Andrews & Hansen Pty Ltd v Gold Coast City Council [2008] QPEC 4 [2008] QPELR 464

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Andrews & Hansen Pty Ltd v Gold Coast City Council [2008] QPEC 004 PARTIES: ANDREWS & HANSEN PTY LTD ACN 010 742 784 Appellant V GOLD COAST CITY COUNCIL Respondent FILE NO/S: BD 624 of 2005 DIVISION: Planning and Environment PROCEEDING: Appeal ORIGINATING COURT: Planning and Environment Court of Queensland, Southport DELIVERED ON: 6 February 2008 DELIVERED AT: Brisbane HEARING DATE: Site inspection 20 August; hearing 21, 22, 23 and 24 August 2007; further written submissions received 8 and 13 November 2007 JUDGE: Alan Wilson SC, DCJ ORDER: 1. Allow the appeal 2. Review at 9:15am on 5 March 2008 CATCHWORDS: PLANNING LAW – CONFLICT WITH PLANNING SCHEME – proposed reconfiguration of a lot in Gilston Valley – whether conflict with superseded planning scheme – weight to be given to new planning scheme Integrated Planning Act 1997, s 4.1.52(2)(a); 4.1.52(2)(b); s 6.1.3 Local Government (Planning and Environment) Act 1990, ss 5.1(6) and 6(A) Cases considered: Drivetype Pty Ltd v Caboolture Shire Council [1995] QPLR 141 Grosser v Gold Coast City Council (2001) 117 LGERA 153 Holts Hill Quarry v Gold Coast City Council [1999] QPELR 415 Luke v Maroochy Shire Council [2003] QPELR 447 -- 1 of 8 -- 2 Proda Services Pty Ltd v Gold Coast City Council [2000] QPELR 176 SDW Projects v Gold Coast City Council [2007] QPELR 24 Terton Corporation Pty Ltd v Gold Coast City Council [2003] QPELR 260 Weightman v Gold Coast City Council (2002) 121 LGERA 161 Yu Feng Pty Ltd v Brisbane City Council [2007] QCA 382 Yu Feng Pty Ltd v Maroochy Shire Council (1996) 92 LGERA 41 COUNSEL: P J Lyons QC and J D Houston for appellant S M Ure for respondent SOLICITORS: Hopgood Ganim Lawyers for appellant Minter Ellison for respondent [1] This is an appeal against Council’s refusal of an application to reconfigure (subdivide) land on the eastern side of the Gilston Valley, on the Nerang River west of the Gold Coast. The primary question is how the development, which would involve subdividing 25 Park Residential allotments in an area of about 32.5 hectares on the ridgeline which forms part of the boundary of the valley, sits with both a former, and more recent planning scheme applying in the area. [2] Council asserts that the proposal offends provisions of the 1995 Albert Shire Strategic Plan and the 2003 Gold Coast planning scheme. The 2003 Scheme came into effect just a few days after the development application for the proposal was lodged. If conflict with planning documents exists, questions also arise as to whether or not the proposal involves elements which are beneficial in a town planning sense and might overcome that conflict. The alleged conflicts focused upon visual amenity and bushfire management issues. Council also alleges that the proposal is deficient in the way it addresses the risk of bushfires, and some engineering aspects concerning fire trails and drainage. [3] Inspection of the site and the district shows the land lies within a quite extensively developed, continuous semi-urban zone between the Nerang and Mudgeereba urban areas. It no longer presents as an area which manifests as rural or exhibits agricultural features. Rather, the predominant impression is one of recent and continuing urban development. There are large relatively new estates nearby including, in particular, an earlier stage of the overall development. The western portion of the original parcel, referred to as Stage 2, was the subject of an earlier appeal to this Court for rezoning from rural to residential uses. That appeal was ultimately successful and development for that purpose is now proceeding. The evidence also showed there are other, recent local approvals for urban and Park Residential development subdivisions over land in the vicinity, pointing inexorably to increased development in the near future. [4] At the commencement of the hearing the appellant sought to amend the development proposal by varying the location of a fire trail. A new site layout was presented. The change placed a trail called Fire Trail 2 further away from the northern boundary, diverting it around a gully at the north-eastern part of the site. It was made in apparent response to some concerns raised during the negotiation -- 2 of 8 -- 3 process about the preservation of the ecological values of a nearby gully. On any view, in the overall scheme of the application the change was minor (as that term is used in the Integrated Planning Act 1997 (IPA), s 4.1.52(2)(b)). I did not understand Council to contend otherwise and proceeded, therefore, to consider the appeal in a way which incorporated that change. [5] Some of the matters raised by Council are precipitate. Its objections to aspects of the proposed drainage design, the final alignment of fire trails, and detail associated with the boundaries of a Community Title Scheme for the maintenance of common property overlook the fact that these matters do not usually call for resolution in the course of an application for reconfiguration. They are more appropriately addressed, if necessary, at the later operational works stage. [6] Granted, there are cases in which deferring consideration of those kinds of issues can be inappropriate: Terton Corporation Pty Ltd v Gold Coast City Council [2003] QPELR 260 is an example, where uncertainty about final design and a want of necessary testing for things like geotechnical stability militated against the practicality of determining the appeal itself. But here the evidence of the geotechnical experts (Mr Shaw and Mr Amral) was largely in accord; the civil engineer called by Council, Mr McAnany acknowledged that design solutions were available for drainage issues; such things as the boundaries of the eventual Community Title Scheme may if necessary be dealt with by appropriate conditions; and, a Fire Management Plan presented by a bushfire expert, Mr Bottcher, and a landscape rehabilitation plan prepared by Mr Hassall took into account the allotment and building envelope layout agreed between the geotechnical engineers. The evidence of the civil engineer called by the appellant, Mr Gould, was persuasive that further adjustments can and if necessary will be made to the detailed design work in the course of an operational works application if that stage is reached. [7] Evidence to this level of detail quite distinguishes the circumstances from those which confronted Robin QC, DCJ in Terton Corporation. If the appeal here succeeds it is both appropriate and desirable to leave these matters to the conditions stage, or subsequent operational works permit. [8] At the time the development application was lodged, in August 2003, the 1995 scheme was the governing planning instrument. It is a transitional planning scheme under s 6.1.3 of IPA. Only three days after lodgement the new IPA-compliant scheme, the 2003 Gold Coast scheme, came into effect. The promulgation of the new scheme attracts a question under IPA s 4.1.52(2)(a): while the application for reconfiguration is to be assessed against the 1995 scheme what, if any, weight should be given to the new 2003 scheme? [9] Assessing the weight to be given to any new laws and policies is a matter for the Court1. Materially, the history of the larger parcel of which this site earlier formed a part demonstrates an early and longstanding intent to develop it for residential purposes. Implementation of that development intent was however delayed to allow the resolution of issues relating to the western portion. Approval of that rezoning was given in November 1997 but the final order allowing an appeal and settling conditions was not made until 15 September 2004. 1 Yu Feng Pty Ltd v Brisbane City Council [2007] QCA 382 -- 3 of 8 -- 4 [10] The material shows a clear interrelationship between that earlier stage and this proposed development (then called Stage 3). Exhibit 29 illustrates the degree of integration in relation to the layout of the sites, and the connecting roads and services. I accept it was appropriate to delay lodgement of the present development application until after the final approval of Stage 2. [11] At the time the application in this matter was ultimately lodged the 2003 scheme had in fact been adopted and was about to take effect. A significant period of public consultation had preceded its adoption by Council. The likely effect of the new scheme, in particular the introduction of the Gilston Structure Plan and the detailed Bush Fire Management Constraints Code, on the appellant’s proposed reconfiguration would have been vivid in the appellant’s mind. Weight must, then, be given to the 2003 Scheme. However, for the reasons which follow I do not see the appellant’s proposal materially offending either the 1995 or 2003 schemes. [12] Under the legislation which preceded IPA2 the proposal would have required an application for subdivision. It must, therefore, be decided under provisions of the repealed Act3 which require the local government to refuse the application if it is conflict with any relevant Strategic Plan or Development Control Plan, unless there are sufficient planning grounds to justify approval notwithstanding the conflict. The effect of provisions of this kind was explained by the Court of Appeal in Grosser v Gold Coast City Council (2001) 117 LGERA 153, and Weightman v Gold Coast City Council (2002) 121 LGERA 161. [13] Under the earlier scheme the site is predominantly placed in the Open Space Preferred Dominant Land Use (PDLU), but with parts of it in the Park Residential and Urban Residential designations – and, in particular, the land comprising the 25 proposed new allotments is located within the Park Residential use area. [14] The proposal involves lots ranging in size from one quarter to one half hectare. They occupy about a third of the zoned area. When the Strategic Plan under the 1995 scheme is read in the manner adopted by this Court4 it is apparent the proposal does not have any serious conflicts with it. It accords with the intent and objectives for the Park Residential zone and associated areas. Indeed, the existence of the zone is a strong indication that the scheme accepts that a development of this kind is, on its face, suitable5. It is also material to note, and inspection confirmed, that the land on its upper slopes has been largely cleared and that is something which logically and practically underpins this zoning. [15] Conflict is said, by Council, to arise particularly in respect of certain objectives in the part of the 1995 Strategic Plan addressing the Park Residential zoning (clauses 1.4.6.3, and 1.4.6.7) and certain Shire Image Objectives (nos. 1, 4 and 8 – clauses 1.3.22, .5, and .9). Objective 2 looks to the promotion and preservation of a high standard of amenity and convenience and nothing in the evidence (including, in particular, evidence about some of the fairly steep slopes in the area) suggests actual 2 Local Government (Planning and Environment) Act 1990. 3 Sections 5.1(6) and 6(A) 4 See Luke v Maroochy Shire Council [2003] QPELR 447; Yu Feng Pty Ltd v Maroochy Shire Council (1996) 92 LGERA 41; Drivetype Pty Ltd v Caboolture Shire Council [1995] QPLR 141, and Holts Hill Quarry v Gold Coast City Council [1999] QPELR 415 5 Proda Services Pty Ltd v Gold Coast City Council [2000] QPELR 176 -- 4 of 8 -- 5 conflict. Park Residential Objective 6 concerns minimising risks to residents and properties from bushfires, and is addressed later. [16] The Shire Image Objectives touch upon retaining the skyline and the upper slopes of foothills and the hinterland ranges in a predominantly natural state, and retaining and enhancing the character of a semi-enclosed rural valley. As inspection showed, however, that is no longer an apt description of this part of the Gilston area. Substantial development has occurred – unsurprisingly, since the relevant PDLUs both acknowledge and promote the expansion of residential living in the Valley. For reasons discussed later, urban development in the area will continue under the new, 2003 scheme. [17] The proposal does not, moveover, involve intrusion into the Open Space PDLU, and does not affect the natural state of the upper slopes. As the landscape architect (and expert in matters of visual amenity) called by Council, Mr Chenoweth, fairly acknowledged the proposed development is all in cleared areas; protects vegetation and wildlife corridors; adds a significant amount of new vegetation to the site; and, overall, provides a notable improvement in that vegetation. In light of these conclusions it cannot be said that there is any observable conflict with these parts of the 1995 planning scheme. [18] Council also asserts conflict with other parts of that scheme concerning development requirements, particularly in respect of minimum allotment sizes, and frontages. Clause 16.1.8 of the scheme provides that in a Park Residential zone the minimum size of an allotment will be 4,000 m² provided that the yield, assessed on the total area, should not exceed one allotment per 8,000 m². The minimum frontage is set, under clause 16.2.3(5) at 50 metres. Under clause 16.5(2), Council is however given power to vary these dimensions where there are special circumstances as a result of location, topography and similar features. [19] As Mr Craven, the experienced town planner called by the appellant observed, an obvious advantage of the proposal in its present form will be the ‘… large, visually obvious separation distances to the existing residential subdivision and between the allotments on the two ridges’6. The actual yield is significantly better than the minimum allowed by Council. Mr Chenoweth agreed that the proposed density of housing along the ridges was acceptable if conditions can be imposed regarding tree planting, on the lines he agreed with the landscape architect called by the appellant, Mr Hassall. Significantly, as Mr Chenoweth said, although the allotments may have frontages less than the stipulated dimension they are themselves large and there will only be a single line of ridgeline houses visible from most external viewpoints. These factors compel the conclusion that this is an appropriate case to exercise the discretion to permit a reduction in the minimum lot size and frontages. [20] Conflict with the 2003 scheme is said to arise in respect of parts of it described as the Emerging Communities Domain, the Gilston Structure Plan, and the Bushfire Management Areas Constraint Code. The intent and objectives of the Emerging Communities Domain look to the provision of suitable non-urban land for ‘park living’ in a way which involves an orderly transition from rural uses and retention of a viable nature conservation network. The proposal is not, as both the evidence and inspection confirmed, in conflict with these elements. 6 Exhibit 13, p17 [143] -- 5 of 8 -- 6 [21] However, the intent for the Domain also provides that development for ‘park living’ is ‘conditional’ upon Council adopting a Structure Plan for the neighbourhood – here, the Gilston Structure Plan. [22] An initial problem with that Plan is that it contains a description of the Gilston area that is, as inspection vividly illustrated, incorrect. It describes the Valley as characterised by rural holdings, with land either utilised for rural purposes or retained in its natural state – but that was not what inspection showed. Indeed, as is apparent from an overlay in Exhibit 29, areas the Structure Plan purports to identify for open space for conservation and recreation actually include existing approvals for residential development. [23] The land the subject of this application has already been extensively cleared. It does not extend into the well forested ridge further to the east (part of the land referred to in the Structure Plan) and already presents as having much more in common with the land to the west, and north which has been developed for residential purposes. It is to be remembered, too, that the Plan is not a Local Area Plan but a less formal planning document which is, as it acknowledges on its face, an ‘indicative’ statement of the local character and land use planning direction for the area. [24] The evidence was otherwise persuasive that, by reference to the features of the Plan, the proposal enhances and protects watercourses, riparian zones, remnant vegetation, fauna habitat, and visually prominent locations; and, is consistent with the character of the area, as it has changed over time. [25] The town planner called by Council suggested there was clear conflict between the Structure Plan’s intention that land on slopes in excess of 20 per cent or above 50 metres AHD not be developed. But as Mr Chenoweth fairly and properly conceded houses above RL50 could be accommodated in the proposed development with appropriate vegetation, screening and aesthetic improvements. The planner was also concerned that the proposal does not meet Acceptable Solutions (AS) touching street design and traffic circulation systems but, again, what is proposed is a sensible and logical response to the typography of the site and its constraints and is, it seems to me, an appropriate response to the relevant Performance Criteria (PC). In light of these conclusions there is, again, no significant conflict with the provisions of the 2003 scheme. [26] Even if conflict actually arises it cannot be described as greater than relatively minor, or low level. It would be, in any event, ameliorated by the presence of town planning grounds which are both relevant to the area of conflict, and sufficient to justify approval notwithstanding it. The proposal takes advantage of the availability of existing infrastructure and services, and adds to their utility. It provides a range of housing styles, demonstrating a high standard of design for future residents; and, the new infrastructure which will be enhanced by local, native vegetation choices which will lead, ultimately, to aesthetic improvements consistent with the local character. It is, on any view, a sensible use of already cleared land. It also provides support and enhancement for existing and planned social infrastructure including a nearby business activity centre, a primary school, and open space recreational areas. It will also, importantly, provide additional fire protection mechanisms with extra roads and fire breaks, fire trails, and reticulated water. -- 6 of 8 -- 7 [27] The question of management of bushfire risks involved two principal aspects: actual, practical management; and, the weight to be given to the Constraints Code under the 2003 planning scheme. The former involves the suitability of fire trails and alternative access links, and the general layout of the development. [28] The application embraces extensive fire protection measures. The evidence of the expert called by the appellant, Mr Bottcher, was persuasive that what is proposed is both satisfactory and appropriate. He has extensive practical experience in this area, including experience in fighting bushfires. Particular criticisms of Fire Trail 2 advanced by the Council’s expert seemed to me to evaporate in the face of Mr Bottcher’s evidence about it, and his sensible recommendations concerning its form and construction. The same conclusions arose in respect of an alternative access link, No. 1 and, indeed, the general layout of these trails and links. [29] Nor was I persuaded that there is actual conflict with the Bushfire Code under the 2003 scheme. The announced purpose of the Code is to ensure appropriate fire mitigation measures are adopted to protect life and property from bushfires, and appropriate access arrangements for fire-fighting vehicles. The appellant’s Bushfire Management Plan provides, I am satisfied, acceptable answers to the PCs and purposes of the Code, although it does not strictly conform to every AS. As Rackemann DCJ recently observed, however, it is not legitimate to regard departure from the AS advanced in planning scheme codes as necessarily indicating non- compliance7. [30] Council alleges conflict with PCs nos. 2, 4, 10 and 12 of the Code. Numbers 2 and 14 are directed to similar outcomes – the siting of buildings and lot design and layout which minimises potential bushfire hazards. Originally, the lot layout here included allotments adjoining the northern boundary but concerns about the approach of fire from the north or northwest led to a revision which removed them. I am satisfied that the present layout and the proposed siting of buildings (seen by reference to building envelopes) sufficiently minimises potential bushfire hazards and meets PC 2. The same conclusion applies in respect of PC 14. [31] PCs 10 and 12 concern vehicular access on fire trails for fire-fighting and emergency vehicles, and evacuation. Again, I am satisfied, both from inspection and from the evidence of Mr Bottcher (and Mr Creed, who has considerable experience as a Rural Fire Fighter, and who also drove the trails) that they are adequate and that although they exceed some nominated gradients in the AS, they are not in truth too steep for safe use by emergency vehicles. [32] There was a particular focus in Council’s case upon AS 12.3, which contained an illustration purporting to show an unacceptable design for fire trails and fire breaks. The weight of evidence is persuasive, however, that the proposal does in truth provide adequate breaks between development in a way which would not obstruct fire-fighters or other emergency personnel. The overall design also shows a ring- road system with a fire break, and access for fire-fighters. On any view the AS has been, at least, substantially met; certainly, the proposal essentially satisfies the elements of the PC to which the AS relates. 7 SDW Projects v Gold Coast City Council [2007] QPELR 24 at [48] -- 7 of 8 -- 8 [33] Council also took issue with the design of the alternative access links (AAL), suggesting they were in serious conflict with the Code. However, it was common ground between the parties that these links will in fact be bitumen-sealed roads, with grades not exceeding 25 per cent – features which, the expert evidence indicated, make them perfectly satisfactory. Concerns that they might be used by residents at inappropriate times (for example, when there might be thick smoke about) did not sit either comfortably or realistically with the fire risk mitigation strategy; this strategy, accepted by all the fire-fighting experts, involves an election by residents to prepare, stay and defend, or go early. Particular criticism of AAL 1 was not cogent in light of AS 12.4.1. [34] Finally, Council’s submissions suggest that the appellant’s proposals for appropriate bushfire management depend upon the presence of a fire controller. I did not understand the evidence of the bushfire experts to compel that conclusion; rather, it established that the subdivision is to be designed, and buildings will be situated and constructed, in a way which appropriately minimises potential bushfire hazards; and, provides adequate access for both fire-fighting and other emergency vehicles, and so as to enable residents to evacuate if necessary. In accordance, then, with the express purpose of the Bushfire Code, the reconfiguration imposes appropriate fire mitigation measures, and access arrangements. [35] In light of these conclusions the appeal should be allowed. The matter will, otherwise, be adjourned to enable the parties to return with a final order incorporating appropriate conditions of approval. -- 8 of 8 --