Canas Pty Ltd v Cairns Regional Council [2013] QPEC 34 (2013) QPELR 706

__________________________________________________________________________________ JUDGMENT PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Canas Pty Ltd v Cairns Regional Council [2013] QPEC 34 PARTIES: CANAS PTY LTD (Appellant) v CAIRNS REGIONAL COUNCIL (Respondent) CHIEF EXECUTIVE, DEPARTMENT OF ENVIRONMENT AND RESOURCE MANAGEMENT (Co-respondent) FILE NO/S: 144 of 2010 DIVISION: PROCEEDING: Appeal ORIGINATING COURT: Planning and Environment Court, Cairns DELIVERED ON: 20 June 2013 DELIVERED AT: Cairns HEARING DATE: 17 June 2013 to 20 June 2013 JUDGE: Everson DCJ ORDER: 1. Appeal allowed solely to the extent it relates to development outside prospective lots 3, 8 and 9. CATCHWORDS: ENVIRONMENT AND PLANNING – APPEAL – whether proposed development conflicts with planning scheme – whether sufficient grounds exist to justify approval despite conflict – unstable steep hillslopes Local Government (Planning and Environment) Act 1990, ss 4.4(5A) and 5.1(6A) Integrated Planning Act 1997 (Qld), s 4.1.52 Sustainable Planning Act 2009 (Qld) Weightman v Gold Coast City Council [2003] 2 Qd R 441; [2002] QCA 234, applied COUNSEL: D. Morzone QC for the Appellant T. Fantin for the Respondent -- 1 of 5 -- __________________________________________________________________________________ JUDGMENT SOLICITORS: Miller Bou-Samra for the Appellant MacDonnells Law for the Respondent HIS HONOUR: This is an appeal against the decision of the respondent to refuse a development application for a development permit for reconfiguring one lot into 12 lots, common property and an access road, preliminary approval for a material change of use for eight additional dwelling houses and a request to change the location of the DCP Hillslopes B line. 5 The development application was lodged on 18 January 2005 and negotiations between the parties have resulted in a changed application and the approval in principle by the respondent of a number of allotments. The current proposal seeks nine allotments, including the existing house site. During the ADR process leading 10 up to the hearing of the appeal, a number of allotments were indicated by the respondent to be non-contentious, and since the commencement of the hearing of the appeal the respondent has also indicated a preparedness to support the approval of the recently proposed lot 7. 15 The disputed issues therefore relate to proposed lots 3, 8, and 9. Each of these lots is in very steep terrain on the western side of the Kennedy Highway behind Palm Cove. Each of the proposed lots contains a building envelope (“BE”), and the BE’s contain slopes up to 50 degrees and above. 20 It is common ground between the relevant experts - Mr Darras, an engineering geologist who gave evidence on behalf of the appellant, and Dr Shaw, a geotechnical engineer who gave evidence on behalf of the respondent - that the slopes within these lots are unstable and that it is likely that a landslide will occur within these lots during the lifetime of any development undertaken on them. There are instances of 25 observable active instability in various locations. At the time the development application was lodged, the Local Government (Planning and Environment) Act 1990 (“PEA”) applied. The appeal is to be heard and determined pursuant to the regime provided for by the Integrated Planning Act 30 1997 (Qld) (“IPA”), having regard to the transitional provisions of the Sustainable Planning Act 2009 (Qld) (“SPA”).1 Pursuant to s 4.1.52 of IPA, the court must decide the appeal based on the laws and policies applying when the application was made, but may give weight to any new laws and policies the court considers appropriate.2 At the time the development application was made, the Planning 35 Scheme for the Balance of the City of Cairns applied, being a transitional planning scheme under IPA. Relevantly, the planning scheme included the subject site within the areas covered by the Hillslopes Development Control Plan (“the DCP”). In s 1.2 of the DCP,3 the general intent was stated in the following terms, inter alia: 40 “…It is intended that this natural attractiveness be maintained by not permitting development on much of the hillsides. Where development does occur it should only be on slopes that are safe and stable, and in a manner 1 ss819(5) & 819(6) 2 See, Ex 19. 3 See, Ex 18, P23. -- 2 of 5 -- __________________________________________________________________________________ JUDGMENT which ensures that there will be no changes to the landscape character, visual appeal, or ecological values.” Subsequently, s 1.4.2 of the DCP4 relevantly provided: 5 “Land within this designation has been identified, by various factors, as being constrained to varying degrees for future development. … For development to be approved in this category, the applicant will need to 10 demonstrate to Council that the land can be made safe and serviceable for the proposed use without resort to, in Council’s opinion: [i] complex engineering solutions to overcome the constraints; 15 [ii] the undertaking of anything more than minor earthworks; or [iii] the need for controls, to ensure that there is no change to the landscape or scenic value of the area, to be placed upon the land use, in excess of those available in the Planning Scheme or Local Laws.” 20 Pursuant to the PEA, ss 4.4(5A) and 5.1(6A) relevantly provided: “The local government must refuse to approve the application if – 25 (a) the application conflicts with any relevant strategic plan or development control, plan; and (b) there are not sufficient planning grounds to justify approving the application despite the conflict.”5 30 A number of disputed issues were identified as being relevant to this appeal.6 Of these, only the question of geotechnical issues which are relevant to the above provisions of the DCP and visual amenity issues remain. However, I am satisfied that any adverse visual amenity impacts which may arise as a consequence of the development of lot 3 (which is the only lot relevant to this issue) can be 35 satisfactorily addressed by appropriate conditions. Mr Darras expressed the view that each of the lots in dispute could be developed for residential purposes, utilising the proposed development approach of the appellant of whole homes supported by piers bored into bedrock. This proposed development 40 approach does not seek to significantly constrain the varying amounts of colluvium which extend in places to several metres above the bedrock. I accept the evidence of Mr Darras that such an engineering solution would result in stable dwellings, in circumstances where the BEs themselves are not proposed to be stabilised to any significant degree. 45 4 See, Ex 18, P24. 5 See, Ex 19. 6 Ex 1(b), C10. -- 3 of 5 -- __________________________________________________________________________________ JUDGMENT This approach is clearly in conflict with the general intent of the DCP quoted above. In the course of his oral testimony, Dr Shaw stated: “…I take the view that the land we’re dealing with has a high likelihood of 5 instability which implies that anything that’s done on that site will necessarily be complex because of the interaction of all the various components that need to be looked at and if we are to design footings to withstand landslide, which is what is proposed, there needs to be expertise on the hydrological conditions. There needs to be expertise on the lateral loads exerted by a 10 landslide flow. There needs to be expertise on the structural design of the piles to accommodate that and the interaction of all of those aspects, I believe, is quite complex.”7 I have no hesitation in accepting the evidence of Dr Shaw, who I found to be a 15 careful and reasonable witness with considerable expertise in geotechnical assessment and design. I am therefore satisfied that there is also a conflict with s 1.4.2 of the DCP quoted above, in that complex engineering solutions are necessary to overcome the constraints presented by lots, 3, 8, and 9. 20 I now turn to whether there are sufficient planning grounds to justify approving development proposed in each of these lots, despite the conflicts identified above. I approach this exercise applying the test propounded by Atkinson J in Weightman v Gold Coast City Council in the following terms: 25 “In order to determine whether or not there are sufficient planning grounds to justify approving the application despite the conflict, as required by s 4.4(5A)(b) of the P&E Act, the decision maker should: 1. examine the nature and extent of the conflict; 2. determine whether there are any planning grounds which are 30 relevant to the part of the application which is in conflict with the planning scheme and if the conflict can be justified on those planning grounds; 3. determine whether the planning grounds in favour of the application as a whole are, on balance, sufficient to justify the 35 application notwithstanding the conflict.”8 So far as the nature and extent of the conflict is concerned, it is obvious that each of the lots in dispute is both extremely steep and potentially unstable. None of these lots present as a lot which can readily be developed for residential purposes. The 40 instability present within each of the disputed lots means that what is proposed is effectively constructing houses which are no more than platforms in precipitous areas of the site. In my view, the nature and extent of the conflicts with the provisions of the DCP, 45 referred to above, is significant. The planning ground principally put forward to justify the conflict by the appellant is that a significant area of the subject site is to be 7 T3, L20-28. 8 [2003] 2 Qd R 441 at [8]. -- 4 of 5 -- __________________________________________________________________________________ JUDGMENT the subject of a vegetation covenant which has been approved by the relevant government department. In particular, it is submitted that 800m2 of this area is to be the subject of active weed management. There are obvious benefits in this regard as the area in question appears to be largely undisturbed hillside forest which has significant environmental values. However, the subject site has always been within 5 an area where development has not been encouraged and environmental controls have always been significant. On 11 January 2013, the current planning scheme, Cairns Plan 2009, was amended to implement the Vegetation Management Code.9 10 Pursuant to this code, clearing can only occur within three metres of a structure without the need for a code assessable development approval. This is a significant constraint on clearing within the subject site in any event. Similarly, when regard is had to the covenant itself, clearing pursuant to the Vegetation Management Act 1999 15 (Qld) and clearing necessary to reduce the imminent risk that vegetation poses to, inter alia, damage to property is also permitted. What this means is that this planning ground is not overly weighty as the subject site has a significant degree of protection and the covenant itself contains a number of exceptions which justify clearing of vegetation in certain circumstances. 20 The balance of the lots the subject of the changed application are all to be approved with the covenant in place and this has been a relevant consideration in the decisions of the respondent to indicate its approval of development on other lots, notwithstanding the initial refusal of the development application. The benefits of 25 the vegetation covenant as a whole to the environmental integrity of the site are, in my view, not sufficient to justify approving the proposed development on lots 3, 8 and 9, notwithstanding the clear conflicts with the DCP. I therefore allow the appeal but solely to the extent it relates to development outside 30 prospective lots 3, 8 and 9. I adjourn the appeal to allow the parties to finalise negotiations in respect of appropriate conditions to apply to the balance of the proposed development. 35 ______________________ 9 Ex 18. -- 5 of 5 --