Terton Corporation P/L v Gold Coast City Council
[2003] QPEC 60
•13 November 2003
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Terton Corporation P/L v Gold Coast City Council [2003] QPEC 060
PARTIES:
TERTON CORPORATION PTY LTD
ACN 000 758 029
Appellant
v
GOLD COAST CITY COUNCIL
RespondentFILE NO/S:
656 of 2002
DIVISION:
Planning and Environment
PROCEEDING:
Developer appeal against refusal of development application
ORIGINATING COURT:
Southport
DELIVERED ON:
13 November 2003
DELIVERED AT:
Brisbane
HEARING DATE:
3, 8-12, 15 September 2003
JUDGE:
Judge Robin QC
ORDER:
Appeal dismissed
CATCHWORDS:
Developer appeal – 1994 approval to subdivide by Albert Shire Council lapsed – following amalgamation of local governments, new application for reduced number of residential lots refused by Gold Coast City Council – steep sloping site of high environmental value, with residential development proposed for much of the ridgeline – issues included exposure to risk of bushfire from slope to north and difficulties from steepness and ecological values of terrain traversed by proposed access (impacts of the construction of which were unclear) – number of lots proposed allegedly justified by “Hinterland Density” provisions in s 16.4 of the Albert Shire Planning Scheme (1995) and Council being “satisfied that their application will result in public benefit in terms of … protection in a natural state of areas valuable for environmental and/or scenic reasons” – significance of Council’s view that given the onerous responsibility of taking over proposed park areas which the Council did not want (eg in bushfire management) there was no “public benefit” in the circumstances.
COUNSEL:
Mr Ure for the Appellant
Mr Everson for the RespondentSOLICITORS:
Hickey Lawyers for the Appellant
Minter Ellison Gold Coast for the Respondent
This is an appeal which began life as No. 46 of 2002 in the Southport Registry of the court on 21 January 2002 against the Gold Coast City Council’s refusal of a development application for reconfiguration (subdivision) of Lot 110 on SP 102672 (formerly Lot 100 on RP 889571) which has an area of 58.42 hectares. The IDAS development application lodged in September 2000 envisaged creation of 23 new residential allotments. These were identified as Lots 23 to 45 inclusive, by reason of a somewhat similar proposal having been approved by the Albert Shire Council on 6 October 1994 as Stage 2B of a much larger development known as Golden Valley Estate. Stage 2A has been constructed. In relation to Stage 2B, the 1994 approval has lapsed. Although few details were given, it is plain that problems emerged in Stage 2A, including failures to protect Golden Valley Creek and its sensitive environs from damage, and the developer’s running out of money and going into liquidation. The appellant acquired the site in a mortgagee sale. It doubtless had the expectation that its application would be favourably received, having regard to an additional two residential allotments having been approved for the site in 1994. Mr Ure informed the court that Lots 23 to 47 were then included on the site. The total approval in 1994 was for 80 lots.
Since the 1994 approval, the Albert Shire Council and the respondent Council have amalgamated. Mr Everson, appearing for the Council, was at pains to distance his client from what had been done in 1994. Burchill Partners Pty Ltd’s letter of 8 September 2000 which accompanied the application to the Respondent acknowledges the issues which had to be confronted. The letter may bespeak acknowledgment that in September 2000 a less accommodating attitude to residential subdivision on the site might be encountered than in 1994. The letter includes the following:
“... Stage 2B, ...was part of an approval issued in October 1994 ... for all of Golden Valley. The approval has lapsed as survey plans were not submitted for sealing within 2 years of the date of engineering drawings approval.
...
1. STRATEGIC PLAN
1.1 Shire Image
...
Shire Image Objective 4 is to retain the skyline and upper slopes of the foothills and hinterland ranges predominantly in their natural states.
The proposal incorporates limited development on an east-west ridge between Golden Valley Creek and Waters Road. The highest part … of the ridge, varying in elevation from RL 250m to 310m is retained in public open space, as is much of the face of the north-facing slope.
...
The proposed plan shows building envelopes outside which clearing is not proposed and due to the height of trees beyond the envelopes and with of the lots on the north facing slope, housing development should be relatively unobtrusive from surrounding vantage points.
...
1.2 Preferred Dominant Land Uses
The land is designated Rural/Conservation and Open Space Corridor.
...
However, in the case of the subject land, Council has previously approved subdivision via the Hinterland Density Regulatory Map and in so doing has and will obtain some 128 ha of park ...
· Relevant Rural/Conservation Objectives
Rural Conservation Objective 7 is to prevent the spread of Rural and/or Park Residential Development into steeper and/or less accessible areas of the Shire.
...
The proposal meets this intent and is consistent with the Regulatory Map density provisions.
Rural Conservation Objective 9 is to retain areas of natural bushland in the form of masses and linked corridors, especially along ridges and streams.
The proposed development dedicates a mass of open space which includes Golden Valley Creek.
Rural Conservation Objective 10 is to minimise risks to residents from bush fires. This issue is addressed in the Bushfire Management Report.
...
· Open Space
...
All of the Creek within the subject stage and at earlier stages is contained within public open space.
1.3 Environment
...
Strategic Plan Map 2 designates much of the site as Conservation Support.
Development within these areas is intended generally to be low density and subject to rigorous controls on erosion and discharge of contaminants.
...
It is reasonable to expect that the SMP prepared for the subject stage will satisfy the need for rigorous controls during the construction and operational phases.
...
2. HINTERLAND DENSITY REGULATORY MAP
The site is shown on the Regulatory Map as having a subdivision density factor of 1 Lot/4ha. The now lapsed approval of October 1994 was based on this density factor.
.... Section 16.4 will only apply where Council is satisfied that their application will result in public benefit in terms of achievement of one or more specified strategic plan objectives.
It is considered that the proposal achieves public benefits ...
3. BUSHFIRE RISK ASSESSMENT AND MITIGATION PLAN
The report includes the ridge tops and northern slopes as having a high potential bushfire hazard, with the southern and eastern slopes as having a medium hazard.
The report contains mitigation measures which, if followed by the future residents, will lower the risks to themselves, their properties and neighbours.
4. GEOTECHNICAL REPORT
...
The assessment found no physical evidence to indicate previous or potential future instability, however this conclusion is qualified by the fact that detailed mapping was not able to be carried out over the whole site.
...
5. STORMWATER MANAGEMENT PLAN (SMP)
...
6. FAUNA SURVEY AND HABITAT ASSESSMENT
...
The site is a component of the major habitat linkage between the Springbrook and Southern hinterland large habitat system – key coastal areas of habitat.
A number of strategies are proposed in the report to ameliorate the impact of the proposal on fauna habitat values of the site.
7. FLORA SURVEY
...The report identifies the site as being floristically diverse and complex and because of its location at the upper reaches of the Tallebudgera Creek catchment, it is an important site in terms of impact and vegetation lower in the catchment and associated tributaries.”
(The “Hinterland Density” arrangements did not come into effect until after the 1994 approval, but could be given weight under the Coty principle.)
The Council refused the application and gave the following reasons:
“1.The proposal is contrary to the intent and objectives as outlined in the Albert Shire Planning Scheme, in particular, Shire Image Objective 8, Environment Objective 2, 4 and 5, and Rural Objective 3.
2.The proposed typical road sections are not in accordance with Council’s Land Development Guidelines and do … not satisfy the requirements of “Austroads Rural Road Design”, raising several safety issues.
3.The geotechnical report submitted does not provide certainty that dwellings can be reasonably constructed on each individual lot with appropriate driveway gradients.
4.The applicant has not demonstrated that adequate vehicular access can be achieved to each proposed allotment.
5.The proposed layout opens up large areas of high and very high ecological significance causing habitat disturbance and significant loss of vegetation.
6.The general steepness of the land form is inappropriate for residential development due to slope stability and decreases the safety and long term stability of the buildings and infrastructure within the site.
7.The proposal involves a significant amount of earthworks which will substantially change the current land form and not retain or enhance this natural rural setting.”
A summary of the topopgraphy is conveniently found in Mr Chenoweth’s report, Exhibit 12:
“2.1. Topography
2.1.1. The upper catchment of Bonogin Creek, including the subject land, comprises steeply sloping land with ridges and hillsides overlooking the Gold Coast. The subject land occupies part of a ridge and saddle rising to an elevation of 224 m AHD, and the northern, eastern and southern slopes and gullies drain from this ridge.
2.1.2. Slopes on the subject land have been calculated by Bowler Geotechnical Pty Ltd in response to a Council information request and have been re-calculated for this report (Figures 2 & 3³). Most of the subject land is steeper than 20% slope (1 in 5) or 11°, and a high proportion is steeper than 36% slope (1 in 2.75) or 20°.
2.1.3. An existing vehicle track (shown in Figure 4) up the side of the hill curves sharply to follow a south-trending spur, which leads to the main ridgeline. The parts of the subject land with moderate slopes (less than 15%) are associated with this ridgeline and spur.
2.1.4. Earlier stages of the Golden Valley Estate rural residential development have terminated at a steep-sided gully (Eastern Creek) at the end of Waters Road.
2.1.5 More detailed survey of the proposed road reserve (John Walsh and Associates – see Burchill Partners Drawing C2186:04:01) plus clinometer measurements on site in May 2002, indicate that side slopes are 14 to 40% within proposed allotments, and up to 75% in adjacent gullies.”
The proposed road will cross the steep-sided gully across a Bebo arch bridge, then veer to the right, approximately at a right angle, at about chainage 600. About chainage 780, the road commences to turn about 130° to the left on a curve of 20 metre radius where it proceeds to the top of the ridge-line in this area at about chainage 1140 to become a base of a “T”, the top branches of which proceed down gentler slopes to give access to five proposed allotments to the left (west) and nine to the east. Those numbers relate to the appellant’s current proposal. The hearing originally set for the appeal did not proceed. The applicant has amended its proposal downwards to only 17 residential allotments. The remaining three are on the western side of the proposed road, forming the “tongue” enclosed by the sharp curve mentioned. They are separated from the first of the fourteen allotments along the ridge, which, speaking generally, represents the only part of the site where slopes are gentle enough to accommodate residential developments, by a proposed park, formerly a proposed allotment.
The merit of the Bebo bridge is that it leaves a minimal footprint at ground level, and provides an ideal means of through passage underneath the arch for wildlife. The court was told that a Bebo bridge becomes an “arch” where it is made up of two sections meeting in the middle, rather than a single form. A nine metre span is presently contemplated. Ecological considerations would point to a 15 metre span, which the appellant’s engineers said would be too costly; they favoured 12 metres. The creek at the crossing has two arms, the smaller of which is proposed to be filled, with a pipe provided under the road. This was a specific criticism by Mr Chenoweth of the bridging proposal, on top of his broader objection that bridging the steep gully will put an end to the useful function it has served from a nature conservation point of view of keeping development, vehicles, walkers (and other people) and dogs out.
HINTERLAND DENSITY PROVISIONS
The rural zoning and identification in the Strategic Plan as Rural/Conservation of the site would ordinarily lead to its being unavailable for more than a couple of residences. However, it is also identified on the Hinterland Density Regulatory Map as being within the area designated as Subdivision Ratio 1 / 4 hectares, implying, as the appellant’s town planning expert Mr Peter Bell said, a subdivision ratio allowing one allotment per four hectares of gross site area, subject to variation; the density may be increased subject to the level of park dedication. The relevant provision of the Albert Shire Planning Scheme (February 1995) is:
“16.4 SPECIAL REQUIREMENTS FOR SUBDIVISION IN THE HINTERLAND
16.4.1 Where land is included in a hinterland area shown on the Hinterland Density Regulatory Map, an applicant for approval of subdivision may apply for the provisions of this section to apply instead of those Sections 16.1, 16.2 and 16.7. The provisions of this section will only apply where Council is satisfied that their application will result in public benefit in terms of:-
(a)the achievement of one or more of the following strategic plan objectives, namely Shire Image Objectives 4, 8 and 10, Environment Objectives 1,2,3,8 and 9, Rural/Conservation Objectives 2,3,4,6,7, and 9, Open Space Objectives 1,2,5 and 6, Dam Catchment Protection Objectives 1 and 2, and the Springbrook Structure Plan Objective Rural Areas Objective; and
(b)one or more of either the protection in a natural state of areas valuable for environmental and/or scenic reasons; or the dedication of land for National Park Environmental Park or public open space for public recreational purposes; or, in the case of Springbrook Plateau, protection of the rural landscape in accordance with 1.5.5.9.
16.4.2 Maximum Number of Allotments
Where land proposed to be subdivided is included in a hinterland area shown on the Hinterland Density Map, the maximum number of allotments into which that land may be subdivided, exclusive of any allotment provided for public garden (and) recreation space, [is] given by the following formula:-
Maximum number gross subdivision open space
of allotments = site x density x credit factor area factor”
The italicised parts draw attention to the limited possibility available under (b): it is not proposed there be any dedication of land for National Park (presumably because the powers that be do not care to assume responsibility for it) and, while there may be dedication for public open space, that will not be “for public recreational purposes”. The land is simply too steep to contemplate its use in that way.
There is no doubt whatever about the nature conservation value of the site, which contains rare and vulnerable species for purposes of the Nature Conservation (Wildlife) Regulation 1997. At least one species of Rare or Threatened Australian Plant and 13 species of local conservation significance (Gold Coast Nature Conservation Strategy) have been recorded in the Rainforests/Notophyll Vine Forest encountered along Golden Valley Creek and the tributary gullies. Disregarding cordyline congesta (coastal palm lily) which was said to have recently lost its “rare” listing, 23 significant plant species have been recorded on the subject land, 10 of them significant at State and national level. Mr Chenoweth, who expects there are more species to be located there, says this is a relatively high number of significant species within a 58.4 hectare site. The site’s value as habitat for fauna species of conservation significance, including vulnerable and rare species (there is an expectation of the occurrence of other rare and endangered species not actually recorded on site) is undoubted.
It is against this background that Mr Peter Bell places dominating importance on the park dedication contemplated. For example, in respect of Environmental Objective 1 which is contained within s 1.3.3.2 of the Planning Scheme:
“To identify, protect and enhance those parts of the Shire which are important for forest protection, nature conservation and/or landscape protection”,
he observes in paragraph 5.0 of his report (Exhibit 2):
“In this case the objectives of the open space corridor planning designation have been met through the intention to retain 76.5% [44.7 hectares] of the subject land as Park in its natural state and an additional 8.96 hectares [73.7% of lot area] of land located within the lots making a total of 91.3% of the subject land to be retained in its natural state.”
He places a high value on the protection of a large area of nature conservation value, contending it follows that the application of hinterland density arrangements under 16.4 will result in “public benefit”, and that the Council, which has not been satisfied about that, should have been satisfied.
Mr Everson protested that the Council is having foisted upon it park “that it does not want”. It is patent that, should it inherit the park, constituted of land that the public are unlikely to be able to use, the Council will inherit costly obligations to look after and maintain it, in particular to manage the bushfire risk. It was a surprise to me that there was no evidence of any cost/benefit analysis performed by the Council, in which the additional income from 16 new ratepayers was assessed against the costs the Council might expect to incur in relation to the site after development. A negative assessment might have been so obvious that the exercise was considered unnecessary. The Council did not run a positive case along these lines. The court has no way of knowing whether, had State authorities assumed responsibility for the park, the Council might have seen things differently. In my opinion, it does not follow from (a) and (b) of 16.4.1 being satisfied that there is a “public benefit”: other factors, which may be countervailing factors, not expressly mentioned in (a) and (b), may properly be considered in the balancing exercise called for, which, in my view, seeks a net public benefit. This court is accustomed to perform analogous exercises in determining whether there is a “need” for a proposed development. Although Mr Everson conceded that this court was required to put itself in the position of the Council, so that it, rather than the Council is the entity to be “satisfied” about a public benefit, I think it is a context in which the court ought to be somewhat cautious about reaching a contrary conclusion in a context where the evidence and expertise available to the court may well be more limited. Effectively the appellant asks the court to impose on an unwilling council responsibility for a large tract of land in which it has no interest.
Setting aside budgetary and like considerations entirely, in my mind there is no doubt that the Council and the court, for the purposes of 16.4 should consider matters such as the quality of land to be protected or dedicated and the likely impacts on the quality of it from the proposed development on adjacent land.
WHY DETAILED SCRUTINISING IS CALLED FOR AT SUBDIVISION STAGE
The unusual nature of the site means that, from the outset, more attention has been paid to some detailed design issues than ordinarily would be in an application for reconfiguration of residential land referable to less environmentally sensitive and less steep locations. The parties have taken diametrically opposed positions as to the appropriateness of deferring final investigations and design work. While Mr Ure may be correct that, in practice, geotechnical tests to verify the integrity of building envelopes, for example, may be deferred until the stage where operational works are to be approved, the Council is within its rights in requiring consideration to be given at this stage, having regard to 17.16.1 of the Planning Scheme:
“17.16.1 In respect of any application made pursuant to this Part, the Council shall take into account the following:
(1)the character of the proposed development in relation to the adjoining land and the locality;
...
(15)where subdivision is proposed the design of the allotments and of the road pattern of the roads which provide access to the land;
...
(24)whether an deleterious effect on the environment could be occasioned by the proposed use and, if so, whether adequate safeguards have been or will be implemented to prevent pollution and protect the environment of the locality;
...
(27)the circumstances of the case and the public interest;
...
(35)whether any State Planning Policies are relevant to the proposal and, if so, whether the proposal would be in accord with, or conflict with, any such policy;
...
(38)any other matters considered by Council to be relevant to the application.”
I think the Council’s approach is correct, having regard to the sensitivity of the site. Assessing the likely impact of the development depends on having details which are not subject to significant change. The evidence of the Council’s expert witnesses is sufficiently cogent to persuade the court that here a cautious approach ought to be taken at subdivision stage. There is no logic in approval of a subdivision in this location of which it cannot be said with confidence that the impacts, after development, will not be materially more concerning than the developer’s expert consultants presently envisage.
As to geotechnical stability, Mr Bowler expressed confidence that, in a site which shows no evidence of instability, the half dozen tests drilled give a high degree of assurance that the more comprehensive, site-specific investigations called for before actual physical development will unearth nothing untoward. His was the practical approach of doing enough investigation at this stage to advise the appellant to proceed. Mr Nolan expressed concern that there has not been sufficient investigation of the areas of maximum cut and maximum fill for the proposed access road. There has been no drilling to the depth of the proposed cut, or to test the soil strength in the area of maximum fill, where a large batter surrounding the sharp turn is proposed. Mr Nolan demonstrated that, given the slope of the land, if, at the design stage, the batter has to be moved outwards or extended, there is a dramatic enlargement of the terrain to be investigated. Mr Nolan was persuasive that the foregoing matters and the lack of any laboratory testing of adequate drill samples meant there was simply insufficient evidence to go on at this stage. While Mr Bowler has doubtless done everything required by his brief from the developer to permit the making of sound decisions in its interest, in the context of this appeal, Mr Nolan’s approach is the appropriate one. As to location of building envelopes on the proposed residential allotments, plans have been drawn indicating locations, but no investigations that are site-specific have been made. It cannot be said that a single one of the building envelopes will remain where it is presently envisaged. In the context of their being located on the ridge line, an environmentally sensitive area, I consider it is important at this stage to have some assurance about the locations of them, because changes may be important. They will necessarily affect the area of clearing.
Turning to the closely related matter of the access road proposed, there is a similar conflict. Mr McAnany was brought into the matter to provide expert engineering evidence for the appeal, in respect of a road design prepared by others. He has become the appellant’s engineer for purposes of the project. There is no doubting his competence and considerable experience. He is confident that the road can be constructed conformably with all relevant standards. He is no doubt correct. But he anticipates changes at the design stage. Some of these relate to the incorporation of features of the development such as sediment basins below the road (to protect Golden Valley Creek from contaminants carried by runoff). The appropriate location for such features in engineering terms may change, as may the final form and design of the road itself. The sharp curve, in particular, may be redesigned to incorporate a more generous radius. There was conflict between Mr McAnany and Mr Gould as to the safety of this turn, from a sight-line and stopping distances standpoint. Mr McAnany demonstrated that his design complies with relevant guidelines, indeed, with a worked example, which contemplates a curve designed to induce 85% of drivers to drive at no more than 30 kilometres per hour. Mr Gould was criticized for doing his calculations on the basis of assumed higher speeds, and for overlooking that the design requirement for the road is a maximum speed of 45 kilometres per hour; he was taken to task for having treated it as a minimum, consistently with the approach taken in highway design. There are many anomalies here. The proposed road is far from being a highway; it will serve only 17 residences. The speed limit may be 50 kilometres per hour or 60 kilometres per hour (which, or whether it was likely to be some other speed limit, was not made clear). It involves no criticism of Mr McAnany to observe that there can be no confidence that the final “footprint” of the road (which I accept a good engineer would be able to design to make it workable and safe) will be as presently indicated. The unknowns extend to an absence of information about contours outside the road reserve area.
There are issues which it seems unnecessary to resolve in the circumstances between Mr Gould and Mr Phillip Bell, an environmental engineer called by the appellant who has many years experience as a civil engineer specializing in stormwater and effluent disposal matters. These concern the likely efficacy of Mr Bell’s designs for management of stormwater runoff from the proposed development in the long term and, perhaps more importantly, during the construction phase. Some confusion emerged between his and Mr McAnany’s concepts of the proposed road, which Mr Bell (apparently erroneously) understood to include channelling as well as kerbing on the uphill side. In the end, there were no issues regarding effluent, which is to be disposed of within the residential allotments – essentially, by use in irrigating identified areas after some treatment.
BUSHFIRE RISK
The next respect in which the Council called an experienced expert to urge greater caution than his counterpart on the appellant’s side concerned protection against bushfires. Mr Bain gave evidence in support of the fire management plan devised by him. There is no contest regarding the necessity to make appropriate provision. The danger to life and property is likely to arise from a fire moving from the north up towards the ridge line. As well as total clearing of areas associated with building envelopes, there are to be zones of additional clearing of undergrowth. The evidence showed the importance of avoiding a “ladder” effect whereby fire moves from fuel at and near ground level through hanging bark and the like. A fire trail or “fire break” is to be cleared running roughly parallel to the ridge road, north of it The purpose of this is to provide access for the four wheel drive vehicles it is envisaged will be providing the fire management services. In places this trail may be quite steep. Mr Bain envisaged a cleared width of three metres, with provision in appropriate locations for vehicles to pass and to turn around. The trail will run through the allotments. Its primary use is seen as providing access for controlled burns which would be required every few years to reduce fuel at ground level. There will be no reticulated water in the development. It is proposed that each residence will be required to maintain a defined amount of water to be kept available for fire fighting and that there be a large tank available for general use. Roads in the development (and leading to it) will be too steep to permit access by the equipment used in urban areas.
In defence of the steepness of the proposed road, the appellant pointed to roads in the general area which were even steeper, including Council roads that must be traversed to travel between the site and Mudgeeraba. It does not strike me as a particularly strong argument that, because we inherit roads that might seem inappropriately steep, the proliferation of them should be permitted. Mr Hawkes’ view was that only the availability of reticulated water would give appropriate comfort. He thought that other measures such as widening the fire break to four metres (which the steep terrain may or may not permit) would make no real difference.
In the Planning Scheme, in 1.4.7.6, Rural Objective 6 is “to minimise risks to residents and property from bushfires”:
“Implementation
(i)Council will seek to reduce the incidence and limit the adverse impacts of bushfires by requiring or recommending some or all of the following measures:
(A)firebreaks 10-20m wide downslope of residences on sloping land;
(B)adequate water storage (22,000 litres per household) and pressures for fire-fighting;
(C)development densities and areas which take account of fire risk and fire breaks;
(D)trees and fire-prone vegetation retained or planted only at reasonable distance from buildings;
(E)buildings to be set well below ridgelines and saddles;
(F)incorporation of requirements considered necessary by the relevant local Fire Brigade;
(G)access for fire-fighting vehicles;
(H)use of fire resistant building materials.
(ii)The implementation of this objective will also be assisted through the implementation of Qualify of Life, Health and Safety Objective 2.”
Its provisions are reflected elsewhere in the Planning Scheme, for example in 1.4.9.11 – Rural/Conservation Objective 10, which is in almost identical terms. Quality of Life, Health and Safety Objective 2 is:
“Quality of Life, Health and Safety Objective 2 – To protect existing and future residents and visitors to the Shire from the hazards of bushfires.
Implementation
(i)All subdivision and development is to generally conform with information contained within the background paper to AS3959 ‘Building in bushfire-prone areas: information and advice’. Council will use this document when assessing development applications.
(ii)Where Council considers that a bush fire hazard exists, Council will require the submission of a planning report with any subdivision or development application. The following details should be included:
(A)slope and aspect analysis;
(B)details concerning vegetation type in the subject area;
(C)an assessment of the bushfire hazard for the subject site;
(D)details of proposed measures to reduce the risk of bushfires within the subject area;
(E)details of proposed ingress and egress.
(iii)Council may require the following as conditions of subdivision or development approval:
(A)fire break reserves to be surrendered to the Crown free of cost;
(B)provision of sufficient water for fire fighting purposes;
(C)design of the proposed development so that ingress and egress from the subject site is not prejudiced in the event of fire. (This means the reduction of cul-de-sac and dead-end lanes which do not have emergency vehicle tracks).
(iv)Council will not approve subdivision or development in areas with a slope gradient greater than 20% unless it can be demonstrated to the satisfaction of Council, that:
(A)the area has not significant hillslope stability problem;
(B)the aspect and vegetation type are such that the type mitigate against bushfire;
(C)the applicant has designed the proposal in such a way that access to and from the area is not prejudiced in the event of bushfire;
(D)there is sufficient water for the proposed development for fire fighting purposes.”
The court ought to take a careful, cautious approach where the safety of life is concerned. Mr Ure referred me to Prodap Services Pty Ltd v. Gold Coast City Council (2000) QPELR 176. Judge Quirk said at 180:
“[26] Because of ever increasing awareness of the perils for life and property of fires burning out of control, there is now a wealth of published material suggesting measures that should be adopted to guard against such dangers.
[27] That the possibility of a bushfire threat should be taken into account in a proposal’s design is a matter raised specifically in the Strategic Plan when it deals with issues relating to quality of life, health and safety, particularly when development in areas of higher slopes is under consideration.
[28] However, quite independently of this, the matter is one which requires close attention and it received such attention in the evidence called in this case. Two appropriately qualified experts were called, Mr Hawkes (by the Appellant) and Mr Gullen (by the Respondent). Additionally an architect, Mr Forgan-Smith was called to say that there would be no real difficulty in constructing, on the proposed allotments, residences that would satisfy the recommendation in relevant standards (AS 3959) and other Government publications dealing with these matters.
[29] In his detailed assessment Mr Hawkes gave what I found to be a thorough but moderate and sensible appraisal of the proposal. He accepted that risks existed and that a Bushfire Management Plan was called for. A number of suggested measures were identified including:
1.The specification of building envelopes and suitably cleared areas around these
2. The removal of dead or dangerous trees.
3.The reduction of fuel loads on the subject land and in areas of existing and proposed open space.
4.The suitable provision of fire hydrants throughout the estate.
[30] In the course of evidence he suggested a set of conditions (Exhibit 42) that could attach to any approval. While it is accepted that such conditions could not ensure that appropriate measures are adopted on land outside the subject land it has to be recognised that a good deal of the adjoining land is already allocated to Public Open Space. In view of the Council’s demonstrated awareness of the importance to the community of these matters it would not, in my view, be unreasonable to anticipate a responsible approach to fire management in these areas.
[31] Mr Hawkes acknowledged that, as a general rule, a cul-de-sac is not a favoured element of subdivision design in such areas. However, for reasons which he gave, he believed that with the relatively short length of this cul-de-sac and the level of risk management that could be achieved in this case, the result would not be unacceptable.
[32] In contrast to the even-handed assessment of Mr Hawkes, Mr Gullen’s approach was, in my view, unhelpfully negative.”
(It will be noted that reticulated water was to be available in that development.) While I respect Mr Bain’s views, the cautious approach which I consider is called for to a “life and death” issue inclines me to accept Mr Hawkes’ views. I respectfully agree with the comments of Talbot J with Assessor Andrews in Scott Revay & Unn v Kur-ring-gai Council (1994) NSWLEC 112. At p. 5 of the reasons this appears:
“The Court is not persuaded that this site is one where it would be responsible to relax the general planning controls set by the guidelines. That is not to say that the guidelines should be strictly adhered to in all cases. In this case the so called mitigating factors do not justify an exemption for the subject site. The width of the proposed fire protection zone incorporating a fuel reduced zone of 20 metres and a fuel free zone of variable width has been dictated by the availability of land which can be made available in the Crown land under the Bush Fires Act and within the site itself. The mitigating factors appear to have been derived to rationalise the constraints of the site.
Of even greater concern to the Court, however, is the question of whether it is appropriate to allow development to occur in circumstances where essential elements of the bushfire hazard reduction program will be situated off the site.”
and at p 6 this:
“As a matter of principle, where essential works are required in regard to a development, particularly where those works are ongoing, it is imperative, except where the most exceptional circumstances apply, that the site for those works be provided within the subject land. Although such a principle may not be of general application in respect of all works associated with development it clearly applies in relation to bushfire hazard management.
It may be acceptable for land outside the site to be utilised where properly documented and permanent proprietary rights are created pursuant to an easement or some other formal form of right of entry. The provisions of s 15(5) do not fall into that category.
In the circumstances it is not necessary to determine whether the proposed hazard reduction activities within the fuel free area and fuel reduced zone is a work or use, and therefore development, controlled by the Planning Scheme Ordinance.
The combination of a failure to justify a relaxation of the guidelines and the absence of a satisfactory permanent right to carry out fuel reduction activities within the Crown land inevitably leads to the conclusion that the site lacks the necessary qualities to accommodate the density of development proposed in an area of high bushfire hazard.”
The State Planning Policy (SPP) 1 of 2003 came into effect on 1 September 2003. The appellant can hardly be criticized for failure to comply with its requirements, but it is appropriate for the court to give weight to them, consistently with the approach that has been indicated to fire issues already. Relevantly, in Table B Natural Hazard Management Areas (Bushfire) Solution 1.6 requires that:
“Roads are designed and constructed in accordance with applicable local government and State government standards and
a) have a maximum gradient of 12.5%; and
b)exclude culs-de-sac, except where a perimeter road isolates the development from hazardous vegetation; or the culs-de-sac are provided with an alternative access linking the cul-de-sac to other through roads”
The limitation to moderate gradients is of special importance in the absence of a reticulated water supply, because the moderate gradients are necessary to accommodate heavy fire vehicles laden with water. That many existing arrangements become sub-standard with the coming into effect of SPP 1 of 2003 and the Guidelines is no justification for adding to their number.
RISKS TO ENVIRONMENTAL VALUES
So far as environmental issues are concerned, Mr Warren (for the appellant) and Mr Chenoweth (for the Council) were in agreement as to the values of the site. Mr Warren supported the development only on the basis that the various steps indicated to minimize impacts were taken. He accepted there was no guarantee they would be implemented. My assessment is that a real risk exists that changes at the final “design stage” will tend to exacerbate impacts by making the “footprint” of the development larger. This is likely to happen in respect of roadworks and hydraulic works and in additional clearing on the residential allotments. Mr Bain’s fire management plan, if implemented, is likely to result in more, rather than less clearing, especially if the fire trail is widened. (The SPP Guideline contemplates trails six metres in width.) I agree with the Council’s submission that the proposed development would have a deleterious effect on an environmentally significant eco-system, and potentially “catastrophic environmental impacts from the siltation of the adjacent creek and gully through run-off”. It is common ground that there will be impacts from:
(a) the bridging of Eastern Creek (by the Bebo bridge);
(b) the building of the road;
(c) the clearing of the lots;
(d) the clearing of the fire trail.
Although the Bebo bridge may sit “lightly” on the ground, this creates no more than a situation of its impact being relatively benign. It’s impact may nevertheless be substantial. The floristic values of Eastern Creek are particularly significant. The likely effect of the bridge in shielding species from sunlight and rain is unknown. Likewise, the impacts from the building of the road, for reasons expressed by Mr Gould and Mr Nolan, are unknown. The impacts of the clearing of the lots became a topic of controversy, particularly in the general area of Lots 7 to 11, on the northern side of the ridge line. The goalposts moved somewhat when Mr Warren surprised Mr Chenoweth by a last-minute revision of his plotting of hollow-bearing trees located there. His revised plotting showed, essentially, nothing in that area. In the limited time available, Mr Chenoweth revisited the site, seeking to locate the “missing” hollow bearing trees in the area of proposed Lots 8 to 11 at the top of the section of ridge facing development. Mr Warren attributed the error in his original plotting (upon which Mr Chenoweth had relied in preparing his report Exhibit 12) to some glitch in the functioning of the GPS equipment. It is, perhaps, unclear whether his final position is that those lots contain no hollow bearing trees on them. In any event, I accept Mr Chenoweth’s evidence that he located the 15 shown starred in Exhibit 12A. Their future is obviously in jeopardy if the development goes ahead (as is that of other non-contentious hollow bearing trees located on other lots or on the proposed road and the proposed fire trail).
It is difficult to cavil at Mr Chenoweth’s conclusions:
“7. CONCLUSIONS
7.1 The proposed development of a 17 lot rural residential subdivision on the subject land is contrary to the objectives of the planning scheme in that it would cause detrimental impacts to ecologically significant and sensitive areas. Most of these impacts cannot be successfully ameliorated by rehabilitation or management measures.
7.2 Almost all of the subject land is unsuitable for development, taking into consideration steep slopes and/or areas of high ecological significance. The few small pockets of potentially developable land cannot be accessed without crossing Eastern Creek, which has a local concentration of scheduled rare and threatened plants.
7.3 The subject land is relatively undisturbed natural habitat, constrained by its slope and by significant populations of scheduled ‘at risk’ species of plants in gullies and on lower slopes, and by the known presence of scheduled rare and threatened fauna. It also contributes significantly to regional biological diversity by the relatively large number of plant and animal species, by providing habitat for endangered, vulnerable and rare species, and through its role as part of a regional corridor linking the Mudgeeraba and Tallebudgera Valleys to Lamington National Park. Such hinterland areas have high significance for conservation of the very high biodiversity within Gold Coast City.
7.4 The subject land in its present condition with a wide band of undisturbed habitat incorporating both creek and ridge ecosystems and three vegetation types, offers opportunities for a wide range of native fauna species to move through, especially in an east west direction. The proposed development of the southern part of the subject land, including the main ridge, would leave only the northern gully and hill slopes system to function as an east-west corridor. Most of this proposed open space had been mapped by the appellant’s consultant as having lower ecological significance than the “Eastern Creek” area.
7.5 Consultants engaged by the appellant (Terra Ark and James Warren & Associates) have both concluded that the subject land has significant nature conservation values and have listed a number of potential detrimental impacts associated with the development proposal. I consider that many of the detrimental impacts which these consultants have recorded as having occurred in and around previous stages of the Golden Valley development will be similar or worse with Stage 2B. The recommendations of these consultants for strategies to ameliorate such impacts do not represent endorsement of the proposed development, and neither consultant has suggested that the impacts will thereby be reduced to acceptable levels. In some cases the recommendations appear to be wishful thinking with little prospect of implementation. In other cases there appears to be no firm commitment from the appellant to implement the recommendations.
7.6 The main vegetation community of the ridges and upper slopes, where houses are proposed, is a well-structured forest with several layers of shrub and grassy vegetation beneath the tree canopy, and these layers will be removed for fire management from a distance of 20 to 30 m downslope of houses. This clearing will extend disturbance, habitat removal and soil exposure to erosion beyond the proposed BLEs. Ecological disturbance will also extend over the wide band of forest in the northern part of the subject land, where frequent fuel reduction burning will be necessary to protect houses from bushfire. Burning at the recommended intervals of less than 5 years is likely to progressively destroy the most forest gully vegetation in this area, and reduce the capacity of this bushland to function as an effective east-west faunal corridor.
7.7 The development as proposed will require clearing and earthworks over a significant proportion of the southern part of the subject land, which is the area of highest ecological significance. The earthworks and drainage necessary to access and develop the proposed allotments on steep slopes are in many cases are at the outer limits of acceptable standards. On such slopes, on-site works require retaining walls or extensive batters, stormwater runoff is likely to cause scouring, effluent disposal is difficult, and downslope vegetation requires clearing for fire protection requires clearing for fire protection. Additional vegetation will need to be removed to provide a water tank for reliable fire-fighting supply. All these factors extend the ecological degradation of housing well beyond the immediate ‘footprints’ of houses and roads. Even if the proposed extreme earthworks and drainage measures prove feasible, they will intrude into the buffer areas of sensitive creek habitats.
7.8 The downstream effects of the proposed development on water quality in Eastern Creek and Bonogin Creek are also contrary to Environment Objectives 4 and 7, and Rural/Conservation Objective 11. Given that the proposed Stage 2B subdivision would be a relatively isolated long ridge top cul-de-sac in an area of bushfire hazard, there are no valid planning reasons to approve the development.
7.9 It is my opinion that the subject land is too constrained and environmentally sensitive to be developed. The small proportion of land on which houses could be constructed, consistent with environmental objectives, cannot be accessed without unacceptable environmental impacts on the steep-sided gully and ‘at risk’ plant populations of Eastern Creek. The proposed development of ridge top houses will also detract from the important wildlife habitat and corridor values of the subject land. I consider that Council has appropriately refused the current application.”
ARE THERE PLANNING GROUNDS FAVOURING THE APPLICATION
Those conclusions, in my view, are pertinent to the judgment to be made about “public benefit” for the purposes of 16.4. They undermine the force of Mr Peter Bell’s focus on the benefit of “locking up” much of the site in perpetuity, if the “park” which is to be locked up is one devalued by the impacts of the development. The other planning ground Mr Bell put forward was the potential offered by the development for people to “build homes of different architectural styles”, which may be regarded as borne out in a number of broadly similar hinterland areas which have already been developed. I note Mr Bell’s criticism of the Council’s case on planning issues, which he characterized as focusing on Environmental Objectives intended to provide a broad framework of objectives and implementation for the Strategic Plan which, as s 1.3.1.2 states “have general application throughout the Shire and are not specifically limited to any one preferred dominant land use.” Mr Bell contended that it was more appropriate to have regard to provisions about Preferred Dominant Land Uses, in which the site is identified within the Rural/Conservation Area. He noted that 1.4.3 provided:
“The following objectives and criteria so derived (through interpreting the Strategic Plan’s goals for the circumstances of each category – this interpolated comment being Mr Bell’s) shall be used by the Council as a guide in dealing with applications for subdivision, rezoning, town planning consent and permitted development subject to conditions and in decision making on any other town planning matter.”
He considered too much emphasis had been placed on Environmental Objectives. Mr Bell reviews certain rural/conservation objectives and others, which he considered were sufficiently served by the proposal, or, at least, not unacceptably offended – a view which owes much to his opinion of the enormous value of the proposed park dedication.
In my view, it is only necessary to refer to the Rural/Conservation Objectives to appreciate that Mr Bell’s approach is difficult to accept. They are:
“1. To conserve agricultural areas other than sugar cane areas
2.To conserve the scenic qualities of rural/conservation areas of the Shire
3.To conserve the biological, scenic and recreational values and water quality of the Currumbin Creek and Tallebudgera Creek Valleys and Numinbah Valley (the area is part of the Tallebudgera Creek catchment)
4.To maintain a low density, open character on the Springbrook Plateau, and maintain the water quality of water supply resources
5.To protect the viability of designated Extractive Industry Areas
6.To protect the nature, conservation and water supply quality values of the Albert River and its tributaries at and above Wolffdene
7.To prevent the spread of Rural and/or Park Residential Development into steeper and/or less accessible areas of the Shire
8.To allow for the establishment and continued operation of rural activities, including those which have offensive aspects to their operations
9.To retain areas of natural bushland throughout Rural/ Conservation Areas in the form of masses and linked corridors, especially along major ridges and streams
10.To minimize risks to residents and property from bushfires
11.To maintain environmental values and water quality in and surrounding rural/conservation areas
12.To protect the long-term urban developmental potential of land at Bahrs Scrub not required for such purpose during the life of this plan.”
As to Object 10, the Implementation is:
“1.4.9.11 Rural/Conservation Objective 10 To minimise risks to residents and property from bushfires.
Implementation
(i)Council will seek to reduce the incidence and limit the adverse impacts of bushfires by requiring or recommending some or all of the following measures:
(A)subdivisions to be designed so that house sites are located in the valleys and lower slopes, rather than on upper slopes, ridge tops and saddles;
(B)firebreaks 10-20m wide downslope of residences on sloping land;
(C)adequate water storage (22,000 litres per household) and pressures for fire-fighting;
(D)development densities and areas which take account of fire risk and fire breaks;
(E)trees and fire-prone vegetation retained or planted only at reasonable distance from buildings;
(F)incorporation of requirements considered necessary by the relevant local Fire Brigade;
(G) access for fire-fighting vehicles;
(H)use of fire resistant building materials such as concrete slab.
(ii)The implementation of this objective will be assisted through the implementation of Quality of Life, Health and Safety Objective 2.”
No attention was paid to (A) – which I accept cannot be regarded as mandatory because of the qualification “some or all”.
While it would be unjust to hold the appellant responsible for the deficiencies and the development of earlier stages of Golden Valley Estate, I find myself reaching similar conclusions to those of Pearlman J in Planning Workshop Limited v Pittwater Council (1996) NSWLEC 211, where her Honour’s conclusions in relation to the steepness of the site were expressed at p. 12:
“Conclusion
The matters to which I have referred demonstrate the severe constraints that result from the steep nature of this site.
The evidence establishes that the site could be developed in the way that the applicant seeks, but that evidence casts much doubt upon whether the site should be developed in that way. I am left with a distinct impression that the proposed development could result in severe and irreversible degradation of the site.
That result is not inevitable, but the following matters demonstrate that the risk is so high that the development and subdivision approval ought to be refused. Those matters are:
1. The classification of most of the site in the land capability study as within an area where no form of urban development is recommended.
2. The classification of most of the site by Mr Parker as having a medium risk of instability, where there is evidence of active soil creep or minor slips or rockface instability;
3. The necessity to impose severe restrictions upon the methods of construction on the site in order to avoid site disturbance and degradation, and the likelihood that those restrictions will not be totally observed;
4. The potential for significant erosion through concentration of stormwater discharge, and the difficulties of ensuring adequate sediment and nutrient run-off control;
5. The substandard nature of the gradients of the proposed road, its potential to disturb wide areas of vegetation and its limitations for all types of traffic.”
Consideration 2 is not reflected here, but I think it reasonable to add the consideration of the unfortunate environmental consequences of construction of adjacent developments.
Applying the test indicated in Weightman v Gold Coast City Council [2003] 2 Qd R 441; [2002] QCA 234 at [36], it is impossible to conclude that the appellant has satisfied the onus, which it bears, of showing the appeal should succeed. It is hardly necessary to turn to the Council’s entitlement to recognition of its role as the planning authority (rather than the court- see Grosser v Council of the City of Gold Coast [2001] QCA 423 at [38]), as Mr Everson invited the court to do to enhance its arguments here. The proposal, which Mr Everson neatly described as one “to embed an enclave of development in an area of bushland habitat which is not readily accessible without substantial earthworks and engineering”, inevitably generates problems; it is unsurprising that it has been progressively scaled down.
One must have sympathy for the appellant’s situation as a private owner, doubtless encouraged to acquire the site by the 1994 approval. Mr Ure submitted that Mr Chenoweth had adopted an extreme view in this case, an approach “more appropriate for land in public ownership, such as a national park.” The circumstances in which the land was alienated by the Crown did not appear. The site is not particularly suitable for private uses, and the explanation may lie in the logging which has occurred there at some time in the past. Mr Ure, while eschewing any “in terrorem” argument, invited Mr Peter Bell to indicate what uses might lawfully be made of the site which would threaten its values more than the proposed development. Mr Bell was unable to make any pertinent suggestion, other than very limited residential development, which might occur without constraints of conditions such as the Council or the court might impose here.
Mr Ure submitted that a balancing exercise of a kind is called for here, acknowledging the claims of environmental concerns and private ownership along the lines of Forrester Residential Developments Pty Ltd v Maroochy Shire Council (2002) QPELR 531. It would be open to this court to accept the evidence of Mr Phillip Bell, Mr Bain, Mr Bowler and Mr McAnany, as Mr Ure urged. It imports no criticism of their approach that I decline to do so. For the appeal to succeed, the court would have to accept all of them and, at the same time, overlook the serious reservations compellingly presented by the Council’s witnesses. This is a hearing de novo, unaffected by the Council’s decision upon the application. See s 4.1.52 (1) of the IPA. The appellant’s frustration is no doubt increased by approvals by the Council of developments identified by Mr McAnany which are arguably indistinguishable. I consider there are conflicts with the Planning Scheme, broadly as alleged by the Council, and that, in the end, there are no planning grounds appearing to justify approving the proposal notwithstanding the conflict.
The appeal must be dismissed.
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