Zuvela v Atherton Shire Council

[2008] QPEC 105

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:	Zuvela v Atherton Shire Council & Anor [2008] QPEC 105
PARTIES:	PETER ZUVELA and LINDA ZUVELA (Appellants) v ATHERTON SHIRE COUNCIL (Respondent) STATE OF QUEENSLAND (Co-respondent)
FILE NO/S:	425 of 2004
DIVISION:
PROCEEDING:	Appeal
ORIGINATING COURT:	Planning and Environment Court, Cairns
DELIVERED ON:	10 August 2008
DELIVERED AT:	Cairns
HEARING DATE:
JUDGE:	White DCJ
ORDER:
CATCHWORDS:
COUNSEL:	Mr D P Morzone for the appellants Mr S Ure for the respondent
SOLICITORS:	Miller Bou-Samra Lawyers for the appellants Lilley Grose & Long for the respondent

1. The land which is the subject of this appeal is formally described as Lot 14 on N157323 Parish of Barron.  It is 23.452 hectares in area and has a frontage to McKeown Road.  McKeown Road runs south from the Gillies Highway approximately half way between the townships of Yungaburra and Atherton on the eastern side of the Barron River. 

1. On 31 October 2003 the appellants made application for a development permit for a material change of use and reconfiguration of a lot to have the subject land classified as Rural (where not good quality agricultural land) from a classification of Rural (where good quality agricultural land).  The result which the appellants sought to achieve was the subdivision of the subject land into three allotments having areas of 7.418 hectares, 8.09 hectares and 8.099 hectares.  This is the appellants’ appeal against the respondent council’s refusal of their application.

1. In order to explain the context in which the issues for determination in this appeal arise, it is necessary to set out some of the statutory and planning background relevant to the subject land. A major issue concerns the suitability of the subject land for agriculture and the extent to which State Planning Policy 1/92 – Development in the Conservation of Agriculture Land applies to the subject land and the application of the policy. The application was impact assessable. Therefore s 3.5.5 of the Integrated Planning Act 1997 as amended ( IPA) applied. So far as is relevant it provides as follows:-

“(2) If the application is for development in a Planning Scheme area the assessment manager must carry out the impact assessment having regard to the following –

(c) if they are not identified in the Planning Scheme as being appropriately reflected in the Planning Scheme –

(i)         State Planning Policies or parts of State Planning Policies.”

The Planning Scheme of the respondent Council which was in force at the relevant time was compliant with IPA and took effect from 24 June 2002. Schedule 1 to IPA provides a legislative scheme for the introduction of a planning scheme. Section 18 of Schedule 1 in particular, subsections (5) and (5A) provide a regime for formally recording whether or not a State Planning Policy is identified in a Planning Scheme as being appropriately reflected in the Planning Scheme under subsection 3.5.5(2)(c). The certified copy of the Atherton Shire Planning Scheme records as follows:-

“The Minister for Local Government and Planning has identified the following State Planning Policies as having been appropriately reflected in this Planning Scheme:

1.   State Planning Policy 1/92- Development and Conservation of Agricultural Land.”

I am therefore satisfied that the State Planning Policy 1/92 is identified in the Planning Scheme as being appropriately reflected in the Planning Scheme. Therefore, in my view, no regard is to be had to the State Planning Policy itself in carrying out the impact assessment of the subject application. Rather, regard is to be had to any relevant provisions contained in the applicable Planning Scheme. Of course, if there are provisions in the Planning Scheme which give force to any particular provisions in the State Planning Policy, in those circumstances regard must be had to those particular provisions of the State Planning Policy but not by reason of subsection 3.5.5(2)(c), but because those provisions are invoked by the Planning Scheme itself.

1. The first and, in my view, major issue involved in the appeal is whether or not the subject land constitutes “Good Quality Agricultural Land” (GQAL).  The issue arises in this way.  On the Rural District Plan map of the Planning Scheme the subject land is designated Rural (where GQAL).  At page 18 of the Planning Scheme is a section headed “Planning Areas”.  Section 2.2 deals with the Rural Planning area.  So far as is relevant the Statement of Intent for the Rural Planning area 2.2.1 provides as follows:-

“The Rural Planning area covers most of the Shire reflecting the Shire’s predominant rural character. 

This Planning area is intended for rural uses and is to assist in reinforcing the role of the rural sector in the ongoing development of the Shire. 

There are two categories of the rural planning area shown on the District Plan maps:

·Rural (where GQAL)

·Rural (where not GQAL)”

Thereafter are set out five rural objectives.  In respect of each of those five rural objectives are set out a list of assessment criteria.  I will list those rural objectives and relevant assessment criteria which I consider to be relevant to this application –

2.2.2Rural Objective 1

To recognise the economic, social and historical significance of the primary industries in the shire and, specifically, to protect good quality agricultural land (GQAL) from alienation as a consequence of development.

Assessment Criteria
Whether the proposal:-

(a)        maintains primary industries as the economic base of the shire.

(b)        maintains the contribution of primary industries to the identity of the shire’s community.

(c)        conserves and protects GQAL, unless an overriding, long term, community benefit is demonstrated having regard for State Planning Policy 1/92 – Development and the Conservation of Agricultural Land.

(d)        In the case where there is the potential for incompatibility provides a separation distance and a buffer of an appropriate width from any land used for intensive agriculture having regard for the guidelines to State Planning Policy 1/92 – Separating Agricultural and Residential Land Uses.

2.2.3    Rural Objective 2

To foster and facilitate the establishment of new sustainable rural industries or activities in order to broaden the economic base of the shire.

Assessment Criteria

Whether the proposal:

…

(b) conserves and protects GQAL, unless an overriding long term community benefit is demonstrated, having regard to State Planning Policy 1/92 – Development and the Conservation of Agricultural Land.

1. At page 136 of the Planning Scheme the term “Good Quality Agricultural Land” is defined as follows:-

“Has the meaning assigned to it under State Planning Policy 1/92 and its associated planning guidelines.”

This, therefore, is one of those instances in which the Planning Scheme invokes the provisions of the State Planning Policy and it is therefore necessary to make specific reference to those provisions in the State Planning Policy.  State Planning Policy 1/92 is in evidence as exhibit 7.  It is divided into two sections.  The relevant section for current purposes is entitled “Planning guidelines: The identification of good quality agricultural land”.  Section 2 is head “Definition of good quality agricultural land”.  So far as is relevant it contains the following:-

“2.1 Good quality agricultural land is land which is capable of sustainable use for agriculture, with a reasonable level of input, and without causing degradation of land or other natural resources.  In this context, agricultural land is defined as land used for crop or animal production, but excluding intensive animal uses such as feed lots, piggeries, poultry farms and plant nurseries based on either hydroponics or imported growth media.

2.2 Four classes of agricultural land have been defined for Queensland (refer Table 1 and attachment 1).  Class A land in all areas is considered to be good quality agricultural land.  In some areas, Class B land (where agricultural land is scarce), and better quality Class C land (where pastoral industries predominant), are also considered to be good quality agricultural land.

2.3    Agricultural land classes are based on an assessment of the agricultural suitability of the land for specified agricultural uses.  Agricultural land suitability is a rating of the ability of land to maintain a sustainable level of productivity.  The factors used to assess agricultural land suitability are the soil, topographic and climatic limitations which determine sustainable productivity.  Explicit evaluation of economic factors, such as the size of production units, are not included as they are not considered relevant to the quality of the resource.  Methods of agricultural land suitability assessment have been published by the Department of Primary Industries (DPI) and others (see s 10). 

1. Table 1 is as follows:-

CLASS	DESCRIPTION
Class A	Crop land – Land that is suitable for current and potential crops with limitations to production which range from none to moderate levels.
Class B	Limited crop land – Land that is marginal for current and potential crops due to severe limitations; and suitable for pastures.  Engineering and/or agronomic improvements may be required before the land is considered suitable for cropping.
Class C	Pasture land – Land that is suitable only for improved or native pastures due to limitations which preclude continuous cultivation for crop production; but some areas may tolerate a short period of ground disturbance for pasture establishment.
Class D	Non-agricultural land – Land not suitable for agricultural uses due to extreme limitations.  This may be undisturbed land with significant habitat, conservation and/or catchment values or land that may be unsuitable because of very steep slopes, shallow soils, rock outcrop or poor drainage.

I am satisfied on the evidence that agricultural land is not scarce in the area and it is not an area where pastoral industries predominate.  Therefore, pursuant to s 2.2 of the definition of GQAL for the subject land to be classed as GQAL it must fall within Class A of Table 1.

1. The subject land is on the western side of one of a line of hills known locally as The Seven Sisters.  These hills are the remains of ancient volcanoes.  Many thousands of years ago they erupted, spilling molten lava onto surrounding land including the subject land.  This lava hardened into basalt rock.  Over many thousands of years, perhaps partly due to earth tremor but more particularly due to weathering by rainfall, there has been substantial decomposition.  The decomposed basalt rock forms the bulk of the present day surface soil on the subject land and surrounding areas.  It is naturally very fertile.  However, the decomposition process remains well short of being complete.  There remains spread amongst the present day basalt soils numerous basalt rocks of various sizes. 

1. The subject land and the surrounding area enjoys a relatively high annual rainfall.  However, that rainfall is very seasonal.  The vast majority of average annual rainfall occurs during the late spring, summer and early autumn months.  This is not to say that there is no rain at all during other periods of the year.  However, such rainfall is usually infrequent, unreliable and not often of significant quantity.  This rainfall feature of the subject land and, indeed most of the Atherton Shire has led to widespread use of irrigation amongst crop farmers on the Atherton Tableland.  Astute use of irrigation water permits crop farmers to make up for any uncharacteristically lengthy dry spells during the wet season.  It also allows crop farmers, provided they have sufficient water allocation, to successfully grow crops during the dry season.  Although there may be some unrestricted access to irrigation water in some parts of the Atherton Shire, overwhelmingly the use of water for crop irrigation is licensed and generally subject to volumetric limitations.  The subject land has no irrigation licence or water allocation.  At the time of hearing there was a moratorium on further water allocations.  Whilst I accept that there is a possibility that that moratorium might be lifted and I also accept that a possible water trading scheme in the future could allow an owner of the subject land to acquire a water allocation.  On the evidence I heard during the hearing of the appeal, I am more than satisfied that it is unlikely in the extreme that the subject land will ever be the beneficiary of any individual irrigation facility.  This is not to discount the possibility that if the subject land is amalgamated with some other farm or comes under the ownership of a person with more extensive land holdings having water allocation, part of that water allocation might be used to irrigate the subject land.  However, those are different issues than the one under consideration at the present time.

1. As may be observed from s 2.3 of the definition of GQAL, the factors relevant to assessing whether any particular piece of land is GQAL are “the soil, topographic and climatic limitations which determine sustainable productivity.”  Specifically, “explicit evaluation of economic factors such as the size of the production units are not included as they are not considered relevant to the quality of the resource.”  I am satisfied on the evidence that the subject land is of such a small area that it falls far short of being a viable economic farm.  However, that is not a factor which may be taken into account in any way in concluding whether or not the subject land constitutes GQAL.  It may be relevant in relation to other considerations which I will discuss later.

1. The evidence relating to the issue of whether or not the subject land is GQAL came firstly from two professional expert witnesses, Mr Robert Walker for the appellants and Mr James McClurg for the respondent.  Without intending any disrespect to their efforts in investigating the subject land, and their very professional and expert consideration of the issue of whether or not the subject land is GQAL, in the end result I am not greatly assisted directly by their evidence in making that important decision.  Very briefly I should say that I am satisfied that there are no topographical considerations which place limitations on the subject land and which might constitute a limitation to production beyond a moderate level.  Although the land is sloping, it is not steeply sloping.  It provides no significant limitation to the operation of cultivation and harvesting machinery across the slope.  There is no suggestion that it leads to any significant problems with erosion.  Initially, Mr Walter suggested that there were some climatic limitations upon the suitability of the subject land for cropping, although I understood him to have significantly resiled from that position during the course of his oral evidence.  In any event, I prefer the evidence of Mr McClurg in that regard, supported as it is particularly by other evidence to which I will shortly refer. 

1. In relation to the soil itself, as I have said, it is interspersed by a significant quantity of basalt rock.  Mr Walker considered that the presence of the rocks in such quantities took the subject land out of Class A and thereby rendered it not good quality agricultural land.  Mr McClurg considered that the presence of the rocks did not interfere with the use of the subject land for the growing of crops so as to take it out of Class A of Table 1.  I point out that of course this is a factual issue which is to be decided by the Court and not to be decided by expert witnesses.  In the end however I rely heavily on the evidence of other witnesses in determining whether the subject land falls within class A of Table 1.

1. Evidence was given by Mr F J Liston who was a previous owner of the subject land.  Of course Mr Liston also owned a number of surrounding parcels of land which he farmed in conjunction with the subject land.  He grew maize, which is a crop of substantial significance on the Atherton Tableland.  He was able to effectively cultivate the land in spite of the presence of rock.  He recalled that the subject land yielded between 80 and 100 tonnes of maize without irrigation.  Mr Renato (Ron) Bonadio gave evidence.  Mr Bonadio and his family own a substantial number of parcels of land in the area.  In particular, they own a substantial parcel of land on the western side of McKeown Road to the subject land separated only by two smaller allotments.  Mr Bonadio’s family have successfully cultivated their land for the growing of maize during the summer months over many years.  Mr Bonadio, who in fact harvested Mr Liston’s maize for a number of years, considered that the incidence of rock on the subject land was essentially similar to the incidence of rock on the Bonadio land.  All or almost all of Mr Bonadio’s maize crops were grown without the benefit of irrigation.  Maize is a summer crop and I have no doubt that Mr Liston and Mr Bonadio grew maize to take advantage of the reliable and substantial summer rainfall. 

1. I have no doubt that the seasonal nature of the rainfall in the area places some limitations on the ability of the land to produce a winter crop without the benefit of irrigation.  Nevertheless, Mr Bonadio has grown a winter crop from time to time.  As he properly acknowledged such crops were not of outstanding quality but were of sufficient quality to motivate him to plant a winter crop from time to time when the opportunity arose.  I have no doubt that there is the same potential for the subject land.  It must be remembered that not all crops require the relatively high rainfall which falls during the wet season in the area of the subject land.  Rather, the abundant rainfall in the area allows a maize crop to produce a significantly greater yield per hectare than might be achieved without the benefit of irrigation in any area of lower rainfall.  I have no doubt that there have been and might be in the future, years when it would be silly to attempt to grow a winter crop.  If, for instance, there was no or no sufficient moisture in the soil to germinate a winter crop after the summer maize crop was harvested it would be pointless planting a winter crop.  However there are, no doubt, some years in which the wet season lingers on and there is sufficient moisture in the soil to plant and grow a winter crop for such an opportunity can be exploited.  I have no doubt that it has been in those circumstances in which Mr Bonadio has actually exploited the opportunity to plant a winter crop.

1. I have no doubt that the presence of the rocks in the soil in the area imposes some limitation.  The presence of the rocks involves some potential for damage to cultivation machinery.  Further, each cultivation is likely to bring some rocks close to the surface.  In the past this led Mr Liston to institute “rock picking”.  This involved the collection of rocks and placing them in rock piles and in some instances allowing people to remove rocks from his property for other uses such as landscaping.  Mr Bonadio and his family have undertaken more extensive work to substantially reduce the number and size of rocks in his soil.  He has used heavy machinery to do so.  The nature of cultivation machinery is such that each year’s cultivation would lift a certain number of rocks from below the surface of the soil to the surface of the soil.  I expect that experience in the area has been that the following year’s cultivation would bring more rocks to the surface.  However, I do not accept that there could somehow be an endless supply of rocks below the surface.  I would imagine that if no attempt was made to remove any rocks then as the years went by the number of rocks on or very close to the surface of the soil would increase because they would be brought to the surface each year during cultivation. On the other hand, if rocks brought to the surface were removed I cannot accept that somehow or other they would be replaced by other rocks below the surface.  The phenomenon of rocks being brought to the surface year after year does not arise because new rocks are created.  It arises because each cultivation, whilst bringing some rocks to the surface, leaves many rocks behind.  It is a matter of chance that the rocks left behind might be brought to the surface in subsequent years.  Mr Bonadio’s evidence, which I accept, bears this out.  If a concentrated effort is made to remove rocks or a substantial quantity of rocks, particularly larger ones from the surface soil in which field crops grow, those rocks are not replaced by others.  There is no evidence to suggest that deep within the soil there is an endless supply of rocks steadily creeping towards the surface so that the removal of rocks becomes an ongoing annual or biannual process.  I accept that farmers such as Mr Bonadio and Mr Liston saw the benefit of removing rocks as and when that could be done.  But in my view the removal of rocks cannot be characterised as a recurring annual input.  It is a one-off soil improvement activity, although in relation to individual rocks the removal might physically be carried out in different years.  Further, as the evidence of Mr Bonadio and Mr Liston demonstrates, even without undertaking periodic removal of rock, land in this area containing such rock is capable of producing good quality maize crops.  Rock removal is not essential to produce a successful crop, however it is obvious that removal of the rock will increase the productivity of the soil further.  In summary, therefore I am satisfied that the subject land constitutes good quality agricultural land within the meaning of that term in the Planning Scheme.

1. Of course, the fact that the subject land is good quality agricultural land is not an absolute bar to the subdivision proposed by the appellants.  The evidence discloses that Mr Zuvela is not a farmer.  The purpose of subdividing the land into three lots is to provide land for his children to build on and occupy.   As I have pointed out above Rural Objective 1 for the rural planning area includes “specifically, to protect good quality agricultural land (GQAL) from alienation as a consequence of development”.  If the subject land were subdivided as envisaged by the appellants, additional houses would be built upon the subject land, the three allotments could pass into different and conflicting ownership, the erection of boundary fences would become likely.  All of these things in my view would alienate the subject land from use as Class A land although the land might still be able to be used and in fact be used for some lesser productive rural purpose such as pasturing horses or cattle.  It follows therefore that I am satisfied that the proposed subdivision would not conserve and protect GQAL as required by assessment criteria (c) to rural Objective 1.  There is an exception provided for in Rural Objective 1 Assessment Criteria (c). The following appears in SPP 1/92:-

Determining “Overriding Need”
4.13 Determining “an overriding need in terms of public benefit” depends upon the circumstances of the particular proposal.  Some obvious cases of “overriding need” which are likely to justify the loss of the agricultural land illustrates the principles.

4.14 State Planning Policy 1/92 cites the example of a tourist development that could provide the opportunity to diversify the economic and employment base of an area and support a growing State industry.  A mining proposal is likely to offer similar advantages locally, as well as providing significant export revenue for the State as a whole.  Finally, major infrastructure (for example, roads, railways, aerodromes and dams) usually have specific siting/location requirements that might require the loss of some good quality agricultural land.

4.15 These examples should not be regarded as a justification for every proposal involving such developments.  Each proposal should still be assessed on its merits to determine the degree of community advantage.

4.16 Instances of proposals for residential development on good quality agricultural land are likely to be more frequent.  In such cases.  The need for the development should be established in the context of other undeveloped land designated for urban or residential development by the strategic plan.  Also relevant is the availability of alternative sites that are not of good agricultural quality, but could be serviced reasonably and could meet the same housing demand.  Where an area is reasonably close to a local authority boundary, consideration of suitable alternative sites should include those in the neighbouring local authority.

It is sufficient to say that in my view clearly the proposed subdivision and the purposes of the proposed three allotments cannot possibly constitute an overriding need in the terms stated in the SPP. 

1. It follows therefore that I have come to the conclusion that the appeal should be dismissed.  I have come to that conclusion somewhat reluctantly by reason of the view which I take of the limited application of the SPP in light of the fact that it is identified in the Planning Scheme as being appropriately reflected in the Planning Scheme.  (Subsection 3.5.5(2)(c) of IPA).  My view in this regard is a view about the law.  Therefore if I am wrong in that view it is potentially an appellable error unlike any findings of fact.  In case I am wrong about the law I propose to make some further brief findings of fact on issues raised by the parties so that if possible a re-hearing of the appeal can be avoided if I am subsequently found to have made an error of law.

1. There is one matter relied upon by the appellants to support the upholding of the appeal which appears in the SPP but which on my view of the law it would be impermissible to have regard.  That appears in s 4 of the Planning Guidelines of the SPP under the heading of “Assessing Planning Applications”.  I hope it is clear that if the SPP had not been identified in the Planning Scheme as being appropriately reflected in it I would have had considerable regard to s 4.  Indeed, I would have been required to do so.  Subsection 4.12 provides as follows:-

“If the subject land is found to be good quality agricultural land the local authority should refuse the application unless:

·There is an overriding need in community terms of public benefit for the proposal and the proposal cannot be located on alternatives sites of poor agricultural quality; or

·The subject land is located so that farming, either alone or in association with surround parcels, is not practicable: for example a small isolated parcel of land surrounded by urban land uses.”

As I understand one of the submissions on behalf of the appellants it at least implies that the subject land is located so that farming either alone or in association with surrounding parcels, is not practicable.

1. On the view I take of the evidence there is much to be said for such an argument.  It seems that since the subject land passed into separate ownership when sold by Mr Liston in 1990 it has not been used for the purposes of cropping.  It has been used for the purposes of grazing some cattle.  I have no doubt that there is a good reason for this and that is that the subject land is far too small to economically use for the growing of crops such as maize as a stand-alone farm.  The investment in farm machinery of the size and type required to effectively cultivate the subject land and grow crops upon it could not be justified given that no matter how good the crop was the small size of the subject land would make the return upon the sale of that crop totally inadequate so as to justify the capital investment in the machinery which would be required in order to carry out such cropping.  Similarly, cropping the subject land would not be a viable proposition for a share farmer unless it could be farmed in association with a substantial area of immediately surrounding cropping land.  Mr Zuvella has attempted to find someone who might be interested in share farming the subject land and has been unable to do so.  The owner of the adjoining parcel of land to the south has no interest in acquiring the land to grow maize upon it and the obvious inference is that he would not be interested in share farming the subject land. 

1. Mr Bonadio expressed no interest in share farming the land.  He admitted to some considerable interest in buying the land when it came up for sale.  However, he considered the price he would have had to pay to acquire it too high to justify the returns which he anticipated he and his family could get from farming the subject land in essentially the same way they farm their existing holdings.  This is in spite of the fact that the subject land is sufficiently close to the Bonadio holdings that the Bonadio family could have used machinery which they already own to farm the subject land and would not have been put to any significant expense in acquiring additional machinery.  I reject the submission  made by counsel for the respondent that if the application is refused and the subdivision not permitted, then the market value of the land will reduce back to a reasonable figure which might make acquisition of the subject land by Mr Bonadio or somebody else nearby for the purposes of cropping a more attractive economic proposition.  In my view it would be speculative to form the view that the price paid by the appellants when they purchased the land included a premium to take account of the prospect of subdivision. 

1. There is evidence from Mr Robinson that there is a support in the market for relatively small blocks of rural land from what are conveniently termed “life stylers”.  I take such people to be those who are not particularly interested in carrying on farming on a fulltime basis for a living but wish to enjoy living in rural surroundings, wish to enjoy engaging in rural activities such as for instance fattening a few cattle for sale, and if a little income can be earned from such minor activity that would be a bonus.  I would have thought that the subject land would have been particularly attractive to such a market, ignoring any consideration of possible subdivision. 

1. The SPP envisages that GQAL should be preserved so that any opportunity for such land to be used productively, either by amalgamation with adjacent parcels of GQAL or simply being farmed in conjunction with adjacent parcels of GQAL whilst preserving the title.  However, on the evidence which I heard during the course of the hearing of the appeal I am satisfied that it is highly unlikely that the subject land will ever be acquired for the growing of crops in conjunction with surrounding crop land.  The possibility of that happening in my view remains no more than a theoretical possibility. 

1. In submissions counsel for the respondent argues at length that there is potential for conflict between residents who might live on the three proposed lots if the appeal is upheld and surrounding agricultural uses.  In my view such conflict is a non-issue in this particular case.  I am satisfied that some conflict may arise.  It may well be that if the subdivision were permitted, a particular occupier might make complaints about Mr Bonadio’s farming activities, just as some other occupant of a similar sized lot has done, or might make complaints about some of the farming activities being carried on by other farms adjacent to the subject land.  However, in my respectful view that is not the sort of conflict about which the Planning Scheme is concerned. 

1. Assessment Criteria (d) to Rural Objective 1 is concerned with a buffer from any land used for “intensive agriculture”.  In my view what is carried out upon land in the area is “agriculture”, not intensive agriculture.  The only other provisions in the Planning Scheme which deal with the issue of conflict concern conflict between Rural Residential development and agricultural activity.  In my view the subdivision of the subject land into three allotments of approximately 8 hectares and the construction thereon of houses would not constitute rural residential development within the meaning of that term in the respondent’s Planning Scheme.  Firstly, if this were not good quality agricultural land the minimum lot size would be 8 hectares which is almost precisely what is proposed by the appellants.  This is not an application by the appellants to in some way put the subject land into the rural residential planning area.  In Table 4.16.3 on page 122 of the Planning Scheme which deals with minimum lot sizes in various planning areas the rural residential planning area is given separate treatment to the rural planning area.  If the subject land were to be included in the rural residential planning area the minimum lot size would be 4,000 square metres or .4 of a hectare.  In the structure plan at p 15 subsection 1.4 deals specifically with rural residential matters.  Although there is no expressly stated maximum size of a rural residential allotment in the Planning Scheme of which I am aware that section seems to envisage that rural residential allotments will be of the order of 1 – 2 hectares.  I have been referred to nothing in the scheme which expresses any concern about conflict between the uses carried out on land in the rural area classified GQAL and land in the rural area classified not GQAL.  In my view there is no more potential for conflict between the occupiers of allotments classified rural area (not GQAL) and occupiers of allotments classified rural area (GQAL) as there is between occupiers of adjoining allotments within each of those categories.  For instance, an occupier of a large dairy farm who does not have a need to drive a tractor at night might complain to a neighbouring farmer growing maize about the noise from the neighbour’s tractor keeping him awake at night.  The occupier of an organic farm on GQAL may complain about a neighbour on a non-organic farm spraying (particularly aerial spraying) chemical fertiliser or pesticide near the boundary because of the potential for drift to undermine the organic integrity of the farm.  Compared to many rural areas in Queensland it could no doubt be said that the area around the subject land is very closely settled.  However, in my view there can be no doubt that it remains essentially rural in character and would do so if the subject land was subdivided as sought by the appellants.

1. In summary therefore if I felt able, as a matter of law, to have regard to subsection 4.12(second dot point) of the planning guidelines of the SPP I would be inclined to uphold the appeal and allow the subdivision.  However, as I have indicated, I am compelled to the view that I am not able to resort to s 4.12 because in the view that I take the Planning Scheme itself on its proper construction is more rigid than the SPP and does not allow me to do so.  With some regret therefore I propose to order that the appeal be dismissed.