Walsgott v Maroochy Shire Council

[2005] QPEC 5

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Walsgott v Maroochy Shire Council & Anor [2005] QPEC 005

PARTIES:

ANTHONY WALSGOTT
Appellant
v
MAROOCHY SHIRE COUNCIL
First Respondent
and
PARADISE WAY PTY LTD (ACN 010 823 533)
Second Respondent

FILE NO/S:

4763/2004

DIVISION:

Planning & Environment Court

PROCEEDING:

Originating Application

ORIGINATING COURT:

Planning & Environment Court of Queensland, Brisbane

DELIVERED ON:

2 February 2005

DELIVERED AT:

Brisbane

HEARING DATE:

19, 21 and 25 January 2005

JUDGE:

Alan Wilson SC, DCJ

ORDER:

Application dismissed

CATCHWORDS:

PLANNING – CONSTRUCTION OF PLANNING SCHEMES – whether terms of Maroochy Planning Scheme necessitated impact rather than code assessment of the second respondent’s application for a material change of use – cl 4 of Maroochy Planning Scheme – meaning of “environmental values”

Integrated Planning Act 1997

Maroochy Plan 2000

Cases considered:
Bhat v Brisbane City Council (2003) QPELR 115
Cornerstone Properties Ltd v Caloundra City Council [2004] QPEC 44
Eshenko v Cummins [2000] QPELR 386
NRMCA v Andrew (1993) 2 Qd R 706
Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335
Westfield Management Pty Ltd v Brisbane City Council [2003] QPEC 10

COUNSEL:

Mr Walsgott, appellant, in person
Mr A N Skoien for the first respondent
Mr Fahl, solicitor, for the second respondent

SOLICITORS:

Appellant self-represented
Maroochy Shire Solicitor for first respondent
P&E Law for the second respondent

1. Mr Walsgott is a resident of Marcus Beach on the Sunshine Coast.  He (and other local residents) are concerned that Maroochy Shire Council (Council) has issued a Development Permit to the second respondent (the developer) permitting the construction of 30 multiple dwelling units on vacant land at Tanah Street, Coolum.  The permit issued on 20 August 2003, but no major works have been commenced and, more recently, the developer applied to Council for the necessary approval to clear the site (and, by definition, damage vegetation)[1] and Council has not yet given that approval.

   [1]As required by Maroochy Shire Council Local Law No 19.

1. Mr Walsgott filed an Originating Application on 24 December 2004 seeking, among other things, an interim injunction restraining the developer from removing or damaging any vegetation (or fauna) on the site pending the hearing of this matter.  In the course of the hearing the developer undertook not to do anything of that kind.

1. The primary relief sought by the applicant is a declaration that the developer’s application for a Material Change of Use, originally submitted on 13 February 2003, was impact and not code assessable pursuant to Maroochy Plan 2000 (the Planning Scheme) and s 3.1.3 of the Integrated Planning Act 1997. Mr Walsgott asserts that on its proper construction clause 4 of the Planning Scheme (Development and Use within the Shire) imposes a requirement for impact assessment (a more stringent process requiring, in particular, public notification of the proposal) upon any development on this land and it follows, he says, that the original application for the MCU was wrongly assessed by Council against codes and is, therefore, invalid.

1. The land is in close proximity to a waterway and is, therefore, within a Comprehensive Assessment Special Management Area (SMA) as defined in the Planning Scheme, making impact assessment mandatory unless certain exclusory provisions apply.  Clause 4 of the Planning Scheme covers these matters and, relevantly, provides:

4. DEVELOPMENT AND USE
WITHIN THE SHIRE

4.1 Assessment Levels

(1)   Section 2.1.3(2) of the Act allows Council’s to facilitate the achievement of the desired environmental outcomes (identified by section 2.1 of Volume 2 of the planning scheme) by the identification of relevant self-assessable, assessable development requiring code assessment, and assessable development requiring impact assessment (referred to as the “assessment level”).

…

(7)   Code Assessable Development

The following is assessable development requiring code assessment throughout the Shire:

(a)Development in circumstances to which a Specific Assessment Special Management Area (SMA) applies and is not described as requiring impact assessment in part (8) of this section.

…

(8)Impact Assessable Development

The following is assessable development requiring impact assessment throughout the Shire:

(a)Development in circumstances to which a Comprehensive SMA applies.

…

4.2 Types of Special Management Areas

(1)(a)     For the purposes of this Planning Scheme, Special Management Areas (SMAs) have been identified which recognise a wide range of environmental features and values that cross Planning Area and Precinct boundaries and need to be given particular consideration in preparing and assessing development proposals.

(b)The assessment level for development in an SMA is set according to:

(i)the type of SMA;

(ii)the type, nature and extent of development and its relative impact on the values of the SMA; and

(iii)whether or not the likely impacts of proposed development on the particular values of one or more SMA’s have been adequately assessed, and adequate protection and management requirements established and complied with, as part of a previous assessment for the subject development.

…

(d)Types of SMAs include:

(i)Comprehensive Assessment SMAs – in which development will require impact assessment and for which Council may request an Environmental Impact Statement and/or an Environmental Management Plan; and

…

(2)The following are Comprehensive Assessment SMAs:

…

(b)a waterway or land within 50 m of the high bank of a waterway;

…

4.3Circumstances Where Special Management Areas Do Not Apply

(1)   The provisions of section 4.2 of Volume 1 do not apply to development in the following circumstances[2];

[2]  In circumstances where a person determines that the SMA does not apply (in accordance with sections 4.3(1)(a), (b) or (c)), documentation, including evidence to support this determination, must be maintained by the person.

(a)Where the relevant values associated with any SMA are demonstrably proven to be not present within the area to be impacted by the proposed development, despite the inclusion of the site within an area described in Section 4.2 or a map depicting these.

(b)Where the type, nature, extent and/or scale of development or use is such that it does not have the potential to adversely impact on the values intended to be protected by the SMA, (particularly having regard to the statement of applicability of the code or codes having primary relevance to that SMA).  Such development includes but is not limited to the following:

(i)Material change of use, where no building work or operational work is involved in or required by the development;

(ii)Reconfiguring a lot where involving:

(A)rearranging the boundaries of a lot by registering a plan of subdivision, or

(B)when dividing land into parts by agreement (other than a lease for a term, including renewal options, not exceeding 10 years) rendering different parts of a lot immediately available for separate disposition or separate occupation;

(iii)Operational works for landscaping;

(iv)Operational works necessary to satisfy conditions of a development approval for material change of use, building work or reconfiguration of a lot and where the works are explicitly described in the development permit for the material change of use, building work or reconfiguration of a lot, and the earlier assessment has adequately addressed the likely impacts on any relevant SMA’s associated with the site.

(v)Operational work for Advertising Signage where no building work is involved in or required by the development;

(vi)Operational work for the construction of a driveway or driveway crossover.

…

1. The parties agree the land was largely cleared of native vegetation some years ago and has been kept cleared and the applicant’s case frankly focussed upon the alleged importance of preserving native trees (scribbly gums), of which there are 10-12 within the 50m zone referred to in cl 4.2(2)(b) and others outside it.  As plans and photographs show, the site is bounded to the south and west by existing medium-density residential development.  To the north, there is a densely vegetated road reserve and then a resort golf course.  The appellant contended, nevertheless, that the site retained “values” of the kind referred to in cl 4.3(1)(a) and (b) or that, in the words of each of those sub-sections, the absence of those values had not been “demonstrably proven” or it had not been shown the development did not have the potential to “adversely impact” on them.

1. Mr Walsgott’s originating application appeared to attack Council’s decision not to require impact assessment and, also, its final decision to grant approval.  Only the first decision is properly the subject of review:  it is tolerably clear that in the course of determining to approve Council has decided that code rather than impact assessment is appropriate.  It is that decision which calls up the circumstances referred to in cl 4.3 upon which the parties’ evidence and submissions focussed.

1. The nature of of proceedings for declaratory relief in this court was explained by Brabazon QC, DCJ in Westfield Management Pty Ltd v Brisbane City Council [2003] QPEC 10:

[55]This is not an appeal.  The court has no power to consider the merits of the development proposal.  Rather, the declaration sought requires this court to look at the effectiveness or otherwise of Council’s decision making process.  It was accepted here that this court’s declaratory powers could be used for that purpose.  It has been done before.  In Eshenko v Cummins [2000] QPELR 386, the court had to consider an allegation that a house had been built in an unlawful way. In principle it was held that:

(a)proceedings with respect to relief under the declaratory powers are analogous to judicial review proceedings.  The court is not directly concerned with the merits of the approval, but rather must consider whether the approval was validly given;

(b)the onus of establishing invalidity rests with the applicant;

(c)it is not open to the court to substitute its own opinion for that of the Council unless the Council approval is shown to have been (in that case) unjustifiable, based on irrelevant considerations, or one that no reasonable Council could have granted.

1. It has long been accepted that planning schemes are largely the work of town planners, not Parliamentary counsel, and they should be read as a whole, and applied in a practical and commonsense, and not an overly technical, way, and in a fashion which will best achieve any evident purpose.[3]

   [3]Bhat v Brisbane City Council (2003) QPELR 115 at [31].

1. Before the construction questions are addressed it is necessary to find, as I am satisfied, that the land abuts a “waterway” and parts of it are within 50m of the high bank of that waterway: cl 4.2(2)(b).  Photographs show what appears at least in part to be a man-made channel with a concrete embankment adjoining the whole of the eastern boundary of the site.  “Waterway” is defined in the Planning Scheme to have the meaning given it in the Queensland Fisheries Act 1994, where it includes a river, creek, stream or watercourse.  An expert witness called by the appellant, Mr Crossland, believed this channel was probably manmade but it has a close connection with natural watercourses in this formerly boggy area and connects an upper catchment area near the Coolum Hyatt golf course to streams and extensive wetlands that are an integral part of the Maroochy River catchment system so that it is, in effect, a tributary of that system.  That the waterway was a “functioning watercourse” was not disputed by the experts called by the first or second respondents, Mr McDonald and Mr Clowes, and the latter term can include an artificial channel[4].

   [4]Cornerstone Properties Ltd v Caloundra City Council [2004] QPEC 44 at [56] per Rackemann DCJ.

1. Clause 4.2 has the effect of defining this parcel as part of an SMA and impact assessment is required unless the circumstances set out in cl 4.3 excuse it.  The logical and sensible construction of this part of the Planning Scheme means cl 4.3 must be understood to contain an acknowledgment that there will be circumstances in which land which is categorised as an SMA by cl 4.2 should not, however, be visited with the strictures which attach to those special areas.

1. On their face clauses 4.3(1)(a) and (b) focus attention on the “environmental features and values” which attract the need for special management: cl 4.2(1)(a).  Elsewhere in the Planning Scheme “environmental value” is defined as:

… a quality or physical characteristic of the environment, or part of the environment, that is conducive to ecological health or public amenity or safety[5]. 

The word “conducive” means “tending to promote or encourage”[6].

[5]Planning Scheme Vol 1, s 3 p 17.

[6]Shorter Oxford Dictionary.

1. The appellant contended these broad definitions have the consequence that almost any connection between the land and the waterway which can reasonably be categorised as “environmental” (including, for example, such things as water quality, hydrological balance and biodiversity) would constitute values, which, if present, preclude the operation of cl 4.3.  That construction ignores, however, the fact that by their very nature values are qualitative; and, that cl 4.3 can have no obvious purpose but one which recognises that all land which might fall within the definition of SMAs may not, in fact, exhibit environmental value to a level sufficient to warrant that protection. 

1. Cl 4.3(1)(a) also attaches a requirement that the values be ‘relevant’.  Much of the appellant’s evidence from local residents was taken up with the possible use, by birds and animals, of the scribbly gums but it is proximity to a waterway which attracts the SMA categorisation of this parcel and ‘relevant’ values must have some logical connection with the presence, and need to safeguard the well-being of, the waterway.

1. The appellant argued, with Mr Crossland’s support, that any quality or physical characteristic however small (for instance, the slightest amount of ground water infiltration or runoff from the land abutting the waterway) would constitute an environmental value irrespective of the extent of its impact on the environment[7].  Mr Clowes and Mr McDonald applied a less stringent test, asking whether or not any particular characteristic presently has environmental or ecological significance in the sense that, by reference to the definition of ‘environmental value’, it clearly encourages or promotes ecological health or public amenity or safety.

   [7]Similar views were expressed by another witness for the appellant, Mr Flood, but I was not persuaded he was qualified as an expert in these matters according to the criteria suggested in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at 743-44, per Heydon JA.

1. Their approach sits more logically and comfortably with the apparent purpose and intent of this part of the Planning Scheme.  The conclusion that any characteristic arising in the context of an environmental connection between the land and the waterway must constitute an environmental value produces a construction which makes the exclusions under cl 4.3(1)(a) and (b) pointless, since it would be a rare case in which mere proximity would not establish some kind of interaction between land and the waterway near it, with the result that few if any parcels could qualify.  When those clauses are capable of a sensible construction, in the context of this part of the Planning Scheme, that much stricter mode of construing cl 4.3 is seen to be inappropriate.

1. I found the evidence of Mr Clowes, an acknowledged expert who provided an opinion on the riparian and biophysical qualities of the site, compelling.  As both he and Mr McDonald pointed out the Planning Scheme does not, otherwise, attach any particular environmental value or importance to this site which is already abutted by significant development and whose only identifiable interesting feature is the presence of the scribbly gums which are, I accept, prevalent elsewhere in the Shire and do not require special protection.

1. The appellant placed some emphasis upon the expression “demonstrably proven” in cl 4.3(1)(a) and contended this placed a heavy onus upon the developer to establish the complete absence of environmental values but again, in context, the words do not suggest anything more than, say, legal proof on the balance of probabilities and it is illogical that the test could not be met by, as here, the reasoned opinions of appropriate experts which, I am satisfied, Mr Clowes and Mr McDonald provided.

1. Much of Mr Crossland’s evidence was devoted to his contention that the investigations undertaken and opinions and conclusions reached by Mr Clowes and Mr McDonald were insufficient to precisely identify the qualities or characteristics of the land and its environmental values but, as their evidence clearly showed, there is nothing about this parcel which attracts special concerns about its conservation.  Mr McDonald referred in detail[8] to the absence of anything in Maroochy Shire or State mapping or reports suggesting the presence of important remnant vegetation.  Mr Clowes’ evidence was persuasive that this land contributes little if anything in the way of ecological values to the waterway.  He said:

   [8]Affidavit Bradley McDonald failed 19 January 2005, para 12.

This waterway has been historically modified by engineered works (channelisation) and the western bank that adjoins the subject land has been re-profiled and concreted.  As a result of channelisation, the waterways original riparian vegetation has been completely cleared and natural drainage characteristics modified … in its current condition, the subject waterway could be best described as degraded and is very likely to be of poor ecological health.

…

It is reasonable to conclude that there does not appear to be any riparian relationship between the 10-12 scribbly gums and the ecological health of the waterway, other than some possible minor inputs of organic carbon via overland flow.  While the trees may play a role in the maintenance of ground water levels and water infiltration rates on the site itself, the connection between this and the waterway is unlikely and if anything will be negligible given that the concreted bank acts as a barrier to surface ground water riparian interactions between the subject land and the waterway and since even the closest of the trees is greater than 15 metres from the base flow level of the waterway.

1. Clause 4.3(1)(a) requires a level of identifiable proof, on the balance of probabilities, that no significant environmental values, related to the nearby waterway, are present on the subject land and I am satisfied that the evidence of Mr Clowes and McDonald establishes those matters.  I am also satisfied that the proposed development would not adversely affect such very limited values as might, to put the appellant’s case at its highest, be present and warrant protection, as sub-clause (b) envisages.

1. Even if I had reached the opposite conclusion there remain discretionary considerations which would, on balance, warrant refusal of the relief the applicant seeks.[9]  The applicant is a private citizen and not, eg, a local authority or the Attorney-General.  Considerable time has passed since the original development permit was granted, and a number of affidavits filed by the applicant show that he represents other concerned community members who have known, since at least March 2004, of the nature and consequences of the decision.  The developer has been active in this period.  If Council was wrong in determining code assessment was sufficient, because it had insufficient information to make a reasoned decision at the time, the evidence now establishes no adverse consequences flow because no relevant significant environmental value has been shown to be present on the land, or likely to be adversely affected (and in any event, as the evidence also shows, if an error of that kind occurred it involved no improper conduct on the developer’s part).  The documents exhibited to an affidavit filed for the developer show that assessment was, in any event, carried out against Council’s relevant codes.

   [9]     Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 per Kirby P at 339-341; NRMCA v Andrew (1993) 2 Qd R 706.

1. It is also to be noted that this application was finally brought when the developer applied for a permit under a ‘Local Law’ to clear the land and that is not, as the time which has already passed shows, a matter involving a mere rubber stamp.  Approval has not yet been granted by Council and may, indeed, be affected by a recent Heritage Trust citation of the trees.

1. The originating application is, for these reasons, dismissed.