Villa World Ltd v Caboolture Shire Council

[2006] QPEC 43

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Villa World Ltd v Caboolture Shire Council [2006] QPEC 043

PARTIES:

VILLA WORLD LTD
Applicant

v

CABOOLTURE SHIRE COUNCIL
Respondent

FILE NO/S:

BD 185 of 2006

DIVISION:

Planning & Environment

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

12 May 2006

DELIVERED AT:

Brisbane

HEARING DATE:

30 March 2006

JUDGE:

Griffin SC

ORDER:

Application dismissed

CATCHWORDS:

DEVELOPMENT APPROVAL – CHANGE OF CONDITIONS – VEGETATION - Where applicant granted development approval with condition that a fig tree be relocated – where applicant seeks to have condition changed

Integrated Planning Act 1997 (Qld), s 3.5.33
Hayday Pty Ltd v Brisbane City Council [2005] QPEC 50

Seymour CBD Pty Ltd v Noosa Shire Council [2002] QPELR 226

COUNSEL:

Mr B Cronin for the applicant

Mr P Favell for the respondent

SOLICITORS:

Corrs Chambers Westgarth for the applicant

King and Company for the respondent

1. This is an application by Villa World Ltd (the applicant) pursuant to provisions of the Integrated Planning Act (s. 3.5.33) requesting conditions imposed in relation to a development approval given in this court by his Honour Judge Rackemann on 26 October 2004 be changed.  That change relates to a condition concerning an existing fig tree situated on proposed lots 18 and 19 of the development.  The original condition relating to the existing fig tree is as follows:

“The existing fig tree situated on proposed lots 18 and 19 shall be relocated to the proposed parkland under the supervision of an accredited arborist to a location acceptable to Council.”

1. The applicant requests that the change to the original condition be made as follows:

“The existing fig tree situated on proposed lots 18 and 19 shall be retained in this location within the proposed allotments.  All lots within the drip-line of the tree shall be subject to a covenant in favour of the Caboolture Shire Council.  The statutory covenants shall ensure that the tree is retained and maintained by future owners.  Such covenants shall be in terms approved by the Caboolture Shire Council.

Subsequent to the plan of survey being sealed the applicant shall build houses on all allotments within the drip-line of the tree and shall incorporate root barriers etc as determined by a suitably qualified arborist.  The applicant shall include in the contract of sale for the relevant lots information advising the purchaser of their obligations under the statutory covenant and general information on care and maintenance of the fig tree.”

1. Section 3.5.33 of the Integrated Planning Act 1977 provides a mechanism for this court as “the entity” to change a condition or conditions originally imposed. Section 3.5.33 provides relevantly:

“(1)       This section applies if –

(a)A person wants to change or cancel a condition; and

(b)No assessable development will arise from the change or cancellation.

(2)The person may, by written notice to the entity that decided the condition or required the condition to be imposed on or attached to the approval, ask the entity to change or cancel a condition.

(3)If the person is not the owner of the land to which the approval attaches, the request must contain the owner’s consent.

(3A)If the development approval is for building work or operational work for the supply of community infrastructure on land designated for the community infrastructure –

(a)Section (1) applies only to a person who intends to supply, or is supplying, the infrastructure; and

(b)Subsection (3) does not apply.

(4)If the entity has a form for the request, the request must be in the form and be accompanied by the fee for the request –

(a)If the entity is a local government – set by resolution of the local government or

(b)if the assessment manager is another public sector entity – the fee prescribed under a regulation under this or another Act.

…

(7)To the extent relevant, the entity must assess and decide the request having regard to –

(a)The matters the entity would have regard to if the request were a development application; and

(b)If submissions were made about the application under which the condition was originally imposed – the submission.

(7A)Also if a building referral agency gave advice about an aspect of the application the subject of the request the entity must have regard to the opinion of the agency about the change before deciding the request.

(8)The entity must give the person written notice of its decision.

(9)If the entity is a concurrence agency or the court, the entity must give the assessment manager written notice of any change or cancellation.

(10)The changed condition or cancellation takes effect from the day the notice is given to the person.

…”

1. The discretion to allow such change is wide indeed[1].

   [1]See Seymour CBD Pty Ltd v Noosa Shire Council [2002] QPELR 226 at para 43

1. The request is not a development application but is to be assessed by the court pursuant to the provisions of s. 3.5.3(7).  The court must have regard to “ to the extent relevant” matters the court would have regard to if the request were a development application and, if submissions were made about the application, regard to those submissions. 

1. One objection was received in relation to the fig tree itself, which argued that there should be no development effectively surrounding the fig tree.  Although regard must be had to that submission, it is rather overtaken by the ultimate approval for the entire development ordered by his Honour Judge Rackemann and I regard it in these proceedings as being minimal weight on the ultimate outcome.

1. In relation to the factors to be taken into account as if this were a development application, evidence in the form of affidavits, oral evidence concerning the viability of moving the tree, the cost associated therewith, the effect upon the dwellings proposed to be constructed of the tree remaining and the effect of construction surrounding the tree itself, including root barriers, are all matters referred to in the evidence and matters relevant to my consideration of this matter.  This is, however, not an exhaustive list.

History of the Development Application

1. The original decision notice dated 19 December 2003 required that proposed lots 18 and 19 would be dedicated as parkland.  It also required boundaries of proposed lots 4 and 40 to be amended to ensure that existing fig trees would be retained in parkland.  By notice dated 28 November 2003, the applicant sought a negotiated decision.  At the negotiated decision meeting held on 15 December 2003, the proposal to move the tree from lot 18 to adjoining parkland was discussed.  No negotiated decision notice was issued.  The applicant appealed to the Planning and Environment Court on 8 April 2004 against a number of the conditions contained in the original decision notice.  Judgment was delivered in relation to the appeal on 14 September 2004.  Condition 1 of the conditions package provided for the existing fig tree, situated on proposed lots 18 and 19, to be relocated to proposed parkland under the supervision of an accredited arborist to a location acceptable to Council.

1. The original condition gives effect to two main aims – permanent retention of the tree and retention of that tree on land in public ownership and access.

The Evidence

1. The witnesses Wilcock (for the applicant) and Rankine (for the respondent) provided reports and gave oral evidence.  One may summarise their initial evidence to this effect: that the tree would be better off left in situ.  After much internal debate as he described it, Mr Rankine, during the course of cross-examination, opined that there was likely to be less trauma to the tree if it were left in its original position.  However, his opinion was overall affected by his view that trees of this type and size should be within public parkland for a number of reasons, including the likelihood of their being better looked after and less likelihood of damage if not located in a domestic position.

1. Mr Wilcock, in his oral evidence, accepted initially that there was a 95 per cent chance of the tree “safely” being removed to a new location.  Mr Rankine also agreed with this proposition.  Their evidence has some common features.  Moving a tree of the size and type of the subject tree involves disturbing, perhaps significantly, the root ball, which may cause the consequence of the tree not ultimately resembling its original shape because of die-back of branches and other health problems associated with moving the tree which would affect its structure and shape.

1. Mr Wilcock, in his evidence, appeared to retreat from his original optimistic position, given the opportunity in re-examination when it was apparent, through earlier questioning of him, that there was a real possibility that the tree might be removed and transplanted successfully.  I was not impressed by Mr Wilcock’s change in position and I accept, as I do the evidence of Mr Rankine, that a 95 per cent success rate in transplanting the tree will mean that the integrity of the tree would largely be preserved in its present form.

1. The evidence revealed a significant number of disadvantages in leaving the tree in its present situation.  Parts of the canopy of the tree, amounting to 2.7 metres on one side and 6.9 metres on the other side of its canopy, would have to be trimmed to accommodate the proposed dwellings.  Its root ball would have to be significantly interfered with (perhaps 40 per cent or even more) in an attempt to restrict the position and growth of the roots by means of cement barriers in order to protect the surrounding properties.  This appears to me to create equally but somewhat different problems associated with the integrity, shape, structure and health of the tree, particularly in terms of the removal of a large part of its canopy and the removal of part of its root ball.

1. There are no doubt inherent dangers in the removal of the tree.  Both Mr Wilcock and Mr Rankine, by the curriculum vitaes provided, disclose that together, as well as individually, they have substantial experience in relation to trees, their removal, health and treatment.  Mr Wilcock’s evidence was that he had successfully removed a large number of trees.  In his original evidence he portrayed this before me as “successful” or “safe” in the sense that the tree was removed and there was ultimately little damage done to the tree or little interference to its shape or damage to its integrity.  As I have said, he retreated from this somewhat under cross-examination.

1. I am satisfied, on the whole of the evidence, that the tree may, with a high degree of certainty, be successfully removed and transplanted.

1. There are therefore two options highlighted by the evidence which may be considered in this application.  The removal of the tree and its transfer to parkland acceptable to the Council, or allowing the tree to remain in its present position, changing its canopy shape by trimming and constructing around its root ball a cement barrier, in the process of which the roots of the tree are to be cut back. 

1. The latter option is that which is effectively requested in this application before me.  The result of doing so, however, means that the tree will not be upon public parkland.  Although, on the other hand, the tree should remain not only in its original condition and place, but that situation itself may have some importance, for a memorial plaque which is attached to the tree associates the tree and its present position with a relative of the former owner of the property and, inferentially from the plaque, whose ashes or body may be buried or scattered nearby to that tree.  This is a matter I take into account.

1. The respondent suggests a third option which bears upon issues of cost, convenience, the health of the tree and an ultimate result allowing the tree to remain in its present position.

1. The Council submits that a third option is open.  Relying on the affidavit and oral evidence of Mr Trefor Jones, the Council submits that there is material which should lead the court to allow the tree to remain in its present situation, allowing for lots 18 and 19, and perhaps 20, to be kept as parkland and to provide two lots in substitution in another part of the development for the developer in lieu of lots 18 and 19.  The submission was made in these terms:

“It is submitted that it is appropriate for the court to consider alternatives in making a determination whether the order should be made.  Not to do so would mean that the application is considered in vacuum.  The alternative suggested has a cost to the developer of $15,000.”

1. The discretion which the court possesses is a wide one in deciding the application. The argument advanced, however, by the respondent amounts, in spirit if not in a strict legal sense, effectively to a request by the Council itself to change the condition 1 of approval in relation to the fig tree. Subsection 1 of s. 3.5.33 provides:

“This section applies if –
(a)         a person wants to change or cancel a condition; and
(b)         no assessable development would arise from the change or               cancellation.”

1. The subparagraphs (a) and (b) are conjunctive. The effect of the Council submission is that a person (the Council) is effectively making application to the court to change a condition of original approval. Furthermore no such applications have been made by the Council, s 3.5.33 applies on to “ a person (who applies) to change or cancel a condition.”

1. In Hayday Pty Ltd v Brisbane City Council [2005] QPEC 50, his Honour Judge Wilson S.C. said[2]:

“The plain requirement of section 3.5.33(1)(b) is that no assessable development arises from the change … it is also clear, however that an approval under this section simply varies rights which remain legally sourced to the original development permit, and does not give rise to new development rights taking independent effect from the later date of the approval. Plainly there is a distinction to be drawn between changes of that kind and those which would require an entirely new development permit … The section does not provide a mechanism under which assessable development can be authorised without a development permit.”

[2]At para 6 and following

1. The variation suggested by the respondent for the provision of two new lots and parkland surrounding the tree on the previous proposed lots 18 and lot 19, whilst perhaps not amounting to “assessable development”, nonetheless proposes such a significant change to the entire original development approval that, although the discretion in the court is a broad one, the proposal so fundamentally changes the original condition that I do not regard it as an appropriate means of disposing of the applicant’s present request.  Furthermore, the applicant strongly argues against this proposal being accepted by the court.

Cost

1. In the determination of this matter the court is not limited or affected by the original condition imposed, nor does that condition affect the court in the exercise of its wide discretion as to whether the application should be granted.  An issue raised specifically by the applicant is that the cost of removal and relocation is substantial and is in the region of $190,000. 

1. The applicant, however, does not urge this as a determinative factor, rather it is referred to as one of the many factors to be taken into account.  This is the correct approach, in my view, and I take it into account in the overall consideration of the variety of matters raised. 

1. In the event, I am satisfied that, on the evidence viewed as a whole, the tree should be relocated in accordance with the original condition.  I am further satisfied, on the whole of the evidence, that the risk to the successful removal and transplanting of the tree, in terms of its overall health, shape and integrity, is of the most remote kind.

1. I therefore dismiss the application.