Barns and Barns v Maroochy Shire Council [2010] QPEC 2 (2010) QPELR 419; 176 LGERA 239

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Barns and Barns v Maroochy Shire Council [2010] QPEC 2 PARTIES: James Thomas Barns and Lynette Joy Barns (Appellants) v Maroochy Shire Council (Respondent) FILE NO/S: 2434 of 1998 DIVISION: Planning and Environment PROCEEDING: Appeal from Council decision rejecting claim for compensation for injurious affection resulting from introduction of new Strategic Plan ORIGINATING COURT: Brisbane DELIVERED ON: 3 February 2010 DELIVERED AT: Brisbane HEARING DATE: 21 April - 1 May, 27 July - 31 July, 6August - 7 August, 13 August - 19 August 2009, adjourned to 2 December for oral submissions. JUDGE: Searles DCJ ORDER: APPEAL DISMISSED CATCHWORDS: PLANNING AND ENVIRONMENT – ASSESSMENT OF COMPENSATION – ENVIRONMENT - GOOD QUALITY AGRICULTURAL LAND – PLANNING NEED - COSTS OF DEVELOPMENT – PREMATURITY/LEAP FROGGING FLOODING AND DRAINAGE – ACID SULPHATE SOILS – TRAFFIC ENGINEERING – TOWN PLANNING CONSIDERATIONS Local Government (Planning and Environment) Act 1990 Local Government (Planning and Environment) Regulation 1991 Local Government Act 1936 Local Government Act 1985 -- 1 of 148 -- 2 Nature Conservation Act 1992 Environmental Protection Act 1994 Vegetation Management Act 1999 1985 Shire of Maroochy Planning Scheme 1985 Shire of Maroochy Strategic Plan 1966 Shire of Maroochy Strategic Plan State Planning Policy 1/1992 COUNSEL: G. Gibson QC with M. Williamson – Appellant C. Hughes SC with R. Litster SC and A. Skoien – Respondent SOLICITORS: P&E Law - Appellant Sunshine Coast Regional Council Legal Services – Respondent -- 2 of 148 -- 3 INDEX INTRODUCTION………………………………………………………………………………………...7 AFFECT OF CHANGE IN STRATEGIC PLAN………………………………………………………...7 BACKGROUND FACTS…………………………………………………………………………………8 Land to the North………………………………………………………………………………….9 Land to the East…………………………………………………………………………………...9 Land to the West and South……………………………………………………………………….9 Land to the South-East – Peregian Springs and Coolum Ridges………………………………….9 Peregian Springs…………………………………………………………………………………..9 Coolum Ridges…………………………………………………………………………………...10 Extent of Nearby Urban Development…………………………………………………………...10 The Norfolk Estate Application………………………………………………………………….10 APPROACH TO THE ASSESSMENT OF COMPENSATION………………………………………..10 The Issue to be Determined………………………………………………………………………13 THE APPELLANTS’ AFTER VALUATION CASE…………………………………………………...14 THE APPELLANTS’ BEFORE VALUATION CASE…………………………………………………15 PLANNING CONTROLS…………………………………………………………………………….....17 Local Government Act 1936 - 1985……………………………………………………………..17 1985 Planning Scheme…………………………………………………………………………...21 1985 Strategic Plan………………………………………………………………………………22 Local Government (Planning and Environment) Act 1990 – PEA……………………………...23 Local Government (Planning and Environment) Regulation 1991……………………………...29 State Planning Policy 1 of 1992………………………………………………………………….30 Urban Areas PDLU………………………………………………………………………………30 Urban Areas PDLU………………………………………………………………………………33 Strategic Plan Part B – Supporting Information…………………………………………………36 1996 Strategic Plan – Effective from 10 May 1996 ……………………………………………38 PDLU’s Objectives and Implementation Provisions…………………………………………….39 Agricultural Protection…………………………………………………………………………...39 Relevant Objectives in 1996 Plan re Agricultural Protection PDLU…………………………….39 The Natural Resources Strategy – 1996 Strategic Plan………………………………………….40 Conservation Rural or Valued Habitat PDLU’s – Objectives and Implementation Provisions………………………………………………………………………………………...43 -- 3 of 148 -- 4 Objectives and Implementation Criteria for Conservation and Rural or Valued Habitat PDLU Designations……………………………………………………………………………………...44 Urban Areas and Future Urban PDLU’s…………………………………………………………49 DOES PEA SECTION 3.5.4(D) EXCLUDE THE APPELLANTS’ ENTITLEMENT TO COMPENSATION – THE SPARKE POINT? ………………………………………………………….51 Status of Strategic Plan…………………………………………………………………………..58 PEA s 4.4(5A) …………………………………………………………………………………...59 Conclusion re s 3.5.4(d) Argument………………………………………………………………60 ENVIRONMENTAL CONSIDERATIONS GENERALLY …………………………………………...60 1992 Amendment to PEA………………………………………………………………………..61 State Planning Policy 1 /1992……………………………………………………………………61 The Turnbull and Olsen Report………………………………………………………………….61 Nature Conservation Act 1992 and Environmental Protection Act 1994………………………..62 ISSUES ………………………………………………………………………………………………….63 ENVIRONMENTAL ISSUES…………………………………………………………………………..63 Identified Physical Characteristics………………………………………………………………63 Fauna…………………………………………………………………………………………….64 Effect of Motorway on Fauna……………………………………………………………………67 Impact of Logging Activities on Fauna………………………………………………………….68 Mr Agnew………………………………………………………………………………………..68 Fauna Experts’ Review of Development Applications Prior to November 1992 ……………….70 Review of Development Applications made Between December 1992 and May 1996………....70 Flora……………………………………………………………………………………...………71 Dr Olsen’s Conclusions……………………………………………………………………….…75 Dr Carter’s Conclusions…………………………………………………………………………75 Conclusion re Environmental Issues Dealt with by Caneris, Agnew, Carter & Olsen……….…77 PEREGIAN SPRINGS AND COOLUM RIDGES APPROVALS…………………………………..…78 Peregian Springs…………………………………………………………………………………78 Coolum Ridges………………………………………………………………………………..…82 Council’s Response re Peregian Springs and Coolum Ridges……………………………..……85 Conclusion re Significance of Peregian Springs and Coolum Ridge Approvals………….….…85 NORFOLK ESTATES APPLICATION……………………………………………………………...…86 Council Disputed Issues in Norfolk Estates Appeal…………………………………………..…88 State of Queensland Disputed Issues…………………………………………………………….89 -- 4 of 148 -- 5 Conclusion re Norfolk Estate Appeal……………………………………………………………90 GOOD QUALITY AGRICULTURAL LAND……………………………………………………….…91 SPP1/92……………………………………………………………………………………….….91 Planning Guidelines…………………………………………………………………………...…92 Appellants’ Response re Good Quality Agricultural Land ………………………………….…..92 Is the Land Committed under State Planning Policy 1/92? ……………………………….…….94 Evidence re Good Quality Agricultural Land……………………………………………………97 Dr Gilbert - Appellants………………………………………………………………………..…98 Gilbert Report 3 April 2009…………………………………………………………………...…99 Mr Sutherland – Council………………………………………………………………………..100 Dr Gilbert/Mr Sutherland Joint Written Statement…………………………………………..…101 Dr Matthew – Council……………………………………………………………………..……103 Conclusion re Good Quality Agricultural Land………………………………………………...106 PLANNING NEED……………………………………………………………………………………..106 Appellants’ Argument re Planning Need……………………………………………………….107 Council’s Argument re Planning Need…………………………………………………………107 Conclusion re Planning Need…………………………………………………………………...109 COSTS OF DEVELOPMENT………………………………………………………………………….109 Development Costs…………………………………………………………………………..…109 Bring-forward Cost Stage 3 Sewer Works……………………………………………………..110 Adjustment for Stage 1 Bring-forward Costs of External Sewer Works………………………111 Upgrades to Pump Stations P1 and P7………………………………………………………….111 The 375 mm Water Main ………………………………………………………………………112 The Murdering Creek Road Roundabout………………………………………………………113 Conclusion re Costs of Development…………………………………………………………..114 PREMATURITY/LEAP FROGGING…………………………………………………………………115 FLOODING AND DRAINAGE………………………………………………………………………..117 ACID SULPHATE SOILS…………………………………………………………………………..…117 TRAFFIC ENGINEERING ISSUES…………………………………………………………………..118 TOWN PLANNING CONSIDERATIONS……………………………………………………………118 Council’s Argument re Town Planning Issues…………………………………………………123 Planning Background…………………………………………………………………………...123 Principles Governing Interpretation of Planning Schemes……………………………………..126 Conclusion re Town Planning…………………………………………………………………..128 -- 5 of 148 -- 6 MARKET VALUE OF LAND AS AT 10 MARCH 1996……………………………………………..128 Hypothetical Development Method of Valuation………………………………………………129 Primary Valuation - $4,740,000………………………………………………………………...133 Henderson First Alternative Valuation Basis - $5,851,100…………………………………….134 Henderson Second Alternative Valuation Basis - $3,565,000………………………………….134 Henderson Third Alternative Valuation Basis - $3,909,000……………………………………134 Amended Covey Plan…………………………………………………………………………...134 Henderson Fourth Alternative Valuation Basis - $1,714,000…………………………………..135 Council’s Criticisms of Appellants’ Valuations………………………………………………..136 Council’s Valuation Evidence – Mr Slater……………………………………………………..138 Appellants’ Criticism of Slater Valuation………………………………………………………139 Other Valuation Issues…………………………………………………………………….……140 Conclusion re Valuation Evidence……………………………………………………..……….140 PURCHASER’S FINAL DECISION……………………………………………………..……………140 SCHEDULE “A”. ……………………………………………………………………………..……….142 SCHEDULE “B” ……………………………………………………………………………………....145 -- 6 of 148 -- 7 INTRODUCTION [1] This is an appeal against the decision of the Council rejecting the appellants’ claim for compensation pursuant to s 3.4 of the Local Government (Planning and Environment) Act 1990 (PEA). The hearing took place over a protracted period of 20 days commencing on 21 April 2009, from then to 1 May, 27 to 31 July, 6-7 August and 13 -19 August when it was adjourned for oral submissions on 2 December. Subsequently the parties delivered extensive [401 pages] written submissions. Shortly before 2 December it was agreed that oral submissions would not proceed on 2 December and would be set for a later date if thought necessary after I had read the written submissions. It was not necessary. [2] The appellants are the registered owners of Lot 31 on RP 858565 situated at Monak Road, Weyba Downs (the Land). The basis of the claim is that, as a consequence of the introduction of a new Strategic Plan on 10 May 1996 (Relevant Date), replacing the 1985 Strategic Plan, the Land was injuriously affected within the meaning of that term in s 3.5 of the PEA resulting in the reduction in its value. [3] The Council resists the claim on two bases: firstly, that there is a statutory exclusion of the claim under s 3.5(4)(d), s 3.5(5) and s 4.4(5A) of the PEA and, secondly, even if that exclusion does not operate to defeat the claim, the value of the Land was not injuriously affected by the introduction of the 1996 Strategic Plan so the appellants have suffered no loss.1 AFFECT OF CHANGE IN STRATEGIC PLAN [4] Under the 1985 Plan the Land was zoned Rural A. Approximately 103.6 ha were included in the Urban Areas Preferred Dominant Land Uses (PDLU) designation and, the balance of approximately 51.4 ha was included in the Rural Areas PDLU designation. The land in the urban areas PDLU comprises most of the northern portion of the Land and a triangle of land on the eastern side of the southern portion. The Rural Areas PDLU land comprises an approximately 6 ha triangle on the western side of the northern portion adjacent to the Noosa National Park and a larger triangle in the western section of the southern portion. 2 After the Relevant Date, upon introduction of the 1996 Strategic Plan, the Land remained in the Rural A zone under the Planning Scheme but its PDLU designation was changed in that:- 1 Council’s primary submissions paragraphs 20 and 155. 2 See Plan Exhibit 1A p. 21. -- 7 of 148 -- 8 (a) most of the Land was designated Rural or Valued Habitat PDLU; (b) land in the north-east corner of the northern portion, the north-west portion of the southern portion and a drainage line running roughly north/south through the middle of the Land over both the northern and southern portions, was designated Conservation PDLU; and (c) a small area of land on the eastern end of the northern boundary of the northern portion of the Land was designated in the Agricultural Protection PDLU.3 The heavily vegetated parts of the Land were generally included in the Rural or Valued Habitat PDLU and Conservation PDLU by the 1996 Strategic Plan. BACKGROUND FACTS [5] The Land, some 155 ha in area, was purchased by the appellants in 1975 as an investment with potential for future subdivision. Since its acquisition it has been used intermittently for forestry activities. 4 [6] The Land is divided by the Sunshine Motorway (Motorway) with the area to the north of the Motorway (Northern Severance) having an area of approximately 92.6 ha and the area to the south (Southern Severance) an area of approximately 62.4 ha. [7] The Land is, and was at the Relevant Date, heavily vegetated with a mixture of dryland vegetation communities (ie open Eucalypt forest) and wetland vegetation communities (ie heath5 ). The Land is traversed by a number of gully lines in which wetland flora and fauna communities are predominant. Those gully lines drain the Land from north to south generally away from Lake Weyba. [8] Murdering Creek Road forms the eastern boundary of the Land from Murdering Creek Road roundabout to its intersection with Monak Road, which latter Road then proceeds in a westerly direction upon most of the length of the Northern Severance, to its intersection with Lakewood Drive, which Road then proceeds off to the north towards Lake Weyba. The western end of the 3 See Plan Exhibit 1A p.22. 4 Statement James Barns [2] and [9]. -- 8 of 148 -- 9 Northern Severance, for practical purposes, adjoins the Noosa National Park separated only by the unformed road reserve of Monak Road. [9] From the north-west corner of the Land south of the Motorway, the western boundary of the Land runs in a roughly southerly direction from the Motorway to intersect with the southern boundary which, in turn, proceeds in an easterly direction back to Murdering Creek Road roundabout, but is stepped, about half the way along its length, thereby creating the two roughly triangular blocks that comprise the Southern Portion. Land to the North [10] Between the Land and Lake Weyba to the north land in private ownership, excluding the Noosa National Park, is used for rural or rural residential purposes. Land to the East [11] At the Relevant Date there were some rural and rural residential allotments to the east of the Land with the rural residential allotments fronting Murdering Creek Road directly opposite the Land. That land continues to be used for rural or rural residential purposes. Further to the east of the Land, a large swath of vegetated land, running from Marcus Beach to Peregian Beach South, including Lake Weyba, now forms part of the Noosa National Park and separates the Land and its environs from the townships at Peregian Beach, South Peregian Beach and Marcus Beach on the Coast. Land to the West and South [12] At the Relevant Date there were vegetated rural allotments to the west of the Land while allotments to the south of the Land then comprised a mixture of vegetated allotments and allotments under agricultural use (originally sugarcane). Nothing has changed in this regard since the Relevant Date. Land to the South-East – Peregian Springs and Coolum Ridges Peregian Springs [13] By Council resolution of 24 October 1989 under the 1985 Planning Scheme the Council approved the rezoning of some 335 ha of land to the south-east of the Land from Rural A zone to Residential A 6 (Peregian Springs). That rezoning was gazetted almost four years later on 20 August 1993.7 5 See aerial photographs Exhibit 15 (1994), Exhibit 16 (2000), Exhibit 17 (2004), Exhibit 35A (larger version Exhibit 15), Exhibit 42 1996; Exhibit 1B Tab 22 flora experts joint statement. 6 Exhibit 1E Tab 85 p. 945; Tab 93. -- 9 of 148 -- 10 Coolum Ridges [14] Further to the south-east of the Land and to the south of Peregian Springs, an area of 182 ha of land (Coolum Ridges Estate) was rezoned from Rural B to Residential A under the 1985 Planning Scheme pursuant to an order of the then Local Government Court dated 13 March 1991.8 As at the Relevant Date no development had commenced on either Peregian Springs or Coolum Ridges. Extent of Nearby Urban Development [15] It is common ground that at the Relevant Date there was no urban development in the locality surrounding the Land. The closest such development was at Peregian Beach South, Peregian Beach, and Marcus Beach, with Coolum Beach, further south, also developing. The Norfolk Estate Application [16] In November 1994, some 18 months before the 10 May 1996 Relevant Date, Norfolk Estates Pty Ltd (Norfolk Estates) contracted to buy the subject Land for $9m with a deposit of $10,000 and conditional upon the granting of rezoning and subdivisional approvals to authorise development and use of the Land for residential and commercial purposes.9 That application also included adjoining land being Lot 2 on RP 195990 (the ‘Cox land’). [17] On 13 January 1995 Norfolk Estates lodged an application for the rezoning of the Land from Rural A to Residential A.10 On 2 August 1995 Norfolk Estates lodged an appeal on the basis of deemed refusal by the Council but that appeal did not proceed, and was subsequently withdrawn on 13 October 1997.11 More will be said of Peregian Springs, Coolum Ridges and the Norfolk Estates’ application when dealing with the substantive issues in this appeal. APPROACH TO THE ASSESSMENT OF COMPENSATION [18] The section of the PEA dealing with the assessment of compensation is s 3.5(8) which relevantly provides:- 7 Exhibit 1E Tab 111. 8 Exhibit 1F pp. 1201 and 1241. 9 Exhibit 1D Tab 46. 10 Exhibit 1D p. 541. 11 Exhibit 1D p. 925. -- 10 of 148 -- 11 “(8) Subject to subsections, (2A) and (9), the following provisions are to have effect in assessing compensation in respect of a claim made under subsections (1)(a):- (a) the amount of compensation is, subject to paragraphs (b), (c) and (d) to be an amount equal to the difference of the market value of the interest immediately after the time of the coming into operation of the provision of the Planning Scheme by virtue of the operation whereof the claim for compensation arose and what would have been the market value of that interest if the provision had not come into operation; (b) … (c) … (d) …” [19] As to the determination of market value two statements of Griffiths CJ and Isaacs J from Spencer v Commonwealth 12 are instructive. Griffiths CJ said:- “…In my judgment the test of the value of land is to be determined, not by enquiring what price a man desiring to sell could actually have obtained for it on a given day ie, whether there was in fact on that day a willing buyer, but by enquiring ‘what would a man desiring to buy the land have had to pay for it on that day to a vendor willing to sell if for a fair price but not desirous to sell?’ It is, no doubt, very difficult to answer such a question, and answer must be to some extent conjectural. The necessary mental process is to put yourself as far as possible in the position of persons conversant with the subject land at the relevant time, and from that point of view to ascertain what, according to the then current opinion of land values, a purchaser would have had to offer for the land to induce such a willing vendor to sell it, or, in other words, to enquire at what point a desirous purchaser and a not unwilling vendor would come together.” 12 (1907) 5 CLR 418 at 432, 441. -- 11 of 148 -- 12 [20] In the same case Isaacs J said:- “To arrive at the value of the land at the date, we have, as I conceive, to suppose it sold then, not by means of a forced sale, but by voluntary bargaining between the plaintiff and the purchaser, willing to trade, but neither of them so anxious to do so that he would overlook any ordinary business considerations. We must further suppose both to be perfectly acquainted with the land, and cognisant of all circumstances which might affect its value, either advantageously or prejudicially, including its situation, character, quality, proximity to conveniences or its inconveniences, its surrounding features, the then present demand for land, and the likelihood, as then appearing to persons best capable of forming an opinion, of a rise or fall for what reason whatsoever in the amount in which one would be otherwise be willing to fix as the value of the property.” [21] In a similar vein, in Kettering v Noosa Shire Council13 Robin QC DCJ said:- “60. The question to be determined is not whether a particular development application would have been approved or refused. The question is whether, in the minds of a hypothetical vendor and purchaser there was potential for the additional development components identified by Kettering 14 Cf. Fastsigns Pty Ltd v Gladstone City Council [2005] QPELR 711 at [61], [62], [68], and [71]. 61. In that context, the hypothetical purchaser described in Spencer is not to be taken to be a dewy-eyed dreamer who will take the most optimistic view of all things, and nor is the purchaser to be regarded as a wilting lily who will proceed with such pessimism that each potential problem will be seen to result in failure: Yalgan Investments Pty Ltd v Albert Shire Council [1997] – [1998] 17 QLCR 331 at 341 – 342. 62. A related point is that where the highest and best use is not a use actually in existence, and planning approval has not been obtained at the relevant rate for that highest and best use, the vendor and purchaser must 13 [2007] QPELR 605 at 622. 14 Kettering v Noosa Shire Council [2007] QPELR 605. -- 12 of 148 -- 13 necessarily engage in some prediction about the prospect of obtaining approvals. To do so they will not engage experts to work up a development application to a high degree of detail, but will undertake those investigations necessary to produce a state of satisfaction that the highest and best use is achievable: see Yalgan at 342 and Pajares v State of Queensland [2003] QLC 0044 at [74] – [80]. 63. Given that the hypothetical prudent purchaser is not a dewy-eyed optimist or a wilting lily, he will accept some risk in realisation of the highest and best use. That risk will be reflected in the value: see Fastsigns at [68] – [69] and Heavy Lex No. 64 Pty Ltd v Chief Executive Department of Transport [1990] 20 QLCR 29 at 347.” [22] It seems to me that the hypothetical prudent purchaser 15 (purchaser) looking to purchase the subject Land would be one who, at the very least :- (a) was properly advised on all relevant issues by appropriate experts without necessarily getting detailed reports but, as is said above, with sufficient detail to properly inform; (b) had some experience in property development; (c) was accustomed to assuming risks to achieve rewards; (d) was accustomed to risk identification and assessment; and (e) would not take what would be seen as unacceptable risks involving too much uncertainty and/or too much financial exposure. The Issue to be Determined [23] The decision to be made in this matter involves the theoretical exercise of looking into the mind of a hypothetical purchaser on 10 May 1996, over 13 and a half years ago, in relation to the acquisition of the Land based on its potential for urban and associated development in accordance with the Covey 15 In referring to the purchaser, the use of the masculine gender includes the feminine -- 13 of 148 -- 14 Plan 16 . The question for determination is not whether or not any such application would have been successful either by Council approval or appeal to this Court from its refusal. Rather, the question is what the purchaser, properly advised, would have paid for the Land at the Relevant Date as reflecting his assessment of the prospects of obtaining approval for the rezoning for Urban development as described. [24] That requires identifying the likely advice the purchaser would have received from experts on relevant issues identified by them as relevant to the application, the purchaser’s assessment of that advice, and his decision as to the appropriate purchase price based upon that advice. [25] It is important to focus on the requirement that the purchaser be “properly” advised. Implicit in that concept is that any advisor would identify both the positive and negative aspects of any issue under advice. The purchaser is not one who makes decisions through rose coloured glasses. The positives and negatives of that hypothetical advice are reflected in the various opinions of the experts called by both parties. I proceed on the basis that on each of the issues the purchaser would have been advised in accordance with the opinion of each of those experts. To continue the imagery of this somewhat artificial exercise, one may envisage the hypothetical purchaser sitting in a boardroom with each of the experts, being advised by them issue by issue and, at the end of the discussion, making an assessment of the risk profile of each issue. The risk profile is the extent to which, in the mind of the purchaser, a particular issue may be seen to impact upon the prospects of approval of the subject application, both severally and jointly with other issues. [26] With all advice on board, discussed by the purchaser and the experts and assessed by the purchaser, the final decision will then be made by the purchaser as to the price he would be prepared to pay for the Land. THE APPELLANTS’ AFTER VALUATION CASE [27] It is common ground between the parties that the value of the Land after the coming into operation of the 1996 Strategic Plan is $750,000.17 16 Exhibit 11. 17 Said variously to represent seven rural allotments of 20 ha each (Council’s written submissions [477]; seven large lots in the northern severance and one lot in the southern severance (Appellants’ submissions [50]; five rural lots (Henderson report Exhibit 64 p. 2 [4]) and seven lots (Slater report Exhibit 63 Annexure D3 p.2). -- 14 of 148 -- 15 THE APPELLANTS’ BEFORE VALUATION CASE [28] The appellants’ case is that the highest and best use of the Land immediately before the introduction of the 1996 Strategic Plan was the Urban Development depicted on Layout Plan 0802-CAL-SO1A prepared by Noel Covey & Associates and dated February 2008 (Covey Plan). 18 That plan provided for a range of residential allotments and supporting land uses including 19 :- (a) 1,034 traditional Residential A Lots ranging in size from 633 m² to 1,655 m² with the majority between 700 m² and 1,000 m²; (b) 59 Residential B Lots of between 755 m² and 1,548 m² in size located adjoining the community facilities and primary school and in close proximity to commercial and retail uses. These lots are intended to accommodate higher density residential development; (c) nine commercial lots adjoining Murdering Creek Road, one of which is a large lot proposed for a convenience retail centre with the remaining eight smaller lots to accommodate other commercial and retail activities; (d) 10 light industrial lots; (e) land identified for a primary school, community uses and Churches in close proximity to the commercial and industrial precinct and the higher density Residential B Lots; and (f) 27.885 ha of parkland including a large area identified for ovals and active recreation adjoining the primary school and a series of parks and reserves. [29] The appellants’ valuer, Mr Henderson, has assessed the value of the Land in the before case at $4.740m20 based upon three assumptions:- (a) that the prudent purchaser would agree a price for the Land on the basis that an application to rezone the Land to achieve the development in the Covey Plan was achievable 21 ; (b) that the cost of development depicted in the Covey Plan equated to $35,740,88022 ; and 18 Schomburgk Report Exhibit 2 p. 44; Exhibit 11 19 Exhibit 2 [4.1.2] and [4.1.4]. 20 Exhibit 64A. 21 Exhibit 64 p. 12. 22 Exhibit 64 p. 14. -- 15 of 148 -- 16 (c) that land suitable for residential development throughout the Sunshine Coast at the relevant time was in limited supply.23 [30] As an alternative to the value of $4.740m the appellants argue that there are two other possible alternative valuations which involve a more limited development in the event that the Court concluded that it was unlikely that a prudent purchaser would agree a price for the Land on the basis of the development in accordance with the Covey Plan. [31] Two further options are reflected in those alternative valuations, namely, the development of the Northern Severance and, as a further alternative, the development of that Northern Severance restricted to the dryland sections only and with provisions for parkland and 40m buffers to nearby wetlands. 24 [32] With those two alternatives and the original Covey Plan development it is said that the alternative valuations are25 :- Description Covey Plan Northern Severance Drylands only with 40m Buffers Northern Severance only Before case valuation $4,740,00026 $3,909,00027 + agreed value of southern portion $325,00028 $1,714,00029 Less after case valuation $750,000 $750,000 $750,000 Compensation claimed $3,990,000 $3,159,000 $964,000 23 Exhibit 64 p. 11. 24 Exhibit 83. 25 Appellants’ Submissions [51]. 26 Exhibit 64A. 27 Exhibit 84. 28 Transcript 18.35.45 – 55. 29 Exhibit 64 p. 17. -- 16 of 148 -- 17 PLANNING CONTROLS Local Government Act 1936 - 1985 [33] This legislation governed the rezoning approvals of Peregian Springs and Coolum Ridges. Relevant provisions are:- “32A. Environmental Impact. (1) Without derogating from any of its powers under this Act or any other Act, a Local Authority, when considering an application for its approval, consent, permission or authority for the implementation of a proposal under this Act or any other Act, shall take into consideration whether any deleterious effect on the environment would be occasioned by the implementation of the proposal, the subject of the application. (2) A Local Authority may, from time to time, adopt by resolution a policy statement prescribing that an application for its approval, consent, permission or authority for the implementation of a proposal of a type specified in such policy statement shall be accompanied by an environmental impact study report and statement of impact and the matters and thing which shall be dealt with in such report and statement. (3) A copy of any policy statement adopted by a Local Authority under subsection (2) shall be open to inspection and shall be available for purchase at the office of the Local Authority upon payment of such sum as it may fix by resolution, but not exceeding the cost of printing or otherwise reproducing such copy. (4) Upon the adoption by a Local Authority of a policy statement under subsection (2), every applicant to the Local Authority for approval, consent, permission or authority in respect of a proposal of a type specified in such policy statement shall accompany this application with an environmental impact study report and statement of impact setting out the matters and things prescribed by such policy statement as being relevant to that type of proposal. -- 17 of 148 -- 18 (5) Where an application is made to a Local Authority for its approval, consent, permission or authority for the implementation of a proposal of a type in respect of which it has not adopted a policy statement under subsection (2) and the Local Authority is of the opinion that the implementation of such proposal may have a deleterious effect on the environment, it may cause the applicant, at his expense, to submit an environmental impact study report and statement of impact in respect of his application and in that event shall specify the matters and things which shall be dealt with in such report and statement. (6) In any case where the Local Authority makes application for the approval by the Minister or the Governor in Council of any proposal in accordance with this Act or any other Act the Minister may require submission to him of an environmental impact study report and statement of impact in respect of such proposal. (7) For the purpose of complying with a request from the Minister in accordance with subsection (6)- (a) the Local Authority may submit to the Minister, a copy of an environmental impact study report and statement of impact already supplied to the Council in respect of the proposal the subject of the application referred to in the said subsection (6); or (b) if no report and statement have been required by and supplied to the Local Authority, the Local Authority may and is hereby authorized to require the person who applied for its approval, consent, permission or authority in the first instance in respect of the proposal to submit without cost to the Local Authority the environmental impact study report and statement of impact as required by the Minister. -- 18 of 148 -- 19 (8) For the purpose of this subsection the term “Local Authority” shall include Brisbane City Council.” … Section 33(1) included this definition:- “Strategic plan” “A plan that specifies in general terms future preferred dominant land uses for the town planning scheme area for the progressive development of lands within such area during the period for which the scheme 30 has force and effect”. … Section 33(2D) described the Composition of a Strategic Plan as:- “Strategic plan” “A strategic plan referred to in subsection (2A) shall consist of- (a) a map or series of maps identifying preferred dominant land uses; (b) a statement of objectives of the Local Authority in relation to preferred dominant land uses together with other criteria for determining the type, scale or distribution of other uses required as an integral component to service the preferred dominant land uses; (ba) copies of writings for the implementation of that plan; (c) copies of writings containing supporting information used or in connexion with for the preparation of that plan”. 30 That section also includes a definition of “Town planning scheme” or “scheme” – scheme for town planning; “Town planning scheme area” – the area included within a town planning scheme. -- 19 of 148 -- 20 [34] Section 33(6A)(d) dealt with applications for rezoning the matters to which regard was required to be had in making a decision to either approve, refuse approval or approve subject to reasonable and relevant conditions. Those matters were identified in section 33(6A)(e) and included:- “(i) whether the proposal, if permitted, or buildings erected in conformity with the proposal, or both the proposal, if permitted, and the buildings so erected would- (A) create a traffic problem or increase an existing traffic problem; (B) detrimentally affect the amenity of the neighbourhood; (C) create a need for increased facilities such as schools, shops or other normal service provisions; (ii) the balance of zones in the town planning scheme area as a whole or that section of that area within which the land is situated; (iii) whether the inclusion of the land in the zone in which the land is proposed to be included would be in accord with, or conflict with, the strategic plan (if any) or any development control plan; (iv) whether the land or any part thereof is so low-lying or so subject to flooding as to be unsuitable for use for all or any of the uses permitted with or without the consent of the Local Authority in the zone from which the land is proposed to be excluded and in the zone in which the land is proposed to be included; (v) whether having regard to the permitted uses with or without the consent of the Local Authority of land in the zone in which the land is proposed to be included and the potential of the subdivision if the land is included in the zone in which it is proposed to be included- -- 20 of 148 -- 21 (A) water, gas, electricity, sewerage and other essential services should be made available to the land and to each the separate parcel thereof if the land were subsequently subdivided; (B) the provisions of section 32A of this Act should be applied; (vi) the situation, suitability and amenity of land in relation to neighbouring localities.” 1985 Planning Scheme [35] The 1985 Planning Scheme was prepared pursuant to the 1936 LGA and comprised the following 31 :- (a) the Schedule to the Town Planning Scheme; (b) by-laws; and (c) the Strategic Plan, comprising Part A, Part B and the Strategic Plan map. [36] For the purpose of the Schedule to the 1985 Scheme the subject Land was included in the Rural zone. 32 The Statement of Intent for the Rural zone provided33 :- “The intent of this Zone is to identify and to protect significant areas for a wide range of rural activity. Minimal subdivision requirements are set down in Chapter 36 Subdivision of Land by-laws with the intention of facilitating this range of rural activities and providing the maximum flexibility to preserve viability of established farming.” [37] The Table of Zones for the Rural zone identified the permitted, permissible and prohibited uses on the land within that zone. 34 As of right, uses able to be commenced without consent of the Council included:- (a) agriculture; 31 Exhibit 1C Tab 37 p. 333. 32 Exhibit 2 [3.1.3]; p. 52 [5]. 33 Exhibit 1C Tab 37 p.341. 34 Exhibit 1C Tab 37 p.349. -- 21 of 148 -- 22 (b) animal husbandry; (c) dwelling houses; and (d) farm machinery sheds. [38] Prohibited uses in the Rural zone included commercial premises, educational establishments, local services, and medical or dental centres. [39] The subdivision of land by-law in Chapter 36 of the Planning Scheme envisaged that land in the Rural zone could be subdivided into 20 ha allotments where the land had less than a 10% slope over 70% of its area. 35 Chapter 48 of the Scheme containing the Preservation of Trees by-law 36 relevantly provided:- “(1) The ring-barking, cutting down, topping, lopping, removing, poisoning, injuring or wilful destruction of any tree or trees of fifty (50) cms or more in girth measured at the base of the tree or of any tree or trees as the Council may specify by resolution from time to time is prohibited save and except in the following circumstances that is to say: … (h) where the land on which the tree is growing is included in the Rural A zone under any Town-Planning Scheme. 1985 Strategic Plan [40] The Strategic Plan comprises 37 :- “(a) a map identifying the Preferred Dominant Land Uses for the Shire of Maroochy; (b) a statement of objectives of the Maroochy Shire Council in relation to the Preferred Dominant Land Uses for the management and progressive development of lands within the Shire – Part A; and (c) a supporting information document containing the background and supporting data used in the preparation of the Strategic Plan – Part B.” 35 Exhibit 1C Tab 37 p. 385. 36 Exhibit 1C Tab 37 p. 393. -- 22 of 148 -- 23 [41] Part A of the Strategic Plan comprises a number of elements,38 relevantly the Explanatory Outline and Statement of Objectives for the Urban and Rural Areas PDLU. Those Objectives and the PDLU’s were determined in relation to the Principal Strategic Plan goal which was expressed as39 :- “To enhance and safeguard, the health, safety, convenience and the economic, social and general welfare of the residents and amenities of the Shire in order to achieve the best possible balance between development, including tourist orientated development, in the Shire and conservation of the natural environment and the cultural heritage whilst, at the same time, promoting confidence through consistent development control of the Shire and the proper management of the Shire resources.” The Strategic Plan provided that that broad goal would be achieved by the implementation of the Strategic Plan and Statement of Objectives against the background and by way of the Town Planning Scheme. Local Government (Planning and Environment) Act 1990 – PEA [42] The Local Government (Planning and Environment) Act 1990 (PEA) came into force in April 1991. As at the Relevant Date, in relation to the assessment of an application to rezone land, the PEA provided 40 :- “Assessment of proposed planning scheme amendment 4.4(1) Upon receipt of a statutory declaration referred to in section 4.3(10) and being satisfied that public notice has been given in accordance with section 4.3(4) and (4A), the local government is to consider the relevant application to amend a planning scheme or the conditions attached to an amendment of a planning scheme and any objections duly made in respect of the application. … 37 Exhibit 1C Tab 37 pp. 360-361. 38 Exhibit 1C Tab 37 p. 360. 39 Exhibit 1C Tab 37 p. 361 left-hand column. -- 23 of 148 -- 24 (3) In considering an application to amend a planning scheme or the conditions attached to an amendment of a planning scheme a local government is to assess each of the following matters to the extent they are relevant to the application – (a) whether the proposal, if approved, or buildings erected in conformity with the proposal, or both the proposal, if approved, and the buildings so erected would – (i) create a traffic problem, increase an existing traffic problem or detrimentally affect the efficiency of the existing road network; (ii) detrimentally affect the amenity of the neighbourhood; (iii) create a need for increased facilities; (b) the balance of zones in the planning scheme area as a whole or that part of that area within which the relevant land is situated and the need for the proposed planning scheme amendment; There is no sub-paragraph (c). (d) whether the land or any part thereof is so low-lying or so subject to inundation as to be unsuitable for use for all or any of the uses permitted or permissible in the zone in which the land is proposed to be included; (e) whether, having regard to the permitted or permissible uses of the land and the potential for subdivision in the zone in which it is proposed to be included water, gas, electricity, sewerage and other essential services should be made available to the land and to each separate allotment thereof if the land were subsequently subdivided; (f) the impact of the proposal on the environment (whether or not an environmental impact statement has been prepared); 40 Part 1A, s 4.4(3A) and 5(A) were later introduced by Act No. 37 of 1992 which commenced on 23 July 1992. -- 24 of 148 -- 25 (g) the situation, suitability and amenity of the land in relation to neighbouring localities; There is no sub-paragraph (h). (i) the advice given by it, in respect of any consideration in principle concerning the relevant land pursuant to section 4.2; (j) whether any plan of development attaching to the application pursuant to a requirement of the planning scheme should be altered; (k) where the land is land prescribed pursuant to section 8.3A, the site contamination report in respect of the land; (l) such other matters, having regard to the nature of the application, as are relevant. (3A) The local government must have regard to relevant State planning policies in making its decision on the application. … (5) In deciding an application made to it pursuant to section 4.3 a local government is to – (a) approve the application; or (b) approve the application, subject to conditions; or (c) refuse to approve the application. (5A) The local government must refuse to approve the application if – (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. -- 25 of 148 -- 26 (7) Upon the local government making a decision on an application in accordance with subsection (5) the chief executive officer is, within 10 days of the date of the decision, to notify the applicant and every principal objector of the decision. (8) The applicant or any person who has duly objected may appeal to the Court pursuant to section 7.1 against the decision of the local government. … Environmental Impact 8.2(1) Without derogating from any of its powers under this Act or any other Act, a local government, when considering an application for its approval, consent, permission or authority for the implementation of a proposal under this Act or any other Act, is to take into consideration whether any deleterious effect on the environment would be occasioned by the implementation of the proposal, the subject of the application. (2) If a person intends to apply to a local government for – (a) an approval, consent, permission or authority in relation to a planning scheme for a designated development; or (b) an approval, consent, permission or authority in relation to an interim development control provision for a designated development; the person must, in accordance with the regulations, request the chief executive of the department to tell the person if an environmental impact statement is necessary and, if it is necessary, its terms of reference. (3) The chief executive must, as soon as possible after receiving the request – -- 26 of 148 -- 27 (a) give a written acknowledgment to the applicant of its receipt; and (b) decide if an environmental impact statement is necessary; and (c) if the chief executive decides that an environmental impact statement is necessary – decide its terms of reference. (4) The chief executive may decide that an environmental impact statement in relation to a designated development is not necessary if – (a) a relevant study, that is not outdated, was prepared and, in the chief executive’s opinion, there are no significant environmental issues that were not covered in the relevant study; or (b) the chief executive is satisfied that a referral agency has made a study that included environmental issues for the area the subject of the development and it is not outdated; or (c) in the chief executive’s opinion, the consequence of the approval, consent, permission or authority in relation to the designated development is minor. (5) The chief executive must consult with all the referral agencies in relation to – (a) whether an environmental impact statement is necessary; and (b) if a statement is necessary – its terms of reference. … (11D) When it decides an application to which subsection (2) applies, the local government must have regard to the Environmental Impact Statement -- 27 of 148 -- 28 submitted with the application as well as any other matters relevant to the application. … (12) Where an application is made to a local government for a proposal which is not a designated development and the local government is of the opinion that the implementation of the proposal may have deleterious effect on the environment, it is to – (a) require the applicant to submit an environmental impact statement in respect of the proposal, the subject of the application; an (b) specify the matters and things which are to be dealt with in that statement. (13) In any case where the local government makes application for the approval by the Governor in Council of any proposal not being a designated development in accordance with this Act or any other Act, the chief executive may require the submission of an environmental impact statement of the proposal. … (15) In this section – “designated development” means – (a) a proposal prescribed by regulation for the purposes of this section; or … “referral agency”, in relation to an environmental impact statement for a designated development, includes – -- 28 of 148 -- 29 (a) the chief executive of the department that is responsible for the administration of Acts for the protection of the environment; and (b) any local government in whose area the development is proposed; and (c) the chief executive of any other department or statutory body that the chief executive of the department considers must be consulted. …” Local Government (Planning and Environment) Regulation 1991 [43] Section 16 of the Local Government (Planning and Environment) Regulation 1991 relevantly provided:- “Environmental impact – designated developments 16. The following types of proposals (other than proposals which the Local Authority regards as of a minor or ancillary nature) are prescribed for the purposes of Section 8.2 of the Act:- … (b) a proposal relating to a development (other than a dwelling-house, out- building or farm building) on land located in or having a common boundary with, an area referred to in Schedule 2.” For the purpose of s 16(b) of the Local Government (Planning and Environment) Regulation 1991, Schedule 2 prescribed as the tenth of the areas to which s 16(b) applied:- “10. Wetland, whether fresh, brackish or marine, including coral reefs, mangrove areas, mudflats, sand flats, sandy beaches, seagrass beds, and tidal marshes.” -- 29 of 148 -- 30 State Planning Policy 1 of 1992 [44] State Planning Policy 1 of 1992 was introduced in December 1992 subsequent to the introduction of s 4.4(3A) of the PEA on 23 July 1992 which required a local government to give consideration to any relevant state planning policies in assessing an application to rezone land. The policy (SPP1/92) dealt with the protection of ‘Good Quality Agricultural Land’ (GQAL) which will be discussed in more detail later. Urban Areas PDLU [45] The relevant Implementation Objectives for the Urban Areas designation are41 :- “Urban Areas 3.- (1) Objective- To direct future urban growth so as to secure the orderly and proper development of urban centres in a manner consistent with the existing urban structure of the Shire. a) The urban areas shown as preferred dominant land use on the Strategic Plan may be progressively converted to urban use by way of rezonings. Contiguous areas may also be considered where the Council is satisfied that orderly and economic growth will occur. These additional urban areas have generally been zoned rural on the scheme maps so that before urban development can be achieved, rezonings will be necessary and financial contributions may be obtained so that the new areas can be efficiently serviced. b) The rezonings necessary to achieve urban development will be determined on their merits, and where they exist, by a series of 41 Exhibit 1C Tab 37 p.362. -- 30 of 148 -- 31 development control plans indicating the preferred zone for the particular property or locality. c) Rezonings for the urban purposes will only be permitted within the areas mentioned in (a) above, with the exception of certain tourist type developments and special facility uses. d) The inclusion of areas within the preferred dominant land use as urban areas does not mean that all such properties may be rezoned and developed for urban purposes. Many areas, because of their physical characteristics, including aesthetic aspects, steeply sloping terrain, areas with instabilities because of slope and areas subject to flooding, will be retained in their natural state. This will also apply to areas abutting major roads and watercourses required as buffer space. e) A planning report will be required as part of the procedure to enable the Council to consider rezoning for urban purposes. f) The Council will encourage future administration centres, including Government centres, intended to serve the region, to be established in Nambour. (2) Objective- To develop upon and consolidate urban areas a) The existing urban areas have generally been indicated by some form of positive urban zoning on the town planning scheme maps so that, rezonings will not be necessary in order to achieve consolidation of these existing areas. Development will, however, have to accord with any development control plan requirements to ensure the proper and orderly growth of these areas. -- 31 of 148 -- 32 b) The consolidation of existing urban areas will be a matter to be considered by the Council in determining rezoning for new urban growth. (3) Objective- To ensure that the future expansion of urban areas and development of new urban centres occurs in locations capable of being adequately serviced with public utilities having at the same time regard to the orderly extension of such public utility services. a) The principal areas indicated as urban areas on the Strategic Plan have been selected as areas which can be serviced with public utilities provided new urban development takes place on a progressive basis, so that all public utility services and access to the new areas can be economically provided. This aspect is an important one which will be considered by the Council in determining rezoning applications, not only in accordance with development control plans but on their merits prior to the introduction of such development control plans. b) Certain areas indicated as urban areas on the Strategic Plan relate to the small towns including but not limited to, Woombye, Palmwoods, Mapleton, Montville, Eumundi and Eudlo where the Council sewerage schemes do not exist in determining rezoning applications within such urban areas the Council will, among other matters, require the provision of sewerage reticulation or effluent disposal satisfactory to the Council. (4) Objective- To ensure that new urban growth does not conflict with environmentally sensitive and/or conservation areas and does not include land which has flooding, slope instability or other engineering problems which cannot be satisfactorily overcome. -- 32 of 148 -- 33 a) In considering rezoning applications within the new urban areas and development applications in accordance with the indicated preferred dominant land use on the Strategic Plan, the Council will take into consideration all the relevant planning aspects including:- (i) The effect of the development which will follow the rezoning or the particular development proposal upon the environment. In order to [do] this the Council will require the applicant to supply a planning report giving an assessment of the proposal; (ii) In considering rezonings and development proposals within the new urban areas and within existing urban areas, the Council will have regard to flood areas, engineering and access constraints, together with areas of slope instability, in accordance with reports and maps contained in Part B.” Rural Areas PDLU [46] The explanatory outline for this designation states 42 :- “These areas are shown on the Strategic Plan in light brown. They include valuable sugarcane land and valuable horticultural land which are to be protected as such. These areas are identified on Queensland Department of Primary Industries maps contained in Part B. The rural areas also cover the balance areas of the Shire not required for other preferred dominant land uses and may include rural residential developments.” [47] Two objectives relevant to the Rural Areas PDLU Designation are43 :- “RURAL AREAS 7.- 42 Exhibit 1C Tab 37 p.361 Right-hand column. -- 33 of 148 -- 34 (1) Objective- To protect the Shire’s prime agricultural land including valuable cane land from unnecessary and undesirable intrusions by other land use activities. a) The rural areas shown as a preferred dominant land use on the Strategic Plan have been supported by Rural A and Rural B zoning on the town planning scheme maps. These rural zones will be maintained, with rezonings for other than rural purposes limited so that they respect this objective. b) Areas of valuable cane land have been indicated on plans supplied by the Queensland Department of Primary Industries included in Part B. These valuable cane areas will be protected generally by Rural A zoning, with some Rural B zoning. Where valuable cane land is included in a Rural A zoning the Council will not permit rezonings to Rural B for horticultural purposes where this involves unnecessary loss of valuable cane land. Further, the Council will not consent to the establishment of extractive industries in areas of valuable cane land. c) Valuable horticultural land has been indicated on a plan supplied by the Queensland Department of Primary Industries as included in Part B. These areas will be protected by both Rural B and some Rural A zoning. d) The rural areas will be further protected by the structure of the Rural A and Rural B zones whereby undesirable uses are prohibited. (2) Objective- To provide sufficient land in suitable attractive rural locations within the Shire to meet the demands for the rural residential living, whilst ensuring that their location is not prejudicial to existing and traditional viable rural land use activities. 43 Exhibit 1C Tab 37 p. 363 -364. -- 34 of 148 -- 35 a) Provision of an adequate supply of land to satisfy this demand shall be made by way of rezonings generally within the areas shown as rural preferred dominant land use. Specific identification of preferred rural residential areas have not been made. b) The rezonings necessary to achieve rural residential development will be determined on their merits and upon reference to the criteria specified in the relevant section of the Local Government Act together with any other matters which the Council considers are relevant, including but not limited to the following:- (i) Whether the proposal will be compatible with the predominant land use of the locality or prejudice the viability of traditional rural land use, urban land use or extractive industry use or potential; (ii) Whether the proposal will constrain the orderly development of urban areas; (iii) Its effect upon environmental matters including conservation of the established amenity, existing landscape, escarpments, tree lines, view lines, bushland, open space, tourist value and scenic quality in general; (iv) Whether the proposal will conform to any relevant Policy or Statement adopted by the Council. (v) The proximity of the land to existing urban centres. c) The keeping of animals of a domestic kind within the Rural Residential Zone will be controlled under the provisions of Chapter 31 of the Council’s by-laws and not under the provisions of the town planning scheme. The keeping of animals on a commercial basis will be controlled in accordance with Division III – Table of Zones of Part II – Zoning of the Schedule to the scheme.” -- 35 of 148 -- 36 Strategic Plan Part B – Supporting Information [48] The following extracts from Part B 44 are relevant:- Page 14: “Urban Areas The urban areas shown as a preferred dominant land use on the Strategic Plan were determined by a long process involving an assessment of the following factors:- (1) Existing and long term capacity to provide all public utility services necessary to serve new urban development. This involved use of Master Plan information supplied by the Shire Engineer in relation to water supply, sewerage, drainage and transportation. (2) The philosophy of securing orderly development throughout the Shire including the expansion and consolidation of existing principal centres and towns throughout the Shire. (3) The physical characteristics, suitability of the bulk of the terrain included in the urban areas as being suitable for such development. (4) Existing and future capacity to service the areas by road. (5) The extent and location of areas zoned for urban development as contained within the old Town Planning Scheme. (6) …” Page 17: 44 Exhibit 62 -- 36 of 148 -- 37 “(b) The main characteristics of nature and resource conservation areas and reserves are summarised in Table V1-3 (Tagged p. 332AK). Conventional standards for the provision of these reserves (eg area/population) should not be used, instead, the criteria of viable ecosystems and representative habitats and species should be expertly determined and applied. Resource conservation areas and reserves should again be expertly identified and evaluated and used for the protection of resources such as sugar cane and horticultural production lands, forestry and minerals.” Nature and Resource Conservation Data has been collected relating to all the elements relating to conservation, comprising national parks, environmental parks and public and private open space, and these have been incorporated directly and fully into the Strategic Plan as a preferred dominant land use. …” Page 27: “Constraints 1) In Part A reference has been made to the various constraints which have, to a large extent, determined the preferred dominant land uses indicated on the Strategic Plan. As stated in the Introduction, the selection of the preferred dominant land uses was not simply a theoretical town planning exercise, but also involved an assessment of the relevant values of the various resources. …” Page 31: “…The Strategic Plan indicating the preferred dominant land uses has consciously been constructed so that its application will be indicative rather than definitive. Its Shire wide implications will be to provide a guide to the future as envisaged by the Council rather than be inflexible and precise about what is after all an indefinite matter.” -- 37 of 148 -- 38 1996 Strategic Plan – Effective from 10 May 1996 [49] This Plan consisted of various elements, namely, the vision, key issues, the strategies, the preferred dominant land uses, objectives and implementation criteria and the Strategic Plan map. Vision [50] The following statement is to be found in the vision dealing with environmental and aesthetic values 45 :- “The environmental and aesthetic vision for the Shire is one which values, protects and promotes significant habitats and the processes for ecological sustainability, protecting the current high level of bio-diversity which exists in the Shire. Ensuring a high standard of environmental and aesthetic amenity is important, not only to the local residents, but also underpins the tourism industry within the State. Given the continuing high rates of population growth and continuing expansion of tourism within the Shire, it is essential that the natural resources are identified, assessed and captured in a manner appropriate to their ecological and aesthetic value, ensuring their attention in perpetuity. Certainly the traditional approach to conservation, consisting of the development of a system of a National Parks and other Government controlled land, is clearly unable to protect all significant habitats and ecological processes. There is a need for the protection for a much wider pool of resources on land in private ownership, as well as publicly owned land, and there is a need to develop a range of land use solutions which satisfactorily ensures protection for the environment and aesthetic resources of the Shire. Within this environmental framework will be the creation of a townscape exhibiting a strong sense of place and a high standard of urban design, appropriate to the lifestyle and character of the Sunshine Coast and adapting to the changing needs of the community.” -- 38 of 148 -- 39 PDLU’s Objectives and Implementation Provisions [51] As stated above, the Land under the 1996 Strategic Plan is designated in three PDLU’s, namely, Agricultural Protection, Conservation and Rural or Valued Habitat. The vast majority of the Land was included in the last of these. Agricultural Protection [52] There are two small areas in the north-eastern and south-western corners of the Land within this designation. 46 In relation to this designation the 1996 Strategic Plan provides47 :- “The Agricultural Protection designation identifies good quality agricultural land apart from land determined to be required for other purposes and land which contains vegetation worthy of preservation and significant vegetation as determined by the Turnbull and Olsen Report (1992). The principal intention of this designation is to retain the land for agricultural purposes and consequently protect the future viability of agriculture in the Shire. To this end, intensive agricultural activities will be allowed within these designated areas, while uses which contradict this intention or threaten this agricultural capability will not be permitted. The boundary to the Agricultural Protection is based on defining good quality agricultural land and consequently the location may vary to that shown in line with more detailed assessments undertaken in accordance with the State Government Planning Policy Guidelines for the Identification of Good Quality Agricultural Land.” Relevant Objectives in 1996 Plan re Agricultural Protection PDLU [53] Objectives 6.1 and 6.2 provide:- “IMPLEMENTATION 45 Exhibit 1C Tab 39 p. 406. 46 Exhibit 1C Tab 39 p. 473. 47 Exhibit 1C Tab 39 p. 425. -- 39 of 148 -- 40 1. On land in designated Agricultural Protection areas, Council will not approve applications for any purposes other than agriculture and rural activities which do not compromise the potential of the land to be used for agriculture or purposes necessarily ancillary to these uses. It will not approve subdivision applications which may compromise the efficient operation of these areas for primary production. 2. On land within the Rural or Valued Habitat designation, Council will not approve applications for development other than agriculture, other farming or ancillary uses unless: (a) it can be demonstrated that the proposed use is appropriate to the site and would not be likely to undermine the existing use of any adjoining land for agricultural purposes. Council will consider the agricultural significance of the land and to that end, may require the applicant to carry out detailed land resource studies. The above would not apply to land containing valued habitat where the significant vegetation is essentially being retained. (b) the land is within the Permissible area for Rural Residential development and the development proposed is Rural Residential and is justified under Objective 3.8.” The Natural Resources Strategy – 1996 Strategic Plan [54] The provisions dealing with the Rural or Valued Habitat PDLU designation are to be found in s 10.0 Natural Resources which term is defined as referring to plants, animals and micro-organisms and their relationship with the non-living organisms on which they depend. 48 The relevant key issues identified are these:- “The key issue forming the basis for the Natural Resources strategy include: • The association of significant natural resources with Maroochy Shire including: … - the vegetated and rural character of much of the Shire. 48 Exhibit 1C Tab 39 p. 439. -- 40 of 148 -- 41 The key issue forming the basis for the Natural Resources strategy include: • The association of significant natural resources with Maroochy Shire including: … - the vegetated and rural character of much of the Shire. • … • … • … • • The essential need to retain the considerable and significant natural resources of the Shire including the protection of all aquatic and marine environment, terrestrial habitats, the diverse geological features and the natural character of the Shire so that: - the natural aesthetics of the Shire can be maintained; - the quality of life of residents is protected; - a sustainable tourist industry is assured; - the need to strive for a high environmental standard for the reasons given above is maintained; - as well as a desire for longer term environmental sustainability is achieved. • …” [55] The Natural Resources Strategy relates to the conservation and Rural or Valued Habitat PDLU’s and the strategy is in these terms 49 :- 49 Exhibit 1C Tab 39 p. 439 right-hand column. -- 41 of 148 -- 42 “1. Central to the Strategy is the location, objectives and implementation criteria of the preferred dominant land uses of Conservation and Rural or Valued Habitat. These designations are intended to:- - contribute significantly to the protection of rare and threatened fauna and flora; - maintain significant and representative fauna and flora; - preserve significant geological formations and prominent escarpments; - discourage additional soil erosion; - provide a measure of protection to the aquatic and marine ecosystems; - repair riparian systems and other significant environments. 2. The Conservation preferred dominant land use includes those areas designated as possessing the most highly valued areas of vegetation as well as land in public ownership intended to be preserved in a natural or semi natural state, such as National and Conservation Parks. This designation also includes vegetated and degraded creek corridors whose protection and rehabilitation is paramount in establishing sustainable ecosystems. 3. The Rural or Valued Habitat Designation includes extant vegetation units, often in private ownership, which form linkages between the principal conservation areas and major vegetation corridors within and outside the Shire. It also incorporates other land where vegetation protection or rehabilitation is considered appropriate because of slope, potential for landslip or for its aesthetic values. 4. While the emphasis for this Strategic Plan has centred around the identification and protection of vegetation, it has been assumed that the development of an appropriate Strategy for the conservation of terrestrial flora will also result in the conservation of the fauna populations. -- 42 of 148 -- 43 5. A strong environmental framework requires not only the protection of resources through limiting land uses in designated locations, but requires also the establishment and implementation of an appropriate array of development guidelines and standards for all other forms of development. Such guidelines and standards, imposed as conditions on development, will: • adopt a best practice approach; • reinforce the remaining environmental objectives; • seek a high standard of environmental amenity. 6. Aquatic and marine ecosystems are to be maintained through the retention and rehabilitation of creek corridors, through land use measures intended to reduce soil erosion, and where required, through creek bank stabilisation and requiring sedimentation and retardation controls in new development. 7. Under the Natural Resources Strategy, as proposed, the maintenance of land in its natural state is considered a legitimate land use in itself. This means that in some parts of the Shire development opportunities are limited to those which ensure the natural resource values for that site or adjoining areas are protected in perpetuity. 8. The conservation and Rural or Valued Habitat designations also intend to protect wetland areas which are valuable natural physical and biological treatment systems of water quality and quantity.” Conservation Rural or Valued Habitat PDLU’s – Objectives and Implementation Provisions [56] The 1996 Strategic Plan:- “PREFERRED DOMINANT LAND USES Conservation Those areas that are intended or preferred for Conservation are shown as dark green on the Strategic Plan Map. The Natural Resources objectives are best achieved by the exclusion of most forms of development from this designation. -- 43 of 148 -- 44 Rural or Valued Habitat The emphasis of this designation is generally on the retention of the land in its present situation although changes in use and subdivision in accordance with entitlement under the Planning Scheme are envisaged. This designation includes land being used for agricultural purposes which may not have been identified as good quality agricultural land, land with limited rural capability, land identified as good quality agricultural land which contains vegetation worthy of preservation and significant vegetation and land which, at this time, has a preferred rural function. While it is intended that rural uses and the retention of valued habitat should be the dominant activities occurring in the Rural or Valued Habitat areas, the designation provides for a range of other uses suited to establishing in rural areas. Valued Habitats are defined as vegetation worthy of preservation and significant vegetation as identified by the Turnbull & Olsen Report (1992). These uses may include but are not limited to rural industries, tourist and accommodation facilities appropriate to a rural area and animal husbandry and rural residential in the Permissible Area for Rural Residential. In Rural or Valued Habitat areas it will be a requirement that all uses protect the natural resources on the site and that all development applications incorporate appropriate land management practices.” Objectives and Implementation Criteria for Conservation and Rural or Valued Habitat PDLU Designations [57] These provide:- “OBJECTIVES & IMPLEMENTATION 10.1 TO PROTECT THE CONSIDERABLE ENVIRONMENTAL RESOURCES OF THE SHIRE -- 44 of 148 -- 45 Considerable emphasis has been given to the significance of the natural resources of the Shire from an ecological and aesthetic point of view. Their protection is essential in maintaining the current high level of biodiversity and environmental amenity shared by residents and visitors although regard must be had to adequate fire management measures being implemented in conjunction with the resource protection. To this end, it is necessary to implement effective mechanisms for the assessment of environmental impact associated with development applications. IMPLEMENTATION 1. Council will prepare a policy which determines the circumstances in which an environmental appraisal will be required to be lodged with an application and the scope of such appraisal. Council will also prepare a local planning policy which specifies proposals which shall form designated developments under the provisions of the Planning and Environment Act. 2. In the absence of such policy, an environmental appraisal may be required as part of a development or subdivision application when: • the subject land is included in the designation of Conservation or Rural or Valued Habitat; • the subject land is located within a water supply catchment; • filling or the removal of fill is required to occur on the subject land; • the proposal is likely to have detrimental effects on any natural resource or ecosystem. 3. Any environmental appraisal required by Council must be prepared by appropriately qualified and experienced professionals. If after assessing any environmental appraisal, Council is not satisfied that a sensitive -- 45 of 148 -- 46 environment or habitat can be adequately sustained, it may refuse the application. 4. Whilst the Local Government (Planning and Environment Act defines instances where an Environmental Impact Statement is required, an EIS may also be required by Council where a development or subdivision proposal is for: • an industry considered to be hazardous and noxious; • land which contains Significant Vegetation or Most Significant Vegetation under the Turnbull & Olsen 1992 Study or adjoins land designated as Conservation Area; • any extractive industry; • a proposal which directly impacts on the habitat of any rare and threatened species. 5. In the assessment of development proposals which incorporate the retention of vegetation or adjoin areas which are vegetated, Council will have regard to the adequacy of any proposed fire management measure to protect the development or may require the preparation of such measures if none are proposed. 10.2 TO PROTECT THOSE HABITATS OF TERRESTRIAL AND AQUATIC FAUNA AND FLORA WHICH ARE CONSIDERED SIGNIFICANT FROM AN ECOLOGICAL POINT OF VIEW, IN A MANNER WHICH ENSURES ADEQUATE LONG TERM PROTECTION An inventory of the vegetation of the Shire has been established and an assessment made of the values of individual species and vegetation units in the Shire. This inventory and assessment was based on work undertaken by Turnbull and Olsen (1992). This assessment was conducted on the basis of species composition, -- 46 of 148 -- 47 abundance and habitat significance and identified a number of rare and threatened flora and fauna located within the Shire. The nucleus for a Natural Resource strategy is the conservation of: • sites known to contain rare and threatened species of fauna and flora and their habitats; • valued areas of habitat; • areas providing botanical representation. The protection of these resources is critical in maintaining the current level of biodiversity and in preserving a high level of environmental amenity within the Shire. IMPLEMENTATION 1. On land designated Conservation, Urban and Rural or Valued Habitat, Council will not permit development which is likely to: • require the removal or destruction of rare and threatened flora; • otherwise impact on the habitat so as to threaten the environment of the rare and threatened species. On land not so designated, Council is unlikely to approve an application which may detrimentally impact on the habitat of any rare and threatened species of fauna and flora unless it can be demonstrated that adequate and appropriate measures are to be provided to ensure protection. 3. Council will prepare a Bylaw relating to habitat protection which makes specific reference to: • land contained within the Preferred Dominant Land Use of Conservation, Urban and Rural or Valued Habitat; -- 47 of 148 -- 48 • ecologically significant and riparian habitats; • habitats on steep and unstable land; • habitat within water supply catchments; • the need for rehabilitation; • penalties for infringements of the Bylaw. 10.3 TO PROTECT OR PROVIDE FAUNA AND FLORA CORRIDORS LINKING TO OR BETWEEN HABITATS OF CONSERVATION SIGNIFICANCE The protection and rehabilitation of vegetation corridors utilising waterways, ridgelines and remnant vegetation to link to or between habitats of conservation significance is essential for: • retaining significant stocks of endemic fauna and flora; • allowing species to move between areas of remnant vegetation, thereby enabling gene flow to occur within fauna and flora populations. It must be recognised that this objective is unlikely to be comprehensively realised in the shorter term. A number of proposed corridors, for example, along some creek and river systems are mostly devoid of any endemic vegetation. On many farms, all available land down to the top of the stream bank has been utilised for agricultural purposes. In such locations (and given the protection afforded farm land), it is unlikely that in these locations there will be many opportunities for the re-establishment of the proposed corridors. However, what is important is the ability to begin the process of re-establishing the links to or between habitats of conservation significance. The ROSS is required to specifically recognise that the river systems of the Maroochy and Mooloolah Rivers are regional corridors and are to be given priority to ensure their protection. Consequently the conservation values of these corridors require recognition in the Strategic Plan. -- 48 of 148 -- 49 IMPLEMENTATION 1. (a) The principal mechanism for securing a fauna and flora corridor is the riparian designation. The right to farm, where that use is established will take overriding precedence over such corridors which are identified by a dotted line and shown hatched on the map. (b) The designation will not affect any existing farming operations or existing urban development or existing industrial, nor will it prevent existing or future improvements allied or incidental to established activities, which do not require consent or rezoning where an urban or industrial use is already established in the corridors, only the usual constraints apply. Where it is not practical to establish a corridor regard will still be had, in the consideration of application, to the intent of Council. Where dedication of riparian corridor exceeds 10% parks contribution a bonus system (to be developed) will apply. 2. A number of fauna and flora corridors have been identified on the Strategic Plan map. These corridors are of about 50 m width on each side of appropriate waterways with an overall width of 100 m. 3. The 50 m width is measured from the top of the present streambank and in a perpendicular direction from all points along the streambank. 4. Some greater distance may be required to be preserved having regard to: • the botanical and ecological values of the land.” Urban Areas and Future Urban PDLU’s [58] These are described as 50 :- 50 Exhibit 1C Tab 39 p. 408. -- 49 of 148 -- 50 “PREFERRED DOMINANT LAND USES Urban The Urban designation identifies areas suitable for residential development of varying densities, but allows for retail, commercial, community service and service and general industrial activities required to serve the day-to-day needs of local communities. The Urban designation may include land which is considered to have significant ecological value and sensitive development options would be appropriate to adequately incorporate this land into the urban fabric with minimal impact. Future Urban The designation of Future Urban indicates those areas on the periphery of the Urban designation which are required for long term urban expansion. It is unlikely that land designated Future Urban will be developed within the 10 year timeframe of the Strategic Plan. However, subject to need and sequencing being addressed, Council may support development of this land at the appropriate time. The development of the land, in the mean time, will be controlled by the zoning and provisions of the Planning Scheme.” [59] The Implementation Provisions concerning Applications for Development of Land in the Urban Designated Areas contains the following51 :- “6. If, after assessing any environmental impact statements or environmental assessments, Council is not satisfied that a sensitive environment can adequately sustain a proposed development, it may refuse the application.” 51 Exhibit 1C Tab 39 p. 410. -- 50 of 148 -- 51 DOES PEA SECTION 3.5.4(D) EXCLUDE THE APPELLANTS’ ENTITLEMENT TO COMPENSATION – THE SPARKE POINT? [60] Having set out the relevant legislative provisions, I turn now to a threshold issue raised by the Council. It argued that the appellants were disentitled to any compensation by virtue of the operation of s 3.5.4(d) of the PEA.52 That is to be distinguished from the Council’s principal contention53 which denies the appellants have any entitlement to compensation on the basis that the provisions of both the 1985 and 1996 Strategic Plans, properly construed, were of the same effect in restricting the appellants’ ability to rezone the subject land for urban purposes. Hence, no injurious affection has been suffered [61] The relevant provisions of the PEA for the present argument are:- “Compensation 3.5(1) Where a person:- (a) has an interest in premises within a Planning Scheme area and the interest is injuriously affected:- (i) by the coming into force of any provision contained in a Planning Scheme; or (ii) by any prohibition or restriction imposed by the Planning Scheme; or (b) … The person is, subject to compliance with this section, entitled to obtain from the Local Government compensation in respect of the injurious affection or expenditure and may claim that compensation in accordance with this section. 52 Council’s Statement of Facts, Matters and Contentions Exhibit 1A p. 78. 53 Exhibit 1A p. 79; Council Submissions and Reply [22]. -- 51 of 148 -- 52 (2) … (2A) … (3) … (4) Compensation is not payable:- (a) … (b) … (c) … (d) Subject to subsection (2), where an interest in premises is affected by a Planning Scheme which by its operation prohibits or restricts the use of land or the erection or use of a building or other structure thereon for a particular purpose, unless the applicant establishes that the applicant had a legal right immediately before the provision in question of the Planning Scheme came into force to use the land or erect or use a building or other structure thereon for the particular purpose which is so prohibited or restricted; (e) … (f) … (g) … (5) For the purpose of subsection (4)(d), it is not to be taken that an applicant did not have the legal right referred to in that subsection by reason only that the applicant’s right depended upon an exercise of discretion by the Local Government in the applicant’s favour if the applicant shows that it is reasonable to expect that the exercise of discretion would have been in the -- 52 of 148 -- 53 applicant’s favour had it been sought immediately before the relevant provision of the Planning Scheme came into force; (6) The onus of proving that compensation is not payable in any case by virtue of subsection (4) is upon the Local Government.” Section 3.5(2) referred to in s 3.5.4(d) above is not relevant. [62] The Council argued the appellants’ claim for compensation is excluded under s 3.5(4)(d) above because the 1996 Strategic Plan provisions relevantly “impacted upon” the ability of the appellants to develop the Land for urban purposes with supporting uses. 54 That argument involves the proposition that the “impact” referred to prohibits or restricts the use of the land as contemplated by s 3.5(4)(d). 55 [63] Council relies on Sparke v Noosa Shire Council56 in support of its argument. In that case it was common ground that the appellants’ interest in land had been injuriously affected within s 3.5(1) above by the introduction of a new Strategic Plan for the Noosa Shire. Prior to the introduction of the Plan the appellants would have expected to be able to rezone the property so that a retirement village could be built on it, but the introduction of the Plan resulted in that prospect disappearing. [64] The appellants argued that they had a legal right within the extended concept of that term in s 3.5(5) above on the basis that that right depended upon an exercise of discretion by the Local Government in favour of the appellants which it was reasonable to expect it would be so exercised. The Council, in that case, argued that the procedure to bring about the necessary rezoning involved not only the exercise of the discretion by the Local Government but also by the Governor in Council. The Court upheld that argument finding that the appellants did not have the necessary legal right. [65] The Council here relies upon the same successful argument advanced by the Council in Sparke57 . But, of course, reliance upon s 3.5(5) is only available if the Council can show that the 1996 Planning Scheme, by its operation, prohibits or restricts the use of the subject Land for a particular purpose. That is necessary to trigger the operation of s 3.5(4)(d).58 That satisfied, the Council contends that s 3.5(5) cannot be satisfied by the appellants for the same reasons as obtained in Sparke59 , namely, the necessity for a second discretion to be exercised by the Governor in Council. 54 Council Submissions Part 4; Submissions and Reply [21] – [49]. 55 Council Submissions and Reply [41} and [47]; Council’s response to Appellants’ Reply [6]. 56 [1999] 1 Qd. R. 344. 57 Sparke v Noosa Shire Council [1999] 1 Qd. R. 344. 58 Kettering v Noosa Shire Council [2004] 134 LGERA 99 at [22]. 59 Sparke v Noosa Shire Council [1999] 1 Qd. R. 344. -- 53 of 148 -- 54 [66] In Kettering v Noosa Shire Council60 the appellant owned a sizeable area of land on Noosa Hill which was zoned Rural Pursuits which afforded him, as a right, an entitlement to subdivision into lots of no less than 40 ha. On 21 September 1991 the Noosa Hill Development Control Plan (DCP) was gazetted. It divided an area of land including the appellants’ land into precincts and most of the appellants’ land was within sub-precinct D of Precinct 2. The application of the principles and intentions stated in the DCP to the appellants’ land had the effect of significantly reducing its potential for more intensive use. The appellants sought compensation on the following basis:- “But for the DCP, necessary approvals in order to carry out residential development of the land (including the land now in sub-precinct D) could have been obtained in a number of ways including, relevantly for compensation purposes:- (a) … (b) Rezoning from the Rural Pursuits Zone to another zone where land could be subdivided into smaller allotments for dwelling houses.” The Council there argued that the combined effect of ss 3.5(4)(d) and 3.5(5) was to exclude the appellants’ claim which argument was unsuccessful in this Court. [67] The Council successfully appealed. 61 Both McPherson JA and Davies JA dealt with the interpretation of s 3.5(4)(d). McPherson JA said 62 :- “The respondent’s submission would treat s 3.5(4)(d) as creating a right to compensation that is different from and in some respects wider than the right under s 3.5(1)(a) from which it is intended to detract. That would have the extraordinary result that, as the reasons of Davies JA demonstrate, the less direct or more remote the connection between the Planning Scheme provision and the injurious affection suffered by the owner, the stronger his prospect of recovering compensation would become. That is to ascribe an irrational outcome to the legislation. The foundation for the respondent’s claim to compensation is s 3.5(1) and the exception imposed 60 [2000] QPEC 71. 61 Kettering Pty Ltd v Noosa Shire Council [2002] 120 LGERA 33. 62 [2002] 120 LGERA 33 at 36 [8], [10]. -- 54 of 148 -- 55 upon it by s 3.5(4)(d) cannot create a right to compensation that rises above its source. Exceptions are by their nature limitations on and not extensions of the rules on which they operate.” Davies JA said 63 :- “It can be seen from the paragraphs of s 3.5(4) that injurious affection which may give rise to compensation is thereby limited to affection of an interest in premises which is direct and immediate. Nowhere is this clearer than in what I have described as the exceptions to par (d): for example, one of the ways in which a Planning Scheme might most directly and immediately operate to prohibit or restrict the use of land would be where, before it came into force, there was a right to use the land for a particular purpose which the provision prohibited or restricted. To construe par(d), as the learned primary judge held and the respondent contends, so as to exclude payment of compensation only where a Planning Scheme, by its direct operation, restricts the use of land would be inconsistent with the Scheme of these paragraphs in general and with the exceptions in particular. The correct construction is to the contrary. So construed par(d) applies in this case to preclude payment of compensation. The reason why the respondent’s interest is affected by the coming into force of the Development Control Plan is that that Plan, by its operation, restricts the use of land. But it does not do so immediately and directly; it does so only potentially thereby reducing its value. That is because a Development Control Plan merely indicates the intentions for the future development or designated parts of the whole of the Planning Scheme area. …That this Development Control Plan is no more than a Statement of Intent for the future can be seen from an examination of the Plan.” [68] Before the High Court, the respondent Council contended for the above interpretation adopted by the Court of Appeal to argue that the words “by its operation” in s 3.5(4)(d) should be interpreted to focus upon the substantial or direct effect of the Planning Scheme rather than its indirect effect. The Court identified the various expressions “by the coming into force …”, “… imposed by the Planning Scheme”, “came into operation”, “coming into operation”, and “comes into force” in the various sub- 63 [2002] 120 LGERA 33 at 41 [27] – [28]. -- 55 of 148 -- 56 paragraphs in 3.5 dismissing any particular significance to the use of those different expressions, it found they were intended to cover the same or similar concepts and said:-64 “In each case, however, the expression has a temporal connotation and appears to be intended to identify a time or event, and not to point to a distinction between an indirect or direct effect of a change in a Planning Scheme.” [69] It went on to say:- “The DCP had no prohibitory effect upon the appellants’ use of the land. Its effect, although no doubt significantly so, was no more than influential. The respondent submits, however, that this means that its effect was at least restrictive, and therefore that it falls within the alternative limb of the exception contained in s 3.5.4(d), as a provision of a Planning Scheme which, by its operation restricts the use of land. In our opinion ‘restricts’ should not be read in this way in s 3.5(4)(d). To give the word ‘restricts’ such a meaning as, ‘restricted by influencing’ or ‘by having a strong bearing upon’ would be to give it a strained and artificial meaning, and one not compelled, either by the context of its use as held by the Court of Appeal, or by any extraordinary consequences otherwise. Section 3.5(4) does not expressly or by implication confine compensation to affection which is direct and immediate. The meaning of s 3.5(1)(a)(i) is not to be construed as the Court of Appeal did, by reference almost exclusively, to the exceptions to it. The appropriate approach is to identify the extent to which the very expansive right to compensation which it confers, is reduced by the subsequent exceptions for which s 3.5(4) provides.” Later the Court said 65 :- 64 [2004] 134 LGERA 99 at 110-111. 65 [2004] 134 LGERA 99 at 111 [29]. -- 56 of 148 -- 57 “The Court of Appeal was of the opinion that acceptance of the construction urged by the appellant would produce an anomalous, indeed extraordinary result that an injurious affection by way of a prohibition or restriction upon use would not attract compensation, whereas such an affection by way of an indirect and only influential change would. But this is to overlook the particularity and limited nature of the subject matter with which s 3.5(4)(d) is concerned: the prohibition on the use of land, or the restriction on the use of buildings or other structures, for particular purposes. The effect of the DCP here is upon the potential of the land for subdivision, and greater intensity of use, and not of use for a particular purpose. …There is nothing in the language of s 3.5 which requires that a distinction be drawn between direct and indirect affects.” [70] The appellants’ present case originally relied upon both limbs of s 3.5(1)(a), that is, the coming into force of the Planning Scheme (s.3.5(1)(a)(i)) and the prohibition or restriction imposed by it 66 (s.3.5(1)(a)(ii). By letter dated 10 May 200767 the appellants’ solicitors wrote to the Council:- “In light of the decisions in Kettering and Sparke, the Appellants will not continue with the basis for their claim under s 3.5(1)(a)(ii) of the Repealed Act, but simply proceed on the basis set out under s 3.5(1)(a)(i) of the repealed Act.” [71] The Council relied upon certain statements attributed to the appellants to demonstrate that the 1996 Strategic Plan did by its operation restrict the use of the Land. For instance, in the particulars provided by the appellants,68 the appellants state “there was no prospects of an approval being given for a major residential subdivision supporting commercial industrial and community uses; in the appellants’ opening 69 there is the statement that the Council destroyed any expectation that the Land had urban development potential; and in the appellants’ written submissions70 the statement that the 1996 Strategic Plan obliterated any expectation that the Land may be developed for an urban purpose. But those statements are no more than expressions of opinion by the appellants as to the operation of the 1996 Strategic Plan howsoever prescient they may be. 66 Exhibit 1A Tab 1 [6]-[7]. 67 Exhibit 30. 68 Exhibit 1A Tab 13 [c]. 69 Exhibit 4A [1]. 70 Ibid [11]. -- 57 of 148 -- 58 Status of Strategic Plan [72] The High Court in Kettering accepted the comments by Davies JA in the Court of Appeal to the effect that a Development Control Plan merely indicates the intentions for the future development of the area covered by a Planning Scheme and is not a statement of intention, nor a declaration or prescription of uses or prohibitions or restrictions upon them. As was said in Zieta No. 59 Pty Ltd v Gold Coast City Council 71 by Connolly and McPherson JJ as to the effect of a Strategic Plan:- “The effect of a Strategic Plan was considered by Kneipp J in Curtis v Beaudesert Shire Council [1983] 1 Qd. R. 201/213. His Honour there observed that he was unable to see that the effect of the legislation was to elevate the provisions of the Strategic Plan from expressions of policy to mandatory provisions. His Honour went on:- ‘The plan quite plainly says that it relates to policies. The only way in which it and the Scheme properly could be read together sensibly is to regard the plan as to relating to policies only, mandatory requirements being dealt with by the proper scheme.’ [73] Again, in Lewiac Pty Ltd v Gold Coast City Council72 Thomas J (with whom McPherson JA agreed) said in relation to Curtis and Zieta:- “The two principle points in those cases are that a Strategic Plan is only an objective, and not every objective in such a Plan has to be met before the proposal of an application may be accepted, and that the general objective of the Strategic Plan is to specify aims, objectives and strategies. There is, however, nothing that prevents a degree of particularity in the Statement that is after all an objective. As a forward planning strategy it contains relevant matters for consideration by a Court.” 73 71 [1987] 2 Qd. R. 116. 72 [1994] 83 LGERA 224 at 230. 73 See also New York Enterprises Pty Ltd v Beaudesert Shire Council [1981] QPLR 48 at 50; Mookai-Bi-Bayan (Aboriginal and Torres Strait Island Corporation) v Council of the City of Cairns and Anor [1994] QPLR 104 at 106. -- 58 of 148 -- 59 PEA s 4.4(5A) [74] This provision was introduced by Act No. 37 of 1992 and operated from the date of its assent on 23 July 1992. It provides:- “(5A) The Local Government must refuse to approve the application if:- (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.” [75] The Council contended that this provision had the effect of elevating the status and effect of Strategic Plans from being more than just influential to having operative effect. 74 Two things might be said in response to that. Firstly, to the extent that it is suggested that that affects the interpretation of s 3.5(4)(d) in the event of a conflict within s 4.4(5A), that former provision speaks of the operation of the Planning Scheme not the operation of other legislation. The Planning Scheme hereunder consideration does not include the PEA. Secondly, the submission is at odds with a statement of this Court the year following the introduction of s 4.4(5A) in Fitzgerald v Logan City Council and Anor75 where Row DCJ said in relation to that provision:- “The importance of the provision of a Strategic Plan in relation to, in particular, rezoning applications, is evident by the 1992 amendments to the Act. The amendments to the Act do not however, make any alteration to the attitude which the Court has adopted in relation to the provisions of a Strategic Plan. The Act, however, is indicative that in considering the various types of applications, if the application conflicts with any relevant Strategic Plan, and there are not sufficient planning grounds to justify approving the application despite the conflict, a local authority must refuse the application …” 74 Council Submissions and Reply [23]. 75 [1993] QPLR 55 at 57. -- 59 of 148 -- 60 Conclusion re s 3.5.4(d) Argument [76] In my view, the Council’s argument seeking to disqualify the appellants’ right to compensation under s 3.5(4)(d) and (5) must fail. The 1996 Strategic Plan is not one which, by its operation, prohibits or restricts the use of the Land in the relevant sense. It has the same effect as the DCP in Kettering. That effect is upon the potential of the Land for subdivision and the greater intensity of use and not of its use for a particular purpose. ENVIRONMENTAL CONSIDERATIONS GENERALLY [77] Before dealing with the specific environmental issues raised by the Council in opposition to the appellants’ claim I shall deal with the issue of environment generally. It is an obvious fact of life, accepted by both parties, that environmental issues are today seen by the community and planning authorities to be of more heightened significance than in previous years. The difficulty, of course, is in drawing any line to identify at what point that heightened appreciation of the importance of the environment dawned. [78] Both parties accept that changes have occurred. The appellants’ point to a greater emphasis and level of stringency in terms of environmental values in the 1996 Plan and the impact of its terms on the development potential of land. 76 The Council pointed to the relevant legislative history and other developments in relation to environmental issues starting with the Local Government Act 1936 (1936 LGA) seeking to demonstrate, as I understood it, that whilst the community and planning authorities are now more conscious of the environment and its preservation, there were from early days provisions in legislation reflecting that concern. [79] Under the 1936 LGA, prior to the introduction of the PEA on 15 April 1991, s 32A obliged a local authority to take into account any deleterious effect on the environment and if thought appropriate, seek an environmental impact study report. The PEA, according to the Council, 77 placed considerable additional focus on environmental issues. In relation to applications to rezone land, the impact of the proposal on the environment was to be assessed whether or not an environmental impact statement had been prepared 78 and any deleterious effect on the environment resulting from the implementation of any proposal under the Act was to be taken into consideration and, if necessary, an environmental impact statement if required by the relevant department.79 Referral agencies, being those responsible for the protection of the environment, the local government in the 76 Appellants’ Submissions [93] – [94]. 77 Council’s Submissions [96]. 78 PEA s 4.4(3)(f). -- 60 of 148 -- 61 area of the proposed development, and any other department, or statutory body thought appropriate to consult, were to be consulted in relation to whether an environmental impact statement was necessary, designated developments including, relevantly, wetland areas.80 Even if the proposed development was not a designated development, a local government, or the chief executive of the relevant department, could call for one. 81 1992 Amendment to PEA [80] The Council points to this amendment as bringing about a significant change to the development assessment regime under the 1936 LGA. As to environmental matters it provided that the local government must have regard to any environmental impact statements submitted with an application together with other matters relevant to the application. 82 The local government was also obliged to have regard to State Planning Policies in deciding any application. 83 Further, and significantly, s 4.4(5A) compelled the local authority to refuse to approve any application if it conflicted with any relevant Strategic Plan or Development Control Plan unless there was sufficient town planning grounds to justify approval notwithstanding the conflict. State Planning Policy 1 /1992 [81] Subsequent to the amendment of the PEA by the introduction of s 4.4(3A)84 , State Planning Policy 1 of 1992 (SPP 1/92) dealing with the protection of good quality agricultural land was introduced. The relevance of that Policy will be later discussed in more detail. The Turnbull and Olsen Report [82] On 23 November 1992 a vegetation survey and assessment of landscapes within the Maroochy Shire was published by Drs M H Turnbull and M F Olsen. 85 That report assessed and mapped the vegetation of the Maroochy Shire. Twenty-four Vegetation Units were identified including habitats of several species of rare and threatened or other noteworthy species of flora.86 In the view of the appellants’ flora expert, Dr Carter, this report became, by default, a policy document and was later integrated into the 1996 Strategic Plan.87 Dr Carter agreed it was the basis for vegetation assessment 79 PEA s 8.2(1) and (2). 80 PEA s 8.2; P&E Regulation 1991 s 16 and Schedule 2 [10]. 81 PEA s 8.2(12) and (13). 82 Section 8.2(11D). 83 Section 4.4(3A). 84 By Act No. 37 of 1992 commencing 23 July 1992. 85 Exhibit 45. 86 Exhibit 45 p. 4. 87 Exhibit 5 p. 16 Line 15. -- 61 of 148 -- 62 in the Maroochy Shire88 from its publication even before its incorporation into the 1996 Strategic Plan. Nature Conservation Act 1992 and Environmental Protection Act 1994 [83] The next pieces of legislation in the progression were the Nature Conservation Act 1992 (NCA) and the Environmental Protection Act 1994 which according to the Council reflected a significant shift in the way in which environmental matters were appreciated in the broader community.89 The NCA dealt with, inter alia, wildlife and habitat conservation and classified wildlife into eight categories and setting out what principles for the management of the wildlife in each of those categories.90 Wildlife is defined in the NCA as any taxon or species of an animal, plant, protista, prokaryote or virus.91 Two of those classes were rare and near threatened wildlife. 92 Both it and the Environmental Protection Act introduced offence provisions. 93 [84] The Council acknowledges that whilst the Nature Conservation Act 1992 classifying flora and fauna as rare and threatened became a standard against which development applications could be assessed, nevertheless, strict application of that standard uniformly across Queensland did not commence forthwith upon its introduction in 1992. Having said that, the Council says that by 1996 potential impacts upon rare and threatened species of plant and animal life constituted a sound basis for refusing permission for development. 94 This it said, was exemplified by the Notice of Disputed Issues filed by the State of Queensland in the Norfolk Estates appeal in relation to the Land.95 [85] Finally, in relation to environmental awareness the Council points to the fact that the 1996 Strategic Plan, whilst operative from 10 May 1996, was conceived in the Council’s resolution in 1992 to review its then Strategic Plan and was adopted on 13 April 1995.96 The point made, is that from the date of adoption on 13 April 1995 to the Relevant Date, there was some 13 months when the public attitudes through their submissions, any Council concerns and the body of knowledge behind the Strategic Plan were formed, publicly known, and available. 88 Transcript 2.86.57. 89 Council Submissions [106]. 90 Nature Conservation Act 1992 Part 5. 91 Nature Conservation Act 1992 Dictionary p. 182. 92 Nature Conservation Act 1992 s 71(a)(iv)(v). 93 Nature Conservation Act 1992 Part 5; Environmental Protection Act 1994 Chapter 3 Part 10. 94 Council Submissions [108]. 95 Exhibit 14 [4(c)] and [6(d)]. 96 Exhibit 1C p. 400. That evidences extensive research and planning work by the Council and the consideration of many proposals and ideas contributed by community groups, industry, Government and individuals. -- 62 of 148 -- 63 ISSUES [86] The appellants accept that a prudent purchaser when considering the market value of the Land in the before case would take account of:- (a) the relevant provisions of the PEA with respect to an application for rezoning in particular s 4.4(3), 4.4(3A) and 4.4(5A); (b) the advice of suitably qualified experts in the field of town planning, good quality agricultural land, flora, fauna, traffic, civil engineering and valuation; (c) the attitude of the respondent Council and the State Government Departments to the Norfolk Estates rezoning application; and (d) events surrounding, and decisions associated with, the approvals obtained for the residential estates Peregian Springs and Coolum Ridges.97 ENVIRONMENTAL ISSUES [87] The Council says that the Covey Plan fails to acknowledge the existence of vegetation and habitat of conservation significance on the Land and the need to protect it which gives rise to a conflict between the proposal and the 1985 Strategic Plan. It relies on Urban Areas PDLU Objective 1(d) which provides that the inclusion of areas within the Urban Area PDLU does not mean that all such properties may be rezoned and developed for urban purposes. It provides that many areas because of their physical characteristics will be retained. The Council also relies on Objective 4 of the same PDLU which seeks to ensure that new urban growth does not conflict with environmentally sensitive and/or conservation areas. It requires the Council to take into account, in considering rezoning and development applications, the effect upon the environment of any development which would follow a rezoning. Identified Physical Characteristics [88] The Council identified heavy vegetation on the Land with its floristic diversity and associated fauna habitat values as obvious physical characteristics within Objective 1(d). -- 63 of 148 -- 64 Fauna [89] Evidence was given by Mr Caneris for the appellants and Mr Agnew for the Council on fauna issues. It is not disputed that the habitat on the Land could be divided into four broad types98 :- (a) dry woodland/open forest vegetation; (b) wet open forest; (c) dry heathland; and (d) wet heathland/swamp. [90] The known and potential fauna species identified by Mr Caneris in his report 99 are species listed under the Nature Conservation Act 1992 in 1996:- (a) Wallum-Sedge frog (vulnerable); (b) Wallum froglet (vulnerable); (c) Glossy Black Cockatoo (vulnerable); (d) Ground Parrot (vulnerable); (e) Lewins Rail (vulnerable); (f) Koala (culturally significant); and (g) Echidna (culturally significant). Mr Caneris agreed with Mr Agnew that 100 :- “4. In respect to the site in 1996, it is reasonable to conclude that the condition of the site’s habitat for the abovementioned species would have been no less favourable and most likely to be more favourable in terms of supporting the abovementioned species and generally, greater fauna specie richness (biodiversity). 97 Appellants’ Submissions [140]. 98 Caneris Report Exhibit 6. 99 Exhibit 6 Table 2 p.14-20. 100 Fauna Experts’ Joint Statement Exhibit 1B Tab 19 p. 182-183. -- 64 of 148 -- 65 5. … 6. The site, as at 10 May 1996 would have provided suitable habitat for all of the species of conservation significance listed above. Furthermore, it is reasonable to expect that all taxa detected in 2005 would have occurred on the site prior to 10 May 1996.” [91] In his report Mr Caneris made the following points as to the potential impacts the Covey Development would have on the fauna habitat values of the Land 101 :- (a) a reduction in the fauna habitats and habitat values; (b) a significant increase in potential threats to fauna by the presence of domestic pets and increased vehicle movements; (c) significant detrimental impacts on the fauna populations within the development footprint resulting in severe reduction of movement options for fauna to, through, or from, the site; (d) notwithstanding the above, and given that there were still relatively large areas of habitat in the local landscape, the development would not have resulted in any localised extinctions or endangerment of the long term security of any fauna species; (e) overall, the loss of native vegetation and potential changes in habitat values would have had a negative impact on the value of the site as fauna habitat and would have resulted in the loss of habitat for species of conservation significance; and (f) the actual level or likelihood of occurrence or degree of impact on significant species would not have been likely to have been known or identified at the relevant time. [92] Mr Caneris expressed the further following opinions 102 :- (a) In May 1996 although the Nature Conservation Act 1992 was in force, the scheduled fauna and/or their habitats were not a significant component of development assessment; (b) the Council had no listing of animals of special significance, the understanding of fauna and faunal habitats was low; the Department of Housing, Local Government and Planning did not require an environmental impact study for rezoning applications and it 101 Exhibit 6 p. 20 [4.9]. -- 65 of 148 -- 66 would have been unlikely that a detailed fauna survey would have been required as a part of the development assessment process of the application to develop the subject site; (c) the level of site assessment for fauna species and/or their habitat at any level of Government would not have been comprehensive, the presence of significance fauna was not a significant factor in the approval process of surrounding developments at the time and it is reasonable to assume that an application for the subject Land would not have been significantly implicated by the presence of native fauna or habitat values; (d) the faunal composition and habitat values of the subject site in May 1996 was comparable to the local landscape and it is unlikely that those factors would have resulted in a significant reduction in the size, type, or location of urban development in the area; (e) in his view, at May 1996 there were clear grounds for expecting the subject site to have potential for approval for urban development with the requirement for areas of Land to be set aside and to be protected from the impacts of the development, 10% park contribution being the benchmark for such open space contributions at the time; and (f) he did not agree that urban development could not have occurred on all portions of the Land or that it would be unachievable which conclusion was exemplified by contemporaneous approvals in the local area, particularly Peregian Springs Estate. [93] In evidence Mr Caneris said:- (a) the close proximity of the Land to a number of National Parks and areas of conservation significance results in much more security for the long term viability of future fauna populations.103 (b) the Covey Plan would not have been a good outcome if the Council had a true and significant concern about the amount of fauna habitats needed to be retained and the level of linkages required for the fauna species 104 ; (c) he would have advised the client that to convince the Council to approve the Covey Plan it was going to have to be substantially modified 105 ; 102 Exhibit 6 p. 20 [5]. 103 T7.4.45-50. 104 T7.9, 4.13-23. -- 66 of 148 -- 67 (d) had he been a consultant at the time he would have encouraged his client to try to retain the wetland areas, some habitat values, and movement corridors106 ; (e) the Covey Plan really takes into account very little in terms of fauna considerations and would have told his client that the plan would be the absolute bare bones that the client could expect 107 ; (f) he would have expected the Council to come back to the applicant looking to have a better outcome from the Covey Plan 108 ; (g) he would have advised the client that the dryland vegetation areas of the subject land109 have the highest potential for urban development and that with reasonable design and park dedications, etc, within there, the client could expect to achieve urban development in those areas 110 ; (h) that the development on the Covey Plan intruded into areas of wetland communities, that it would have been appropriate to keep those areas free of development from a fauna perspective, and whereas he would not have advised his client that they were ‘no go’ areas, he would have advised the client to have regard to those areas as areas capable of securing important habitat for vulnerable species 111 . Effect of Motorway on Fauna [94] Mr Caneris said 112 that the Sunshine Motorway passing through the Land presented a quite threatening area for terrestrial fauna movement, particularly the likes of the koala and echidna. The roadway would ultimately result in the death of these species from collisions with cars. In short, Mr Caneris’ view was that from a faunal perspective, the Land has relatively good connectivity for fauna movements but it is limited or interrupted by the presence of the Sunshine Motorway.113 105 T7.52.43-55; T7.53.1-15. 106 T7.48.1-10. 107 T7.51.39. 108 T8.12.50-56. 109 Identified by Dr Olsen in Exhibit 19. 110 T7.51.49; T7.52.1-8. 111 T7.52.16-40. 112 T7.14.18. 113 Exhibit 6 [2.8]. -- 67 of 148 -- 68 Impact of Logging Activities on Fauna [95] Mr Caneris also said 114 that a large amount of Australian fauna are hollow log dependent and rely on old growth forest for their habitat values either for roosting or breeding. He said that logging ultimately results in a reduction of those values on any given site, and, as I understood him to say, the accessing of the logged trees by the animals creating tracks brings secondary impacts, namely, weeds. He said that as long as logging continued there would be a continuing reduction in the fauna habitat value, varying depending on the species. Mr Agnew [96] Mr Agnew was the fauna expert called by the Council 115 . His conclusions as at the Relevant Date were: 116 (a) as at 10 May 1996 the Land would have provided suitable habitat for a variety of rare and threatened fauna species (as outlined above, those species have been identified by Mr Caneris and agreed by Mr Agnew in their joint statement117 ); (b) in 1996 a suitably experienced consultant zoologist would have had sufficient “desk top” information that the site could potentially support a variety of species of conservation significance and, in considering the habitat preferences for those species it would have been clear to the consultant that the site was highly constrained in regards to development; (c) it is inconceivable that the habitat values on the Land could be protected to any acceptable degree given the high density form of proposed development, it being obvious to him that those values would be all but extinguished if the development was implemented; (d) given the high conservation values of the site and the extent and intensity of the proposed development, it is reasonable to assume the Council would have required an environmental impact study which would have required consultation with referral agencies; 114 T7.14.35. 115 Report Exhibit 25. 116 Agnew Report Exhibit 25 p. 16. 117 Exhibit 1B Tab 19 p. 175. -- 68 of 148 -- 69 (e) there was evidence to suggest the Department of Environment and Heritage was aware of the high conservation values of the site and its surrounds which, in any event, would have been identified by an environmental impact statement; (f) it is reasonable to assume that referral agencies (at least the Department of Environment and Heritage) would have expressed considerable concern as to the proposed development which would not have received the support of those agencies; (g) the advice he would have given to a hypothetical prudent purchaser seeking to acquire the Land in May 1996 would have been:- (i) that a variety of rare and threatened fauna species were known to occur within the wider area and that the site supported potentially suitable habitat for a variety of those species, ie, Wallum Froglet, Wallum Sedge-Frog. Wallum Rocket Frog, Glossy Black Cockatoo, Grey Goshawk, Powerful Owl, the lizard – Ophioscincus Taruncatus, Ground Parrot and Lewin’s Rail; (ii) any development more intense than large rural residential style allotments would significantly compromise the apparent high conservation values of the site; (iii) even low key rural residential development would need to be directed to minimise impacts to ecological values by, for example,, restriction of development to building location envelopes located in cleared or highly disturbed areas, implementation of stormwater controls and high quality effluent disposal treatments; (iv) a comprehensive fauna and flora survey program would be required to inform any future development of the site; (v) the proposed plan of development would significantly decrease the site’s capacity to support significant fauna species, a diverse fauna assemblage (to be expected on the site) and the site’s ability to contribute to the ecological values of the local wildlife habitat network. This would be deemed unacceptable by the Council and Department of Environment and Heritage. -- 69 of 148 -- 70 Fauna Experts’ Review of Development Applications Prior to November 1992 [97] Mr Caneris and Mr Agnew in their Joint Report of 14 December 2008118 reviewed documents relating to Development Applications prior to November 1992 in relation to fauna issues. They agreed that whilst fauna issues were not expressly referred to, they were, by degree, addressed through vegetation retention requirements, park dedications and in particular, through compliance with the Council’s tree preservation by-law for vegetation proposed for retention. Review of Development Applications made Between December 1992 and May 1996 [98] They also conducted a review of applications between December 1992 and May 1996 and agreed on the following 119 :- (a) there was an increasing focus on the requirements to identify and protect areas of conservation value (both flora and fauna) including movement corridors for fauna (and in particular iparian habitats); (b) in relation to the Norfolk Estates Development/Rezoning Application the documents reviewed prior to the Relevant Date identified:- (i) there was a perceived requirement for the assessment of fauna habitat values for the purposes of background information to support the rezoning application; (ii) the fauna and flora habitat values assessment was very limited as to scope and detail of field work undertaken (both in terms of effort and techniques); (iii) existing information was available, for example, the Department of Environment and Heritage threatened species database, which could have assisted in an assessment, but was not adequately relied upon; (iv) the above appeared consistent with the general characteristics of the fauna assessment process undertaken for the Peregian Springs site; (v) a benchmark of 10% of the site for park dedication was used; 118 Exhibit 6 p. 56. -- 70 of 148 -- 71 (vi) in relation to the Norfolk Estates application, there was no documentation evidencing the Council specifically raising fauna as an issue prior to the deemed refusal date, though it was clear that the Council determined, after the appeal was lodged, that it would not support the development for reasons including concerns in relation to vegetation, fauna, and conservation values; (vii) there was evidence that the Department of Environment and Heritage review of the fauna assessment indicated that site values were inadequately described and that the proposed development had the potential to result in deleterious impacts to fauna habitat and conservation values of the site and surrounding area, especially in regards to local fauna movement and habitat values of the adjoining National Parks; (viii) there was evidence that significant concerns were, or may have been raised, by parties other than the Council and the Department of Environment and Heritage, namely, Noosa Shire Council, Noosa National Parks Association, and other community groups, in relation to the potential impact of the development on both on-site and off-site fauna and fauna habitat values. (c) There were considerable contrasts and approaches by consultants in their ecological assessments often being less vigorous than the standard then currently applying; and (d) Given the predicted values of the site and the potential negative impact on those values of the proposed development, regardless of the Council’s decision, the application could have been the subject of an appeal to the Planning and Environment Court. Flora [99] Dr Carter gave evidence for the appellants and Dr Olsen for the Council. They met twice, on 18 March 2008 and on 15 December 2008 respectively, subsequent to which latter meeting there were email telephone and fax communications designed, as with the two meetings, to clarify and narrow the issues. 120 That resulted in three joint statements setting out matters agreed and disagreed. 121 The 119 Exhibit 6 p. 56. 120 Exhibit 5 [3.1] – [3.3]. 121 Exhibit 5 pp. 108, 1012 and 1017. -- 71 of 148 -- 72 number of issues agreed outnumbered those disagreed. Without setting out all matters dealt with in those joint statements, I mention the following. Unless otherwise stated, they are matters agreed between the two experts:- (a) in May 1996 significant flora and fauna values as they affect a development assessment were based upon the 1992 Turnbull and Olsen Report, 122 the mapping in which Dr Carter regarded as the driving force for vegetation policy both before and after the gazettal of the 1996 Strategic Plan. 123 (b) the 1992 Turnbull and Olsen Report identified the following vegetation units as Priority 1 (areas worthy of conservation) occurring on the subject site – 9a, 9e, 10a, 10e, 21a, and 21b which equate to regional eco-systems 12.3.4, 12.3.5, 12.3.13 and 12.5.3 and equate to vegetation units 1, 2, 3a, 3b 4 and 7 in the later Report of Carter and Thomas (1999); (c) Rare flora (classified under Queensland Nature Conservation Nature Act 1992), namely, Alyxia Magnifolia and Schoenus Scabripes found on the site, Schoenus Scabripes being found in the wet heaths and Alyxia Magnifolia found in the forest unit 5(a). That reference to unit 5(a) relates to the five wetland communities numbered 1, 2, 3, 3a, 4, 5a and 5b identified and marked with other, including dryland, communities on the map referred to in the 15 December 2008 Joint Statement. 124 Exhibit 19 is the same map showing the dryland areas shaded. 125 In relation to these rare flora, Dr Carter believes that the Schoenus Scabripes was largely unknown from the mainland until the late 1990’s but was known as at the date of the 18 March 2008 Joint Report to occur in many melaleuca/wet heath areas of the Sunshine Coast. He also made the point that Alyxia Magnifolia occurs in small groups of plants from south-east Queensland to Mackay. (d) Another species Acacia Attenuata has potential on the site, is a disturbance regenerator and is ephemeral in its occurrence. Dr Olsen observed that this species was observed in the near vicinity of the Land in the 1990’s and in the early 2000’s which Dr Carter did not dispute. 122 Exhibit 45. 123 Exhibit 5 [3.1(b)]. 124 Exhibit 1B Tab 23 behind p. 200. 125 T3.7.20-30; T3.10.20-30. -- 72 of 148 -- 73 (e) The development footprint on the subject Land should aim not to result in the loss or degradation of wetland areas or their values as discussed in Turnbull and Olsen 1992. (f) As to the dryland areas, the constraints on development in Turnbull and Olsen 1992 have evolved since the proclamation of the Vegetation Management Act 1999 and, from a flora perspective could accommodate some development. (g) The Covey Plan does not adequately protect the wetland flora values. The principal vegetation values of the Land lie in:- (i) the presence of rare and threatened plant species; (ii) rare and threatened plant communities particularly the low lying wet areas; (iii) fauna habitat value, especially for rare and threatened species; and (iv) to a lesser extent, as a buffer to the Noosa National Park north-west of the Land. Dr Olsen said the dryland areas were less well represented in the local and regional landscape and the wetland areas, hence, their mapping as endangered regional eco-systems. (h) The connectivity value of the Land has been diminished by the development of the Peregian Springs area and other urban developments to the north-east and south-east of the Land as well as agricultural uses to the south. Though, from a flora perspective Dr Olsen considered that those linear corridors did not pose a significant ecological barrier and there edge effects were limited. (i) The connectivity value of the Land could be enhanced by major restoration works on the cleared farm land to the south (east of Doonan Bridge Road). However, it would be better to leave remnant native vegetation in tact as habitat and as functional corridors than attempt to re-create natural eco-systems in cleared farm land with unknown chance of success. (j) The vegetation integrity of the subject site was compromised by the presence of the Sunshine Motorway bisecting the site, the fragmentation due to the presence of roads and easements on the northern and eastern boundaries, and the rural and urban land uses to the south. In this regard, Dr Olsen was of the same view as to connectivity as he expressed in relation to Peregian Springs above, and said in his view, ‘the subject Land -- 73 of 148 -- 74 has among the highest natural values of any remaining undeveloped land of the coastal lowlands on the North Coast outside the conservation estate’. (k) Major threats to vegetation values are:- (i) the potential for urban development on all or part of the Land; (ii) existing forestry land use rights, especially within the drylands area; (iii) withdrawal of fire as an influencing ecological factor; (iv) changes in drainage due to adjacent land uses; (v) weed introductions. (l) The Peregian Springs site nearby and south of the Land is a reasonable comparative site, (vegetation communities and concentrations of rare and threatened species), with applications and/or approvals that are contemporaneous with this matter. Dr Olsen agrees that the values of Peregian Springs were analogous, but said the loss of endangered regional eco-systems from that site was a consequence of a rezoning to Special Facilities resulting in an exemption from the operation of the Vegetation Management Act 1999. Dr Carter, however, pointed out that both the rezoning approval for Peregian Springs and its gazettal on 20 August 1993 occurred before the coming into force of the Vegetation Management Act 1999 on 15 September 2000.126 (m) The Moreton Mill land now part of the Mooloolah River National Park is a reasonable comparative site for vegetation communities for concentrations of rare and threatened species. (n) In 1996 the Land, with the Peregian Springs site, formed a key link in a vegetation north- south corridor. (o) Given its size, inherent integrity, and connectivity, in 1996 the Peregian Springs land was of higher value for conservation than the Land. Dr Olsen disagreed with that. -- 74 of 148 -- 75 Dr Olsen’s Conclusions [100] In the result, Dr Olsen concluded 127 that development in accordance with the Covey Plan would have resulted in the acute and chronic loss of remnant native vegetation being the ‘wet heathland’ and ‘wetland areas’ and the ‘dry land’ components being forest dominated by “old growth” Eucalyptus Pilularius and Eucalyptus Racemosa together with known populations of the abovementioned rare plants, Alyxia Magnifolia and Schoenus Scabripes. He considered that those impacts, primarily resulting from the loss of remnant native vegetation, would have been unacceptable in 1996. That lack of acceptable loss also derived from the intensity of the development proposed by the Covey Plan. Dr Olsen said that the biotic values of the Land being a substantial component of the biotic assets of the local area were described to the Council prior to the submission of the final draft of the 1992 Olsen and Turnbull Report which he co-authored as part of the most significant “biodiversity hotspot” within the boundaries of Maroochy Shire Council, at that time. He concluded that from his knowledge of the Land and immediate environs in 1992, he would have advised any prospective and prudent purchaser that the Land was highly constrained by significant environmental features which would have required the preparation of an environmental impact statement, which statement he considers, would only have furthered the state of knowledge of the significance of the subject site. Dr Carter’s Conclusions [101] Despite the common ground reached with Dr Olsen as outlined above, Dr Carter’s conclusions differed from his. In his view, 128 prior to 1992 development related town planning decisions were driven by need, engineering, and infrastructure considerations in the context of the relevant planning scheme, and those issues determined the fate of any rezoning application. He said vegetation values and significance were of little moment and the vegetation specialist’s role was, at worst, to provide a species list and endorse a development plan that often largely reflected engineering constraints and the requirement to allocate 10% of the land for park purposes. He said the parkland allocation was traded off amongst environmental protection, recreation, and amenity requirements of the proposed development. He said few local government Councils gave consideration to vegetation communities and almost none gave consideration to fauna. He included the Maroochy Shire Council in that. [102] He identified two events in 1992 which heralded the beginning of some serious consideration of biological issues in relation to town planning decisions. Those events were the introduction of the Nature Conservation Act 1992 and the publication of the Turnbull and Olsen Report 1992. As I have 126 Exhibit 5 pp. 11 and 12. 127 Exhibit 24 p. 6. -- 75 of 148 -- 76 already pointed out, Dr Carter said that this report strongly influenced subsequent decisions, and, by default, became a policy document later integrated into the 1996 Strategic Plan. As to the Nature Conservation Act, as I understand Dr Carter’s opinion, it assumed importance to proponents of development on the issue of vegetation constraints only when rare and threatened species under that Act were identified on the Land so as to precipitate an impact assessment or a threat of one.129 [103] Dr Carter said that in January 1995 when he co-authored a report to Norfolk Estates in relation to the Land 130 it was his expectation that an application for rezoning of the whole of the Land to urban would have been successful given that:- (a) it was designated Rural and Urban under the 1985 Strategic Plan; (b) it formed a belt of land designated Urban under the 1985 Plan from Lake Weyba to Coolum Beach; (c) the Covey Plan allocated more than 10% of the Land to parkland; (d) no rare and endangered plant species were known from the Land at the time; and (e) the physical character of the Land, being bisected by the Sunshine Motorway and largely isolated by Monak Road and surrounding land clearing significantly reduced its ecological integrity for long term conservation. [104] As to subparagraph (d) above, it will be recalled that in the joint statements of Doctors Carter and Olsen dealt with above, Dr Carter expressed the view that Schoenus Scabripes was largely unknown from the mainland until the late 1990’s and the Alyxia Magnifolia occurred in small groups of plants from south-east Queensland to Mackay. They were the two rare flora identified. Dr Olsen’s view131 was that, whereas those two species were first found to occur during the initial site inspection in April 2005, nevertheless, it was reasonable to expect that they were present on the Land in 1996 as they would not have developed their current stature in less than a decade. By ‘current stature’ can only refer to the status of the species in 2005, (less than a decade from 1996), rather than the stature at the time of his report in 2009, some thirteen years from the Relevant Date. 128 Exhibit 5 p. 16. 129 Exhibit 5 p. 16 Line 10. 130 Exhibit 5 p. 28. 131 Exhibit 24 [15]. -- 76 of 148 -- 77 [105] Dr Carter 132 expressed the view that the approvals relating to Peregian Springs and Coolum Ridges, the Land’s 1985 Strategic Plan designations, the Covey Plan’s allocation of around 20% of land to parkland and the Plan’s broad conformance with Turnbull and Olsen’s (1992) Priorities for Vegetation, would render it inconsistent if vegetation constraint were used by the Council as a reason to refuse an application for rezoning the Land at the Relevant Date. He compared and contrasted the 1996 Strategic Plan designations of Peregian Springs and Coolum Ridges as Urban with some patches of conservation and the conservation, rural, or valued habitat, and agricultural protection, of the Land which designation, he said, was incongruous. That incongruity, he said, was exacerbated by the loss of vegetation integrity on the Land threatened by Murdering Creek Road, Monak Road and the Sunshine Motorway. In his view, the development on Peregian Springs and Coolum Ridges land would reduce the values associated with vegetation in the conservation designation in the 1996 Plan and increase the threats to the vegetation values of the Land thus extinguishing the logic behind the 1996 designations of the Land which he saw as the remnant of a strategy to protect a corridor of vegetation from Lake Weyba to Coolum Beach. [106] Doctors Carter and Olsen both agreed that a 40 m buffer to the wet heathland areas should be in place to protect those areas from development on adjacent lands. 133 Further, Dr Carter acknowledged that not all of the dryland community ought to be put over to development. 134 He also said that the destruction of the two rare species Schoneus Scabripes and Alyxia Magnifolia on the Land as a result of the proposed development would not threaten those species with extinction. 135 Of course, one does not wait for a plea of threatened extinction before protection is afforded to a species under threat. 136 Conclusion re Environmental Issues Dealt with by Caneris, Agnew and Drs Carter and Olsen [107] Although the appellants’ reliance on Peregian Springs and Coolum Ridge approvals and the Norfolk Estate appeal raise issues relating to the environment, it is appropriate at this point to record my findings on the environmental issues addressed by Messrs Caneris and Agnew (fauna) and Drs Carter and Olsen (flora). In my view, the evidence of Mr Agnew and Dr Olsen for the Council, to the extent that it was at odds with Mr Caneris and Dr Carter respectively, would be preferred by the purchaser and considered to be of such an impact as to constitute those environmental issues as a serious risk to the grant of approval for the proposed development. 132 Exhibit 5 p. 4. 133 Carter – T6.79.8, 8.59.47. Olsen T20.10; 10.27.55. 134 T8.9, 6.30. 135 T6.49.22-30. 136 Sabdoen Pty Ltd v Redland Shire Council [1989] QPLR 149 at 152F. -- 77 of 148 -- 78 PEREGIAN SPRINGS AND COOLUM RIDGES APPROVALS [108] The appellants say that any prudent purchaser would have been interested in the existence of these approvals as giving some insight into the Council’s approach to applications for urban development during the currency of the 1985 Strategic Plan. Mr Schomburgk, the appellants’ town planner, says that they are relevant because of their physical nature (land form vegetation, agricultural land quality, etc), their location relative to the Land and the timing of their approvals for urban development. 137 Their location can be seen in Figure 7 to Mr Schomburgk’s report.138 They both lie to the south-east of the Land with Peregian springs being the northern of the two areas. It is bounded in the north by Emu Mountain Road and in the north-west by Doonan Bridge East Road, both of which roads meet at the roundabout on Emu Mountain arterial road. That roundabout sits between the extreme south- east corner of the Northern Severance of the Land and the north-west corner of the Peregian Springs land. [109] Both Peregian Springs had, in 1996, a principal point of access at the Peregian Springs roundabout further south along the Sunshine Motorway from the Land. Peregian Springs [110] The application for rezoning from Rural A to Residential A was dated 3 August 1989 (Exhibit 1E p. 945) and it set out the desired use for the land upon rezoning as a Residential Estate and Golf Course. The total area of the land was 335 ha. By Council resolution dated 24 October 1989 the Council resolved to approve the rezoning application subject to conditions. By letter dated 2 November 1989 the Council advised the applicant of its decision. It was not until nearly four years later on 20 August 1993 that the amendment to the Planning Scheme reflecting the rezoning was gazetted. 139 [111] In anticipation of an application for subdivision, by request dated 28 January 1994, the applicant sought notification from the chief executive as to whether an environmental impact statement would be required. By letter dated 16 March 1994 the applicant was advised that an environmental impact statement would be required. On 29 September 1995 an application for a staged subdivision was lodged with the Council. 140 A flora assessment dated February 1996 was prepared by Golda Associates.141 On 20 August 1996 the Council resolved to approve the subdivisional application on the condition, inter alia, that no environmental impact statement would be required for the first 60 137 Exhibit 2 [4.4.3]. 138 Exhibit 2 p. 48. 139 Exhibit 1E p. 1006. 140 Exhibit 1E p. 1022. 141 Exhibit 1E p. 1029. -- 78 of 148 -- 79 lots, but would be required for all subsequent lots.142 Subsequently, an environmental impact statement was required for all lots,143 and one was prepared144 and submitted to the Council in January 1997. The change of mind by the Council as to an environmental impact statement on the first 60 lots resulted from a view expressed by the Director-General of the relevant Department that the Council should require an environmental impact statement in relation to the whole of the estate before giving any approvals. 145 [112] The appellants point to four aspects of the Council’s treatment of the Peregian Springs rezoning application which they say would have given great comfort to a purchaser in assessing the likely success of an application to rezone the land and develop it in terms of the Covey Plan146 or its modified version. 147 Firstly, they point to the opinion expressed by Mr Caneris that Peregian Springs was a much more secure piece of land with higher priority at the relevant time in terms of the conservation of fauna species. He based that view on the absence of the Motorway which goes through the Land, fewer edge effects at Peregian Springs, and less cleared land to its immediate north and east than the Land has leading, he said, ‘To a higher likelihood of successful management of fauna on the land’.148 [113] Secondly, they rely upon the evidence of Dr Carter 149 that Peregian Springs had more flora species than the Land and, arguably, more biodiversity value coupled with more favourable edge effects and the absence of major road intrusion referred to by Dr Caneris. [114] The appellants also rely upon 150 the acceptance by Dr Olsen of the proposition that certain opinions he expressed in his report and in evidence as to the Land would have been equally applicable to the assessment of the Peregian Springs residential development in May 1996. Those passages are:- 151 “20. Approval of the proposed plan of development (Noel Covey & Associates – Plan 0802-CAL-S01A-February 2008) would have removed many of the known values of the land through acute loss of biotic resources in the retained wetland 142 Exhibit 1E p. 1122. 143 Exhibit 1E p. 1142. 144 Exhibit 52. 145 Exhibit 1E p. 1139. 146 Exhibit 11. 147 Exhibit 83. 148 T7.19.14-34. 149 T6.54. 150 Appellants’ Submissions [180]. 151 Exhibit 24; T10.45-47. -- 79 of 148 -- 80 areas due to the spatial arrangement and associated impacts consequent of the extent of urban development proposed in the various landscapes on the land”; 25. The proposed plan of development (Noel Covey & Associates – Plan N9407 -0802-CAL-S01A-February 2008) would have resulted in the acute and chronic loss of: • Remnant native vegetation, being the wet heathland and wetland areas and the dryland components being forest dominated by “old growth” Eucalyptus Pilularis and Eucalyptus Racemosa at the time of the application; and • Known populations the rare plants, Alyxia Magnifolia and Schoenus Scabripes; 26. These impacts (primarily resulting from the loss of remnant native vegetation) are considered unacceptable and would not have been acceptable in 1996; 28. The proposed plan of development (Noel Covey & Associates – Plan 0802-CAL-S01A-February 2008) simply would not have been acceptable in 1996; 29. The biotic values of this land, (as a substantive component of the biotic assets of the local area), were described to Maroochy Shire Council prior to the submission of the final draft of the 1992 Olsen and Turnbull report as part of the most significant “biodiversity hotspot” within the boundaries of Maroochy Shire Council at the time; and 30. Based on my knowledge of the land and the immediate environs in 1992, I would have advised any prospective and prudent purchaser of this land that the land was highly constrained by significant environmental features of the land and would have required the preparation of an Environmental Impact Statement.” -- 80 of 148 -- 81 [115] Those attributions to Dr Olsen are factually correct subject to one important clarification. As the transcript reveals 152 the questioning commenced by reference to Paragraph 20 above. It referred to the actual development that has taken place at Peregian Springs. The questions and answers of Dr Olsen in relation to Paragraphs 25, 26, 29 and 30 have the same foundation. But in relation to Paragraph 28 which states that the Covey Plan “simply would not have been acceptable in 1996”,153 it seems to me Dr Olsen was not saying that the as built Peregian Springs development, as with the Covey Plan, would not have been acceptable in 1996, but rather was saying that the original proposed plan for that development would, as with the Covey Plan, have been unacceptable in 1996. He specifically refers to the fact that the original proposal was subsequently modified to correct the imbalances between the footprint and the flora values of the Peregian site. In other words, the original Peregian Springs Plan was unacceptable, as would have been the Covey Plan in Dr Olsen’s view, but, with modification over the years, concerns as to flora values were addressed so as to make the ultimate development acceptable to the Council. To give that balance, Dr Carter’s evidence is that Peregian Springs development, as approved, still resulted in very little of the most significant vegetation as identified by Turnbull and Olsen 1992, being retained. 154 [116] The third aspect of the Council’s approval of Peregian Springs related to its conditioning. The appellants pointed to an internal Council document155 being a memorandum from the Council’s Landscape Architect who says:- “Due to the environmental significance of the site it is felt that the area requires detailed and stringent conditions perhaps very different to the way Council has been [sic] used to treating such situations.” [117] Neither Mr Agnew 156 nor Mr Caneris thought the conditions detailed or stringent. Mr Agnew simply said they were not stringent and Mr Caneris said that the conditions purporting to protect habitat or species of fauna were fairly cursory. He said they very much focused on retaining trees without any specification of which trees or whether any of them had any relevance or relationship with the fauna or habitat needed to be retained to ensure fauna population viability. [118] Finally, of the four aspects of the Council’s treatment of the Peregian Springs rezoning application, the appellants refer to the lack of any material dispute amongst the flora and fauna experts that the 152 T10.45. 153 T10.46.30-40. 154 T9.53.10; Carter Report Exhibit 5 Appendix 11 p. 122; Appendix 17 p. 138; Exhibit 52 (Peregian Springs EIS Tab 2 Figure 2.3). 155 Exhibit 1E Tab 123 p. 1078. -- 81 of 148 -- 82 Peregian Springs approval was an inadequate response to the environmental constraints of that land. 157 They point to Dr Olsen’s evidence 158 that in 1996 the Peregian Springs residential development would not have been acceptable from a flora perspective. I have just dealt with that evidence. As to fauna, they point to Mr Agnew’s evidence that the Plan of Development was not an acceptable response to the conservation values of the land, 159 that the golf course component of the development was not a good, adequate, or acceptable response to protect the future of the rare and protected species on site,160 and that the lakes forming part of the golf course component was generally an inadequate response to managing Acid frogs and Wallum froglets.161 Coolum Ridges [119] Application was made on 9 October 1984 prior to the 1985 Strategic Plan for the rezoning of 182.02 ha from Rural B zoning to Residential A with the express desired use for the land described as ‘progressive development of Urban community’. The application came before the Council on 13 December 1984 when it was refused for the following reasons:-162 (a) Contrary to the existing Town Planning Scheme and the proposed Town Planning Scheme including the new Strategic Plan which was sufficiently progressed along its legislative path to be taken into account; (b) Insufficient evidence of need; (c) Prematurity of proposal; (d) Incompatibility of proposal with Planning Strategy which foresaw orderly and efficient growth of urban areas. [120] The applicant appealed on 1 February 1985. Some 20 months later, by letter dated 27 October 1987, the applicants’ surveyors notified the Council that it was now desired to rezone the property to Rural Residential zone rather than Residential A. Subsequently, the appeal was resolved by order of the Local Government Court on 13 March 1991 whereby the appeal was allowed subject to compliance with a Rezoning Deed. 163 Clause 26(v) of the Rezoning Deed provided that prior to any Council 156 T9.51.50-55; Mr Caneris T 7.20.40-60, 7.21 and 7.22.1-10. 157 Appellants’ Submissions [182]. 158 T10.46.20-25. 159 T9.53.5-10. 160 T9.53.30-35. 161 T9.53.40. 162 Exhibit 1F p. 1216. 163 Exhibit 1F p. 1241; Rezoning Deed p. 1243. -- 82 of 148 -- 83 approval for subdivision, the applicant at its own cost, would carry out a vegetation analysis.164 Under cover of letter of 7 October 1992 the applicants’ consultant forwarded an existing Vegetation Quality Assessment dated 30 September 1992, (a 3 page document) 165 finishing with the following:- “Overview Overall, only about a quarter of the site vegetation was rated as of high or good quality. This was due to the fact that much of the site, especially the higher ground has been previously disturbed to some extent. The most significant areas of high quality vegetation are the Sedgelands and their fringing Melaleuca forests in the north-eastern corner of the site. Some excellent areas of Wallum heathlands also occur nearby.” [121] On 12 April 1994 the Council resolved to approve the subdivision application. 166 By a letter dated 14 November 2002 the Environmental Protection Agency wrote to the Council enclosing a five page document outlining issues in relation to conservation values of the site.167 Finally, in Exhibit 1F there is a Council Ordinary Meeting Agenda dated 23 February 2005 dealing with the applicants’ proposal for a Master Planned Community in accordance with the Coolum Ridges Masterplan. That document records the following 168 :- “The subject Land includes a variety of slopes and natural features including bushland and wild habitats. Development of the subject Land for a residential community has required the applicant to address many issues, which include:- • Protection and preservation of core habitat areas for rare, vulnerable and endangered species of fauna and flora on the site including Emu Mountain Shea-oak Allocasuarina Emuina, Bog Sedge (shown as Schoenus Scrabopes), Wallum-sedge Frog (Litoria Olongburensis), Wallum Froglet (Crinia Tinnula), Lewins Rail (Rallus Pectoralis), 164 Exhibit 1F p. 1255. 165 Exhibit 1F p. 1277. 166 Exhibit 1F p. 1303. 167 Exhibit 1F p. 1323. 168 Exhibit 1F p. 1332. -- 83 of 148 -- 84 Grey Headed Flying Fox (Pteropus Pol Poliocephalus), and Koalas and Koala Habitat; • …” The proposal was approved by the Council . [122] The appellants’ reliance on Coolum Ridges is pretty well a reflection of its reliance on Peregian Springs. Mr Schomburgk169 considers that its relevance is the same as for Peregian Springs, namely, the physical nature of the land, its location and the timing of the approval relative to the Relevant Date. In his report, Mr Schomburgk, sets out a Table with helpful information in relation to the subject site, Peregian Springs and Coolum Ridges, which I reproduce:- Site Barns Peregian Springs Coolum Ridges Total area 155 ha 335 ha 1828 ha 1985 Strategic Plan designation Part Urban, Part Rural Urban Urban Contains mapped GQAL/cane land* Partly suitable (see expert’s report) Approx 100 ha is suitable Partly suitable Total No. residential lots Approx 1035 Approx 1600 Approx 1,000+ Other community facilities Yes (proposed) Yes – golf course, shops, retirement village Yes – shops, school site *Note: GQAL and cane suitability taken from the Moreton Mill Long Term Sugar Viability Planning Study Report 1987 and Moreton Mill area – a sugarcane land suitability study 1982 (Capelin), and from Council reports on the Peregian Springs Development application 169 Exhibit 2 p. 25 [4.4.3]. -- 84 of 148 -- 85 [123] As with Peregian Springs, the appellants say that there is no material dispute among the flora and fauna experts to the proposition that the Coolum Ridges approval was an inadequate response to environmental constraints of the land.170 Council’s Response re Peregian Springs and Coolum Ridges [124] The Council’s response to the appellants’ reliance upon the Peregian Springs and Coolum Ridges’ approvals starts from the fundamental premise that any application for rezoning and development in accordance with the Covey Plan would have had to be properly assessed and considered on its merits at the appropriate time. The Peregian Springs approval of 24 October 1989 was five and half years prior to the Relevant Date. Conditions governing environmental considerations and those considerations by the Council continued from date of approval to subdivisional approval allowing for the development to proceed. The Council says whatever criticism might be levelled at the Council for its inadequate approach to the 1989 Peregian Springs approval, to suggest that that approval would somehow have a strong influential effect on a decision in May 1996, is quite wrong. [125] The Coolum Ridges approval of the application made on 9 October 1984 was given by Court order on 13 March 1991. The Council says that both Peregian Springs and Coolum Ridges’ approvals occurred prior to 1992 which, as has been mentioned, was a turning point in terms of the importance to attach to environmental considerations generally and flora and fauna specifically.171 Conclusion re Significance of Peregian Springs and Coolum Ridge Approvals [126] Whilst it is possible for certain aspects of each of these approvals to be pointed to, to support a particular position, in my view, in the mind of the purchaser when considering the prospects of procuring approval for the development, they would be of little comfort to him. I say that for several reasons. Firstly, the date to be focused on is 10 May 1996 and those approvals significantly pre-date that date. It is clear to me that certainly by the Relevant Date environmental considerations were given keener focus than at the time of those approvals. That is evidenced by the issues raised in the Norfolk Estates appeal to which I shall shortly refer. [127] Further, it is clear in the evidence of the environmental experts that, despite the existence of legislation focusing on environmental considerations, the attention given to such considerations by developers, their environmental advisors and Councils, did not immediately match the intent of the legislation. That has been a gradual process. But to my mind, one must be very wary of fixing the 170 Appellants’ Submissions [182], [183]; T9.58-62. 171 Council Submission [26]. -- 85 of 148 -- 86 Council, at the Relevant Date, with a state of mind operating in relation to its consideration and granting of earlier approvals. In hindsight those earlier decisions may be seen as sub- optimal having regard to considerations of environmental issues at the Relevant Date.. NORFOLK ESTATES APPLICATION [128] This application was in relation to the Land plus adjoining land known as ‘the Cox land’ which is not relevant. The plan of development the subject of that application was not dissimilar to the Covey Plan. Norfolk Estates entered into a contract172 dated 3 November 1994 with the appellants for the purchase of the Land for $9m. The deposit was $10,000 and the contract was conditional upon rezoning and subdivisional approvals. Completion was due 30 days after approval and on settlement the Norfolk Estates was to pay $1,790,000 with the balance purchase moneys of $7,000,200 being provided by the appellants as vendor finance secured by a registered bill of mortgage over the Land for a period of five years. Norfolk Estates was to pay $1m per year on the first, second, third and fourth anniversary of the date of execution of the mortgage with the balance of $3,200,000 to be paid at the end of the fifth year of the loan. Interest was to be paid at the rate set by the Queensland Law Society for the purpose of the Standard Contract of Sale, but if all the above payments were made on time and the final balloon payment made within seven days of its due date, the interest rate would be nil. Apart from the $10,000 deposit, Norfolk Estates was also to pay the agent’s commission on sale of $225,450. [129] On 13 January 1995 Norfolk Estates made an application for amendment to the Planning Scheme to include the Land comprising 188.09 ha from Rural A to Residential A. Included with that application was a flora and fauna study prepared by Dr Carter, who gave evidence in this matter, and one A Moran, dated January 1995.173 The scope of the report was, “to undertake biological investigations to assess flora and fauna communities … and to identify any areas and plant/animal species of particular significance which would constrain development and the rezoning application.”174 [130] Paragraph 2.7 of the Report was in these terms:- 175 172 Exhibit 1D p. 528. 173 Exhibit 1D p. 759. 174 Exhibit 1D p. 760. 175 Exhibit 1D p. 768. -- 86 of 148 -- 87 “General Assessment Noteworthy species because they are at, or near their southern distribution are:- • Acacia Flavescens • Acacia Penninervis Longiracamosa • Acacia Hubberdina • Carex Lorsfieldii • Fimburstylas Pancythora • Pilidost Egma Rhytispermum • Eriostemon Mymporides • Spp.Queensland None of these species are rare or threatened and are represented in protected areas in south-east Queensland. Livistonia Australis is a palm which is rare in Australia, but currently not endangered, though it is poorly represented in protected areas. The site is not prime habitat for this species. No plant identified on the site. However, the heathland and Melaleuca communities are becoming rare and those that remain are increasing invaded by weeds. Drainage and fertiliser are major contributors to modification of these communities. Attempts to retain and protect these communities is part of the subdivision process is recommended.” [131] By letter dated 20 February 1995 176 the Department of Housing, Local Government and Planning advised the applicant that an environmental impact study was not required, “as the Land directly adjoins the road and not the National Park, it does not share a common boundary with the National Park.” The letter went on to say, however, that the Local Government may require the applicant to submit an EIS for the proposal which was not a designated development. By letter dated 13 March 1995177 the Queensland Department of Environment and Heritage advised the Council:- “In summary, the rezoning sought for this land is inconsistent with the Objectives of the draft Strategic Plan, Objectives of the draft Lake Weyba DCP, the draft NORSROC sub-region Structure Plan and would threaten the integrity of the nearby protected estate (Noosa National Park).” 176 Exhibit 1D p. 827. 177 Exhibit 1D p. 865. -- 87 of 148 -- 88 Queensland Transport by letter dated 20 March 1995 objected to the rezoning. 178 There were 83 objections in all 179 including from Sunshine Coast Environmental Council Inc, Noosa Parks Association Inc, Save Today Our Parkland, Coolum Beach Progress and Ratepayers Association, Bribie Island Environmental Protection Association. The great majority raise environmental concerns. [132] On 2 August 1985, on the basis of a deemed refusal of the application, Norfolk Estates lodged an appeal, 180 Moreton Sugar Ltd and Noosa Shire Council in the State of Queensland all elected to become respondents, although Moreton Sugar Ltd withdrew on 12 October 1995. The appeal was finally withdrawn on 13 October 1997. Council Disputed Issues in Norfolk Estates Appeal [133] The relevant issues disclosed by the Council’s Notice of Disputed Issues 181 dated 11 October 1995, some eight months before the Relevant Date, shows that the Council resisted the Rezoning and Development Application on the following grounds, inter alia:- (a) that the proposed rezoning and development was contrary to the provisions of the 1996 draft Strategic Plan; (b) that the proposed rezoning would have an unacceptable adverse impact on the environment; (c) that the proposed rezoning was contrary to State Planning Policy No. 1 and would involve an unacceptable loss of valuable agricultural land; (d) there was no need for the proposed rezoning as the likely future residential development could be provided for in areas designated for such purposes on the respondent’s draft Strategic Plan; (e) the proposed rezoning was premature in that:- 178 Exhibit 1D p. 868. 179 Exhibit 46. 180 Exhibit 1D p. 879. 181 Exhibit 13. -- 88 of 148 -- 89 (i) the subject land was not included in the Council’s water headworks area and the land could not reasonably be provided with reticulated water without expense to the Council and without compromising the Council’s future planning for water reticulation within the Shire; (ii) the land was outside the respondent’s sewerage headworks area and could not reasonably be provided with reticulated sewerage without expense to the Council and without compromising its planning for sewerage reticulation within the Shire; (iii) the proposed rezoning would create a need for increased facilities which could only be provided at the Council’s expense; (iv) the proposed development did not represent an orderly development of land in that it was not sequential thereby introducing unnecessary costs and expense with respect to the extension of services and was at tantamount to “leap-frogging”; and (v) the existing road network was insufficient to cater for the proposed development. State of Queensland Disputed Issues [134] The Notice of Disputed Issues relied upon by the State of Queensland 182 dated 10 November 1995 also relied upon, inter alia, transport issues, environmental matters aimed at the avoidance of destruction of vegetation with consequential elimination of many fauna species, and the issue of prematurity, a reference to the same challenges to the provision of water and sewerage services as raised by the Council. [135] The appellants point to the fact that the Council did not, when identifying disputed issues, identify a conflict with the 1985 Strategic Plan which it could have done. They say the Council deliberately elected not to raise that issue with the result that the omission works very strongly against the 182 Exhibit 14. -- 89 of 148 -- 90 Council’s arguments as to why it would have applied the provisions of the 1985 Strategic Plan at the Relevant Date to reject the proposed development.183 [136] Of course, whereas the draft 1996 Strategic Plan must be ignored in these compensation proceedings, it would have been relevant to an application for the proposed development before the introduction of the new Strategic Plan. In that respect, the Council referred to comments by Quirk DCJ in MJ & ME Creed v Caboolture Shire Council 184 where His Honour said:- “It is well known, that where a Planning Authority has in preparation a draft planning instrument which is intended to, and in due course may well, become part of its Town Planning Scheme, the court should be very careful in making any decision which will ‘cut across’ these planning strategies. This is particularly so when the draft planning instrument has reached the stage of having been exhibited publicly. At the same time it would seem to me that additional and important considerations are introduced when, in respect of a particular piece of land and a particular proposal, the draft instrument is squarely in conflict with the town planning scheme and more particularly its strategic plan or development control plan.” It will be recalled that the 1996 Strategic Plan was adopted by the Council on 13 April 1995 and gazetted on 10 May 1996.185 [137] The Council’s response to the criticism of non-reliance upon the 1985 Strategic Plan is that so far as the Land is concerned, there is no material difference with respect to its prospects of development between the 1985 Strategic Plan and the draft 1996 Strategic Plan, and that it was entirely appropriate to rely upon the draft proposed Strategic Plan rather than the 1985 Plan, particularly given that the whole process of development, public consultation, public exhibition of the draft, and adoption by the Council, had been completed. Conclusion re Norfolk Estate Appeal [138] I consider that the Norfolk Estate appeal would have been an influential consideration operating upon the mind of the purchaser in determining the prospects of approval of the subject development. It 183 Appellants’ Submissions [364]-[365]. 184 [1994] QPLR 97 at 98. 185 Exhibit 1C p. 400. -- 90 of 148 -- 91 comes closely in time to the Relevant Date and, to my mind the focus on environmental issues reflected the heightened sensitivity of the Council, State authorities, and the community, more closely aligning the consideration of such issues with the clear intent of the relevant legislation then in force. By then, I am satisfied that what may be described as a slightly blurred focus on environmental issues in some quarters in previous years had been sharpened to place those issues at the forefront of applications of the type under consideration, certainly so far as the parties to the Norfolk Estates appeal and the relevant community were concerned. I consider that the purchaser would have entertained grave concerns as to the prospects of approval of the Covey development given the circumstances of the Norfolk Estates’ application and appeal. GOOD QUALITY AGRICULTURAL LAND [139] The Council argues that the proposed development at the Relevant Date would have involved an unacceptable loss of ‘good quality agricultural land’ without any overriding need in terms of community benefit (see paragraph No.145) which would have mitigated against any decision to grant the rezoning sought. It relies upon the 1992 amendment to the PEA introducing s 4.4(3A) which took effect from 23 July 1992 and required thereafter that a Local Government must have regard to relevant State Planning Policies in making its decision on an application for rezoning. Some six months later in 18 December 1992 State Planning Policy 1/92 – Development and the Conservation of Agricultural Land (SPP1/92) was introduced. 186 Subsequently, in January 1993 Planning Guidelines: the Identification of Good Quality Agricultural Land was introduced and was to be read in conjunction with SPP1/92. 187 SPP1/92 [140] This opens with a position statement in these terms:- “The Queensland Government considers that good quality Agricultural land is a finite National and State resource that must be conserved and managed for the longer term. As a general aim, the exercise of planning powers should be used to protect such land from those developments that lead to its alienation or diminished productivity.” The following provisions of SPP1/92 relied upon by the Council are set out in Schedule “A” to this judgment; paragraphs 3.3, 4.1, 4.4, 4.5, 4.6, 4.8 and 4.9 and Policy Principles. 186 Exhibit 1C Tab 40 p. 474. -- 91 of 148 -- 92 Planning Guidelines [141] The following paragraphs of the Guidelines relied upon by Council are in the Schedule “B”:- 2.1, 2.2, 2.3, 2.4, 2.5, 4.1, 4.4, 4.5, 4.9, 4.12, 4.16, 5.1, 5.2, 5.7 and 5.8. [142] As can be seen from paragraph 2.5 the definition of what constituted ‘good quality agricultural land’ in a particular area was said to be the responsibility of the Department of Primary Industries (DPI) after consultation with others. Paragraph 5.4 refers to identified mapping units of ‘good quality agricultural land’ by reference to a study by M.A.Capelin.188 That study shows land within the Maroochy Shire falling within Classes 1 to 6 189 which Capelin recommended be afforded immediate protection from development pressures through town planned zoning and subdivisional control. 190 [143] Against the background of the 1985 Planning Scheme and the SPP1/92 and its Guidelines, Council points to the intent of the Rural A zone in which all the land was located under the 1985 Plan, namely, to identify and protect significant areas for a wide range of rural activities, 191 and that the objective for the Rural Areas PDLU in which part of the Land was included was expressed to protect the Shire’s prime agricultural land including valuable cane land from unnecessary and undesirable intrusions by other land use activities. [144] The Council points to Policy Principle No. 1 which provides that ‘good quality agricultural land’ should not be built on unless there is an overriding need for development in terms of public benefit and no other site is suitable for the particular purpose.192 It says that once such land is subdivided and built upon, its return to agriculture is seldom practicable. It follows, the Council says, that the focus for anyone seeking to develop such land is to establish three things, namely, that there is an overriding need for the development, that that need is one which accords with the public benefit, and finally, that there is no other site suitable for the particular purpose. Appellants’ Response re Good Quality Agricultural Land [145] The appellants, firstly, make the point that State Planning Policy 1/1992 retains its status as a policy notwithstanding the introduction of s 4.4(3A) of the PEA and, secondly, that there is authority for the proposition that a more flexible approach is required in the application of a policy than is required in 187 Exhibit 1C Tab 41 p. 481 [1.3]. 188 Exhibit 55 Horticulture Land Suitability Study Sunshine Coast south-east Queensland M A Capelin 1987. 189 Exhibit 1C p. 505. 190 Exhibit 55 p. 83. 191 Exhibit C Tab 37 p. 341. 192 SPP1/92 [4.4]. -- 92 of 148 -- 93 respect of the provisions of the Town Planning Scheme or other statutory town planning provisions.193 [146] The next point made by the appellants is that the Land is not ‘good quality agricultural land’ if one properly interprets the definition of that term in the Planning Guidelines which is in these terms:- “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. …” [147] It can be seen that that definition has three elements:- (a) that the land is capable of sustainable use for agriculture; (b) that the sustainable use for agriculture can be achieved with a reasonable level of input; and (c) that the sustainable use for agriculture can be achieved without causing degradation of land or other natural resources. [148] The appellants focus on the latter two elements to argue that the Land is not ‘good quality agricultural land’. [149] Finally, the appellants point to paragraph 4.9 of SPP1/92 and paragraphs 4.4 and 4.5 of the Planning Guidelines. Paragraph 4.9 premises the Policy on the local authorities not being exposed to financial compensation so that any existing commitments stand, and down zoning is not being advocated by the Policy. The effect of paragraphs 4.4 and 4.5 of the Guidelines is that, because of compensation implications which could arise in relation to proposals on sites already committed, consideration to setting aside such commitment should only be given in exceptional cases because of the need to retain a particular site in agricultural use. [150] Paragraph 4.2 of the Guidelines to which paragraphs 4.4 and 4.5 refer, speak of land being “effectively committed” for development or subdivision by the Planning Scheme in circumstances where, inter alia, “an unequivocal inclusion of the site in an area depicted for non-rural uses in a strategic plan or DCP, where development approval is not contingent upon consideration upon the agricultural land quality …” 193 Macosca v Council of the Shire of Emerald [1996] QPELR 114 at 116; Norris Clarke & O’Brien Pty Ltd v Brisbane City Council [1996] QPELR 262 at 264. -- 93 of 148 -- 94 [151] The appellants argue that the designation of the substantial part of the Land in the Urban Areas designation under the 1985 Strategic Plan constitutes just such an “unequivocal inclusion of that part of the land for non-rural uses”. They further rely upon and refer to “contiguous areas” in Objective 1(a) of the Urban Areas PDLU under the 1985 Strategic Plan to argue that the Land is also the subject of an “unequivocal inclusion” in an area depicted for non-rural uses. It follows, on that argument, that all the Land is committed for non-rural uses under the 1985 Strategic Plan so that the appellants’ proposals for subdivision and development should normally be considered on their planning merits without reference to agricultural issues (Planning Guideline 4.4), and should only be rejected in exceptional cases where there is a need to retain the land in agricultural use (paragraph 4.5 Planning Guidelines). [152] As to the second limb of the first dot point in paragraph 4.2 of the Planning Guidelines, no argument was advanced that once, relevantly, unequivocally included in the non-rural uses area, development approval was contingent upon consideration of agricultural land quality. I was not referred to and can find no provision to that effect and am satisfied that, absent the application of the SPP1/92, development approval for land in the Urban Areas designation was not contingent upon consideration of agricultural land quality. That is not to say the Council would be prevented from considering the existence of such Land in determining an application on its merits, but there is no compulsion upon it to do so. Is the Land Committed under State Planning Policy 1/92? [153] The authorities to which I have been referred go to the weight to be given to such a Policy, when applicable, when balancing all considerations, including the Policy, relevant to the issue being addressed. This issue is of a threshold nature. The answer to the question posed, namely, whether there is a relevant commitment bears on the extent of the consideration to be given to the Policy, in terms of s 4.4(3A) of PEA. If the Land is already committed, then any application for rezoning and development for Urban purposes should normally be considered without reference to agricultural issues in terms of paragraph 4.4 of the Planning Guidelines and rejected unless an exceptional case is demonstrated within paragraph 4.5 of the Guidelines. [154] The starting point is to focus on the wording of paragraph 4.2 of the Guidelines which defines the commitment. It provides:- -- 94 of 148 -- 95 “There will be instances where the subject Land is effectively committed for development or subdivision by the Planning Scheme. Such a commitment would comprise the following: • An unequivocal inclusion of the site in an area depicted for non-rural (including rural residential) uses in a strategic plan or DCP, where development approval is not contingent upon consideration upon the agricultural land quality; or • … • …” [155] It is readily apparent that it is the inclusion of the Land in an area depicted for non-rural uses in a strategic plan which is to be unequivocal rather than the non-rural use itself. That is to say, the focus is on the inclusion of the Land in the area depicted for non-rural uses in a strategic plan and not on the entitlement to use the Land as included. In this case, the Objective 1(d) of the Urban Areas PDLU in the 1985 Strategic Plan makes it clear there is no unequivocal entitlement to develop land for urban purposes simply by virtue of that designation. [156] The appellants rely on Palmwoods Ratepayers Association Inc v Maroochy Shire Council and Anor 194, a decision of Skoien SJDC. His Honour was there dealing also with SPP1/92. The case involved an application to rezone land from Rural B to Residential A. The land was included in the Urban designation of the 1996 Strategic Plan. Dealing with paragraph 4.2 above His Honour said195 :- “It seems to me beyond argument that the site is unequivocally committed for non- rural use in a strategic plan. Not only is it within the Urban designation of the 1996 Strategic Plan but it is obviously so included on a cadastral basis. If the designation were to be able to be seen to be merely indicative of a general area there could be room for dispute but the cadastral inclusion of this site, to my mind shows that this particular site has been identified and specified. It is specified as suitable for residential development within the life of the plan. That is as unequivocal as a strategic plan can get.” 194 [1997] QPELR 331. 195 [1997] QPELR 331 at 335. -- 95 of 148 -- 96 [157] It is clear that His Honour was influenced by the fact that the inclusion of the land in the Urban designation had a cadastral base. I am satisfied that the present Land has the same. I say that, having considered the contrary view taken by the Council196 at the hearing. Part B of the Strategic Plan tendered as part of Exhibit 1C was found to be incorrect in the section dealing with urban areas 197 in that it referred to cadastral maps giving definition to the urban areas in the Urban Areas PDLU. That was corrected and Exhibit 62, the correct copy of Part B, was substituted. [158] Consistent with that correction, Mr Schomburgk’s report198 was similarly amended to delete reference to that incorrect Part B. But the assertion by the appellants as to the cadastral basis of the Urban Area PDLU was not confined to Part B or that part of Mr Schomburgk’s report referred to. Mr Schomburgk gave other evidence 199 which satisfies me that the subject area does have a cadastral base. [159] Just as His Honour Skoien SJDC was satisfied in Palmwoods200 , I am satisfied that that part of the Land in the Urban Areas designation was, at the Relevant Date, committed for non-rural development in that it was the subject of an unequivocal inclusion in an area depicted for non-rural uses in the 1985 Strategic Plan. [160] As to the balance area in the Rural Areas PDLU, the appellants argue that as it is contiguous to the Urban Areas PDLU land, the whole site is effectively committed. I do not agree. There is no commitment in relation to the Rural Areas PDLU land. The result is that regard must be had to the SPP1/92 in relation to the Rural Areas PDLU land. [161] The result of my finding as to that part of the Land within the Urban Area PDLU is that, in terms of Planning Guideline 4.5 any development proposal should be rejected only in exceptional circumstances. I consider that Objective 1(d) of the Urban Areas PDLU of the 1985 Strategic Plan provides such an exceptional circumstance. It provides that the fact of inclusion of land within that designation does not mean that it will be rezoned and developed for urban purposes. If Planning Guideline 4.5 was to be interpreted without regard to the exception provided by Objective 1(d), the former would negate the operation of the latter. As the appellants argued, as outlined above, SPP1/92 retains its status as a policy notwithstanding s 4.4(3A) of PEA and that in applying such policies a more flexible approach is required than in respect of planning scheme provisions. A policy is not to be interpreted so as to defeat a provision of a Strategic Plan. 196 Council Reply Submissions [134]. 197 Exhibit 1C p. 304. 198 Exhibit 2 [3.2.2]. 199 Exhibit 66; T14.11-13. -- 96 of 148 -- 97 [162] Turning now to Planning Guideline 4.4 which provides:- “Any proposals on sites ‘committed’ as defined above should normally be considered on their planning merits without reference to the agricultural issues. In these circumstances, an agricultural land quality assessment would clearly be unnecessary.” [163] I do not consider the subject hypothetical development application under consideration to be normal for the purposes of Planning Guideline 4.4 so as to render the consideration of agriculture issues as unnecessary. The development application covers both urban and rural designated land. Given my finding that the Land designated Rural was not committed within SPP1/92, it would, to my mind, be incorrect to approach the application on the basis that agricultural issues were to be considered in relation to only part of the Land (rural but not urban). The case was not run on that basis. The experts did not prepare their reports on that basis, but rather by reference to the whole of the Land. For those reasons I consider that the issue of Good Quality Agricultural Land is properly to be considered. Evidence re Good Quality Agricultural Land [164] The appellants called Dr Gilbert, 201 and the Council called Mr Sutherland 202 and Dr Matthew 203 . On any view of the matter there are widely diverging views of these three experts in the areas of soils, soil mapping erosion, and water resources. Before turning to the evidence of each of those experts I should mention that the Council also relies upon two letters from the DPI dated 6 September 1995 204 and 24 January 1996205 respectively, both before the Relevant Date. They are addressed to the Council and relate to the Norfolk Estates rezoning and development applications so refer to both the Barns and Cox land. [165] The first letter of 6 September 1995 states that the land has been mapped in the 1979 Capelin Report entitled, ‘Moreton Mill Area: A Sugarcane Land Suitability Study’ and confirms that the land has been identified as predominantly Class 3 ‘Suitable for Sugarcane with Moderate Restrictions’ and minor areas of Class 5 ‘Land which is Unsuitable for Long Term Production’. The letter concludes by stating that the Land is predominantly considered suitable for agriculture so that any rezoning application should be dealt with in accordance with State Planning Policy 1/92. 200 Palmwoods Ratepayers Association Inc v Maroochy Shire Council and Anor [1997] QPELR 331. 201 Report Exhibit 7. 202 Report Exhibit 26. 203 Report Exhibit 27. 204 Exhibit 1D Tab 68 p.882. 205 Exhibit 93. -- 97 of 148 -- 98 [166] The second letter of 24 January 1996 was a follow up to the 6 September 1995 letter subsequent to detailed discussions with the applicants’ consultants after receipt of their report. It contained two paragraphs of significance:- “In general it appears that the conservation considerations provide an overriding justification for the land’s protection rather than the site’s suitability as an agricultural resource. However, should the site be cleared the areas of the property outlined above as Good Quality Agricultural Land (GQAL) would need to be reconsidered for protection under State Planning Policy 1/92.” Further on, is the concluding paragraph:- “In summary, while parts (2/5) of the subject land ie Lot 31 on RP 858565 are suitable for crop production, the subject land is not considered to be Good Quality Agricultural Land under State Planning Policy 1/92 due to its overriding conservation significance. …” Dr Gilbert - Appellants [167] Dr Gilbert was the consultant to Norfolk Estates in its rezoning and development application, and he is the consultant referred to above with whom discussions were had prior to the DPI letter to the Council of 24 January 1996. He had prepared two previous assessments of the land: one, a preliminary report of 8 December 1994206 in which he recommended a more detailed land suitability assessment to delineate the areas of GQAL; his subsequent assessment of 16 January 1995 identified three land types on a map forming part of a report. They were:- (a) Land -Type 1 – Good Quality Agricultural Land Class B This was an area of 30 ha scattered across the southern and western sections of the Northern Severance. There were also sections in the southern severance western triangle. He considered this land to be limited arable land owing to its small areas and scattered distribution across the property. Its slope and poor moisture ruled out sugarcane production, though he said tree crops such as mango could be 206 Exhibit 7 Appendix 2 p. 22. -- 98 of 148 -- 99 grown with soil conservation measures, heavy fertilisation, and supplementary irrigation. Though the availability of good quality irrigation water was unknown; (b) Land - Type 2 This was a 99 ha area being the balance of the northern severance less the Type 1 and a small portion of Type 3 Land. He said the land was poorly drained and the slopes highly variable from 1% - 12% making the land suitable only for pastoral use. Having said that, he said beef cattle production with high fertiliser inputs would probably be uneconomic as the poor drainage during wet season would restrict heavy stocking rates; (c) Land – Type 3 This was a 26 ha area covering the substantial part of the northern Severance and limited parts of the southern severance. He said this land contained depressions with a shallow water table, poor drainage and was subject to flooding. The soils were highly infertile which made the land unsuitable for agricultural use. Dr Gilbert concluded that the majority of the land was not considered ‘Good Quality Agricultural Land’ and that there was no commercial agricultural production on similar land types in the surrounding area. Gilbert Report 3 April 2009 [168] In his report tendered in this hearing 207 Dr Gilbert confirmed his agreement with his 1995 assessment as outlined above, in these words:- • “land of the hillcrests and upper slopes can be regarded as Good Quality Agricultural Land (GQAL) if irrigation was available. In 1995 irrigation infrastructure were unavailable on the Barns property and the surrounding areas. To the best of my knowledge it is still the case. • Land on some mid-slopes is of limited suitability due to steepness and lack of irrigation. 207 Exhibit 7 p. 1. -- 99 of 148 -- 100 • Land on lower landscape slopes are of limited suitability due to constraints of impeded drainage on the Kurosol soils, low nutrient availability, complexity, and erosion hazard. • Land in the low lying areas is not GQAL due to wetness, flowing and low nutrient availability.” Mr Sutherland – Council [169] Mr Sutherland undertook a detailed soil survey of the site. Mr Sutherland similarly undertook an assessment of the land and concluded in his report208 that:- (a) Dr Gilbert’s soil survey was insufficient and could not be relied upon to make a confident appraisal of the site soils and their distribution. A very high intensity soil survey 209 completed by Mr Sutherland identified on site a large area of an additional important agricultural soil type, Dermosols, not identified by Dr Gilbert; (b) The soil mapping and additional physio-chemical analysis completed by him did not support Dr Gilbert’s assertion that the site soils present an “Extreme Erosion Hazard”; 210 (c) Top soils were stable though some areas of sub-soil could disperse if exposed and subjected to repeated unmanaged cultivation and rainfall and/or gully erosion which would be unlikely. The site soils could be satisfactorily managed under intense cultivation with acceptable erosion losses; (d) Water resources would not limit crop production on the site because of:- (i) a sufficient surplus of rainfall over evapotanspiration; (ii) near surface groundwater within the extensive areas of Aydrosols across the site; (iii) a potential deep groundwater resource in underlying sandstone; and 208 Exhibit 26 p. 38. 209 Exhibit 26 Appendix 4 p. 93. -- 100 of 148 -- 101 (iv) four possible dam sites. (e) The above conclusions are the same as they would have been in 1996 and are relevant to the widely different determinations of GQAL on site estimated by Dr Gilbert (29%) and Dr Matthew (68%). Dr Gilbert/Mr Sutherland Joint Written Statement [170] Dr Gilbert and Mr Sutherland met to discuss issues separating them on April 17 2008, May 29 2008, and February 9 2009, culminating in a joint written statement of 10 March 2009.211 At the risk of repetition of some of the matters already dealt with, the following are some of the matters on which they disagreed:- (a) as to the slopes across the property of greater than 10% asserted by Dr Gilbert, Mr Sutherland said that 97% of the site had slopes of less than 10% and the site soils were not as erosive as contemplated by Dr Gilbert; (b) Dr Gilbert’s view was that cane production on the land was, at best, marginal without supplementary irrigation because of the poor soils and the high fertiliser requirements. He went on to say that fertilisation on sandy surfaced soils with high rates of phosphatic fertiliser would have the potential to impact on surface water quality downstream. Mr Sutherland considered that stormwater and/or drainage could be captured for re-use on the site and any downstream water quality issues would be addressed by compliance with the Environmental Protection Act; (c) Dr Gilbert said there was no irrigation infrastructure on the site in 1994, no groundwater bores in the area, and no commercial use of dams and groundwater for irrigation purposes in the area to the south and south-west of Lake Weyba. As to the four dams contemplated by Mr Sutherland:- (i) those contemplated in each of the catchments could impact on the water table and risk flooding of two small freehold properties immediately to the north-east of the subject property; 210 Dr Gilbert Exhibit 7 p. 153 [13]. -- 101 of 148 -- 102 (ii) the contours in three of the four potential dam sites suggest a very long dam wall would be required to achieve sufficient storage capacity which walls would be expensive to construct and to maintain; (iii) the potential dam sites were so flat that only shallow water storage could be built with resulting high surface area and evaporative losses; (iv) the four dams could impact on the wetland to the south of the property and threaten safety and stability of Emu Mountain Road in the event of dam failure; and (v) it would also impact on the stability of the lower slopes on the property due to an increased water table. In response to those matters, Mr Sutherland said the dams could be constructed with a maximum wall of 4 m in height which could be either excavated or raised or both. He considered there were clearly sites on the Land available for in-mine gully dams, hillside storage, and ring tanks all of which were used as a matter of standard practice for agricultural and horticultural enterprises. (d) Dr Gilbert considered that the Emu Mountain Road through the Barns’ property separating the Northern and Southern Severances would make it very difficult to manage the property, particularly the Southern Severance. He said road access would be severely impeded and that access to the southern and western sections of the property for agricultural purposes would be severely restricted if not impossible; (e) Dr Gilbert was of the view that the highly variable slopes between 15% and 12% combined with poor internal drainage presented as an extreme erosion hazard. Mr 211 Exhibit 7 p. 150. -- 102 of 148 -- 103 Sutherland believed that erosion can be controlled on-site with relative ease using such techniques as cultivation on the contour, mulching, growing tree crops, inter- row cropping, contour banks and the use of a sheeps-foot roller. He said his modelled soil loss represented very low rates of soil erosion; (f) Mr Sutherland disagreed with Dr Gilbert’s view that when sandy surfaced soils with high sub-soil sodicity are cleared for agriculture there is an increased tendency to generate salinity in adjacent low-lying areas. Dr Matthew – Council [171] Dr Matthew provided a report containing his assessment of the Land as Good Quality Agricultural Land. 212 His conclusions were:- (a) Dr Gilbert’s assessment in 1995 does not correctly assess the presence and distribution of GQAL on the subject site; (b) He disagrees with Dr Gilbert’s opinion upon the agricultural suitability of the site. He says that Dr Gilbert misinterpreted the Guideline, suitable assessment criteria, and assessment procedure in reaching his conclusions, and that his assessments of soil, land form, and water resources of the site were insufficient to fully inform an appraisal of GQAL;213 (c) His assessment of the GQAL was done in accordance with SPP1/92 and the relevant Guidelines (Capelin 1987) resulting in a finding that 68% of the site or 105 ha is GQAL; (d) Given the site characteristics, the use of fertilisers and the potential for water supply, the site represents an area of land that has a high probability of sustaining an agricultural enterprise; and (e) In light of the above conclusions a subdivision of the land would be contrary to State Planning Policy 1 of 1992 and result in the unacceptable loss of valuable agricultural land. 212 Exhibit 27. 213 For details of see Exhibit 27 [4.3] p. 29. -- 103 of 148 -- 104 [172] As with Mr Sutherland, Dr Gilbert conferred with Dr Matthew and set out below matters which they could not agree upon:- (a) In Dr Gilbert’s view the topographic complexity of the site having areas of GQAL separated by areas of poorly drained and often flood prone non-GQAL land which severely restrict management of agriculture on the property. Further, the Emu Mountain Road bisection of the property would make management of the small areas of the GQAL land to the south and south-west of that Road very difficult. According to Dr Matthew the complexity of the site is not such as to disqualify it from being GQAL. As to the bisection of the property by Emu Mountain Road, he considers that although the areas south of that Road are small, by broader agricultural standards they are workable sizes for horticulture. He says further that although Emu Mountain Road is prohibited from use by pedestrians and tractors there is sufficient room beside the roadway and within the property to provide access to the GQAL from Murdering Creek Road or the electricity easement; (b) Dr Gilbert revised his 1994 assessment of the GQAL from 19% (30 ha) of the total property to 29% (45 ha) and disagrees with Dr Matthew’s estimate of 75% (116 ha) of GQAL. In the light of the discussions with Dr Gilbert, Dr Matthew revised his assessment from 75% to 68% or 104 ha. He prepared a useful drawing214 setting out his understanding of the essential differences and similarities between him and Dr Gilbert as to the GQAL land area. That shows what he sees as undisputed areas of GQAL within that area of land both in the Northern and Southern Severance which was within the Rural Areas PDLU designation under the 1985 Strategic Plan. The balance of those undisputed areas of GQAL are in the Northern Severance within the land situated within the Urban Areas PDLU designation under the 1985 Plan; (c) Dr Matthew does not agree with Dr Gilbert that the combined strategy of clearing for agriculture and damming the catchments would result in a marked rise in the water table in low lying areas and lower slopes, thus further reducing the suitability for agriculture on the Kurosol soils in the lower slope landscape. He 214 Exhibit 27 p. 54. -- 104 of 148 -- 105 believes that a heightened water table resulting from clearing would only impact on the potential dam sites. It is noteworthy that the undisputed GQAL areas 215 fall to a large extent within the dryland areas identified by Dr Olsen216 being the only areas which he and Dr Carter agree could accommodate some development. 217 [173] Some criticism was levelled at Dr Matthew that his approach to the issue of GQAL ignored practical aspects of farm management and the cost and viability of the provision of inputs referred to in the Planning Guidelines 2.1.218 I think the criticism was unjustified. Paragraph 2.1 describes ‘good quality agricultural land’ as, “land which capable of sustainable use for agriculture, with a reasonable level of inputs, and without causing degradation of land or other natural resources. …” Its focus is on the qualities of the Land and whether it is capable of use for agriculture which, relevantly, includes crop or animal production. If so, the next consideration is whether that capability of agricultural use can be sustained with a reasonable level of inputs and without degradation of land or other natural resources. In other words, what reasonable additional level of ingredients (inputs) are required to elevate it from land capable of agricultural use to land capable of sustainable agricultural use without threat of degradation of the land quality? Obvious inputs would be fertilisers and water so long as they did not cause degradation of the land or other natural resources. [174] Paragraph 2.2 then provides that four classes of agricultural land have been defined for Queensland, Classes A, B, C and D. Of those four classes only Class A and Class C qualify as ‘good quality agricultural land’. Paragraph 2.3 then explains how the classes are determined, namely, by an assessment of the agricultural suitability of the land for specified agricultural purposes. That suitability is a rating of the ability of the land to maintain a sustainable level of productivity. Factors used to assess that suitability are the soil, topographic and climatic limitations which determine sustainable productivity, but economic factors such as the size of the production units are expressly excluded as being irrelevant to the quality of the land resource. [175] In my view, paragraphs 2.1 to 2.4 have a unifying theme and that is the identification and classification of land by reference to its qualities. To my mind, the cost and viability of the provision of the inputs referred to in paragraph 2.1 are not matters relevant to the determination of whether the land is GQAL. The words “reasonable level” qualifying “inputs” in paragraph 2.1 refer to the nature 215 Exhibit 1B p. 222. 216 Exhibit 19. 217 [99(f)] -- 105 of 148 -- 106 and extent of any input necessary to bring the land up to the requisite standard rather than the cost of so doing. Conclusion re Good Quality Agricultural Land [176] Given the significant undisputed area of GQAL and the extent of it within the dryland community areas, I consider that the purchaser would be concerned that this issue could adversely impact on the prospect of obtaining development approval. [177] On the basis that agricultural issues are to be considered by the Council in considering the development application, I consider that the purchaser would be concerned that the opinions advanced by Mr Sutherland and Dr Matthew to the extent that they differed from those of Dr Gilbert, would be relied upon by Council to adversely impact on the prospect of obtaining development approval. PLANNING NEED [178] PEA s 4.4(3)(b) provides that in assessing an application to amend the Planning Scheme the need for the proposed Planning Scheme amendment is to be considered with all the other matters in that section in assessing the application. That factor is but one of the various matters to be considered and does not have priority over any other or, as has been said, “should not occupy pride of place among the many considerations relevant to a rezoning application.”219 Given that it is but one consideration, the absence of need is not necessarily fatal to an application, 220 and is a relative concept which will receive greater or lesser weight in a particular case depending on all the circumstances requiring consideration of the planning authority.221 [179] It has been said that need does not mean a pressing need, critical need, widespread desire or anything of that nature, but that a thing is needed if its provision, taking all things into account, improves the physical well being of the community.222 Likewise, it has been said that need is not the same as demand and that it is the community need that is to be considered. There may well be demand for a particular proposal, but on an objective view, no community need in the planning sense can be 218 Appellants’ Submissions [284] and [285]. 219 Indooroopilly Golf Club v Brisbane City Council [1982] QPLR 13 at p. 34; Moistbrook Pty Ltd v Miriamvale Shire Council [2003] QPELR 229 at 232. 220 Palmwoods Residents and Ratepayers Association Inc v Maroochy Shire Council and Anor [1997] QPELR 331 at 335. 221 Indooroopilly Golf club v Brisbane City Council supra p. 34. 222 Cutprice Stores Retailers & Ors v Caboolture Shire Council [1984] QPLR 126 at 131. (That was a shopping centre case.) -- 106 of 148 -- 107 shown. 223 On that issue, however, Carter DCJ, as he then was in Indooroopilly Golf Club exemplified the difficulty in separating the concepts in some circumstances. His Honour was considering a rezoning application and said 224 :- “It was submitted that “need” should not be equated with “want” or “desire”. The question however is not one of mere semantics. If it can be shown, as indeed it has been in this case, that there is a demand, say, for residential allotments of a particular quality which is reflected in their ready acquisition by buyers, that surely is of some relevance in assessing the “need” for the rezoning which will make possible that type of residential development.” Appellants’ Argument re Planning Need [180] The appellants say that the issue of need is of little significance for two reasons. Firstly, the 1985 Plan was implemented against the background of projected population contained in Part B225 and the need to accommodate that growth in designated areas. Secondly, they point to the designation of the Land in the Urban Area PDLU as reflecting recognition by the Council of need for urban development in that area. As to that part of the Land in the Rural Area PDLU designation, they rely upon Objective 1(a) in the Urban Areas PDLU226 which provides that areas contiguous to areas in the Urban Area designation may be considered for urban use. That argument is supported by the opinion expressed by Mr Schomburgk.227 He said the designation of the majority of the Land in the Urban designation established the direction of the land uses structure for the area, and that the Peregian Springs and Coolum Ridges approvals meant to him that the Land was merely a logical extension of that established direction for urban development in the area. Finally, the appellants say that even if need was found not to be established, that would not be fatal to any application to rezone the Land for residential purposes because of its designation and, the fact that the proposed development represented an orderly development. Council’s Argument re Planning Need [181] Mr Buckley gave evidence for the Council on this issue. He expressed the view that there was little prospect of a rezoning approval because of the absence of planning need.228 He took issue with Mr 223 Arksmead v Council of the City of Gold Coast [1991] 322 at 330. 224 [1982] QPLR 13 at 35 Line G. 225 Exhibit 62 p. 6. 226 Exhibit 1C p. 362. 227 Exhibit 2 [4.2.8] and [4.2.9]. 228 Exhibit 21 p. 11 [4.8]. -- 107 of 148 -- 108 Schomburgk’s view that the proposed development would be a logical extension of the urban development for the area established by the Peregian Springs and Coolum Ridges’ approvals. He said that the proximity of Peregian Springs to the Land did not support a reasonable expectation at the Relevant Date that the Peregian Springs development would proceed, as a matter of course, in the direction of the Land. Further, he said that any residential needs in the area could be met by other considerable lands throughout the Urban Area and he identified land around Nambour and near Sippy Downs as locations in close proximity to standard urban services which would have met any demand for the number of additional lots reflected in the proposed development.229 Apart from that land the Council argued that any need for residential development in the area would have been well capable of being satisfied by the development of Peregian Springs and Coolum Ridges totalling 2,600 allotments. The issue of the absence of need was also relied upon in opposing the Norfolk Estates’ application for rezoning and appeal.230 [182] The Council rejects the appellants’ argument that designation of the Land evidences need as flying in the face of the express provision of s 4.4(3)(b) of PEA requiring the consideration of need. It also refers to Urban Areas Objectives in the 1985 Plan that is to be considered for the conversion of land so designated to Urban Use, namely, orderly and proper development, progressive conversion of land, orderly and economic growth, urban development on a progressive basis to allow for the economical provision of public utility services, that many areas will be retained in their natural state and that the environment will be taken into account when considering rezoning applications. Against those criteria, the Council asks rhetorically what their relevance is if the mere presence of the land in the Urban Area designation addresses the issue of need. [183] It is common ground that as at the Relevant Date no development had commenced on either Peregian Springs or Coolum Ridges. Mr Slater, the Valuer for the Council, gave evidence 231 of a 46% drop off in sales of vacant residential land of less than 1,000m² in the Noosa Shire, Maroochy Shire and Caloundra City collectively from 1994 to 1996 and, expressed the view that the fall in sales was to attributable only to reduced demand and not to any shortage of developed land stock. In reliance on this evidence the Council argued that there was no market demand let alone town planning need for residential allotments in the subject area at the Relevant Date. [184] When tested in cross-examination on that last statement Mr Slater conceded that he had not made any specific enquiries in relation to the number of lots available for sale in the area approximate to the 229 Exhibit 21 p. 11. 230 Exhibit 13 [5] and [9]. 231 Exhibit 63 p. 10. -- 108 of 148 -- 109 Land between 1993 and 1996. He said that his conclusion in paragraph 19.2.6 of his report that, “there is no suggestion that there was any shortage of developed stock leading to the reduced rate of sale subsequent to 1994”, was based not on any assessment but on his background experience that told him that there wasn’t a shortage of developed stock. The upshot of his evidence was that the only lots he knew of as available in the relevant period were four lots at Peregian Beach. He could not say how many were available at Coolum Beach. Despite his absence of specific enquiries, however, Mr Slater said that ‘the unavoidable consequence of the shortage of availability of land is that prices rise and that did not happen in the 1993 to 1996 period.’232 I took that to be an adherence to his expressed view that there was no shortage of stock and that the drop in sale rate was attributable only to reduced demand. Of course, the fact that Mr Slater did not make enquiries in relation to the availability of developed land stock is not evidence that there was any such shortage. [185] In short, the Council’s position is that there is no evidence of town planning or community need for an amendment to the Plan to include the Land in the zones contemplated by the proposed development, namely, Residential A, Residential B, Commercial, Light Industrial, and Special Facilities (places of worship and educational establishments). Conclusion re Planning Need [186] In my view, any properly advised purchaser would have been advised that the planning need was an issue which was required to be taken into account in relation to any rezoning application, although the absence of need would not necessarily be fatal to the application. I consider that purchaser would have concerns about whether or not a planning need could be established. I think he would be more likely to rely upon the advice of Mr Buckley than Mr Schomburgk on this issue. COSTS OF DEVELOPMENT [187] Two issues arise here for consideration by any prospective purchaser. Firstly, the likelihood of obtaining the necessary services to the proposed development, and secondly, their likely cost. I shall deal with the second issue first. Development Costs [188] Dr Johnson gave evidence for the Council in relation to the provision and cost of reticulated water supply and sewer and engineering infrastructure. For the appellants, Mr Monson gave evidence of the provision and cost of reticulated water supply and sewerage, and Mr Covey gave evidence of the 232 T20.5-7. -- 109 of 148 -- 110 provision and costs of engineering infrastructure. There were five areas of difference identified, namely:- (a) the bring-forward for Stage 3 sewer works; (b) an adjustment for Stage 1 bring-forward costs of external sewer works; (c) the bring-forward cost of upgrades to the Council’s existing Sewer Pump Stations P1 and P7; (d) the cost of a supply of a 375 mm water Main from Yarran Road reservoir to the subject Land; and (e) 50% of the cost of construction of the Murdering Creek Road roundabout on the Motorway. Exhibit 32 is a convenient schedule setting out the costs which each of the experts considered appropriate to the disputed item together with the base development cost as agreed by all three experts, and then each expert’s final development cost figure expressed as a lump sum and as a cost per lot over the 1,115 lots proposed. Bring-forward Cost Stage 3 Sewer Works [189] The estimate of Mr Covey and Mr Monson for this item was $606,560 though in evidence Mr Monson233 agreed that the estimate of Dr Johnson of $642,306 (an increase of $35,746) was within range, and the increase was not an issue. Dr Johnson also put up an alternative basis for budgeting for this item based upon s 2.05.2 of the Council’s Policy for Developer Contributions for Water Supply and Sewerage Services (August 1985) which allows for the full cost of external works to be borne by an applicant developer where the subject works are designed only to serve the subject land. 234 It is common ground that at the Relevant Date the Land was not within the Council’s headworks charging area for water supply and sewerage issues. 235 The figure Dr Johnson struck for that alternative basis of charging was $1m, which he said a conservative purchaser may have elected to assume which would increase the total cost by the difference between $1m and $642,306, namely, $357,694. The Council argues that the subject hypothetical purchaser would be so conservative as to costing in that additional sum. 233 T3.49.5-25. 234 Johnson Report Exhibit 23 p. 14. 235 Exhibit 23 p. 5 [10]. -- 110 of 148 -- 111 Adjustment for Stage 1 Bring-forward Costs of External Sewer Works [190] For this item, Mr Covey allowed nil on the basis that it would be fully creditable against any headwork charges to be paid by any developer 236 . Mr Monson and Dr Johnson agreed that the appropriate figure was $532,685. They considered that credits against headworks charges were not recoverable for works external to headworks infrastructure which serve only the subject development which was the case here.237 Upgrades to Pump Stations P1 and P7 [191] Dr Johnson estimates this cost at $68,750, but Messrs Covey and Monson put the cost at nil on the basis that that work would be headworks creditable. Mr Monson238 agrees with Dr Johnson as to the cost of $68,750, but says that ‘they are headworks creditable so that the developer would be repaid the outlay by way of credit against headwork charges on the development’. His view is that the sewerage services system had sufficient spare capacity in the subject area in 1996 to accommodate the sewerage flow from approximately 400 Equivalent Tenements [ET], with 200 of those being available to the Land. [192] He said the upgrading of these pump stations would take place during the second stage of the development on the Land when development reached 200ET.239 Because the Council would thereby become a beneficiary of the upgrade to those pumps and being the manager of the headworks at point of upgrade, the whole system would be enhanced by the increased capacity of pumps P1 and P7, hence, the entitlement to headworks credit.240 [193] Dr Johnson takes a different view. 241 He relies upon s 2.05.2 of the Policy referred to above. He takes the view that the upgrading of Pump Stations P1 and P7 is an interim measure not required for the development of the ultimate system in the area. While the upgrade would increase the capacity in the sewerage system, that increased capacity would be required solely to serve the Land, and for that reason is not headworks creditable with the result that the developer would have to pay the entire cost of $68,750. 236 See Covey Report Exhibit 8 pp. 7-9; T5.53-59. 237 Exhibit 8 pp. 7-9. 238 Joint experts’ meeting 12 December 2008 Exhibit 23, Exhibit B [2(b)]. 239 Ibid [6-11]. 240 Ibid [2(b)]. 241 His report Exhibit 23 s 4.3. -- 111 of 148 -- 112 [194] In the Council’s submissions,242 it was said that Mr Monson had made the frank admission that if the Council thought it was going to be out-of-pocket for the bring-forward costs of those upgrades, then the developer, “would be responsible for the upfront costs of the works.” The Transcript relied upon does not show that. Rather, it shows that Mr Monson said,243 “… if the Council felt that the public was out of pocket then the developer may well have said, ‘Look, if this is an issue we will finance this upfront’.” In short, the concession attributed to Mr Monson was not made. The 375 mm Water Main [195] This is a substantial item with Dr Johnson attributing $1,305,480 to it, and Messrs Covey and Monson the sum of $356,800, a difference of $948,680. 244 This relates to a 375 mm diameter Main connecting the Yarran Road reservoir to the Land.245 Messrs Covey and Monson say the cost of this item would be nil because it was headworks creditable. Mr Monson’s view was that Council would have accepted this Main as part of the West Peregian Water Supply Headworks Trunk Mains network and would have allowed the full cost as a credit against the developer’s headworks contributions. He acknowledged that the Council may have negotiated to have the developer fund the construction upfront with the cost being refunded as headworks credits at the appropriate stages of development. 246 [196] Again, Dr Johnson disagrees with Mr Monson.247 There was no dispute that the Land was not within the Council’s water supply service area at the relevant time. In Dr Johnson’s view this 375 mm diameter Main is sized to service only the Land, and constitutes Works External in s 2.04 of the Council’s relevant Policy248 in force at the relevant time which provides:- “2.0.4 Water Supply Works External is defined in s 33(18E(1)) of the Act as ‘all works, structures and equipment for the purpose of connecting land to the local authorities water supply scheme’. For the purposes of this policy, Water Supply Works External shall include all mains, pumping stations, elevated storage tanks and any other water supply apparatus which may reasonably be required for the transfer of water from the point of connection nominated by the Shire engineer on the water supply system to the boundary of the subject land.” 242 [377]. 243 T3.73.1. 244 Exhibit 32. 245 Exhibit 23 p. 14 [38]. 246 Exhibit 9 p. 4 [2.1.9]. 247 Exhibit 23 p. 14 [38-44]. 248 Council’s Policy for Developer Contributions for Water Supply and Sewerage Services (August 1985). -- 112 of 148 -- 113 The subject Main is external to the Land. [197] Section 2.05.2 of the same Policy provides:- “2.05.2 Where the works external is designed to serve only the subject land, the Utilisation Factor shall be unity and the full cost of the external works shall be borne by the applicant.” In Dr Johnson’s view the Policy is quite clear that the cost of providing the Main would be borne by the developer. The Murdering Creek Road Roundabout [198] The final costs item the subject of disagreement between Dr Johnson and Messrs Covey and Monson is the sum of $650,940 representing half the cost of construction of the Murdering Creek Road roundabout on the Motorway which passes through the Land. Messrs Covey and Monson both agree that the developer would be responsible for half the total costs of the roundabout which latter figure is agreed at $1,041,500.249 [199] Mr Covey basis his half cost estimate on the assumption that there was a strong likelihood that the Main Roads Department would, as a condition of the approval for construction, require the Peregian Springs developer to contribute 50% of construction costs.250 [200] Two traffic engineers, Mr Pekol for the appellant, and Mr Eppell for the Council gave evidence and provided a joint report dated 19 May 2008. 251 On the issue of contribution to construction costs, Mr Eppell anticipated that the Department of Main Roads (DMR) would, at the Relevant Date, have conditioned the roundabout construction to the development and similarly to any other possible development at the time. If two similar scale developments were proceeding at similar times, he considered that a fairer approach would be to apportion the costs against both developments proportionately to the amount of traffic each generated. He said, ‘that was not the approach of the DMR at the time, but any developer would be free to negotiate with the DMR’. Mr Pekol agreed with Mr Eppell that a fairer approach would be to apportion the costs as above outlined. [201] The Council argues that there was no other developer in the locality at the Relevant Date ready to commence development who could realistically be asked to contribute to the roundabout costs and 249 Exhibit 23 p. 9 [21]. 250 T5.28-29. 251 Exhibit 22 Appendix B. -- 113 of 148 -- 114 that the developers of Peregian Springs and Coolum Ridges would not have volunteered a contribution. Mr Pekol acknowledged in evidence that the DMR would impose a condition requiring the full cost of the roundabout to be paid by the developer and unless a negotiated agreement with another developer could be reached; his hypothetical client developer would be paying the full cost of the roundabout although the costs could be staged over the construction period. 252 [202] That then deals with the items in dispute between Dr Johnson on the one hand and Messrs Covey and Monson on the other. In summary, Exhibit 32 shows the total estimated construction costs for each expert as:- Total Cost Cost per Lot Mr Covey $35,740,880 $32,054 Mr Monson $36,273,565 $32,532 Dr Johnson $37,977,681 $34,060 [203] Whichever of those costs may represent the true cost of development, the appellants say that, in any event, they all fall within a range which makes the development viable, and they rely, in that regard, on evidence given by Mr Covey who said that, ‘even if the costs were $37,977,681 as estimated by Dr Johnson, the development would not cease to be viable as that cost would be within the normal range of development costs at the time’. 253 Conclusion re Costs of Development [204] I consider that any properly advised purchaser having regard to the abovementioned arguments on each of the issues in dispute would adopt the highest figure, namely, $37,977,681 as the anticipated development costs so that all contingencies would be catered for. Despite the possibility of contribution from others and the possibility of headworks credits, I do not consider a purchaser would assume the risk of those possible entitlements by factoring them into the costs of development. I consider that he would be more likely to accept the advice that they would be to his account at the end of the day and that any Council credits or fellow developer contributions would be a bonus. As 252 T4.34.30; T4.35.1-15. -- 114 of 148 -- 115 to the second issue of whether the Council was likely to provide the necessary services to the proposed development, this is linked to the next issue of Prematurity/Leap Frogging. I shall defer my findings until I have dealt with that issue. PREMATURITY/LEAP FROGGING254 [205] The Council argued that even though any development on the Land could be serviced with the appropriate infrastructure, particularly water and sewerage as at the Relevant Date, the real question was whether those services should be made available. The Council points to the fact that prematurity was raised by it as a ground for opposing the Norfolk Estates appeal. 255 In its view, such a development would be at odds with Urban Areas Objectives in the 1985 Plan which speaks of orderly and proper development of urban centres.256 The development of urban areas by the development upon and consolidation of existing urban areas,257 and the development of new urban centres in locations capable of being adequately serviced with public utilities having regard to the orderly extension of those public utility services.258 [206] In the Council’s view, the development would be premature and represent an inefficient, disorderly, and improper extension of infrastructure services given that the Land was, at the Relevant Date, outside the relevant Headworks Area. The Council’s view was that it would not take on the responsibilities of extending the infrastructure and then having to maintain it having regard to the following factors:- (a) Distance of the Land from the then existing urban development; (b) The separation of the Land by the Motorway from the then existing urban development commitments of Peregian Springs and Coolum Ridges; (c) The capability of Peregian Springs and Coolum Ridges to meeting any reasonably foreseeable need for residential allotments in that part of the Shire; (d) The position of the Land at the very extremity of the Shire and well beyond the planned Headworks Area; 253 T4.85.10-20. 254 The first recorded use of the term Leapfrog was found in William Shakespeare’s works; see Shakespeare-The Illustrated Edition Bill Bryson Harper Press 2009 page 150. 255 Exhibit 13 [9] and [10]. 256 Objective 1. 257 Objective 2. 258 Objective 3. -- 115 of 148 -- 116 (e) Necessity for significant infrastructure to service any urban development on the Land; and (f) The fact that the Land was designated in the Urban Areas PDLU did not necessarily mean that all land within that designation necessarily was to be developed within the life of the 1985 Strategic Plan, a point Mr Schomburgk, the appellants’ town planner, agreed with.259 [207] The appellants reject the argument of prematurity arguing that all necessary water supply and sewerage infrastructure, even if paid for entirely by the appellants, would still render the project viable. There is no issue between the engineers that the provision of such services was technically feasible, 260 the only disagreement being over whether or not there would be headwords credits back to the developer. [208] In the appellants’ view, prematurity is usually only a reason for refusing an application for rezoning if it involves some substantial public disbenefit. 261 No public disbenefit has been established by the Council. [209] The appellants relied upon a statement by Quirk DCJ in Jenkins Pty Ltd v Caloundra City Council 262 where His Honour made these statements in relation to the planning strategy behind a strategic plan objective dealing with the extension of urban development to areas capable of being adequately serviced with public utilities having a regard to the importance of the orderly extension of those services:- “The planning strategy that is inherent in this objective is not that parcels of land should not develop until an adjoining parcel is in a developed state but that the spread of development over the urban area should not be random in a way that precludes provision of essential services (such as water supply and sewerage) in an orderly and efficient way. Such a problem does not arise in this case. … The planning rationale for such a requirement is arguably to prevent the establishment of such facilities in remote areas where urban development is unlikely to be foreseen in the foreseeable future. This is not such an area. All of 259 T15.5-40; T15.17.38-57; T15.32.17-27. 260 Exhibit 1B Tab 26 p. 204 [1]. 261 Westfield Ltd v Gold Coast City Council and Ors [2002] QPELR 542 at 551. 262 [2002] QPELR 527 at 528. -- 116 of 148 -- 117 the formal planning documents envisaged its development for urban purposes within the life of the scheme. I was informed within the course of the hearing that this scheme’s life has not much longer to run.” [210] The appellants point to the Peregian Springs and Coolum Ridges approvals and make the point that the development of the Land would not be remote from those other planned and approved urban areas. That reliance is, of course, on approvals and not on any development of Peregian Springs and Coolum Ridges because at the Relevant Date, no such development had commenced. I consider the purchaser would not be strongly influenced by the fact that there were in existence approvals for Peregian Springs and Coolum Ridges. Rather, his focus would be more on the fact that at the Relevant Date, no development had taken place on those estates and there was no evidence of when it was anticipated. I consider the physical distance between the Land and nearest urban development would be seen by the purchaser as a factor seriously mitigating against a successful development approval. That said, I consider that if that obstacle could be overcome and the only issue then preventing a development approval was whether the Council was likely to provide the necessary services to the proposed development, the purchaser would take the view that it would be likely that the Council would provide the services but to his account. FLOODING AND DRAINAGE [211] The Council accepts that flooding and drainage issues would not of themselves preclude development of the Land for urban purposes, but would be relevant to the extent to which the Land could be developed having regard to its extensive drainage lines, ecological significance for the wetland areas, and the cost of the development to address those issues. In my view the purchaser would not regard these issues as an impediment to development approval. ACID SULPHATE SOILS [212] Again, Council concedes that any issue of acid sulphate soils would not be likely to preclude the development of the Land, but would be one of the matters a prudent purchaser would take into account in assessing its value. The appellants say, ‘that there is no issue of acid sulphate soils’. In that regard, Dr Gilbert for the appellants, said, ‘that the subject land was unlikely to have acid sulphate soil’. Mr Sutherland for the Council, said that, ‘even if they were present, they would not constitute a constraint on development’. 263 In my view the purchaser would not regard this issue as an impediment to development approval. 263 Exhibit 1B Tab 27 p. 215 [7]. -- 117 of 148 -- 118 TRAFFIC ENGINEERING ISSUES [213] Again, there is no disagreement that traffic engineering issues would not have, in themselves, precluded development of the Land. 264 In my view the purchaser would not regard this issue as an impediment to development approval. TOWN PLANNING CONSIDERATIONS [214] Mr Schomburgk, 265 the appellants’ town planner, considered that the highest and best use for the Land as at the Relevant Date was for the urban residential development in accordance with the Covey Plan which he said, ‘satisfied the 1985 Strategic Plan and the relevant provisions of the PEA relating to rezoning and subdivision’. In his view, matters of infrastructure, traffic management, and open space areas would have been addressed in the conditions of approval granted by the Council. He could identify nothing to suggest that the Covey Plan would not have been accepted and approved by the Council and relevant estate agencies which would have formed an obstacle to the rezoning application. [215] The Council planner, Mr Buckley, disagreed266 . In his view, having regard to the urban area provisions of the Strategic Plan, the designation of part of the Land as rural, the Land’s environmental qualities, its location at the most remote part of the urban designation within the Shire, its removal from any area served by appropriate infrastructure, the absence of any planning need for the Land to be developed, and the agricultural value of the Land rendered the highest and best use of the Land at the Relevant Date as most likely to be subdivided into rural allotments of 20 ha each for rural purposes. [216] Despite the obvious differences between the two experts, they agreed that a prudent purchaser would be advised of the following267 :- (a) all relevant planning controls; (b) planning consequences for the technical areas of expertise including flora, fauna, traffic, engineering and good quality agricultural land which would inform the town planning opinion; 264 Appellants’ Submissions [307] and [310]; Council’s Submissions and Reply [149]. 265 Report Exhibit 2 p. 31. 266 Report Exhibit 21 p. 13. 267 Appellants’ Submissions [368] not contested by Council in its Submissions – see Council Reply Submissions [178] et al. -- 118 of 148 -- 119 (c) any application for rezoning would be assessed under Chapter 4.4 of PEA, particularly having a regard to s 4.4(3) and (5A); (d) any application for rezoning would attract objections; (e) environmental issues of flora and fauna would be such as to attract attention from the Council, objectors and State departments; (f) issues of planning need and good quality agricultural land would be raised as issues mitigating against approval of a rezoning application; (g) the rezoning application would be likely to be refused by Council; and (h) an appeal to the Planning and Environment Court would be necessary which would attract opposition from the Council, the State and objectors. [217] The appellants attack Mr Buckley’s opinion, and argue that any prudent purchaser would discount it on six grounds, namely 268 :- (a) Drylands It is said Mr Buckley ignored the view of the environmental experts who considered that the development could proceed in the dryland areas of the Land. It will be recalled that the Flora experts, Doctors Carter and Olsen, agreed that those areas could accommodate some development;269 (b) Assessment Approach What is said to be his incorrect approach to assessment of rezoning applications in suggesting that, irrespective of the Land’s urban designation, the proper planning approach in assessing the application for rezoning was to revert to first principles. As I understood their argument, given the expectations of entitlement to urban development created by the fact of designation in the Urban Areas PDLU, the correct approach was in accordance with a statement of Rackemann DCJ, in Main Beach Progress Association Inc v Gold Coast City Council270 where His Honour said, when dealing with an Impact Assessment under the relevant Plan:- 268 Appellants’ Submissions [370]-[384]. 269 [99(f)] above. 270 [2008] QPELR 675 at 695. -- 119 of 148 -- 120 “… It must be remembered, however, that Impact Assessment is not simply a ‘first principles’ assessment of a proposal and its impact, irrespective of the Planning Scheme. As observed earlier, impact assessment must be carried out having regard to the Planning Scheme which, in turn, is the basis for reasonable expectations, and a decision on the application must not conflict with the Planning Scheme unless there are sufficient grounds. …” Were it otherwise, the appellants say, there would be erosion of the public confidence in the Planning Scheme provisions to provide a basis and framework for planning decisions in any local government area; (c) Inconsistency in Reliance upon Peregian Springs and Coolum Ridges’ Approvals The appellants point to what they see as a contradiction in Mr Buckley’s reliance upon the Peregian Springs and Coolum Ridges rezoning approvals in his consideration of the issue of planning need against his ignoring of them when considering the issue of orderly development; (d) Reliance upon Good Quality Agricultural Land The appellants further criticise Mr Buckley by saying that his opinion as to the lack of likely success of a rezoning application was partly founded on the opinions of Dr Matthew and Mr Sutherland on the issue of good quality agricultural land when a prudent purchaser would have preferred Dr Gilbert’s opinion to that of Dr Matthew because of the appellants’ view that Dr Matthew’s opinion was unduly theoretical and devoid of practical application; -- 120 of 148 -- 121 (e) Failure to Consider Part B of 1985 Strategic Plan The appellants rely upon Mr Buckley giving evidence that he did not take Part B of the Strategic Plan into consideration in preparing his report.271 That was the 1983 Supporting Information document to the 1985 Strategic Plan. 272 Mr Buckley went on to say, in relation to Part B, that in terms of advising a prudent purchaser in 1996, he would not have relied on anything in it to help inform him on an important decision involving substantial amounts of money;273 (f) Reliance on Selective Parts of Strategic Plan The final ground of criticism of Mr Buckley’s opinion is that he gave too much weight to Objective 1(d) of the Urban Areas PDLU and seemed to interpret that as a complete “get out clause”. No particulars were given of that allegation in the appellants’ submission. [218] When one turns to Mr Buckley’s report 274 he sets out each of the four Urban Areas Objectives and observes that no one Objective overrides the other. He then sets out Objectives 3(1)(d) and 4(a) as being Objectives which would require careful consideration by a prospective purchaser and his/her advisers. They provide:- “3(1)(d) The inclusion of areas within the preferred dominant land use as urban areas does not mean that all such properties may be rezoned and developed for urban purposes. Many areas, because of their physical characteristics, including ascetic aspects, steeply sloping terrain, areas with instabilities because of slope, and areas subject to flooding, will be retained in the natural state. This will also apply to areas abutting major roads and water courses required as buffer spaces. (4)(a) In considering rezoning applications within the new urban areas and development applications in accordance with the indicated preferred 271 T16.49.23. 272 Exhibit 62. 273 T16.51.1. 274 Exhibit 21 p. 4 [3.3]. -- 121 of 148 -- 122 dominant land use on the strategic plan, the Council will take into consideration all the relevant planning aspects including:- (i) the effect of the development which will follow the rezoning or the particular development proposal upon the environment. In order to do this the Council will require the applicant supply a planning report giving an assessment of the proposal; (ii) in considering rezoning development proposals within the new urban areas and within existing urban areas, the Council will have regard to flood areas, engineering and access constraints, together with areas of slope instability, in accordance with reports and maps contained in Part B.” He then expresses the opinion that any advice to a perspective purchaser would set out in no uncertain terms that not all urban area land can automatically be considered to be suitable for development. [219] The appellants point to Objective 4(a)(i) above to contrast it with Objective 1(d) which does not, unlike 4(a)(i), expressly call up the environment as a constraint which may cause the land to be retained in its natural state. 275 They say, ‘that Objective 1(d) does not expressly call up the environment as a constraint and should not be interpreted to include environmental constraints’. It follows, they say, ‘that environmental considerations are to be balanced against development expectations as envisaged in Objective 4 rather than considered under Objective 1(d)’. They say, ‘to do otherwise would undermine public confidence in the Urban Areas designation of the Strategic Plan’. [220] The appellants further point to Mr Buckley’s evidence that he was not aware of any case where the Council had refused a rezoning application based on a conflict with Objective 1(d). 276 Mr Schomburgk gave evidence to the same effect. 277 [221] As to the correct approach to interpreting a Strategic Plan, the appellants relied upon Family Assets Pty Ltd v Gold Coast City Council 278 in which Skoien SJDC said:- 275 Appellants’ Submissions [82]-[84]. 276 T16.47.38-43. 277 T15.95.28-40. 278 [1989] QPLR 163 at 166. -- 122 of 148 -- 123 “A strategic plan is of significance when considering rezoning applications in particular in that in broad terms it deals generally with the future preferred dominant land use in a locality. In such circumstances, considerable weight ought to be given to the provision of the strategic plan when considering a rezoning application.” 279 [222] In acknowledging the force of s 4.4(5A) of PEA mandating the refusal of an application which conflicts with a strategic plan unless sufficient town planning grounds are available to justify approval, the appellants point to two converse propositions supported by authority. Firstly, the fact that, just as the conflict must lead to rejection unless the exculpatory condition is satisfied, if a proposal is in conformity with a strategic plan that must be seen as a factor substantially in the applicant’s favour.280 Further, strong reasons would be required for refusing an application which, on its face, is consistent with the intent and requirements of the relevant provisions of the town plan. 281 The appellants say no conflict with the Plan exists and the application is consistent with the provisions of the Planning Scheme and would have been approved. Council’s Argument re Town Planning Issues Planning Background [223] The Council points to the change in legislation brought about by the introduction of the PEA on 15 April 1991 and its amendment in 1992. Both pieces of legislation, it says, ‘introduced significant changes to the legislative landscape’. Considerable focus was placed on mandatory environmental considerations, 282 environmental impact statements were introduced,283 State Planning Policies were introduced to which local authorities required to have regard,284 local governments were obliged to consider the need for any proposed planning scheme sought,285 and, significantly, a local government was obliged to refuse a proposal to rezone land if the proposal conflicted with a Strategic Plan unless there were sufficient planning grounds to justify approval notwithstanding the conflict. 286 279 See also Thomas Holdings Pty Ltd v Council of the City of Gold Coast and Anor [1991] QPLR 32. 280 Creed v Caboolture Shire Council [1994] QPLR 97 at 98. 281 Emborisoff and Associates Pty Ltd v Caboolture Shire Council and Ors [1994] 254 at 257; MacKay v Brisbane City Council [1992] QPLR 65 at 67. 282 Ss 4.4(3)(f) and 8.2(11D). 283 Ss 8.2(2), 8.2(3), 8.2(11D). 284 Part 1A and s 4.4(3A). 285 S 4.4(3b). 286 S 4.4(5A). -- 123 of 148 -- 124 [224] The Council’s view is that the proposed development in accordance with the Covey Plan would have constituted a complete transformation in the purposes for which the Land could be used. They say that because, under the Rural A Zone in which the Land was located, none of the proposed uses in the Covey Plan were as of right, uses, and some were prohibited uses (commercial premises, light industries). In other words, the proposed uses for the Land were radically different from those contemplated in the Rural A Zone in the Table of Zones. 287 It made the point, ‘that the intent of the Rural A Zone was identified as, inter alia, to identify and protect significant areas for a wider range of rural activities, 288 and that the Urban Areas and Rural Areas PDLU’s and their Objectives were determined in relation to the principal goal of the Strategic Plan289 which, inter alia, was to achieve the best possible balance between development, including tourist orientated development in the Shire, and conservation of the natural environment … and the proper management of the Shire’s resources’. [225] That Strategic Plan goal was to be achieved by implementation of the Strategic Plan and Statement of Objectives against the background and by way of the Town Planning Scheme. In other words, the Scheme was to be interpreted as a whole. On that approach, which is clearly correct, the Council pointed to the evidence of their town planner, Mr Buckley,290 to seek to dispel the notion that the mere inclusion of the Land in the Urban Area PDLU gave rise to an expectation that the Land could have been developed as proposed in the Covey Plan. Mr Buckley said:- “The feint encouragement for some urban development of this land arising from the inclusion of part of it in the ‘urban’ designation under the superseded strategic plan does not survive scrutiny involving the ‘urban’ area provisions, the ‘rural’ designation of the balance of the land; the environmental qualities of the land; the location of the land at the most remote part of ‘urban’ designation within the Shire, and its removal from any area served by appropriate infrastructure including water, sewerage and an appropriate road network.” [226] The Council focuses on the express language of ‘Urban Areas Objective 1(d)’ and says, ‘that it points out in the clearest language that not all of the land in the Urban designation under the 1985 Strategic Plan will be rezoned and developed for urban purposes. It relies on all the Objectives of the Urban Areas and points to the concepts they reveal namely progressive conversion to urban use, 287 Exhibit 1C p. 349. 288 Exhibit 1C p. 341. 289 Exhibit 1C p. 3621. 290 Exhibit 21 p. 13. -- 124 of 148 -- 125 determination of rezoning application on their merits, retention of many areas in their natural state by virtue of their physical characteristics, the ensuring of proper and orderly growth and consolidation of existing urban areas indicated in the zoning, the development of new urban areas on a progressive basis to ensure that all public utility services and access to those new urban areas can be economically provided, and to ensure that any new urban development does not conflict with environmentally sensitive and/or conservation areas’. [227] The Council rejected the suggestion from Mr Schomburgk that the proposed development would represent either orderly growth or a consolidation of existing urban areas represented by Peregian Springs and Coolum Ridges. In its view, reference to existing urban areas in the Urban Areas Objectives refers not simply to commitments for future urban development, but to actual existing urban development. [228] The Council repeated its argument outlined above when dealing with environmental issues, that, having regard to Urban Area Objective 4 and the PEA, any prudent purchaser reasonably advised would have been told that environmental considerations would have been very important and would have precluded success in any application for rezoning, confirmed by the fate of the Norfolk Estate application. [229] As to the appellants’ argument that the smaller section of the Land included in the Rural PDLU could be developed as land contiguous to Urban PDLU Land in Objective 1(a) of the Urban Areas Objectives, the Council says that, ‘the bisection of the Land by the Motorway destroys any contiguity between that Land and the balance in the Urban PDLU’. The appellants’ answer to that is to refer to the Plan designating the Urban and Rural Areas under the 1985 Plan,291 and to point out that the triangular areas of Rural and Urban Land south of the Motorway do, in fact, adjoin so as to be contiguous. [230] The Council further argues that the intervention of the Motorway through the Land further mitigates against the proposed development by denying it the status of ‘orderly and proper development’ and says, ‘that the southern rural area portion is more obviously related in location proximity and physical characteristics with the underdeveloped or agricultural land adjoining it to the south and west’. [231] In summary, the Council says, ‘that the town planning considerations support the following conclusions:- 291 Exhibit 1A p. 21. -- 125 of 148 -- 126 (a) the Urban Areas PDLU did not confer any relevant expectation that that part of the subject Land would necessarily be approved for urban development; (b) similarly no such expectation was conferred in relation to the rural area section of the Land; (c) the proposal conflicted with Urban Areas Objectives, particularly Objective (1), Implementation Criteria (a), (b), (c), and (d), Objective (2), Implementation Criteria (a) and (b), Objective (3) and Implementation Criteria (a). Further, it conflicted with the environmental and physical characteristics provisions as dealt with in the Environmental Considerations sections above. No sufficient planning grounds exist which would justify approving the rezoning application despite those conflicts; (d) the development would not represent an orderly development given the absence of any existing urban development nearby, and could not be said to be in any way consolidating any existing urban area’. Principles Governing Interpretation of Planning Schemes [232] These were usefully summarised in Westfield Management Ltd v Pine Rivers Shire Council 292 in these terms: “(a) They should be construed broadly rather than pedantically or narrowly and with a sensible, practical approach (ZW Pty Ltd v Peter R Hughes & Partners Pty Ltd [1992] 1 Qd. R. 352 of 360; Yu Feng Pty Ltd v Maroochy Shire Council [1996], 92 LGERA 41 at 73, 75, 78; Harburg Investments Pty Ltd v Brisbane City Council [2000] QPELR 313 at 318); (b) They should be construed as a whole (Luke v Maroochy Shire Council & Anor [2003] QPELR 447); (c) They should be construed in a way which best achieves their apparent purpose and objects (Luke v Maroochy Shire Council & Anor (SUPRA); 292 (Unreported) Planning and Environment Court Brisbane 14 November 2003 1627/03 at pp. 8-9; see also Kotku Education & Welfare Society Inc v Brisbane City Council & Ors [2005] QPELR 267 at [271]-[272]. -- 126 of 148 -- 127 Nordale Management Pty Ltd v Maroochy Shire Council [1995] QPLR 368 at 370; Acts Interpretation Act 1954 s. 14A); (d) In the light of the proscription against prohibiting development contained in IPA (s 6.1.2 (3)); (e) Statements of Intents or Aims or Objectives are intended to provide guidance for the task of balancing the relevant facts, circumstances and competing interests in order to decide whether a particular use should be rejected as inappropriate (Degree v Brisbane City Council [1998] QPELR 287); (f) A Strategic Plan sets out broad desired objectives and not every objective needs to be met before a proposal can be approved (Lewiac Pty Ltd v Gold Coast City Council [1994] 83 LGERA 224 at 230; (g) A Strategic Plan should be read broadly and not pedantically (Yu Feng Pty Ltd v Maroochy Shire Council) SUPRA); (h) Although planning documents have the force of law they are not drawn with the precision of an Act of parliament; (i) A conflict alone may not have the effect of ruling out a particular proposal (Fitzgibbon’s Hotels Pty Ltd v Logon City Council [1997] QPELR 208 at 212; (j) Implementation Objectives must be read sensibly and in context. They are but a function of the principal objective. The purpose of the objective is better understood by reading all the implementation objectives and understanding the strategy that is inherent. (Jenkinson Pty Ltd v Caloundra City Council [2002] QPELR 527 at 528).” Sub-paragraph (d) is not relevant. -- 127 of 148 -- 128 [233] I do not accept the appellants’ argument that environmental issues are not comprehended by Objective 1(d) in the Urban Areas PDLU. As the above principles show, the Plan is to be interpreted in a broad, rather than a pedantic or narrow way. Two concepts are abundantly clear in Objective (1) of the PDLU. The first in 1(b) that any application for rezoning to achieve urban development is to be determined on its merits, and the second, in 1(d) that the inclusion of an area within the urban area does not mean that it will be rezoned and developed for urban purposes. To my mind those two important concepts underpin consideration of applications for development of land designated in the Urban Areas PDLU. For those reasons I likewise disagree with the appellants’ argument that any assessment should, in effect, start with the presumption of a prima facie entitlement to development by virtue of the urban designation. No such presumption or rebuttable expectation of entitlement is supported by a proper reading of the 1985 Planning Scheme as a whole. [234] That is not to ignore the fact that the Council has, after careful consideration, included the Land in the Urban Area designation. That entitles the Land to be considered for urban development but that consideration is not to be blindly driven by the designation, but rather by a careful consideration of all relevant issues including environmental issues. Conclusion re Town Planning [235] Having regard to the matters raised by Mr Buckley, the Council Town Planner, I consider the purchaser would have serious concerns as to the prospect of development approval being granted for this Land. I refer particularly to the issues of environmental impact, orderly and proper development, planning need and consolidation of existing urban areas. On these issues, I consider that the purchaser would be more likely to accept the opinions of Mr Buckley rather than Mr Schomburgk. He would entertain a real concern that a conflict between the proposal and the 1985 Strategic Plan would be found to exist so as to trigger PEA s 4.4(5A). For the same reasons he would have similar concerns as to the absence of any sufficient planning grounds to attract the exculpatory operation of s 4.4(5A)(b). MARKET VALUE OF LAND AS AT 10 MARCH 1996 [236] Mr Henderson gave valuation evidence for the appellants. He put before the Court five alternate valuations:- (a) primary valuation of $4,740,000;293 293 Exhibit 64A. -- 128 of 148 -- 129 (b) first alternative valuation of $5,851,100;294 (c) second alternative valuation of $3,565,000;295 (c) third alternative valuation of $3,909,000;296 and (d) fourth alternative valuation of $1,714,000.297 In its final submissions the Council relied only upon the primary valuation and alternatives three and four.298 Hypothetical Development Method of Valuation [237] Because Mr Henderson adopted the hypothetical development method of valuation, and this was the subject of criticism by the Council, it is appropriate to deal with that issue at this stage. The appellants assert that that is an appropriate method often utilised where there is an absence of comparable sales evidence, and the land is not developed. That method was described by Sugarman J in A G Robertson Limited v The Valuer-General299 in these terms:- “When it is necessary to determine the unimproved value of land without the assistance of sales of comparable unimproved value, one or the other of two conventional methods is commonly employed. The one erects a hypothetical building upon the subject land, capitalises the anticipated net return there from, and subtracts the estimated building costs from capitalisation, the balance being treated as the unimproved value. The other method analyses sales of comparable improved land by subtracting the estimated value of improvements from the price paid, on the view that the balance of the price represents the “land value”. Each method has, even in ordinary practice, and without the special difficulties of these cases, its limitations, its risks of error and its degree of dependents, varying from case to case, upon verifiable assumptions, conjecture or opinion … but some 294 Exhibit 64 p. 15. 295 Exhibit 64B. 296 Exhibit 84. The figure of $3,584,000 is for the northern severance only. To that must be added the value of the southern severance of $325,000. 297 Exhibit 64 p. 17. 298 [32] above ; Appellants’ Submissions [51]. 299 [1951-53] 18 NSWLGR 261 at 262. -- 129 of 148 -- 130 risk of error and some element of opinion or conjecture or assumption may be unavoidable in the search for an entirely hypothetical figure.” [238] Byrne J in 15 Lorimer Street v Dept Infrastructure300 sounds caution on this method of valuation where His Honour said:- “The claimant’s valuers, then, presented their opinions in terms of what is called a hypothetical development approach or, before me, a Turner analysis, so called after the decision of the High Court in Turner v Minister of Public Construction (1956) 95 CLR 245. This approach was described by Roper J in Closer Settlement Ltd v the Minister (1942) 17 LGR(NSW) 62 at 65 in the following terms: “In arriving at the value of land which is suitable for subdivision a familiar and appropriate method … is to estimate from whatever comparable sales of land in subdivision are available the price which would be realised by the land when sold; then to estimate the costs involved in the subdivision and the length of time that the realisation would take, making provision for the payment of rates and taxes and for interest on money outstanding; and an estimate net return on the land subdivision is obtained. It is of course clear that a person purchasing land in globo for the purposes of subdividing it would not pay the sum of money which is the present equivalent of the estimated return. Many factors in the calculation are speculative: the subject land in subdivision may not realise the prices which are at present expected, and the subdivision may take longer to realise than is at present anticipated. To compensate for the risk involved in the venture the purchaser would certainly discount the estimated returns.” The weakness of the Turner approach is that it applies an apparently scientific formula to a great number of subjectively established variables. The operation of the formula is such that small variations to these variables can have a very great impact upon the result: see Turner v Minister of Public Construction (at 268) per -- 130 of 148 -- 131 Dixon CJ. This has caused valuation judges of great eminence and experience to warn against a too ready reliance upon this approach: see Brewarrana Pty Ltd v Commissioner for Highways (No 1) (1973) 6 SASR 541 at 552-553; 32 LGRA 170 at 181, per Wells J (SA); Gwyvill Properties Pty Ltd v Commissioner for Main Roads (1983) 50 LGRA 322 at 326, per Cripps J (NSW); Waalt Homes Pty Ltd v Road Construction Authority (1987) 64 LGRA 346 at 353-4, per Gobbo J (Vic); Palmalco Pty ltd v Minister Administering the National Parks and Wildlife Act 1974 (No 3) (1991) 71 LGRA 441 at 447, per Hemmings J (NSW); Coastal Estates Pty Ltd v Bass Shire Council (at 577-578) per Gobbo J. One feature which runs through these warnings is the danger of applying the approach where the hypothetical development is not to be carried out within a reasonably short time: see Cienda Pty Ltd v SA Urban Land Trust (1988) 66 LGRA 360 at 363, per Jacobs J (King CJ and Bollen J concurring) (SA). It is for this reason that the approach is considered inappropriate when the subject land is not ripe for subdivision or development. Ripeness in this context, however, is a matter of degree and this restriction upon the approach is not to be applied in any mechanical way. What is in question is whether the value of the approach is so diminished by the uncertainties involved in the use of current estimates to future conditions that it lacks utility: see Coastal Estates v Bass Shire Council (at 576-577), per Gobbo J. I have no doubt that in the present case the hypothetical development approach to valuing the subject land is of no assistance where the development is to take place in 2004, 10 years after the relevant date. There being no other basis for valuation offered, the claimant cannot succeed in this case on the basis of the deferred construction option proposed by Mr Dudakov”. [239] The appellants recognised that the 13 year lead time on completion of the development may raise the issue of the ripeness of the land for subdivision, that is, whether or not it can be carried out within a reasonably short time as alluded to by Byrne J above. They say, however, that ripeness is a question of degree and does not play a great part in this case. 301 They rely on a statement by Callinan J in Boland v Yates Property Corp Pty Ltd302 where His Honour acknowledged that the Court had accepted the hypothetical development method of valuation which was neither novel nor especially difficult but, as with all methods, required the making of value judgments. His Honour was there 300 [1997-98] 97 LGERA 239 at 252. 301 Appellants’ Submissions [4.12]-[419]. 302 (1999) 74 ALJR 209 at 268 [286]-[289]. -- 131 of 148 -- 132 dealing with a negligence case where it was alleged that the valuers and lawyers preparing a compensation case were negligent because they were in favour of this method of valuation. Relevantly, His Honour did not refer to 15 Lorimer Street303 and I cannot see that he was referred to it. I do not take his statement to intend or indicate any watering down of the cautionary words of Byrne J in 15 Lorimer Street. [240] The next basis for the appellants’ view of the minimal role of the ripeness for development issue is based on a statement by Gobbo J in Coastal Estates Pty Ltd v Bass Shire Council 304 where His Honour said that, where possible a valuation should be based on comparable sales but where there are no such sales, then the use of the hypothetical development method was necessary. This is just the case according to the appellant because the Council’s valuer, Mr Slater, was of the opinion that there were no comparable sales. 305 I should say that Mr Henderson did rely upon some comparable sales to support his valuation. 306 [241] The statement of Gobbo J must be read in context. In Coastal Estates the issue of the relevant method of valuation arose in relation to when the subject land could be subdivided having regard to the provision of reticulated sewerage. The relevant date in that case was February 1989 and the best estimate for the provision of the sewerage was three years, although by the time of the hearing finishing on 8 February 1993, it had not been provided. On the issue of the appropriateness of the hypothetical subdivisional analysis method contended for by the complainant His Honour said:- 307 “The discussion in the present case has focused too much on the issue of time and the debate as to whether three years delay is or is not decisive. In my view the passage of time is not always decisive and the analysis method may be inappropriate even in cases where the time delay is less than three years. It is a question of fact in each case as to what is the appropriate method and it is unwise to seek to lay down prescriptive rules in this matter. At the same time, it is reasonable to regard a period of three years before any significant development and sale as raising a very real doubt as to this method because of the uncertainties involved in use of current estimates of sale prices and costs. 303 15 Lorimer Street v Dept Infrastructure [1997-98] 97 LGERA 239. 304 [1993] 2 V.R. 566 at 576-577. 305 T19.71. 306 Exhibit 64 p. 9; T18.54.50. -- 132 of 148 -- 133 In my view the starting point is that the valuation should, if possible, be founded on sales of comparable land. This is subject to the following qualifications and the particular circumstances of the case. (a) where there are no comparable sales then the use of the analysis method is necessary; (b) …; (c) …;” It can be seen then that, whereas His Honour accepted that in the absence of comparable sales evidence, the hypothetical method was necessary, he expressed reservations about the helpfulness of any such analysis based upon a development beyond three years. Of course the three year period was the period he was dealing with in relation to the sewerage installation. His Honour was not seeking to identify what length of time would or would not be a reasonable period as is evidenced by his caveat that no prescriptive rules should be set down on the issue. The point I make, however, is that there is a legitimate distinction between, on the one hand, circumstances identifying the use of the hypothetical method of valuation as appropriate, and on the other hand what assistance such a valuation can render to the court. Put another way, even if it was the only method available, that does not necessarily determine what assistance, if any, any such analysis may render. Depending on how far away the proposed subdivision is anticipated, the analysis may well create the types of uncertainties as to estimates of sale prices and costs referred to by Gobbo J above. Primary Valuation - $4,740,000 [242] This valuation of $4,740,000 rests on the following assumptions:- (a) that the development depicted in the Covey Plan was achievable; (b) the total development costs would be $35,740,880 being the estimate of Mr Covey;308 (c) the allowance of a 40% ($19,788,109) profit and risk allowance; and 307 [1993] 2 VR 566 at 576. 308 Exhibit 32 dealt with above. -- 133 of 148 -- 134 (d) an overall development period of 13 years with approvals being obtained in the first 3 years and the remaining 10 years required to sell the lots at approximately 100 lots per calendar year. As the appellants put it, on this valuation, if accepted by a prudent purchaser, a profit of $19.7m could be achievable in up to 13 years. Henderson First Alternative Valuation Basis - $5,851,100 [243] The first alternative valuation of Mr Henderson is $5,851,100 309 based on the development as per the Covey Plan, but adopting Mr Monson’s estimate of the development costs of $36,273,565 rather than those of Mr Covey of $35,740,880 relied upon in the primary valuation. There are also different further estimated costs of rates, interest, holding charges, legal and stamp duties. In all valuations those figures vary one to the other. Henderson Second Alternative Valuation Basis - $3,565,000 [244] The next alternative valuation of Mr Henderson is $3,565,000.310 That is based on the development as per the Covey Plan, but adopting Dr Johnson’s estimate of the development costs of $37,977,681. Henderson Third Alternative Valuation Basis - $3,909,000 [245] The next alternative valuation figure is $3,909,000 which is the figure of $3,584,000 for the northern severance of the land 311 plus the value of the southern severance of $325,000. This valuation is based upon a reduction in the number of proposed lots from 1,115 to 590. To understand the reason for this alternative valuation being advanced it is necessary to explain the amendment to the Covey Plan. Amended Covey Plan [246] In evidence Dr Olsen identified by reference to the Covey Plan 312 the Land’s dryland and wetland communities. By reference to Exhibit 19 the wetland communities are marked with numbers 1 to 5(b) and the dryland communities with numbers 6 and 7. On that Exhibit Dr Olsen has shaded the dryland areas 6 and 7. It will be recalled that he also gave evidence that he considered an appropriately sized buffer to protect the wet heathland from the adverse effects of development on 309 Exhibit 64 p. 15. 310 Exhibit 64B. 311 Exhibit 84. 312 Exhibits 19 and 20. T10.8.20. -- 134 of 148 -- 135 adjacent lands was 40 m. 313 It was against this background that Mr Henderson prepared the third alternative valuation. He marked on a copy of the Covey Plan a strip representing the 40 m buffer zone to the wetland areas. 314 That shows that the proposed development under the amended Covey Plan would be confined to the dryland areas representing the following reduction of development 315 :- Proposed Development Covey Plan Amended Covey Plan Residential A 1,034 lots 586 lots Residential B 59 lots Nil Light Industry 10 lots Nil Commercial Sites 9 4 Primary School site 1.908 ha Nil Community/Church 2 Nil In this valuation the profit and risk factor was struck at 35% ($9,316,644) which the appellants say compares favourably with the standard allowance of 30% applying when rezoning had already been obtained, and would represent an attractive proposition to a potential purchaser who would invest $3,909,000 ($3,584,000 Northern Severance; $325,000 Southern Severance) to reap a profit of $9,316,644 in 7 years, being the shortened term of the development given the reduced development. Henderson Fourth Alternative Valuation Basis - $1,714,000 [247] The final alternative valuation of Mr Henderson is a figure of $1,714,000 316 based upon the approach taken by the Land Court in December 1994 in determining the compensation claimed by the appellants resulting from the resumption of part of the Land for the Motorway. The Land Court proceeded on the basis that the development potential of the Land was limited to the north-eastern severance. 317 313 T10.20.5-30. 314 Exhibit 83. 315 See Exhibits 64B and 84. 316 Exhibit 64 p. 17. 317 Exhibit 86 Land Court decision p. 20. -- 135 of 148 -- 136 Council’s Criticisms of Appellants’ Valuations [248] The Council says, ‘that the Henderson valuations fail to reflect any risk as to the prospect of rezoning being approved’. They point to a joint letter dated 17 September 2008318 from the valuers to the parties’ legal advisors identifying divergent views of experts in relation to fauna, absence of any meaningful material on flora, the opposing views of the town planner and the absence of any consideration of less intensive or extensive development resulting from flora, fauna, agricultural land, or town planning considerations. The Council’s point is that those issues were issues in September 2008, yet are not mentioned in Mr Henderson’s reports. It is clear that Mr Henderson’s valuations proceed on the basis that the development proposal would proceed with all necessary approvals. His stated opinion is that the highest and best use is a development based on 1,115 lots 319 which is what the Covey Plan envisages. [249] The Council argues that the hypothetical development method is thwart with difficulties and points to the 25% difference in the value per hectare originally attributed to the Land by Mr Henderson320 when his valuation figure was $6,200,000, later reduced to $4,740,000.321 The valuation of $6,200,000 was Mr Henderson’s original primary valuation but was not relied upon by the appellants. 322 Instead they substituted the primary valuation of $4,740,000 for that figure.323 But, relying on that first primary valuation, the Council says that it represented a value of $40,000 per hectare reducing to $30,000 per hectare of a valuation of $4,740,000 over the approximate 155 hectares. Further, it says, ‘the valuation based on the amended Covey Plan 324 involving development only of the northern severance is a further 25% reduction on the revised value of $4,740,000’. 325 That latter proposition is not correct. The primary valuation of $4,740,000 326 is a valuation of the entirety of the Land, whereas the valuation based on the amended Covey Plan 327 is for the Northern Severance only ($3,584,000) to which must be added the value of the Southern Severance of $325,000, giving a total of $3,909,000. The correct difference between the valuation is $831,000 representing a reduction of 17.5%. 318 Exhibit 63 Annexure D1. 319 Exhibit 64 p. 2 [3]. 320 Exhibit 64 p. 13. 321 Exhibit 64A. 322 Exhibit 64 p. 14. 323 Exhibit 64A. 324 Exhibit 84. 325 Exhibit 64A. 326 Exhibit 64A. 327 Exhibit 84. -- 136 of 148 -- 137 [250] The Council then points to the difference between the original valuation figure of $6,217,850328 and the $3,909,000 based on the amended Covey Plan, a difference of $2,308,850 or 37%. Mr Henderson acknowledged in cross-examination that there would be certain development costs which would not reduce as a result of the reduction in the number of lots from 1,115 to 590. 329 [251] The council argues that the 13 year lead time from point of application for approval to the final realisation of profit, upon which Mr Henderson’s primary valuation is predicated, makes the use of the hypothetical development method highly unreliable in this case. It relied upon Ducks v Chief Executive Department of Natural Resources and Water 330 where a review of various authorities on the issue was undertaken. Several of those authorities 331 are consistent with the principle that, for this method of valuation to be appropriate, the land must, at point of valuation, or within a short predictable time thereafter, be ripe and ready for subdivision. Council further referred me to Brewarrana Pty Ltd v Commissioner of Highways 332 a decision of the Supreme Court of South Australia where Wells SJ said:- “Plainly a calculation based on a hypothetical subdivision will not be vitiated simply because some very slight delay might be experienced before realisation could begin, but an inordinate delay of say, several years could equally plainly render the whole undertaking so speculative that a conclusion as to the value would be wholly unreliable.” [252] The considerations underlying the principle of the appropriateness of the hypothetical development valuation method really accord with common sense. The longer the period of time between a hypothetical calculation and the realisation of the end profit, the greater opportunity there is in changing economic conditions and for the costing structure and market forces to change. As I earlier identified in discussing Coastal Estates, the longer out that period is, the higher the risk that the hypothetical calculation will be less reliable than if subdivision occurred soon after it. [253] Another criticism levelled at the amended Covey Plan and the valuation based upon it, was the fact that the only expert who has had the opportunity to address it, was Mr Henderson. It is true that none of the other experts were afforded the opportunity to provide their opinion in relation to it because of the fact that it materialised so close to the end of the trial but no application was made by either side 328 Exhibit 64 p. 14. 329 T19.4-5. 330 [2009] QCL0081 [14]-[19]. 331 Crompton v Commission of Highways [1973] 32 LGRA 8 at 20; Cienda Pty Ltd v SA Urban Land Trust [1988] 66 LGRA 360 at 363-365; and Redeam v SA Land Commission [1977] 40LGRA 151. -- 137 of 148 -- 138 to recall any other experts. Having said that, given that all experts prepared their evidence on the basis of the Covey Plan, consideration and preparation of evidence in relation to the amended Covey Plan would not have been a small exercise for each of the experts and a recall would have, in my view, involved a delay in the hearing. That would have been a relevant consideration for both parties in deciding whether or not to recall evidence. In the result, however, the fact is I have not had the benefit of the advice of other experts on the amended Covey Plan. [254] Finally, the Council rejected the comparable sales relied upon by Mr Henderson as clearly not comparable and relied upon Mr Slater’s opinion to that effect. Council’s Valuation Evidence – Mr Slater [255] The Council’s valuer, Mr Slater, was of the view that any application for subdivision would not be successful, but on the assumption it was obtained, he said, ‘the demand for lots in the development would be insufficient to achieve a financially viable development, and valued the land the same as on the agreed after basis at $750,000.333 He disagreed with Mr Henderson that the hypothetical development method was an appropriate method of valuation.334 In explaining his position he said, that the timeframe for development was fundamental to the use of the hypothetical methodology because there was so many subjective judgments involved so that the further out in time the potential start of the development was the less reliable were those subjective assumptions. 335 [256] Mr Slater was asked to identify the elements missing in the present case to make the hypothetical approach worthwhile. He identified the critical assumptions as firstly predicting future rate of sale of lots with the prospect of Peregian Springs and Coolum Ridges coming on stream as very difficult. Next he referred to the holding costs, and the interest on development costs. He considered that the uncertainty of the proposed development made it impossible to select a profit and risk factor and said, that it was generally regarded that once that factor got close to 50% the hypothetical development methodology was not appropriate. He also identified the uncertainty and difficulty in projecting out selling prices and said, that none of Mr Henderson’s prices relied upon in his valuations were supported by the evidence. 336 [257] He was questioned as the advice he would give to a hypothetical purchaser who had rezoning approval to permit development in accordance with the Covey Plan. He said, that if, at point of 332 [1973-76] 32 LGRA 170 at 181. 333 Exhibit 63 p. 17 [21.1]. 334 Exhibit 64 pl. 2 [4]. 335 T20.11.30. 336 T20.11.32-60; 20.12.1-47. -- 138 of 148 -- 139 advice he had conducted the same level of investigation as he had in preparation for this case, thus giving him knowledge of the development costs, likely gross realisation, risks involved with the prospect of the competing states of Peregian Springs and Coolum Ridges, it would not take much of an exercise on his part to conclude that the Land had a value of below zero on a hypothetical development method approach. He said, that if the lot pricing in Mr Henderson’s valuation was more realistic and the proper interest figure calculated, the land value in his report would very quickly come down to zero. That, he said, would apply to any of Mr Henderson’s hypothetical valuation exercises. 337 Appellants’ Criticism of Slater Valuation [258] The appellants identified five propositions in Mr Slater’s evidence which they said, should not be accepted by the Court. Firstly, they said, ‘he proceeded on the basis that the Land had no realisable urban development potential when, in fact, it did have’. Secondly, they pointed to his evidence that even if the urban area component of the Land was the subject of a rezoning approval to permit development in accordance with the Covey Plan, it would still not be worth one cent more in terms of market value’. 338 I have referred in the preceding paragraph to further passages from Mr Slater’s evidence which came after this evidence. The appellants say his evidence of no increase in value even with the rezoning approval as extreme and contrary to ordinary experience. [259] Next, the appellants criticise Mr Slater’s reliance upon the Norfolk Estates contract and the fate of the appeal by Norfolk Estates and point to the fact that his reliance upon that was premised on his not having given any great significance to the relevance of the draft Strategic Plan in that appeal. The appellants’ view is that any purchaser would have been encouraged by the outcome in that appeal because it did not involve any allegation by the Council of conflict or inconsistency with the 1985 Strategic Plan, but rather referred to the draft Strategic Plan. I have dealt with that point elsewhere. [260] Fourthly, the appellants say, ‘that Mr Slater having rejected the hypothetical development method of valuation, also concluded there was no comparable sales which left him in the position where he could be of no assistance to the Court on the question of valuation’. That is not correct, because, of course, Mr Slater expressed the view that the value of the Land on a before basis was $750,000 on the basis that it had no developmental potential. [261] Finally, the appellants say, ‘that Mr Slater’s evidence was premised on the fact that there was no demand or market for the proposed residential lots at the relevant time’. The appellants argue that 337 T20.13.1-30. -- 139 of 148 -- 140 the lack of demand resulted from the absence of developer stock which issue has been dealt with earlier in this judgment on the issue of need. Other Valuation Issues [262] Apart from the above main issues, there were other differences of opinion between the parties arising from the valuation evidence relating to advertising costs, profit and risk factor, rates and land tax, charges, holding charges, and interest charges. None of those, in my view, were of sufficient magnitude to make any appreciable impact on the figures relied upon by Mr Henderson in his valuations having regard to the numbers involved. Conclusion re Valuation Evidence [263] I consider that a properly advised purchaser, having regard to the authorities on the appropriateness of the hypothetical development method of valuation and Mr Slater’s evidence, would have serious doubts as to its appropriateness. Further, I consider that the differences of opinion between the valuers would leave the purchaser with a serious question in his mind as to what, indeed, was the true value of the Land on an urban development basis and what level of profit, if any, would be available in the event of any development in accordance with the Covey Plan. Those reservations would heighten in relation to the development in accordance with the amended Covey Plan given the substantial reduction in the number of developed lots contemplated coupled with the absence of a corresponding reduction in the project costs given that some would remain constant whatever the number of lots. The purchaser, properly advised, could not, in my view, have confidence as to value by reference to Mr Henderson’s valuations. PURCHASER’S FINAL DECISION [264] In my view, against the background of the purchaser’s imputed assessment of each of the issues I have dealt with, he would conclude, on balance, that approval for development of the Land for urban purposes in accordance with the Covey Plan or the amended Covey Plan would not be granted. He would further conclude that the highest and best use of the Land was for development of seven 20 ha rural lots as agreed between the parties on the after case. The purchaser would pay no more than its value on that basis, agreed at $750,000. [265] It follows that I am unpersuaded that there is any difference between the market value of the Land immediately after the time of coming into effect of the 1996 Strategic Plan and its market value had 338 T19.75.15-40. -- 140 of 148 -- 141 that Plan not come into operation 339 with the result no compensation is payable. The appeal is dismissed. 339 PEA s 3.5(8)(a). -- 141 of 148 -- 142 Schedule “A” STATE PLANNING POLICY 1/92 3.3 Nevertheless, development without regard to the need for land conservation and the continuing importance of agriculture would be unacceptable. The best and most versatile farming land has a special importance and should not be built on unless there is an overriding need for the development in terms of public benefit and no other site is suitable for the particular purpose. This land is a valuable resource that should, in general, be protected from irreversible development. In such cases, additional weight needs to be given to the agricultural factor. 4.1 Local authorities will be expected to include provisions regarding the conservation of good quality agricultural land when preparing, amending or reviewing planning schemes, particularly when framing strategic plans, development control plans or local planning policies. Applications for rezonings, consent uses and subdivision should be considered in the context of such provisions. In the absence of specific agricultural land provisions, or where such provisions are considered inadequate, the Government will be guided by the principles set out in this Policy when considering applications for the approval of planning schemes, rezonings and other scheme amendments. 4.4 Although the demand for agricultural products fluctuates, once land is built on or subdivided, its return to agriculture is seldom practicable. Therefore, a decline in the market for a particular crop should not justify development on land traditionally used for growing that crop. Markets change and the land could be cultivated for other purposes. 4.5 Similarly, land ownership and the size of farm holdings should not override land quality when determining a site’s suitability for development. A policy which would allow the development of small sites or holdings irrespective of land quality, would merely encourage fragmentation of ownership followed by further development pressures. The viability of farm holdings varies with the crops selected, and tenure patterns are flexible: an appropriate choice of crop or amalgamation of holdings can overcome the problem of the uneconomic farm unit. Therefore, land subdivision policies and controls should not inhibit restructuring and farm amalgamation: in some instances subdivision will be necessary to enable the assimilation of parcels with adjoining properties. -- 142 of 148 -- 143 4.6 Cases will arise where local authorities have to consider development proposals on good quality agricultural land. In such instances, a ‘key’ principle should be whether an overriding need in terms of benefit to the community can be demonstrated for development at that particular location. 4.8 The proximity of development, particularly where there is a significant residential component, can inhibit farming practice, thereby limiting the extent to which the inherent land quality can be exploited: for example, crop spraying and cane burning are two operations which cause conflicts with adjoining residential properties. Clearly, such conflicts should be avoided if possible but, where new developments have to be located on or adjacent to good quality agricultural land, measures to ameliorate potential conflict should be devised wherever practicable. 4.9 There should be no financial compensation implications for local authorities as a result of implementing this Policy. The various provisions described above should all be based on the premise that existing commitments stand and that ‘down zoning’ is not being advocated. -- 143 of 148 -- 144 POLICY PRINCIPLES 1. Good quality agricultural land has a special importance and should not be built on unless there is an overriding need for the development in terms of public benefit and no other site is suitable for the particular purpose (Section 3). 2. The alienation of some productive agricultural land will inevitably occur as a consequence of development, but the Government will not support such alienation when equally viable alternatives exist, particularly where developments that do not have very specific locational requirements (for example, ‘rural residential’) are involved (Paragraphs 4.6-4.7). 3. When preparing, reviewing or amending planning schemes, local authorities will be expected to include provisions for the conservation of good quality agricultural land, regardless of the effect of market fluctuations on its viability (Section 4). 4. The preparation of strategic plans should include an evaluation of alternative forms of development, and significant weight should be given to those strategies which minimise the impacts on good quality agricultural land (Paragraph 4.2-4.3). 5. Due consideration should be given to the protection of good quality agricultural land when applications for rezonings, consent, or subdivision are being determined (Paragraph 4.1). 6. Where a planning scheme does not ‘contain adequate agricultural land conservation provisions, the Government will be guided by the principles set out in this Policy when considering applications for the approval of planning schemes, rezoning and other scheme amendments (Paragraph 4.1). 7. The fact that existing farm units and smallholdings are not agriculturally viable does not in itself justify their further subdivision or rezoning for non-agricultural purposes. Subdivision provisions and policies should be devised in a way that encourages amalgamation of titles where this would enhance farm viability (paragraph 4.5). 8. Local Authority planning provisions should aim to minimise instances of incompatible uses locating adjacent to agricultural operations in a manner that inhibits normal farming practice. Where such instances do arise, measures to ameliorate potential conflicts should be devised wherever possible (Paragraph 4.8). Note: The Policy principles should be read in conjunction with the main text. -- 144 of 148 -- 145 Schedule “B” Planning Guidelines: The Identification of Good Quality Agricultural Land 2.1 Good quality agricultural land is land which is capable of sustainable use for agriculture, with a reasonable level of inputs, 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 feedlots, 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. Table 1 Agricultural Classes Description Class A Cropland – land that is suitable for current and potential crops with limitations to production which range from none to moderate levels. Class B Limited cropland – land that is marginal for current and potential crops due to severe limitation; and suitable for pasture. 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. -- 145 of 148 -- 146 Class D Non-agricultural land – land not suitable for agricultural uses due to extreme limitation. 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. 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 Section 10). 2.4 Existing land resource mapping throughout the State has been interpreted to this classification contained in Table 1 340 to provide information on the location of good quality agricultural land. This is a simplification of existing land resource information, to enable the best agricultural resources within each local authority area to be identified for planning purposes. Attachment Figure 2 provides this interpretation based on the best available information. 2.5 The definition of what constitutes good quality agricultural land within a local government area is a DPI responsibility, although local agricultural industries, local authorities and other relevant groups will be consulted. 4.1 State Planning Policy 1/92 applies to all areas of good quality agricultural land, irrespective of whether farming activity is present. When assessing planning applications, the following issues need to be considered to determine what information is required and how the Policy should be applied. 340 Supra. -- 146 of 148 -- 147 4.4 Any proposals on site ‘committed’ as defined above should normally be considered on their planning merits without reference to the agricultural issues. In these circumstances, an agricultural land quality assessment would clearly be unnecessary. 4.5 Rejecting proposals for development despite some commitment in the planning scheme could have compensation implications. Therefore only in exceptional cases should consideration be given to setting aside a commitment because of the need to retain a particular site in agricultural use. For example, the loss of land from agricultural production might prejudice the viability of the processing industry such as a sugar mill. In such cases, an assessment of a site’s agricultural quality would be required to substantiate the case for retention. 4.9 In all other cases the agricultural quality of the subject land should be established to determine whether the principles of State Planning Policy 192 are applicable. 4.12 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 alternative sites of poor agricultural quality; or • The subject land is located so that farming, either along or in association with surrounding parcels, in not practicable: for example, a small isolated parcel of land surrounded by urban land uses. 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 the local authority boundary, consideration of suitable alternative sites should include those in the neighbouring local authority. 5.1 Information on land resources is available at different levels of detail and presented on maps at different scales, depending on the intensity of data collection. These Guidelines differentiate between broad-scale information (1:50 000 – 1:500 000 scale) appropriate for strategic and regional planning; and detailed information (1:2 500 to 1: 10 000) which is essential for detailed land resource assessment and processing of planning applications. -- 147 of 148 -- 148 5.2 Land resource information has been collected at a broad-scale by DPI and CSIRO, and is available for most areas of the State , however, the application of this information to detailed development assessment is limited. 5.7 Where development of rural land is proposed, the broad scale maps in strategic plans or other sources should be used by local authorities to indicate to proponents whether good quality agricultural land is likely to be affected. 341 In cases where such information indicates that the subject land has no agricultural land of good quality, further analysis is usually unnecessary. However, if the local authority has additional information suggesting the subject land is good quality agricultural land, then a detailed assessment should be requested. Some weight may be given to any history of previous cultivation and/or erosion of the subject land. 5.8 If good quality agricultural land is indicated on the maps, the proponent may wish to apply for ‘consideration-in-principle’ where local authorities have this provision available. The local authority may either declare its opposition to the proposal at this stage or specify that a detailed assessment of land resources should be included with any formal application submitted. In some cases, the broad-scale mapping information may be sufficient for the assessment of planning applications in the areas of uniform suitability for agriculture. 341 In this case the broad scale mapping by Capelin indicates six land use categories that are considered by DPI to be good quality agricultural land. Those categories include the subject land. -- 148 of 148 --