Casagrande Investments Pty Ltd v Redland City Council [2011] QPEC 4 (2011) QPELR 426

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Casagrande Investments Pty Ltd v Redland City Council [2011] QPEC 4 PARTIES: CASAGRANDE INVESTMENTS PTY LTD (Appellant) AND REDLAND CITY COUNCIL (Respondent) AND KEVIN BRUCE HUDSON (First Co-respondent by election) AND SANDRA DENISE PARCELL (Third Co-respondent by election) AND CHRISTIAN DAVID COLEMAN (Fourth Co-respondent by election) AND DEPARTMENT OF TRANSPORT AND MAIN ROADS (Fifth Co-respondent by election) FILE NO/S: Appeal No. 3566/09 DIVISION: PLANNING AND ENVIRONMENT PROCEEDING: APPEAL ORIGINATING COURT: BRISBANE DELIVERED ON: 11 February 2011 DELIVERED AT: Brisbane HEARING DATE: 7, 8, 9, 10 & 11 June 2010; 13 August 2010; 1 and 10 October 2010 JUDGE: Rackemann DCJ ORDER: Appeal allowed. The further hearing is adjourned to consider conditions of approval. CATCHWORDS: PLANNING AND ENVIRONMENT – PROPOSED MULTIPLE DWELLING – LAND PARTLY IN THE OPEN SPACE ZONE AND PARTLY IN THE MEDIUM DENSITY RESIDENTIAL ZONE – INCONSISTENCY -- 1 of 34 -- 2 WITH CONDITIONS OF PREVIOUS APPROVAL – CONFLICT WITH PLANNING SCHEME – WHETHER SUFFICIENT GROUNDS – VISUAL AMENITY – ECOLOGICAL VALUES – NEED – TRAFFIC – STORMWATER COUNSEL: Mr Skoien for the Appellant Mr Ure for the Respondent Mr Hudson – Self represented SOLICITORS: McCarthy Durie Ryan Neil Solicitors for the Appellant HWL Ebsworth for the Respondent -- 2 of 34 -- 3 Introduction [1] This applicant appeal is against the council’s refusal of an application for a development permit for a material change of use to facilitate the development of multiple dwellings on land at 537-547 Redland Bay Road, Victoria Point. [2] The site is part of Lot 30 on SP 131717 (Lot 30). That lot has an area of 3.122 hectares, most of which is occupied by an aged care facility, fronting Redland Bay Road, within the Medium Density Residential zone. That part of Lot 30 to which this application relates has an area of 1.2430 hectares. It is to the rear of the aged care facility and is currently vacant. It features a sizeable dam, vegetation (including some mature tall trees), and grassland. About two-thirds (8482 square metres) of the site is within the Open Space zone, with the remainder (3957 square metres adjacent to the aged care facility) being in the Medium Density Residential zone. [3] To the south and west of the site is a recently developed residential street (Creekwood Street) to which the subject development would gain access via a stub road reserve which terminates at the site boundary. Creekwood Street is currently developed with detached dwellings (on lots ranging from 640 square metres to 1228 square metres) within the Urban Residential zone. A number of those back onto the subject site. Another new residential estate has been developed to the north. The site is within reasonably close proximity to the Victoria Point town centre. [4] The proposal was originally for 13 multiple dwellings. This was reduced to 11 by amended plans. Set backs have also been increased and the few highset proposed dwellings have been moved towards the centre of the site. Subsequently, further changes have been made to address alleged impacts. They are all within the scope of minor changes for the purposes of the Act. -- 3 of 34 -- 4 [5] While the proposal is for multiple dwellings, it takes the form of 10 buildings. Nine of those are effectively dwelling houses. There is one duplex. [6] The first to fourth co-respondents by election were adverse submitters. The fifth co- respondent by election was a concurrence agency, which does not oppose approval of the application. [7] The issues in the appeal may be summarised as: • Inconsistency with the conditions of approval attaching to the aged care facility. • Conflict with the planning scheme – in particular, alleged compromise of DEO 1 – natural environment and the provisions in relation to the Open Space zone. • The sufficiency of grounds to warrant approval notwithstanding conflict. • Visual amenity. • Ecological impacts • Need. • Traffic. • Storm water and associated issues. Inconsistency with aged care approval [8] Lot 30 (including that part which is now the subject of this application) is the subject of an approval, granted by this Court on 28 January 2000, in respect of the aged care facility. That approval is a relevant consideration by reason of s 3.5.5(2)(b) of the Integrated Planning Act. 1 [9] The aged care approval contained conditions which required that part of Lot 30 which is now proposed for multiple dwellings, to be used instead as a “special protection area” -- 4 of 34 -- 5 (SPA). Buildings were not to intrude into it. Rather, it was to be revegetated, landscaped and used as passive recreation for the residents of the aged care facility. The conditions included the following: “27. Landscape Works 1. (a) The Site, including adjacent footpath(s) shall be landscaped in accordance with details indicated on a Landscape Planning Scheme to the satisfaction of the Manager – Assessment Services. A Vegetation Management Plan for the SPA shall be submitted in accordance with Condition 2. (b) Prior to a Development Permit for Building Works being issued, the applicant shall apply for and receive an approval from Council for landscaping plans and specifications for the construction of the proposed works. In this regard, the applicant is required to apply for and to receive an approval for Associated Development Works – Landscaping from Council. These Works shall be completed prior to the use commencing. (c) The documentation shall take the form of scaled plans and drawings and supporting information (6 copies) generally in accordance with the Concept Landscape Plan LP01 dated June 1999 by Wilson Landscape Architects and SPA as defined on SK1, and contain the following: … (vii) Should fencing be erected around the SPA, the fencing is not to impede fauna movement and it is to be in compliance with any of the design options contained in Council’s Fauna Friendly Fencing Information brochure. The existing 3 strand fence is acceptable provided that any barbed wire is removed and the spacing is sufficient. All other fencing in the Special Protection Area is to be removed, including the existing barbed wrier fence near the large dam. … (xv) The SPA as defined in Drawing Number SK1 shall be used for passive recreation only with seating, and defined walkways designed in accordance with equitable access for the elderly and infirm. No buildings shall intrude into the SPA. … 3. Special Protection Area 1 Which is the Act which applies to the determination of this appeal – s819 Sustainable Planning Act 2009 (Qld) -- 5 of 34 -- 6 The extent of the SPA shall be from a point that is 105 metres from the north western corner along the north western property boundary corner to a point that is 85 metres from the south western corner along the south western property boundary. This area is indicated on Plan MC 54900. The SPA shall be revegetated and designated as a Vegetation Protection Area and be devoid of any built form. Exotic weeds shall also be removed from this area. All native vegetation in the SPA is to be protected, maintained and enhanced as per the approved Vegetation Management Plan and is protected vegetation for the purposes of Division 4, Section 25 of the Council’s Local Law No. 6 – Protection of Vegetation.” [10] The conditions have never been complied with or enforced. Consequently, while the site presents as a pleasant green backdrop to the surrounding urban development, it does not have as much vegetation or provide as much habitat as it would have in the event the conditions had been complied with. [11] Counsel for the respondent pointed out that the conditions continue to run with the land. If the subject proposal proceeded, the aged care facility would be in breach of its conditions of approval. Accordingly, a further approval would be required in order to free the aged care facility from the requirements of those conditions. As counsel for the respondent also acknowledged, however, that is not fatal to this application.2 Any approval of this application could be conditional on the development not commencing until and unless that other approval is obtained. The issue, for present purposes, is the weight which should attach to the inconsistency between the proposal and the conditions of the aged care facility approval. [12] Had there been no relevant change in circumstances since the approval was granted, then the weight afforded to the conditions might have been substantial. That is not so. 2 T8-33; Compare Walker v Noosa Shire Council [1983] 2QdR86 -- 6 of 34 -- 7 [13] As was pointed out for the appellant, urban development about the subject site has altered its physical context and eroded the connectivity of the vegetation on the subject site with that beyond its boundaries. It may also be noted that, the Creekwood street estate has been constructed with a stub road reserve providing potential for access to the subject site. The overlays in the current planning scheme do not recognise any habitat values on the site. More significantly, the planning intention for the land has altered. In particular, under the current planning scheme3 , part of the special protection area has now been included within the Medium Density Residential zone. Accordingly, about one-third of the SPA is, under the current planning scheme, included in a zone which contemplates development of the kind proposed. 3 The first version of which came into force in March 2006, with the current version coming into effect in 2010. -- 7 of 34 -- 8 [14] In those circumstances, it is appropriate to place greater weight on the proposal’s response to the provisions of the planning scheme rather than its degree of inconsistency with the conditions of an approval granted a decade ago. Alleged conflict with the planning scheme [15] The development application was impact assessable. The decision on the application must not:4 (a) compromise the achievement of the desired environmental outcomes for the planning scheme area; or (b) conflict with the planning scheme, unless there are sufficient grounds to justify the decision despite the conflict. [16] The respondent contends that a decision to approve the proposal would: • compromise the achievement of DEO1 – Natural environment, and • conflict with the planning scheme provisions relating to the open space zone. [17] That part of DEO1 upon which reliance was placed is as follows: “3.2.1 Designed Environmental Outcome No. 1 – Natural environment (1) Redland cities and environmental values and natural resources are managed in a sustainable manner to maintain biodiversity, ecological processes and community well being by ensuring development (a) protects and enhances (i) a wide range of natural eco systems including – … (f) locally significant patches, corals and mosaics of bushland that support wildlife throughout the city.” [18] It was submitted that approval of the proposal would compromise achievement of that DEO because it would result in significant loss of vegetation within a locally significant patch which serves as a ‘stepping stone’ within an otherwise highly urbanised environment. 4 Section 3.5.14 of the IPA. -- 8 of 34 -- 9 [19] The DEOs are, of course, sought to be implemented through the distribution of zones. The strategies for the city, in so far as the natural environment is concerned, state, in part, as follows:- “6. Natural environment – (a) the protection of areas of ecological, habitat and/or biodiversity significance is facilitated by the inclusion of such areas within the Conservation zone or Environmental Protection zone. (b) Diagram 4 – Natural and environment identifies the core habitat, rural and habitat corridor network and the urban coral network … (g) Visual and scenic qualities preserved through the allocation of zones to reinforce – (i) physical and visual breaks through communities (ii) management of vegetation clearing (iii) protection of remnant vegetation (iv) protection of vistas, peaks, ridge lines and green backdrops (v) encouraging development that is responsive to natural terrain and land form.” [20] The strategies for the city in relation to recreation and open space, on the other hand, provide, in part, as follows: “(7) Recreation and open space – (a) the city’s key recreational resources are identified and protected for recreational purposes through complementary inclusion generally in the open space of conservation zones … (b) recreational resources and open space are provided to: (i) ensure a diversity of recreation settings (ii) encourage multiple use of open space (iii) co-locate compatible recreation activities (iv) ensure non-motorised recreation trail network is integrated into the open space of transport networks (v) ensure linkages are provided between open space areas (vi) provide a significant contribution to the green space character of the city and the region.” [21] No part of the site is included within the Conservation Zone or the Environmental Protection zone nor is the habitat value of the site recognised in the overlays under the scheme. Understandably, Mr Michell (the town planning consultant engaged by the appellant) saw the planning intent for that part of the land included the Open Space Zone as relating more to its recreational value than its significant ecological -- 9 of 34 -- 10 and environmental value. 5 It should be noted however, that the recreational value of the site is affected by its private ownership. Further, the statement of Mr Cox (the operation manager of the aged care facility) attests that: “15. No residents at Rosevale visit the dam as a large number of them are confined to wheelchairs or beds. There is not sufficient wheelchair access to the rear of the site and it is not possible for staff to push wheelchairs along the grassed area to the dam, which would be approximately a 400 metre walk. Very few residents at Rosevale can walk unassisted, and most are experiencing varying stages of dementia. Most of the residents are unaware of the existence of the dam. 16. Occasionally I receive enquiries from residents and their relatives in relation to whether Rosevale Court owns the area at the rear of the site, however, I have never been approached by residents or visitors to Rosevale Court asking to visit the dam or the rear of the site.” [22] The part of the site which is in the Open Space zone has visual amenity value, providing a green backdrop to and a green break within, an otherwise highly urbanised environment. [23] Environmental concerns are not irrelevant to the Open Space zone, but the focus of the outcomes sought are more wide ranging than just environmental protection. The overall outcomes sought for the Open Space zone are described by reference to six key characteristics, namely: (a) uses and other development (b) open space design (c) built form (d) amenity (e) environment 5 Joint report [9.3(c)]. -- 10 of 34 -- 11 (f) infrastructure. [24] The planning scheme goes on to detail the overall outcomes in respect of each of those characteristics. Those to which counsel for the respondent drew attention are as follows: “4.16.7 Overall Outcomes for Open Space Zone Code … (2) The overall outcomes sought for the Open space zone Code are described by six key characteristics – … (a) Uses and Other Development (i) Provide for a range of open space and recreational uses that – a. meet the active or passive recreational needs of residents and visitors to the City; b. provide for recreation activities on land in public or private ownership; c. may include land used for activities not involving access by the general public. (ii) Provide for a limited range of other uses that – … b. do not impact on the amenity and landscape setting of the area. (b) Open Space Design (i) Uses and other development are designed in a manner that – a. contribute to the legibility and character of the local area; b. provides adequate facilities that meet community needs and expectations based on the population density and demographic structure expected in the area; c. provide for a range of passive and active recreational opportunities; … e. complement the broader open space network; f. form links between existing open space areas. (c) Built Form (i) Uses and other development have a site layout that – … -- 11 of 34 -- 12 c. incorporate existing landscape and topographic features; d. retain and integrate existing native plants; e. support the retention and enhancement of habitats and corridors; (ii) The scale of uses and other development – a. is compatible with that of the surrounding area; b. positively contributes to the visual amenity of the area; c. is consistent with the open space nature of the zone and the specific function of the site. … (d) Amenity (i) Uses and other development achieve a high standard of amenity by – a. providing high quality useable public and private open space that meets the needs of community; b. creating open space areas that are safe and comfortable for users; c. contributing to the livability of the City through the provision of the visual relief from the built environment; d. providing a landscape setting that complements the specific open space function of the site; … (e) Environment (i) uses and other development minimise adverse impacts on environmental and scenic values by – … d. minimising the need to clear native plants; e. maximising the use of plant species that are native to the area; g. enhancing water quality and minimise adverse impacts of potentially water and soil contaminating substances…” [25] Specific outcome s 1.1 of the Open Space zone code provide that:- “Uses identified as inconsistent in Table 1 are not established or undertaken in the zone.” [26] Multiple dwellings are listed in Table 1, and so are regarded as an inconsistent use which should not be located within that zone. -- 12 of 34 -- 13 [27] As one would expect, the outcomes sought for the Medium Density Residential zone are different. They address five key characteristics, namely: (a) uses and other development (b) built form and density (c) amenity (d) environment (e) infrastructure. [28] In so far as each of those key characteristics is concerned, the planning details outcomes which include the following: (a) uses and other development (i) provide for a range of residential uses that – a. are predominantly midrise housing on lot sizes that offer opportunities for medium density living b. provide a range of dwelling types that offer choice, affordability, and adaptability c. maximise the supply of dwelling units in close proximity to centres and public transport, to the general exclusion of other less compact forms of housing … (b) built form in density (i) the scale of uses and other development contribute to a predominantly medium density residential built form by a – i. providing a range of dwelling units and midrise height buildings … the density of uses and other development – (a) utilise land efficiently through infill development that respects existing streetscapes in established areas … (c) environment (i) uses and other development minimise adverse impacts on environment and scenic values by – ii. responding to topographical features iii. minimising the need for excavation and fill iv. protecting the site from erosion v. maximising the retention of native plants vi. maximising the use and planning species that are native and characteristic to the area vii. incorporating best practice stormwater management and enhancing water quality …” -- 13 of 34 -- 14 [29] It may be seen from the application of both the Open Space zone and the Medium Density Residential zone to the subject site, that the planning scheme envisages the site to be, in part, developed for the kind of use now proposed and in part preserved as open space. [30] The proposal is to: (i) develop a minority of the site for multiple dwellings whilst preserving a substantial proportion as open space; (ii) develop a modest number of dwelling units in a relatively low density, low site cover development; (iii) preserve as much of the native vegetation as practical in the context of the development proposal, and (iv) carry out replacement and supplementary planting. [31] That approach would seem to be at least broadly consistent with the planning intentions for the site as a whole. A level of conflict arises, however, because the proposed multi unit dwellings (and associated infrastructure) are not proposed to be confined to that part of the site which is within the Medium Density Residential zone. Rather than follow the zoning boundary, it is proposed to have both the multi unit dwellings (and associated infrastructure) and areas to be preserved and vegetated straddling the zone boundaries. This raises a point of conflict at least in so far as the proposed development is to intrude into the Open Space zoned land. [32] It is necessary to consider whether: • DEO 1 Natural environment would be compromised, and • there are sufficient grounds to justify approving the application notwithstanding the conflict which arises by reason of the intrusion of a multi unit dwelling within the open space zone. [33] These matters were considered by the town planners engaged by the appellant and respondent. Mr Vann, the town planning consultant engaged by the council, acknowledged that relevant grounds for approval included that: -- 14 of 34 -- 15 “(a) The land has, since it was first required to be retained as a Special Protection Area in the 2000 approval, been separated from adjoining areas of environmental value by approvals and construction of surrounding development, including the Creekwood street detached housing and the Renaissance retirement facility; (b) The overlays in the 2006 Planning Scheme (as amended) do not recognise any habitat values on the site; (c) The Open Space zone does not include all the land originally identified as Special Protection Area and some of the area containing the proposed development is now zoned Medium Density Residential; (d) The land is privately owed, which restricts others not resident on site (and their visitors) from accessing it; and (e) The amended proposal now under construction does protect most mature trees of value and provides a relatively low development footprint which helps protect its vital values, particularly for those other than immediately surrounding area.” [34] The joint report of the town planners records their agreement that: “9.7 Ultimately, the planning experts agree that there are sufficient grounds to warrant approval of the proposal if: (a) the vegetation and environment values that are proposed to be retained are appropriately protected and enhanced; and (b) access is provided to the open space area around the dam for residents of the aged care facility and their visitors or carers.” [35] Mr Vann further explained his approach as follows: “His Honour … So, in short, what you’re saying is, instead of putting all of the multiunit dwellings in the new – the pink part ---? – VANN: Yes. -- 15 of 34 -- 16 HIS HONOUR: ----and all the open space in the green ----?-- yes. ----they’ve got development which traverses that boundary and they’ve also got some areas for vegetation that traverse those boundaries ----?— VANN: Yes. HIS HONOUR: ----but so long as at the end of the day there’s an appropriate balance then you have sufficient merit to warrant approval? – VANN: That’s my view, your Honour. … VANN: That’s my view, your Honour. It’s certainly in conflict with the detail of the scheme but, you know, it’s not in – in my view if it’s done that way it’s not in conflict with the overall sort of intention of the scheme. HIS HONOUR: Because if you, as it were, realigning the boundary because of site-specific considerations, that provides a sufficient planning ground, is that what you’re saying? – VANN: Yes. VANN: Well, it’s partly the realignment of the boundary. It’s also partly about how they’ve dealt with the bits that are within the newly aligned boundary because they’re developing at much lower density then [sic] you might otherwise expect had it been Medium Density Residential. So it does give them the opportunity to put the built form more sensitively it [sic] on the site.” [36] The relative proportions the site intended to be given over to multiple unit dwellings on the one hand of open space (with revegetation and landscaping) on the other, is not inappropriate, given the relative proportions of the site given over to the Open Space zone and the Medium Density Residential zone under the planning scheme. The proposed site cover is low6 . The planning scheme would suggest that an appropriate density for that part of the site included in the Medium Density Residential zone could be achieved with an even greater number of units. 6 12.55%. -- 16 of 34 -- 17 [37] While the allocation of multiple dwellings and open space within the site is not proposed to follow the zone boundary, that boundary does not appear to have been drawn in any particularly scientific way. If the proposal is adjudged to appropriately provide for the recreational value of the site and, appropriately to respect its visual and environmental values while achieving a relatively low density development, then it can be concluded that: (i) DEO1 – Natural environment would not be compromised (ii) the gravity of conflict arising from a failure to follow the zone boundary is slight, and (iii) the conflict is overwhelmed by the merits of the proposal otherwise in addressing the constraints and opportunities of the site in achieving a relatively low density, low footprint Multiple dwelling development. [38] Much of the debate focused on whether the conditions stated in paragraph 9.7 of the town planners’ joint report are established. The second of those is to be achieved by providing a walking track. There was some concern raised about whether the track, in part, is so close to proposed dwellings as to deter people from using it. The alignment of the track could be altered, but I am satisfied that this issue would not present a significant problem. I am satisfied that the proposed path would otherwise provide appropriate access. The greater debate was about whether the visual and environmental values of the site would be appropriately respected. Visual Amenity [39] The value of the site to the visual amenity of the area and the likely impact of the proposal was assessed by Mr Keefe (who was retained by the appellant) and Mr McGowan (who was retained by the respondent). [40] The site makes an important contribution to the visual amenity of the local area. It: -- 17 of 34 -- 18 • Forms part of a green backdrop, which contributes to the character and scenic amenity of the local area; • Breaks up the built form of the local area, when viewed from distant vantage points; and • Contributes to a green outlook from adjoining properties. It should be noted, in so far as the outlook from adjoining properties is concerned, that the houses on those properties are generally orientated away from the subject site. It is the rear of the properties which adjoins the proposal. Further: (i) many of the residents have erected solid fences along their rear boundary which would, to a significant degree (although not completely), obstruct views into the subject site, although not to the mid level and higher canopy elements which provide the green backdrop; and (ii) the area of the subject site now proposed for development has, at least until recent times, been poorly maintained. The proposal seeks to address this by: • Preserving the greater proportion of the more significant trees; • Adding to the amenity through additional landscaping; and • Providing a method (by being the common area of a low impact development) by which the existing and new landscaping can be more properly maintained. In their joint report, the experts agreed that: -- 18 of 34 -- 19 “19. Acknowledging the fact that the proposed development is an inconsistent use for the Open Space zone, should it be determined that the site is appropriate for residential development, the experts agree that the proposed development could satisfy the other Specific Outcomes identified in the Disputed Issues if the following measures are taken: 1. Further detailed design is undertaken and a tree specialist is consulted to ensure the trees marked for retention are able to be retained. 2. Additional landscaping is provided to: (a) reduce the amount of visible built form (including proposed fences) from neighbouring properties, Creekwood Street, and local vantage points such as Sandy Drive so as to achieve an outcome more in keeping with the intent of s3.3(1)(a); (b) ensure the trees being removed are replaced with trees of appearance and similar size at maturity, and near to the location of the removed tree; (c) ensure any other trees killed during development are replaced with like species near to the location of the removed tree; (d) screen views to the proposed built form from all neighbouring properties (indoor and outdoor spaces), whilst maintaining appropriate access to daylight for those properties; and (e) enhance the visible canopy of the site (when viewed from vantage points beyond the site). -- 19 of 34 -- 20 Landscaping plans should be prepared to show how these outcomes will be achieved. 3. Trees that are marked for retention and any additional significant trees proposed as part of the development be protected to ensure that they are not removed by future residents of the development. [41] No detailed landscaping plans were produced when the matter came on for hearing. Somewhat belatedly, in the course of the hearing, some further information was provided including by way of overlays showing the areas, clear of proposed dwellings and associated infrastructure, which are available for planting and also cross sections showing how the built form closest to the boundaries could be screened from the view of adjacent residences. [42] It would have been better had more detailed plans been done, but that does not necessarily mean that the appellant has failed to discharge its onus. [43] The proposal is to plant 12 additional feature trees, as well as 20 street trees to more than offset, over time, the loss of a limited number of larger trees. There will be a much greater number of other trees lost by virtue of the development, but the overlays produced by Mr Keefe, together with the photographic evidence7 , demonstrate that there is sufficient room (exceeding 1000m2 ) on the site, beyond the proposed buildings and associated infrastructure, to carry out compensatory planting (in addition to some opportunities for improvement planting and other areas for landscaping around the proposed dwellings). I am amply satisfied that the visual values of the site as a green backdrop and as a green break will be preserved. 7 I also had the benefit of a site inspection to better understand the evidence. -- 20 of 34 -- 21 [44] As to views from adjoining residences Mr Keefe’s cross sections demonstrate that, even with respect to the two proposed dwellings which are closest to the adjoining boundary (from the western and south-eastern boundaries respectively) landscape planting can be established which would screen the proposed built form, while affording views to the mid and higher levels of the vegetation on site, which provide an attractive green backdrop. When Mr McGowan was recalled, on the seventh day of the hearing, to comment on the further material produced by Mr Keefe he acknowledged that: (i) it is the tall mature canopy trees (or feature trees) which give the area the presentation of a green backdrop when viewed from afar8 (ii) if the number of those trees to be lost to development are replaced by a larger number of trees of a suitable species there would be a maintenance or enhancement of the amenity that the site provides for those distant views 9 (iii) the site will continue to present, from a distance, as a very obvious and pleasant green break in the urban landscape10 (iv) adjoining residents will still have views to the green canopy11 (v) the screen planting would screen views to most of the proposed built form from adjoining residences12 (vi) his previously expressed concerns about adjoining residents having satisfactory access to sunlight and breezes have fallen away13 8 T7-62 l 45 9 T7-62 ll55 to T 7-64 l 12 10 T7-64 l 25 11 T7-64 12 T7-61 l 40 13 T7-61 l 55 -- 21 of 34 -- 22 [45] Mr McGowan continued to doubt the capacity of the site to accommodate planting to replace that which would be removed. That matter is considered later in addressing ecological impacts. I am however, amply satisfied that there is sufficient scope for tree retention and planting for site to continue to play its role in relation to visual amenity. [46] Mr McGowan appeared to be intolerant of any change to the outlook which could be enjoyed by adjoining residents. He did not think that it was appropriate that built form intrude into their views but nor was he tolerant of screening vegetation if, in filtering views to the built form, it also changed the current more open views into the site. [47] It has already been noted that the views for which Mr McGowan expressed a concern are already somewhat affected by the choice made by residents to erect fencing along their rear boundaries. Further, in areas along the common boundary there is ample room for planting which will screen the built form without presenting as a “green wall” adjacent to the boundary14 . The “green wall” screening along the common boundary is limited to two locations only. In each of those locations there is a proposed dwelling in relatively close proximity to the common boundary. [48] Mr McGowan’s intolerance of the loss of more open views into the site was influenced by the Special Area Protection designation of the site under the previous approval for the aged care facility. Since then however, approximately one third of the site has been included within the Medium Density Residential Zone. At least from that time, reasonable expectations would include the prospect of development of this kind at least on that part of the site. 14 T7-64 -- 22 of 34 -- 23 [49] The “green wall” on part of the south western boundary is within the Open Space Zone but I do not regard the screening of views into the site at that location as of moment. The adjoining residents would see the green backdrop formed by canopy trees within the subject site rising above the lower boundary landscaping which will screen views to the built form. I do not consider that would result in a significant adverse effect on visual amenity. [50] The “green wall” landscape screening in the south eastern portion of the site is within the Medium Density Residential Zone and screens a proposed dwelling which is also within that zone. Similarly, the outlook from the aged care facility is to land included in that zone. In those circumstances, as Mr McGowan himself conceded, there would appear to be little problem, in principle, with a person being able to see landscaping screening built form on that part of the site.15 [51] Mr Hudson raised a concern about the view into the site at the access point. In that regard I accept Mr Keefe’s evidence that: “It is my opinion that the proposed development (as shown on SK10 Issue B or SK10 Issue C), will not present an adverse visual amenity to the entrance of the subject site from Creekwood Street. This is because retention of the existing vegetation and additional landscaping (both natural rehabilitation and landscape planting) will sufficiently soften the appearance of any built form that would otherwise be visible. It would also sufficiently maintain the green vegetated appearance of the subject site.” [52] I generally prefer the evidence of Mr Keefe to that of Mr McGowan. I accept that the proposed development, which occupies a minority of the site, is of low visual impact and, subject to the implementation of a proper landscape plan, the quality of -- 23 of 34 -- 24 the visual amenity within the site and externally will be respected, maintained and, to a degree, enhanced. Ecology [53] The impact of the proposal on the ecological values of the site were considered by Mr Caneris (fauna) and Mr Daniel (flora) who were engaged by the appellant and by Mr McNeillage (fauna) and Dr Olsen (flora) engaged by the respondent. Their joint report records that, while the site supports a number of ecological values, including mature, endemic native trees, a water body and associated vegetation and drainage lines, development surrounding the site has removed the continuous vegetative linkages to the west and south. As Mr Caneris pointed out, the subject site continues to play a role, but it is the role of a “stepping stone” for common vagile species. It is effectively isolated from forest dependent fauna and its location, size and extent habitat values hold relatively low ecological value as fauna habitat.16 [54] I accept Mr Caneris’ evidence that: (i) the site design responds to the extant habitat values by focussing on the more open, grassland habitats on the subject site and by retaining the majority of the extant mature eucalypts and corymbia which are the higher value fauna habitats on site; (ii) vegetation expected to be lost by reason of the proposed development will not have any significant impact on local fauna populations; 15 T7-66 l 50 16 Exhibi5 5 paras 4.12 and 4.13 -- 24 of 34 -- 25 (iii) given the currently poor ecological linkage to the site from the surrounding landscape, it is more than reasonable to assume that any fauna species utilized in the site are vagile species capable of traversing the surrounding urbanized landscape and that therefore the proposed development will not present a barrier to their movement; (iv) vegetation expected to be lost from the proposed development will not have any significant impact on local fauna populations. (v) with appropriate conditions of approval, specifying revegetation/restoration actions, the proposed development would not result in any significant impact on fauna, or their long term security in the local landscape. [55] It was pointed out that the joint report also recorded agreement that retention of the site, free of development, and its management as a SPA under the conditions of the aged care approval, would promote greater ecological benefits than construction of the proposed development. I do not consider that is decisive. I have already dealt with the weight to be placed on the previous approval. As Mr Caneris pointed out: “In my view, with regard to revegetation works on the subject site as detailed in prior approvals: A Any consequential improvements in fauna habitat values could be largely achieved within the current design; B In any event, revegetation of the subject site would not create or provide an ecological linkage to the surrounding landscape; -- 25 of 34 -- 26 C Would not have resulted in any significant or notable increased form of diversity”. [56] In short, the site is relatively small, the quantum of the habitat is not great and the vegetation is disconnected. So long as there is adequate vegetation preserved and/or planted it will continue to function as a stepping stone. The proposal does that. A greater level of planting would not materially increase biodiversity from a fauna perspective17 . [57] The evidence of Mr McNeillage (who acknowledged Mr Caneris’ particular expertise in relation to knowledge of species) referred to a number of matters of general principle18 . For example, as the experts agreed, the intrusion of human activity can diminish habitat ecological values through a range of impacts, but I accept Mr Caneris’ evidence that no significant impact is likely in this context. [58] I generally prefer the evidence of Mr Caneris to that of Mr McNeillage. In my view Mr Caneris presented a more balanced and realistic view of the likely consequences of development on the fauna values of the site. [59] By the end of the case the major difference of opinion between Mr Daniel and Dr Olsen, with respect to flora issues, was the availability, on site, of sufficient area for sufficient plantings to compensate for the loss of vegetation by reason of the construction of the development. [60] Dr Olsen’s concern about the loss of “protected vegetation” was responded to by Mr Keefe’s exercise of identifying the opportunities on site, for compensatory planting. When Dr Olsen returned to the witness box, at the end of the hearing, the focus of 17 T3-72 18 See e.g. T3-93-94. -- 26 of 34 -- 27 his attention turned to the extent to which compensatory planting would be undertaken in areas clear of the existing canopy. [61] While acknowledging that there are areas within the site, clear of the intended built form, where sub-canopy planting could take place, Dr Olsen was of the view that there was insufficient space to compensate for the loss of what he referred to as “canopy or potential canopy trees”. [62] The trees to which Dr Olsen referred were not just the tall mature feature trees which would be lost and for which compensatory planting can be carried out. Rather, he referred to trees as low as three metres in height, so long as there was no, or only very sparse, canopy cover presently above them. On his most recent inspection of the site he identified some 294 such trees which he thought would be lost by reason of the proposal. He also concluded that there would be only about 500m where compensatory planting could be carried out, clear of existing canopy (so that the trees could grow and themselves provide canopy in due course). He considered that only something of the order of 104 trees could be planted in that area, at densities which would provide for their survival. It was pointed out that the densities contemplated under the landscape plan pursuant to the conditions of approval of the aged care facility were greater, but Dr Olsen considered that some of the trees would not survive if planted at such densities. [63] It should be noted that Dr Olsen’s exercise did not involve an assessment of the special extent of the tree canopy, but rather the loss of individual trees of more than three metres in height which he thought were, or had potential to become, canopy trees. He was invited, in re-examination, to give an estimation, but I am not prepared to place significant weight on that crude assessment. -- 27 of 34 -- 28 [64] An analysis of Dr Olsen’s data reveals that the vast majority of the trees to which he referred were allocasuarina littoralis (197 out of the 294) mostly located near the path around the dam. This is a relatively common species within Redland City. It can have significance for the glossy black cockatoo, but the evidence of Mr Canaris (which I accept) that that is not so on this site. [65] Assuming the correctness of Dr Olsen’s assessment and leaving to one side any potential to adjust the positioning of the path to minimize loss, and leaving aside also the fact that allocasuarina littoralis can be planted, as a sub-canopy species, the remaining question is as to the significance (if any) of a net decrease in the presence of allocasuarina littoralis in the canopy, if that is what results from the development. I do not find Dr Olsen’s evidence in that regard persuasive. [66] When asked to explain why a loss, in this regard, would be significant, Dr Olsen initially referred to Council’s tree protection local law and the requirements for the SPA under the previous aged care approval. When further pushed as to what the ecological significance was, he said that the vegetation type fitted the description of an endangered regional ecosystem even though the vegetation on the site was not mapped, and would not be mapped as such, because of its small scale. [67] The RE issue was raised by Dr Olsen for the first time in cross-examination when he was recalled to give evidence on the seventh day of the hearing. Dr Olsen is very experienced in giving evidence in this court and is very familiar with both the pre- trial and trial process. It is difficult to accept that he truly regarded this as a matter of significance, in terms of the ecological value of the site, given his failure to refer to it at an earlier time. -- 28 of 34 -- 29 [68] Dr Olsen was also unconvincing in explaining the importance of having that specie in the canopy of the RE. He did not cavil with the proposition that the description of the RE identifies allocasuarina littoralis as representing a proportion of the sub- canopy layer. When Mr Skoien put to him that the planting of nine eucalyptus racemosa as feature trees, as is proposed, would greatly improve the endangered regional ecosystem, Dr Olsen responded: “I wouldn’t use the term ‘greatly improving’ but it would – it would be a benefit to plant those specific canopy trees, yes.” It is difficult to see why, if the RE type was significant, the proposal to plant those type of canopy trees with allocasuarina littoralis in the sub canopy is not appropriate. Dr Olsen also accepted that allocasuarina littoralis would continue to occur commonly on the site if the proposed development was approved. Indeed, he acknowledged that it would be one of the more common plants on the site19 . [69] I am not persuaded that any net reduction of what Dr Olsen referred to as canopy trees or potential canopy trees, would be significant, if it occurred. [70] Dr Olsen also conceded that the subject land would be able to maintain its function as floristic stepping stone in the landscape. [71] The proposed layout preserves the dam which occupies a significant part of the site. Dr Olsen raised an issue about additional sunlight and nutrients in the dam. I do not 19 T8-21 -- 29 of 34 -- 30 find this convincing but, in any event, he conceded that additional planting could address the sunlight issue20 . [72] I generally prefer the evidence of Mr Daniel, which I found more balanced and convincing than Dr Olsen’s evidence in this case. [73] I am satisfied that, subject to appropriate conditions, the proposed development can proceed in a way which respects, preserves and enhances the ecological value of the site. Need [74] Public or community need for the proposed multi unit dwellings was assessed by two economists, Mr Marcus Brown, who is engaged by the appellant, and Mr Jeff Coghlan, who was engaged for the Council. There was no agreement as to level of need. The principal differences in their approaches were: (a) Mr Coghlan thought it appropriate to use potential land supply in the Thornlands area to ascertain whether there was need for additional land for this purpose in the Victoria Point area; and (b) Mr Brown attached some significance to the housing type. He concluded that there was a need for medium density residential housing in relatively close proximity to the retail and community facilities at Victoria Point. [75] I do not consider it appropriate to completely ignore the land supply in Thornlands. I also consider that the proximity of the site to the Victoria Point town centre is relevant for this type of development. It is unnecessary for me to further explore the 20 T3-60. -- 30 of 34 -- 31 evidence of Mr Brown and Mr Coghlan, however because even if a level of need was accepted, it would not, in my view, be a strong need. Further, as the appellant’s outline of argument acknowledges: “The consideration of the issue of need has to occur in the context of the small number of additional dwellings that are proposed to be constructed on the subject land. Whether that number is 13 or 11, it is apparent, that the proposal number would not make any substantial contribution toward the satisfaction of any need”. [76] Ultimately, in this case, the question of need is relatively neutral. The presence of some need is not a factor which would significantly weigh in favour of approval of the subject application if it were not otherwise justified. Equally however, the demonstration of a significant level of need is not a prerequisite to approval and a failure to do so would not weigh heavily against approval in this case, if the proposal was otherwise acceptable. Traffic [77] The traffic issues identified in the appeal and considered by the traffic engineers, Mr Steve Williams (retained by the appellant) and Mr Colin Beard (retained by the Council) were: • Use of Creekwood Street for construction traffic access, taking account of on- street parking by existing residents • The generation of additional on-street parking in Creekwood Street by construction activity -- 31 of 34 -- 32 • The generation of additional u-turn traffic movements at the intersection of Cleveland Redland Bay Road and Benfer Road (signalised intersection where u- turns permitted) • The generation of additional u-turn movements at the intersection of Cleveland Redland Bay Road and Magnolia Parade (unsignalised intersection). [78] In their joint report, the traffic engineers agreed that: (i) The construction traffic issues could be resolved through the preparation and submission of an acceptable construction traffic management plan; (ii) It would be inappropriate for a significant number of vehicles associated with construction activities in the subject site to be parked in Creekwood Street. This can however, be addressed by conditions requiring on-site parking. (iii) It would be inappropriate for large trucks (particularly articulated vehicles) to undertake u-turns at the intersection of Cleveland Redland Bay Road and Benfer Road, but this could be dealt with satisfactorily through a condition requiring preparation and submission of an acceptable construction traffic management plan. The relatively small number of additional u-turn movements would not have a significant adverse impact in respect of traffic safety or traffic operations. (iv) The configuration of Creekwood Street can satisfactorily accommodate the additional design traffic generation of the -- 32 of 34 -- 33 subject development without significant and adverse impact on traffic safety or traffic operations. (v) There is no reasonable prospect of excessive on-street parking being generated in Creekwood Street. (vi) The proposal would provide an alternative emergency vehicle access in to the Creekwood Street precinct which is not currently available. That would be desirable. [79] Creekwood Street is not without its difficulties. It is already longer than is ordinarily the case for a residential access place and it already provides access to more houses than desirable for such a street. As a residential access place it should ideally intersect an access street or a collector street, but because it has direct access to an arterial road, its turns are restricted. Its intersection with Cleveland Redland Bay Road is restricted by channelisation to left turns only, so vehicles leaving Creekwood Street intending to travel right are faced with the choice of a difficult u- turn at Magnolia Parade or using a substantially indirect route. [80] Mr Beard considered that these matters made further development accessing Creekwood Street undesirable, but he acknowledged that this would not reasonably warrant refusal of the development on the basis of traffic planning considerations alone. Further, the relevant concurrence agency, the Department of Transport and Main Roads, does not oppose approval of the application. [81] Though the traffic arrangements are suboptimal, they do not warrant a refusal of the application. -- 33 of 34 -- 34 Hydraulic issues [82] Stormwater issues were examined by Mr Pezzutti (retained by the appellant) and Mr Neil Collins (retained by the Council). In their joint report, it was agreed that: “The revised stormwater management in hydrology/hydraulics reports provided by Mr Pezzutti on 21 May and 25 May 2010 respectively demonstrate that on site stormwater quality management and flood/peak flow management is achievable on site, with the exception of the retention of the dam (which is addressed in points of disagreement below), subject to suitable detailed design and refine analysis at operational works application stage i.e. a suitable condition could be drafted in this regard”. [83] There is a residual disagreement between the experts about the likely water depth fluctuations in the dam and the potential for negative impacts that might arise from a “drying out” of the dam. This dispute led Mr Collins to suggest that there is a need for greater management. I note the evidence of Mr Cox that, during his time at the aged care centre, the dam level has varied but has never dried out, even following the development of adjoining properties and during periods of drought. I consider that Mr Collins is somewhat over cautious in this regard, but it is unnecessary for me to examine the matter further at this stage. The submissions for the respondent conceded that stormwater and associated issues “would not of themselves found a refusal but would be relevant at the condition stage if the appeal was allowed”. Conclusion [84] The appellant has discharged its onus. The appeal will be allowed subject to conditions. I will give the parties an opportunity to be heard about the conditions. -- 34 of 34 --