Tonak Pty Ltd v Cairns City Council
[2002] QPEC 83
•18 December 2002
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Tonak Pty Ltd v Cairns City Council [2002] QPEC 083
PARTIES:
TONAK PTY LTD.
(Appellant)CAIRNS CITY COUNCIL
(Respondent)FILE NO/S:
P & E No. 43 of 1997
DIVISION:
PROCEEDING:
Appeal
ORIGINATING COURT:
Planning and Environment Court, Cairns
DELIVERED ON:
18 December 2002
DELIVERED AT:
Cairns
HEARING DATE:
27/29 November 2001
JUDGE:
White DCJ
ORDER:
1. That the appeal be allowed
2. That the respondent pay the appellant’s $320,000 by way of compensation and interest thereon.
CATCHWORDS:
COUNSEL:
Mr. D.R. Gore QC and Mr. A.R. Philp for the appellant
Mr. W. Cochrane for the respondentSOLICITORS:
Williams Graham & Carman for the appellant
MacDonnells for the respondent
The land the subject of this appeal is described as Lot 5 on RP 722500 Parish of Cairns County of Nares. It has an area of 27.206 hectares. It has a frontage to Bellevue Street, Stratford of 20.98 metres with the greater part of the land located behind the developed residential area of the suburb of Stratford. From the frontage it extends in an inverted L-shape over the ridge of the Whitfield Range. It is vacant, heavily vegetated, cross by a number of gullies, steep and largely undeveloped.
The appellant was at all material times and remains the registered proprietor of the freehold title to the land. The respondent is the successor to the now dissolved Mulgrave shire Council. The subject land was within the local government area of the Mulgrave Shire Council at the time of the introduction of a planning scheme by that council which was gazetted on 17 December 1993. On 3 December 1996 the appellant made a claim for compensation for injurious affection in respect of the subject land by reason of the introduction of the aforesaid planning scheme pursuant to s 3.5 of the Local Government Planning and Environment Act 1990. In spite of the repeal of that Act the right to compensation is preserved by s 6.1.50 of the Integrated Planning Act 1997. This is an appeal against the deemed refusal of the aforesaid claim.
The subject land was zoned Rural C under the superseded planning scheme. Under the new scheme gazetted on 17 December 1993 the subject land was zoned Rural C. In addition, the new scheme contained a strategic plan which affected the subject land. The new scheme also contained a Development Control Plan 4.4- Hillslopes which affected the subject land. The minimum allotment size permitted by by-law for land in the Rural C zone pursuant to the superseded scheme was 40 hectares. It is common ground therefore that only one house could have been constructed on the subject land. It is accepted that that was an as of right use. It is also accepted that the subject land was not really suitable for any other as of right uses in the Rural C zone and was also not practically suitable for development for any uses which may have been carried on with the consent of council. Under the new scheme the appellant has the right to construct a farm dwelling. However a farm dwelling could only be constructed in conjunction with some sort of farming operation. As I have indicated there is no potential for any farming operation to be carried on the subject land. Otherwise a dwelling house could be constructed on the subject land with the consent of the respondent. Under the 1993 Strategic Plan the subject land is designated rural Constrained. The intent of that designation is as follows:-
“The Rural Constrained designation identifies those areas generally outside the ownership and control of the Crown or the Council which due to their physical constraints including topography, natural features, slope, slope instability, poor drainage, soil problems, erosion susceptibility, flooding or the like are generally not suitable for horticulture, farming or grazing pursuits and for similar reasons are not suited for urban or residential development. The designation also includes some areas of high nature conservation value, regional and local landscape elements or designated wetland protection management areas pursuant to the Trinity Inlet Management Plan. Land in this designation is unsuitable for development other than for dwelling houses on large parcels of land where safe serviceable building sites and accesses can be provided in sympathy with the nature of the area – low key tourist developments based around some site specific natural feature of the area that have safe serviceable building precincts and access and – forestry activities all of which do no change the landscape.”
An examination of the maps which form part of the Hillslopes Development Control Plan show that all of the subject land apart from its immediate access is contained within what is described as the Category C Designation. The Plan contains the following relevant material –
Category C – Severely constrained
Land in this category has been identified as being unsuitable for further development because of its physical constraints or landscape value. Other than provided for in 4.4.3.6, no building, rezoning, consent or subdivision approvals will be given for land in this category and the clearing of vegetation or carrying out of earthworks other than in an emergency or in accordance with approval issued under this DCP are prohibited.4.4.3.6 Development in Category C
A. the council may permit small unobtrusive tourist (permanent) non-residential development other than subdivision on land in Category C provided Council is satisfied –
I. the land can be made safe and serviceable for the proposed development
II. when viewed from outside the site the landscape is the same after development as it was before i.e. all parts of the development including access, service corridors, car parks, building structures, recreation areas and the like cannot be seen and
III. the nature of the development is dependant upon it specific location or natural feature of the land.
B. Where the zone of the land permits the building of a dwelling house and the whole of the land is included in Category C Council will permit the building of the dwelling house provided it is satisfied –
I. the land can be made safe and serviceable for the proposed development
II. when viewed from outside the site the landscape is the same after development as it was before i.e. all parts of the development including access, service corridors, car parks, building structures, recreation areas and the like cannot be seen and
III. no land included in Category C may be subdivided into separate lots except where those lots are to be transferred to the Crown or the Council as scenic reserve for similar purposes.
C. Where land is contained in both the Category C and some other category and the zoning permits particular uses to be undertaken including dwellings those uses must be confined to the area clear of the Category C land.”
Subsection 3.5(8) deals with the amount of compensation. It relevantly provides as follows:-
“Subject to subsections (2)A(9), the following provisions are to have effect in assessing compensation in respect of a claim made under subsection 1(a) –
(a) The amount of compensation is (subject to paragraphs (b), (c) and (d) to be an amount equal to the difference between the market value of the interest immediately after the time of the coming into operation of the provision of the Planning Scheme by virtue of the operation whereof the claim for compensation arose and what would have been the market value of that interest if the provision had not come into operation.”
Subsections (2)A and (9) and paragraphs (b), (c) and (d) have no relevance to this appeal.
The appellant’s primary case is that as at 16 December 1993 (that is, before the coming into force of the new scheme) the highest and best use of the land was for the development of a number of up-market home sites. It is accepted that this could not have been achieved without a successful application for rezoning and subdivision of the subject land. The respondent submits that compensation on this basis is expressly excluded as a matter of law. So far as is relevant, subsection 3.5(4) provides as follows:-
“Compensation is not payable –
(d) subject to subsection 2 where an interest in premises is affected by a planning scheme which by its operation prohibits or restricts the use of land or the erection or the use of a building or other structure thereon for a particular purpose unless the applicant establishes that the application had a legal right immediately before the provision in question of the planning scheme came into force to use the land or erect or use a building or other structure thereon for the particular purpose which is so prohibited or restricted.”
There is no dispute that any potential the appellant may have had to obtain approval of a rezoning and subdivision so as to permit the erection of a number of dwellings on the land is prohibited or restricted by the operation, particularly of the Strategic Plan and a Hillslopes Development Control Plan of the new scheme. Therefore by reason of paragraph (d) no compensation is payable “unless the applicant establishes that the applicant had a legal right immediately before the provision in question of the Planning Scheme came into force to use the land or erect or use a building or other structure thereon for the particular purpose which is so prohibited or restricted.”
There is no dispute that under the superseded scheme, that is, immediately before the provision of the new scheme came into force, the appellant had no legal right to erect a number of dwellings on the subject land. In order to establish such a legal right the appellant must rely on subsection 3.5(5) which provides as follows:-
“For the purposes of subsection (4)(d) it is not to be taken that an applicant did not have the legal right referred to in that subsection by reason only that the applicant’s right depended upon an exercise of discretion by the local government in the applicant’s favour if the applicant shows that it is reasonable to expect that the exercise of discretion would have been in the applicant’s favour had it been sought immediately before the relevant provision of the Planning Scheme came into force.”
In my view there are two decisions of the Court of Appeal which directly apply to this situation. They are Sparke v Noosa Shire Council (2001) 1 QR 344; and Kettering Pty Ltd v Noosa Shire Council (2002) QCA 16, and I am, of course, bound by them. In my view the appellant is not entitled to compensation on the primary basis advanced by it.
However, the issue of whether or not the appellant has shown that it is reasonable to expect that the respondent would have exercised its discretion to rezone the land to allow for a residential subdivision and the market value of the subject land in that event has been the subject of substantial evidence put before me on this hearing. It is therefore appropriate that I proceed to make necessary findings of fact on these issues should my ruling in relation to the appellant’s entitlement set out above be found to be wrong. The first issue therefore is to determine whether “it is reasonable to expect” that the respondent would have granted an application for rezoning of the subject land to the Residential A zone as at 16 December 1993.
By reason of subsection 3.5(5) in my view the appellant has the burden of proving that it is “reasonable to expect” that the then Mulgrave Shire Council would have exercised its discretion to approve a hypothetical application to rezone the subject land or part thereof to the Residential A zone. Such a hypothetical application for rezoning of the land would have been an application to amended the Planning Scheme pursuant to s 4.3 of the Local Government (Planning and Environment) Act 1990. It would have required public notification of the application. Members of the public would have been entitled to object to the application. This being a hypothetical application, there has in fact been no public notification and no opportunity for members of the public to object. The appellant has not attempted to lead any evidence to suggest that there would have been no objection to the proposed amendment. The evidence of Mr. Marton who resides in Bellevue Street on an allotment which adjoins the subject land, which evidence I accept, satisfies me that he would have objected to any application to amend the Planning Scheme to permit substantial residential development upon the subject land. It is impossible to say what the level of objection might have been and the nature of the grounds of any such objection.
There are a number of disputed issues about the way in which this question of the potential for rezoning should be approached. As I understand the submission for the appellant the potential for rezoning is incidentally relevant only to the perception of the hypothetical prudent vendor and purchaser as to the value of the land if the relevant provisions of the 1993 Scheme had not come into operation. This seems to be suggesting that I should attempt to quantitatively assess the chance that the hypothetical vendor and purchaser would have given to a hypothetical application to rezone the land immediately before the coming into effect of the 1993 provisions as if they had not come into effect. The implication is that the chance could be anywhere between 1 to 100 per cent. I cannot accept this submission. Even if, contrary to my conclusion above, subsection 3.5(5) can enable the appellant to overcome subsection 3.4(d), upon the proper construction of 3.5(5) it can only do so “if the applicant shows that it is reasonable to expect that the exercise of the discretion (that is, approval of the rezoning) would have been in the applicant’s favour had it been sought immediately before the relevant provision of the Planning Scheme came into force.” I respectfully agree with the views of His Honour Judge Robin QC in Garbler v Redland Shire Council (2001) QPELR 442. For the appellant to be entitled to have the “before” value assessed on the basis that the land would have been rezoned it has the burden of proving that it was “reasonable to expect” that the respondent would have approved the rezoning on the balance of probabilities.
One aspect of the approach to this issue was not the subject of dispute between counsel at the hearing of this appeal but as the transcript reveals it caused me considerable concern. It became apparent during the evidence of Mr. Buckley, the appellant’s town Planning expert, that both he and Mr. Clegg¸ the respondent’s Town Planning expert, were giving opinion evidence by way of attempting to predict what the subjective corporate decision of the Mulgrave Shire Council of the day would have been if they had actually considered an application to rezone the subject land to the Residential A zone. I raised two concerns with counsel –
(a) The admissibility of expert evidence to such effect;
(b) Whether the correct approach to arriving at an expectation that the Mulgrave Shire Council would have approved the rezoning was to attempt to predict what the subjective decision of the council of the day would have been.
I asked counsel to address these issues in their written submissions and they have done so. Counsel for the appellant seemed to have accepted that my concerns were valid. Counsel for the respondent has maintained the position he took at trial. I will deal with the question of admissibility later.
I should say that if the test, as advanced by counsel at trial, is the correct one I would have no hesitation in coming to the firm conclusion that the Council would have refused any application for rezoning to Residential A and I can state my reasons briefly. The topography of the land gives rise to serious questions as to its suitability for residential subdivision. Even if the evidence of the appellant’s engineers is accepted in total it is clear that extensive earthworks and the like would have been required to develop the land for the sort of residential use suggested by the appellant. Given the elevation of the land this would have given rise to serious questions of visual amenity over a substantial surrounding area. The 1993 Planning Scheme did not appear out of thin air. It had obviously been under consideration for some time. It was advertised in 1990. It is evidence of a planning intent on the part of the Council. Consistent with that is Policy 4.6. Even if the policy is invalid it has never been declared so and there is every reason to believe that the Council would have acted in accordance with it in considering any application to rezone the subject land to Residential A immediately prior to the 1993 Scheme coming into effect.
However, in my view, that is not the correct test. The discretion of a local authority to approve or refuse an application for rezoning was subject to an appeal to the Planning and Environment Court and any decision of the Planning and Environment Court effectively became the decision of the local authority. It is to be presumed that the Planning and Environment Court would have given due consideration to all of the evidence put before it (which might be different to the information before the Council on its consideration of the application ). It is to be presumed that the Court would correctly apply the law. It is to be presumed that the Court would objectively and impartially reach a conclusion as to whether or not the rezoning should be granted and order accordingly. Of significance an appeal to the Planning and Environment Court was a hearing de novo. No weight would be given to the decision of the local authority. No weight would be given to its reasons for reaching its decision unless those reasons were independently considered relevant in accordance with the evidence put before the Court on the hearing of the appeal.
Where this Court has to determine, if it was reasonable to expect that the exercise of the discretion to approve the rezoning would have been in the appellant’s favour, in my view, the test is an objective one to be determined according to the evidence put before this Court on the hearing of this appeal which would have been relevant and available on a consideration of a rezoning application if it had been made and determined immediately before the 1993 Scheme came into operation and without having any regard to the fact that it did come into operation.
Before turning to such evidence there are a number of questions of law which need to be considered. One concerns the applicability of what is referred to as the Coty principle or the non-derogation principle. (See Coty(England)Pty Ltd v Sydney City Council (1957) 2 LGRA 117). I want to emphasise that at this point I am only dealing with the issue as to whether or not the non-derogation principle is capable of application, not the question of fact as to whether it should be applied and if so, to what extent. In opening the case for the appellant, Mr. Gore QC submitted that as a matter of law the non-derogation principle could not be applied. That, it was submitted, was because to do so would be to give some weight to the fact that the 1993 Scheme did come into operation whereas that must be ignored by reason of subsection 3.5(8)(a). I expressly asked Mr. Cochrane, for the respondent, if he argued that the non-derogation principle could be applied. I understood him to answer in the negative. However, upon a reading of Mr. Cochrane’s submissions I am of the view that he is submitting, not only that the Court can apply the non-derogation principle to a consideration of whether or not it may reasonably be expected that the local authority would have granted a rezoning application of the subject land, but that it should. I accept the submission of counsel for the appellant that the respondent has been inconsistent in this respect. However, it was not submitted that Mr. Cochrane should be bound by what he said at the opening of the hearing and it is not submitted that the appellant’s case has been prejudiced by what was said by Mr. Cochrane on the point. Counsel for the appellant have had the opportunity to fully respond to Mr. Cochrane’s submission and therefore in my view the application of the non-derogation principle remains a live issue.
I feel bound at first to confess that I instinctively have a difficulty with the proposition that as a matter of law the non-derogation principle cannot apply to a consideration of whether or not it may reasonably be expected that the discretion to allow an application for rezoning would have been exercised in the appellant’s favour. If the appellant had in fact applied to the Council before the 1993 Scheme came into operation the Council, and certainly the Court on appeal, would have been entitled to apply the non-derogation principle if the evidence supported it. If the submission for the appellant is correct it means that the appellant would be entitled to have the issue decided on a potentially more favourable basis than if an application for rezoning had actually been made. It would mean that this appellant, if it became aware of the development of a clear planning intent by the Council, suggesting that an application for rezoning would probably fail, could simply do nothing and later apply for compensation with the comfort of knowing that the development of the clear planning intent would not be taken into account in an assessment of whether it was reasonable to expect that the same rezoning application would have been successful had it actually been made.
Counsel for the respondent referred me to the decision of His Honour Judge Row in Sam Industries Pty Ltd v Council of the Shire of Mulgrave (1992) QPLR 248 and His Honour Judge Quirk in Prettejohn v Council of the Shire of Mulgrave (1991) QPLR 84. In both of these cases the learned Judges gave some weight to the demonstrated planning intent of the Council as evidenced by the progress of the same Hillslopes Development Control Plan which was introduced in the 1993 Planning Scheme under consideration in this case. It was urged upon me that I should follow their Honours’ decisions. However, this proposition, with respect, misconceives the nature of the non-derogation principle. Whether or not the non-derogation principle can be applied is a question of law. However, whether or not the non-derogation principle should be applied and the appropriate weight to be given in the circumstances are matters of fact. In these cases their Honours were concerned with different parcels of land. The Town Planning issues were different. It is unclear to me exactly what evidence was put before the Court in each case. I have no doubt at all as to the correctness of their Honours decisions based upon the evidence put before them on those appeals, but the decision in this case will depend upon the facts of this case and the evidence put forward. In the end I do not need to decide whether the non-derogation principle can be applied in relation to an application for compensation such as this. The only evidence before me dealing with the Council’s formulation of the 1993 Planning Scheme, in particular the Strategic Plan and Hillslopes Development Control Plan, is that it was advertised in 1990. In my view this is insufficient to persuade me to apply the non-derogation principle in this case because it is insufficient to demonstrate a sufficiently clear planning intent on the part of the Council.
There is an issue as to whether any weight may be given to Council Policy 4.06 (Appendix G to ex 12A). The power to make planning policies was provided for in s 1A.4(1). No issue was taken with compliance with the procedure required for its introduction. It was adopted on 21 September 1992. It is submitted for the appellant that the policy was invalid from the beginning. The first ground for the submission is that it purports to fetter the Council’s discretion to approve a rezoning of the subject land (if an application had been made) and is thereby invalid. I do not think that the purport of Policy 4.06 to fetter the discretion of the Council makes the whole policy invalid. Rather I think that part of the statement of policy purporting to fetter the discretion should be given no weight. But that does not mean it cannot be treated as a considered formulation or identification of the planning objectives at which it is directed. See Vadale Pty Ltd v Landsborough Shire Council (1998) QPLR 338.
Secondly, it was submitted that the policy was invalid because it is not clear and unequivocal. I do not accept this submission. However, as will become clear I do not propose to give it any weight which might be affected by any lack of clarity. Thirdly, it is submitted that the policy is invalid because it does not apply throughout the planning scheme area. See subsection 1A.4(5). The scope of the policy provides:-
“This policy shall not apply to any land the subject of a Development Control Plan the objectives of which relate to the proper and orderly development of hillside land but will apply to all other land in the Parishes of Smithfield and Cairns with slopes in excess of 1 in 5 for more than thirty per centum (30%) of the total area of the site or where the elevation of the land exceeds fifty (50) metres Australian Height Datum.”
The submission does not specify what part of the scope is said to offend subsection 1A.4(5). My understanding is that at the relevant time the Mulgrave Shire Council had three planning schemes covering different parts of the shire. The planning scheme under consideration as far as I understand, covered that part of the local government area of Mulgrave Shire contained within the Parishes of Smithfield and Cairns. In that regard, in my view, the policy had application throughout the planning scheme area.
The policy excludes land the subject of a Development Control. Plan and also only applies to certain land by reference to particulars of its slope and elevation. Therefore it does not apply to every parcel of land within the planning scheme area. However, I do not construe subsection 1A.4(5) as requiring a policy, in order to be valid, to apply to every parcel of land in the planning scheme area. What is prohibited, in my view, is for a policy to apply to a particular locality within the planning scheme area to the exclusion of other localities. See Silverston Pty Ltd v Mulgrave Shire Council (1993) QPLR 268. Therefore, in my view, the policy is not invalid.
It is also submitted for the appellant that even if valid the policy should be ignored. This was on the basis that it was preliminary to the coming into effect of the 1993 Scheme and therefore to give it any weight would be to give some effect to the provisions of the 1993 Scheme. It is submitted that this would be contrary to the requirement that the before value is to be assessed on the basis that the 1993 Scheme did not come into effect. Reliance was placed upon the judgment of His Honour Judge Quirk in Lubrano Pty Ltd v Brisbane City Council (1995) QPLR 81. In that case His Honour adopted the view of Waddell J in Jones v Gosford Shire Council (1975) 33 LGRA 368 at 373 where the following submission was adopted:-
“It is submitted for the plaintiff that in determining the unaffected value of the land the effect on value of the draft planning scheme and the provisions of Division 7 of Part 12A of the Local Government Act relating to interim development should be ignored. It is said that as the purpose of s 342AC as applied to a case such as the present is to provide compensation for a reduction in the value of land caused by a restriction that purpose should not be defeated by taking into account the reduction in value, which has already taken place because of the prospect of the imposition of the restriction.”
I respectfully agree with everything said by their Honours in those cases. However, in my view they are to be distinguished from the present case. The statement in the Jones case seems to me to refer to the effect which knowledge of the impending planning restriction would have in the market place rather than any effect any existing or interim planning restriction would have had on the prospects of development of the subject land. In the Lubrano case His Honour was dealing with informal statements of planning intent which His Honour, rightly with respect, concluded should be given no weight.
In this case once it is accepted that Policy 4.06 was validly introduced it is given formal statutory status pursuant to the provisions of the Local Government Planning and Environment Act although it does not form part of the planning scheme itself. See s 2.6. Subsection 4.4(3) sets out the various matters to be considered in assessing an application to amend the planning scheme. A local planning policy is not expressly mentioned, although it would no doubt be potentially included in para (l) namely, “such other matters, having regard to the nature of the application, as are relevant”. Certainly subsection 7.5(1) suggests, by exclusion, that the count in hearing an appeal against a refusal of an application to amend the planning scheme may give such weight as it thinks fit to a valid local planning policy.
The provisions of the Policy are as follows:-
“the Council will not approve a rezoning, consent or group title subdivision application which may lead to the establishment of one or more multiple dwellings Class B as defined in Council’s Town Planning Scheme or Residential Group title Development on any land falling within the scope of this Policy; as Council believe the landscape character in the area is one of the major draw cards for tourism in the Cairns area and a significant part of this landscape character is a contrast between the steeply rising high mountain ranges, covered with a uniform mat of dense vegetation and the flat regular generally agriculturally covered plains below. Additionally in appropriate development of hillside areas is likely to cause geological and erosion problems as well as lead to the downgrading of use enjoyed by the majority of residents of the Cairns/Mulgrave area.”
I give no weight at all to the first part. I give some weight to the balance but only to the extent that at the material time the Council recognised as a serious planning issue the desirability of maintaining a uniform mat of dense vegetation on the steeply rising high mountain ranges in order to maintain the attractiveness of the area generally for tourism and to maintain the use enjoyed by residents of the Cairns/Mulgrave area. I take the word “use” to refer to visual amenity.
It is appropriate at this stage to set out some details of the hypothetical development put forward in support of the hypothetical rezoning application contended for by the appellant. For convenience I will refer to it as the proposed development. What is proposed is a group title development rather than a conventional subdivision. The proposed layout is shown on the survey plan attached to ex 8. Other relevant layout plans are attached to ex 2. It is tolerably clear that a Group title Development was preferred because it would have been practically impossible to comply with the engineering requirements of a conventional subdivision layout. It is also within the scope of the appellant’s primary case that not all of the subject land would need to be rezoned to Residential A to accommodation the proposed development. Only sufficient land to accommodate the development would need to be rezoned. That would be an area of approximately 186 metres x 200 metres, a total of about 37,200 square metres. Of this the total of the lot areas is 11,900 square metres. The balance of 25,300 square metres (approximately) would presumably be common area. Of consideration significance in my view is the access road which would be approximately 600 metres in length. It is proposed that the vehicle carriageway would be six metres wide. As the plan shows the road would wind around the land with a number of tight curves and a significant slope. A number of allotments would require an additional driveway of three metres width for access. The Bellevue Street access is at the 30 metre contour approximately. The highest point of development would be at the 120 metre contour approximately.
I turn now to the evidence of the Town Planners. The vast bulk of Mr. Buckley’s report sets out substantial parts of the superseded planning scheme, the 1993 Scheme, and a comparison between the two. There is nothing particularly controversial about what is set out therein. I am also aware that Town Planners regularly give evidence of this nature before other Judges of this Court without objection. However, in my view, the evidence is inadmissible. The meaning of provisions of Town Planning Schemes is an issue of statutory construction, that is one of law, and is not a matter of evidence, expert or otherwise. There may of course be occasions when the Court will need assistance in the understanding in the meaning of technical terms and it is obviously appropriate for the Court to obtain assistance from a suitably qualified expert. But apart from that I personally strongly disapprove of the construction of planning instruments being debated by evidence on oath from competing town planning or other expert witnesses. Submissions about the construction of planning instruments is the task of Counsel and should be performed by counsel. The practice of Town Planners contending for a particular construction of the planning instrument under the guise of giving expert opinion and then counsel for the opposing party debating that construction under the guise of cross-examination, is inadmissible in my view and serves only to prolong the hearing of appeals and make them more costly. Personally, I get no assistance from this practice. I consider that I am better able to correctly construe planning instruments with and only with the assistance of considered submissions from counsel. I give no weight to the fact that a particular construction contended for by counsel for a party happens to be supported by the so-called expert opinion of a town planner given during evidence.
Mr. Buckley’s report deals with the prospect of the hypothetical rezoning application succeeding in the final section of his report. He says:-
“Prior to December 1993 it is my opinion that some limited form of rezoning was possible on the lower parts of the site, generally at or below the 80 metre contour.”
Consistent with this he goes on to say a little later –
“In my view Lots 1 to 6 would have very high prospects of achieving rezoning if in a group title form.”
It became apparent in Mr. Buckley’s evidence-in-chief that this opinion was based upon some personal experience suggesting that there had been some sort of practise whereby residential development on hill slopes below the 80 metre contour had in some way been acceptable to the Mulgrave Shire council at some time prior to December 1993. However the details of this proposition and the basis for it were so vague that I am not prepared to give any weight to it. Later Mr. Buckley goes on to say:-
“The likelihood of achieving a rezoning for Lots 7 to 16 on the C and B Group Plan would have been subject in my opinion to a more rigorous assessment of visual amenity in particular. I would anticipate that as part of the planning considerations of the Council dedication for the balance of the land for public purposes would have been likely. Such dedication may have provided a warrant for approval.”
Regretfully the only benefit I get from this passage is the identification by Mr. Buckley of visual amenity as a significant Town Planning issue which arises in considering the prospects of the hypothetical rezoning application being granted for the purposes of undertaking the proposed development. I give no weight at all to the prospects of the balance of the land being dedicated for public purposes as being an incentive to the local authority to grant the limited rezoning applied for. As I have set out above the proper test is not the reaction of the Council as it existed at the relevant time. I have no doubt that in relation to some applications the offer by an applicant to dedicate land for public purposes may operate as an incentive to a local authority to grant the application. But such a prospect has no part to play when, for instance, as in this case, there is evidence to suggest that there would have been public objection and possibly public appeal from any approval granted by the local authority. In my view the prospect of a significant parcel of land not the subject of the application being dedicated for a public purpose could not be a factor that the Court could give any weight to on the hearing of an appeal concerning an application to rezone land.
Elsewhere in his report and in his evidence-in-chief Mr. Buckley acknowledged the potential irrelevance of the Council’s policy No. 2.14 which deals with Group Title Subdivisions. In his report he said:-
“Whilst the Group title Policy in force at the time envisages slopes much less than that on the subject land I believe approval would have been given because the policy was geared more towards conventional small lot group title development which would not be applicable or relevant to land on hillsides.”
I will consider the weight to be given to this policy, if any, in more detail shortly. However it is sufficient to say at this time that I do not construe that policy in the way suggested by Mr. Buckley.
The report of Mr. Clegg, the respondent’s town planner, also contains extensive dissertations on the construction and interpretation of the before and after planning schemes. My comments about Mr. Buckley’s report applies similarly. Mr. Clegg also directed his attention almost solely to an attempt to predict what the decision of the Council might be and his reasons for so concluding. The overall result is that I have not received to the extent that I would have liked the assistance of Mr. Buckley and Mr. Clegg in the identification of the planning issues which would arise on a hypothetical rezoning application supported by the proposed development contended for in the appellant’s primary case. One planning issue which seems to me to arise out of the proposed development is the adequacy, and the desirability from a traffic safety point of view of the proposed means of access. These matters are touched upon briefly in evidence and so I can give some consideration to them. Mr. Bruce considered that the means of access was adequate. Mr. Steele considered that the access proposal gave rise to some difficulties. I am therefore able to consider these issues but I would have been greatly assisted if considerably more attention was given to them in evidence.
The length of the access road is not of any great significance, taken on its own. However its slope, the number of tight curves in it, the number of tight curves from the main access road to access to the individual lots, the necessarily quite narrow access to the individual lots give rise to some undesirable access features, in terms of the safety and convenience with which vehicles associated with servicing any homes which might be constructed and access to visitors. For example, the collection of rubbish was raised with Mr. Buckley in cross-examination. One would hardly think it desirable that a vehicle, the size of a rubbish collection truck, should be driving up and down the 600 metre access road to empty rubbish bins outside the most elevated allotments. Another matter which comes to mind is the adequacy of access for visitors. Supposing residents of the proposed development, particularly those on the most elevated lots, held a dinner party. It can hardly be expected that visitors will park on Bellevue Street and walk the road up to the home of their hosts. The width, curve and slope of the access road suggests it would be undesirable for visitors to park on the street as they would in a conventional residential street. The steeply sloping nature of all of the land might make it difficult for visitor car parking to be provided on the individual lots. Because, in my view, these matters were not canvassed in great detail during evidence I do not think I could give them great weight. But in my view these factors mitigate against the desirability of the relevant land being rezoned for residential purposes.
Mr. Clegg does identify in his report certain planning issues which in my view would be relevant to an application to rezone. These are:-
(a) The steepness of the land.
(b) The extent of excavation and vegetation clearing required to develop the land for residential purposes.
(c) Visual amenity.
and I take these matters into account. Finally, I should repeat what I said during the hearing that any criticism of the approach of the town planners and the contents of their report is not directed at the witnesses personally. They have done nothing more than do what they were asked to do and provide assistance to the court. It is not for the town planners to apply the rules of evidence. That should be the task of the legal representatives involved in the presentation of the respective cases.
As to the evidence of the engineers I generally accept the evidence of Mr Cook as to geotechnical matters. I generally prefer the evidence of Mr. Steele to that of Mr Bruce regarding the extent of earthworks required to establish the proposed development. In my view Mr. Steele has undertaken a far more detailed analysis than Mr. Bruce’s broadbrush approach. Whilst I accept that it is normally not necessary to provide a detailed engineering analysis of a fixed proposal on a rezoning application, in my view, where the site is a difficult one as in this case a more detailed consideration is necessary to show that a proposed development is feasible and to enable an informed assessment of its impact to be made. Having said that, I accept that it is usually the case that once development works are actually undertaken there is likely to be scope for gains by means of perhaps additional lots and some reduction in the extent of earthworks, excavation, and vegetative clearing which might be required to develop the site. Nevertheless, in my view, the end result would be much closer to that envisaged by Mr. Steele than that envisaged by Mr Bruce. This applies not only to the extent of excavation and associated earthworks but also to the cost.
With respect to visual amenity I am of the view that the extent of the vegetation clearing and earthworks required to achieve the proposed development would materially detract from the visual amenity of the vegetated hillside. I am also of the view that the proposed development would be in this way contrary to the Council policy 4.06 to the extent that I am prepared to give any weight to it.
Council policy 2.14 is Appendix F to exhibit 12A. Its intention is to set down performance standards for Group Title Subdivision. With respect to the criteria to be applied to Group Title developments in the Residential A zone I particularly note (g):-
“No part of any lot shall have a slope steeper than 1 : 6 form part of an overland flow or drainage path or be subject to soil conditions such that it would prohibit the erection of a building with conventional footings or place any building erected on the land at risk due to slope instability.”
Mr. Buckley’s comment on this policy as set out above suggests that the policy was “geared more towards conventional small lot group title development”. I would take this one stage further, I take the view that the policy intended to prohibit other than conventional small lot group title development. I do not give particular weight to the provisions dealing with minimum and maximum lot size. However I note that the lot sizes in the proposed development are very substantially larger than those provided for in the policy. Given the provisions of the policy relating to slope in my view Policy No. 2.14 mitigates against the proposed rezoning and proposed Group Title development.
In summary therefore I am not at all satisfied that the hypothetical rezoning application would have succeeded. To put it in the terms of subsection 3.5(5) of the Act I am not satisfied that it is reasonable to expect that the exercise of the discretion of the Council to approve a rezoning to the Residential A zone would have been in the applicant’s favour had it been sought immediately before the relevant provision of the Planning Scheme came into force. Therefore even if I am wrong in my conclusion that the applicant is not lawfully entitled to any compensation on the primary basis advanced by it I am still of the view that the appellant has failed to establish its primary basis.
For completeness I should briefly express a view as to the before value of the land if it was reasonable to suppose that the Council would have granted an application to rezone for the purposes of a 16 lot Group Title development. Mr. Gould, the appellant’s valuer, arrived at a before value based upon the presumption of a 16 lot Group Title development of $600,000. Mr. Coonan, the respondent’s valuer, arrived at a before value of $400,000 based upon the 16 lot Group title subdivision. I was impressed by both valuers. I consider that they approached their valuation on a professional basis. There are possible criticisms of both. But for one factor I would be inclined to give equal weight to both valuations. However as I have indicated I consider that the cost of development would be significantly greater than that arrived at by Mr. Bruce. Mr. Gould relied upon Mr. Bruce’s evidence for his hypothetical subdivision analysis. Doing the best I can therefore in my view a value of $460,000 would be appropriate if the before value were to be determined on the basis of the 16 lot Group Title subdivision proposal.
As indicated I am of the view that compensation is to be determined on the basis that the before value is founded upon a right to erect a single dwelling house upon the property. As with the earlier valuation I do not consider that the evidence strongly favours one valuer over the other. I tend to slightly favour Mr. Gould’s valuation because of the substantial size of the parcel of land. I am satisfied that the market value of the subject land immediately before the coming into operation of the 1993 Planning Scheme if that Planning Scheme had not come into operation, is $310,000.
In the after case Mr. Gould’s value is $90,000 and Mr. Coonan’s value is $140,000. The substantial reason for the discrepancy between the two valuations occurs because they have taken different views of the risk that no consent at all would be given by the Council to the erection of a dwelling house upon the land. In my view there are very good prospects of the Council giving consent to the construction of a dwelling house upon the land however in light of the very strict provisions of the 1993 Planning Scheme in my view a prudent potential purchaser would expect a considerable discount for that risk. In my view the appropriate value of the land immediately after the 1993 Planning Scheme came into effect was $110,000. In my view therefore the primary amount of compensation to be paid to the appellant is $200,000.
The appellant has also foreshadowed a claim for what is described as disturbance items that is, the cost of preparing its claim. No evidence has been led as to the quantum of such items. It was agreed that I should make a decision as to whether or not the appellant is entitled to such items and then reserve final judgment so that if I am prepared to allow such items evidence can be led. I am not unsympathetic to the position of the appellant particularly since this was an appeal against a deemed refusal by the Council. However the formula for the calculation of compensation is expressly provided for in subsection 3.5(8)(a). In my view on the proper construction of that provision disturbance items cannot be included.
The appellant also makes a claim for interest. I am satisfied that the appellant is entitled to interest from the date of the claim, namely 3 December 1996 (see Lubrano v Brisbane City Council (1995) QPLR 81). Using the rates set out in the various Supreme Court Practice Directions which have been issued concerning the rates of interest on judgments over the relevant period in my view it would be appropriate to order that the respondent pay interest on the amount of compensation at a rate of 10 per cent per annum for six years which I calculate at $120,000. I therefore propose to order that the respondent pay the appellant the sum of $320,000.
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