not expected to be required for such a purpose during the life of the town planning scheme.” See Part 2, Div 2, Section 2(19) of the Planning Scheme.
The SPI 1 designation is one of the Urban-Residential oriented “group” of Strategic Plan designations. The intent for the group provides, in part, that:
“This group of preferred dominant land use designations relate to those parts of the Shire where development is intended to be primarily residential in nature, accommodating a wide range of housing forms and density.” See s 4.2. of the Strategic Plan.
The intent of the SPI 1 designation itself relevantly contemplates that:
“Development of a range of residential, recreational, institutional, commercial or mixed use activities may be considered for this location provided that they exhibit a high standard of design and contribute, in any innovative way, to the maintenance of the substantial open or non-urban visual character of the area.” See s 4.2.5 of the Strategic Plan.
Those statements of intent, and the intent of other SPI areas (SPI areas 2 to 6) reveal an expectation that the land and locality will be developed for residential purposes. See Edgarange Pty Ltd v Redland Shire Council [2001] QPELR 331.
The Strategic Plan emphasises the importance of protecting the farming areas of the Shire against disadvantage created by the advent of residential development. See particularly the Economic Strategy s 3.4(i) and incorporated Guidelines. In s 3.4(i) the basic strategy is stated as:-
“ensuring that, where this plan allows urbanisation of farming and other primary production areas, this occurs in a sensitive manner which respects the right of existing farming operations to continue through:
· Ensuring new residential development does not prevent, through its sensitivity to impart from primary industry activities such as spray drift, noise and dust, the continuation of these activities.
· Encouraging the provision of adequate buffers and/or the distribution of land uses w newly urbanising areas, which minimise impacts on existing farming and other primary production operations.”
and the Guidelines lay out certain principles:
“1.13 The planning guidelines should be applied with consideration to the following principles:
1.Provided agricultural practices are legally practiced according to existing codes of practice, it is unreasonable for new adjacent uses to demand a modification of these practices to an extent which threatens efficient agricultural operations.
2.When preparing planning schemes, local governments should avoid, as far as practicable, locating residential development in close proximity to agricultural land. Where this is not possible, mechanisms such as buffer areas should be used to minimise conflicts.
3.Buffer areas should be determined on the basis of the sustainable agricultural land use with the potential to have the most impact on adjacent land uses and which is reasonably likely to be practiced, regardless of current use.
4.Buffer areas should be located within the site being developed for residential purposes, and be provided/funded by the proponent of that development. This principle protects the prior rights of agricultural producers to practice agriculture on rural land.”
Thus the effect of the zoning provisions (paras [15-[18]) when read with the Economic Strategy and Guidelines (para [19]) is that the site is appropriate for rezoning to residential uses but that care must be taken to ensure that this be achieved without unreasonable nuisance, annoyance or disruption caused by the one use to the other.
Tabtill, as the applicant for the development, bears the onus of proof in this appeal (IPA, s 4.1.50(2)). Section 4.1.52(2)(a) requires that the appeal be decided on the law applying when the application was made, giving whatever weight to any new law which the court considers to be appropriate.
Issues
The issues on the appeal can be summarised as interface, traffic, stormwater and prematurity.
Interface
This heading was particularised as raising questions of spray drift, odour, dust, noise, vandalism and crop protection, in the context of the juxtaposition of Tabtill’s proposed residential development and Sumvista’s continuing agricultural pursuits. However the emphasis was on spray drift and the appropriate buffer between rural and residential land needed to prevent it.
While the Guidelines (para [19]) apply as a default buffer a 40 metre vegetated strip (cl 3.10), Sumvista does not contend for that. Instead its consultant expert, Dr Miller, argued for a heavily vegetated buffer of 10m incorporating a 2m fence. Mr Ormerod, the consultant who was retained by Tabtill, argued for considerably lesser buffers, being:-
Northern boundary: 5m, densely vegetated to ground level with no fence; 1.5m densely vegetated buffer to the proposed lot 2; fencing along future road connection.
Eastern boundary: 1.8m paling or hessian fence with a vegetated buffer of at least 2m, preferably 5m.
Southern boundary: 2m high paling or hessian fence with vegetated buffer of at least 2m.
It is pertinent to record at the outset of this discussion that the evidence of Mr Wruck about Sumvista’s farming practices together with the complete lack of recorded complaints concerning them received by the Council demonstrate that the utmost care is taken by Sumvista to prevent spray drift from the Sumvista land. Indeed in his letter of 12 March 2003 (ex 9), referring to a Sumvista proposal for residential development, Mr Wruck expressly recognises the need to “compromise” farming practices to co-exist with nearby residential uses and says “We are able and prepared to make further compromises in our operating practices to avoid conflicts relating to the proposed new interface”. A survey conducted by Mr Ormerod of nearby residents (while by no means a careful formal statistical survey) lent some weight to the proposition that the Sumvista farm co-exists very well with nearby residential uses.
I consider that the submissions of Mr Litster for Tabtill and Mr Job for the Council, that Dr Miller’s evidence tended to be a counsel of perfection, carry weight. The risks identified by Dr Miller seemed to me to relate more to the potential for harm from long term exposure but it is likely that much of the Sumvista land (to the south and east of the site) will become residential within a few years so the risk of spray drift occurring in the long term is greatly reduced. On the other hand Mr Ormerod’s recommendations gave due weight to such practical matters as the apparent success of buffers actually in existence in the area as exemplified by the very low level of complaints, the success of careful farming practices such as those used by Sumvista, the topography (especially at the northern boundary of the site) and the extra buffering effect provided by road reserves and house set-backs. I prefer his evidence and conclude that provided his suggested buffers are incorporated in the Tabtill development no harmful spray drift is likely to occur.
The above discussion has concentrated on spray drift which is easily the most serious aspect of this issue. I did not see any realistic reason for concern about odour, dust, noise, or vandalism. Vandalism, it seems, takes place to some extent even now and it is difficult to see how it can be completely prevented short of the building of fences such as one might see around a prison. A question was raised about small children entering the land and consuming recently sprayed strawberries. Such a danger was not highlighted by historical examples. Again, if it is a danger it must exist even now and, like vandalism, could only be completely guarded against by quite unreasonable precautions.
In my opinion Mr Ormerod’s recommended buffering is acceptable. To provide an extra degree of protection, the fences he recommends should be paling fences. That being so, the width of the eastern boundary can be restricted to 2m.
Traffic
The road layout proposed by Mr Camillieri, Tabtill’s consultant traffic expert, was criticised by Mr Trevilyan, the consultant retained by Sumvisa. The criticisms were chiefly two, that the temporary access to Main Road proposed was “less than desirable” as was the proposed design of the road layout which would lead to excessively long cul-de-sacs and internal low speed roads.
Again, it seemed to me that Mr Trevilyan was advancing counsels of perfection which are, no doubt, correct and desirable all other things being equal. But he did not advance any reason why the proposed road layout should be rejected as unsafe or unworkable. Indeed similar designs exist in the Redland Shire without apparent failure. Temporary road accesses are, he agreed not uncommon. Furthermore I think it probable that the future development of land adjoining the site will see the construction of roads which will remove some, perhaps all, of Mr Trevilyan’s objections.
Brabazon DCJ said in Wingate Properties Pty Ltd v Brisbane City Council & Ors [2001] QPELR 272 at [21]:-
It is not the function of this Court (or indeed any planning authority) to refuse an application because it considers that the proposed use is not the best possible use for the site. It is not the function of the Court to redesign a proposal. Its function is to pass judgment on that which is proposed. In this case, the issue is whether or not the current proposal has been shown to be acceptable. The fact that some alternative proposal may be thought to be even more acceptable is by the way. If the current proposal is acceptable, then that is enough.”
That was said by his Honour in a rather different context but I think the principle he states, with which I agree, is apposite here. The currently proposed road layout is acceptable.
Stormwater
Mr Campbell an expert in hydrology, gave evidence on behalf of Sumvista. I accept his evidence that the stormwater regime currently proposed by Tabtill is inappropriate.
Mr Campbell identified three locations where there is no lawful point of discharge from the site currently proposed. The current engineering drawings would bring about a concentrated flow of water entering onto the Sumvista property to the north and downstream of the site without the consent of Sumvista to accept that concentrated flow. They are points D and F as shown on Mr Campbell’s drawing 2016AK01 amendment A in Appendix F of Exhibit 14, and the flow across the boundary from Schonrock Park shown in Attachment M to Exhibit 6.
At location D, the current design of Tabtill’s consultant, Mr Billingham is, I am persuaded, inappropriate and would have the result that concentrated flow of water from the site onto the Sumvista land will increase from an existing peak discharge of 0.97m3/s to 1.97m3/s.
At this location D, Tabtill proposes that there be a weir constructed in the proposed park to “deconcentrate” the flow. This weir involves water flowing from a headwall into a grassed area behind a small earth weir which varies between 150 and 250mm in height.
Mr Campbell has demonstrated that this will not work. The storage area behind the weir is far too small, and there is a “choke point” where water which is supposed to flow to the east would back up and overtop of the weir. If the weir overtops in other than a uniform sheet way, erosion will take place and the water will reconcentrate. Mr Campbell is of the view that in a Q100 storm the weir will simply wash away. To ensure that the weir did not wash away, it would have to be constructed of concrete. This would compromise the operation of the park as a park, and would also compromise any agricultural spray drift vegetated buffer which needs to be located at this point.
At location F, Tabtill proposes to discharge water from an upstream catchment to the south of the site down an open swale on the eastern boundary of the site into an open channel to be constructed in a 5m x 5m triangle on the south-eastern corner of Sumvista land. Sumvista has given its approval for a pipe to pass through the 5m triangle but not for an open channel to pass through. Tabtill’s proposal would then take this water through Schonrock Park, where again it would discharge onto the Sumvista land by crossing its common boundary with the park. No approval has been granted for this discharge.
An examination of Mr Billingham’s drawings reveals that the open channel proposed through the triangular portion of the Sumvista land would be a slope in excess of 15%. This would result in unacceptable scouring.
Mr Campbell was also critical of Mr Billingham’s design at point A on exhibit 14, the point at which overland flow crosses Main Road. It is his view, which I think to be correct, that this water will flow onto Sumvisa land. However his evidence was that Mr Billingham’s design does not worsen the flow but will merely perpetuate an existing problem.
In my view it is not the function of a planning authority or this Court to impose a condition to ameliorate an existing situation which is not worsened by a development. It might perhaps provide an opportunity for Sumvista and Tabtill together to negotiate an engineering improvement, but that is another matter.
Mr Campbell accepted that his stormwater concerns can be met by an engineering solution of no great difficulty. Now that they have been clearly identified I see no reason why the identified difficulties could not be adequately dealt with by conditions (to supplement those already imposed) requiring engineering solutions designed to ensure a “no worsening” situation. Compare Buderim Private Hospital Pty Ltd v Maroochy Shire Council & Anor [1996] QPELR 251 at 255; Degee & Anor v Brisbane City Council & Anor [1998] QPELR 287 at 290. Mr Campbell agreed in cross examination that it would be possible to require Tabtill to demonstrate at the operational work stage that the Sumvista land would not be affected by stormwater, and that works could be carried out on the site, or through legal points of discharge, that would ensure that no adverse effects were caused. In my view the need for an operational works approval and sealing of the plan of subdivision provide adequate safeguards to ensure that this occurs.
It would of course be very helpful if an application for development could be accompanied by detailed engineering plans to show precisely what work is proposed (for stormwater for example). But that may not be considered necessary if it were clear that properly engineered works were entirely feasible. If that is not clear it could be foolhardy of the developer to make the application without providing detailed engineering drawings because when called upon to produce the engineering solution for operational works approval he may be unable to do so, and would waste the money already spent. On the other hand if the proposed development faced serious difficulties in other respects a prudent developer might be unwilling to pay for the production of engineering drawings sufficient to obtain operational works approval. It is really a matter for the developer. So far as the court is concerned it should ordinarily be sufficient to be satisfied that lawful engineering works are feasible, though not detailed at present, and impose a condition that they be carried out.
Prematurity
While this was particularised as a separate issue, the alleged prematurity of the Tabtill application was premised on the other issues raised, especially the stormwater issue. All of the issues having been resolved in favour of Tabtill, there is no prematurity established.
Conclusion
The appeal will be dismissed. I invite the parties to draft appropriate conditions incorporating findings I have made.
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