Buderim Developments Pty Ltd v Maroochy Shire Council & Ors [2008] QPEC 1

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Buderim Developments Pty Ltd v Maroochy Shire Council & Ors [2008] QPEC 001 PARTIES: BUDERIM DEVELOPMENTS PTY LTD Appellant v MAROOCHY SHIRE COUNCIL Respondent and CHIEF EXECUTIVE, DEPARTMENT OF NATURAL RESOURCES AND WATER First Co-Respondent by Election and CHIEF EXECUTIVE, DEPARTMENT OF MAIN ROADS Second Co-Respondent by Election FILE NO: 128 of 2007 DIVISION: Planning and Environment PROCEEDING: Appeal ORIGINATING COURT: Planning and Environment Court DELIVERED ON: 31 January 2008 DELIVERED AT: Maroochydore HEARING DATE: 19, 20 and 21 November 2007 JUDGE: Judge K.S. Dodds DCJ ORDER: The appeal is dismissed CATCHWORDS: PLANNING – PLANNING LAW – Development Application – urban reconfiguration – conflict with Planning Scheme – whether sufficient grounds to justify approval despite conflict Integrated Planning Act 1997 (Qld) s 3.5.14 -- 1 of 12 -- 2 Case cited: Weightman v Gold Coast City Council [2002] QCA 234 COUNSEL: S Ure for the appellant T Trotter for the respondent No appearance for the first co-respondent No appearance for the second co-respondent SOLICITORS: IPA Law Planning Lawyers for the appellant Maroochy Shire Council Legal Services for the respondent No appearance for the first co-respondent No appearance for the second co-respondent [1] This was an appeal against a refusal of part of an application with respect to certain land and against some conditions imposed on approval of another part of the application with respect to other land. The application with respect to the two parcels of land was integrated. [2] I was informed by counsel that in all likelihood agreement would be reached about the disputed conditions. I was asked to put this aspect of the appeal to one side for the moment. [3] The appellant had sought development permits: ƒ For Reconfiguring A Lot (Urban Boundary Realignment), preliminary approval for a Material Change of Use of premises overriding the Planning Scheme (Local Centre Medium Density Residential Precinct) and preliminary approval for Operational Work (Excavation, Extraction or Filling) for land on the corner of Meads Road and Crosby Hill Road, Tanawah Lots 1 and 7 on RP817448 Parish Mooloola, County Canning. Specifically the development included a 700m² gross floor area (GFA) local centre, child care centre for 74 children, multiple unit dwellings at a density of dwelling unit factor (DUF) 160, to realign the boundaries to create one detached house block and a lot to contain the local centre, childcare centre and multiple dwelling units. The balance of Lots 1 and 7 (about 3.76 hectares) was to be dedicated to the respondent as open space reserve. This was flood-prone land. This application was approved with conditions: ƒ For material Change of Use (Residential Development) and for Reconfiguring a Lot (Major Urban Subdivision – 75 lots) (it was in fact 74 lots), for land on the corner of Taylors Road and Crosby Hill Road, Tanawah (Lot 3 on RP151554 Parish Mooloola, County Canning). -- 2 of 12 -- 3 [4] This application was refused. [5] Lot 1 on RP817448 contains 5.26 hectares. Lot 7 0.5547 hectares. Both are quite heavily vegetated except for a cleared area abutting Meads Road in the centre of their combined area. A considerable portion thereof is floodplain. [6] Lot 3 contains 8.19 hectares. It has frontage to two roads, Crosby Hill Road and Taylors Road. There is a small lot with a dwelling Lot 4 RP151554, on the corner of Crosby Hill Road and Taylors Road. The appellant has now acquired it. Currently there is a dwelling and a dog kennel upon Lot 3. A creek traverses the lot west to east roughly in its centre. A dam has been constructed across it in the past, probably in support of some past agricultural use. Much of it is cleared except for that part fringing the creek and a small area of forest on the north western portion of it. This vegetation and that of the creek consists of native species interspersed with pest species. [7] A redesign of the proposed reconfiguration for Lot 3 has reduced the number of lots to 70. A 17 metre vegetated buffer and acoustic fencing is proposed along the Crosby Hill Road frontage. These may be regarded as a minor change for the purpose of Section 4.1.52 of the Integrated Planning Act 1997 (IPA). The lots vary in size between 600m² and 1244m² average size 641m². Generally the lots lie at the smaller end of the standard residential range. 2.76 hectares of Lot 3 comprising the creek through the lot and the 10 metre buffer on each side of it is proposed to go into public ownership. [8] Crosby Hill Road in the vicinity of the land may be regarded a travelling north/south. It is east of the Bruce Highway. Travelling north it descends from its junction with Tanawha Tourist Drive traverses virtually flat low lying land which in part consists of Lots 1, 7 and 3 and then climbs the south western escarpment of the Buderim Plateau to Buderim. Lots 1 and 7 are on its eastern side. Lot 3 is on its western side. Meads Road and Taylors Road form T junctions with Crosby Hill Road almost directly opposite each other (there is a slight offset with the Taylors Road junction slightly to the north). [9] The respondent’s refusal of the proposal for Lot 3 was based on town planning grounds. What had been sought was a standard urban subdivision. The respondent’s reasons were non-compliance with: ƒ Desired Environmental Outcome (DEO) 1, DEO 6 and DEO 7; ƒ The Strategic Plan; ƒ The Mons South (Sustainable Rural Residential) precinct intent and acceptable uses; ƒ Element 2 Performance Criteria 1 of the Code for Development of Detached Houses and Display Homes; -- 3 of 12 -- 4 ƒ Element 5.1 Lot layout and Design Performance Criteria 3 and 5 of the Code for Reconfiguring Lots for Residential purposes; ƒ The proposal could not be conditioned to comply. [10] Further reasons for refusal were provided in due course. They included non- compliance with the provisions of Planning Area Number 20 Mountain Creek Valley; unacceptable traffic impacts; non compliance with the Code for Traffic Impact and Access Management; unacceptable amenity impacts including unacceptable visual amenity impacts. [11] The parties provided the court with evidence from suitably qualified experts in town planning, traffic engineering, landscaping and visual impact and the environmental values of the land. [12] Regarding the ecological significance of vegetation on Lot 3, Dr Michael Olsen gave evidence for the respondent, Ms Duke for the appellant. Dr Olsen considered that the density of development proposed on Lot 3 would result in permanent loss to areas of native vegetation Of Concern Regional Ecosystem 12.3.2 and have a chronic negative environmental impact upon the retained vegetation along the waterway and its habitat for fauna. [13] Ms Duke did not agree. In her view there was no Of Concern Regional Ecosystem 12.3.2 native vegetation on Lot 3. The native vegetation there did not meet the required criteria. She considered the plan for the retention of the vegetation along the waterway with the buffers proposed and its enhancement, sensitive to its environmental values, would not adversely impact on habitat value for fauna. [14] Traffic engineering evidence was given by Mr Camilleri for the appellant and Mr Holland for the respondent. The only matter of contention was regarding access from five of the proposed lots on Lot 3 directly onto Taylors Road. Mr Camilleri considered this acceptable. Traffic calming solutions could be conditioned if thought necessary. Mr Holland considered it unacceptable, suggesting some reconfiguration of lots so that this did not occur. Because of the nature of Taylors Road it was inadvisable to introduce traffic calming into the short stretch of the road with frontage to Lot 3 even though it was at the Crosby Hill Road intersection end of the road. It was agreed that the development proposed would introduce about 700 vehicle movements per day to Taylors Road whereas existing traffic was about 100 vehicle movement per day. [15] Mr Burrell had designed solid acoustic fencing and vegetation planting along the Crosby Hill Road frontage of Lot 3 designed to conceal the urban development and create a vegetated vista to the traveller on Crosby Hill Road. I accept the evidence of Mr Burrell. It is probable that eventually, once what he proposed was established, the development would be largely concealed from Crosby Hill Road. -- 4 of 12 -- 5 [16] Town planning evidence was given by Mr Ryter and Mr Buckley. They agreed the proposal for Lot 3 was in conflict with the Planning Scheme. They disagreed about whether there were planning grounds sufficient to justify approval despite the conflict. Strategic Plan [17] In the Strategic Plan of the respondent’s Planning Scheme (MP2000), Lot 3 is within the agricultural protection designation and within the permissible area for rural residential. The respondent does not contend the land will be used for agricultural purposes so that may be put aside. The permissible area for rural residential “provides the opportunity of rural residential living where it is considered such use of land is appropriate, given the locations of substantial urban areas, the existing rural residential development and the topographical characteristics of the land”.1 “Considerable emphasis has been given to consolidation and containment of the existing urban form and structure as shown on the Strategic Plan Map. Particular weight has been placed upon the containment of the creation of rural residential lots---”.2 Rural residential land may be subdivided into lots with a minimum area of 6000m² with an average lot size of 8000m². [18] Lots 1 and 7 are located within the urban designation in the strategic plan. The demarcation between this designation and the agricultural protection designation is Crosby Hill Road. The Planning Areas [19] Lot 3 is in Planning Area 20 Mountain Creek Valley, Precinct 3 Mons South (Rural Residential). In the area where the lots under discussion are, Crosby Hill Road divides this Planning Area from Planning Area 3 Sippy Downs, Precinct 5 Stringybark Road West (Master Planned Community). [20] The location and role of Planning Area 20 includes “This Planning Area includes the rural and rural residential areas within the catchment area of Mountain Creek in the southern part of the Shire--- The area has a fragmented landscape containing large forest remnants, including rainforest vegetation and blackbutt associations which serve as a broad corridor for fauna moving between the Blackall Range areas in the adjoining Caloundra City and the Mooloolah River National Park further to the east”.3 The vision statement indicates an intention the Planning Area “maintain a predominantly rural landscape at a major southern gateway to the Shire, accommodating areas of rural activities and natural vegetation and providing a distinctive break between the urban areas of Buderim and Sippy Downs”, to be achieved by inter alia: “(a) the continued use of land for rural activities; 1 MP2000 Volume 2, Paragraph 3.4.2. 2 Paragraph 3.5.1. 3 Paragraph 3.20.1. -- 5 of 12 -- 6 (b) preventing urban development from encroaching into the Planning Area ; --- (d) retaining and enhancing areas of remnant native vegetation; (e) limiting rural residential development to suitably located pockets of land east of the Highway (the Bruce Highway)”.4 [21] Key character elements of the Planning Area include: “Rural Landscapes (b) Areas of rural residential development, general rural activities and naturally forested land which separate the urban areas of Buderim and Sippy Downs are to be maintained to the east of the Bruce Highway. --- Settlement Pattern (a) East of the Highway further rural residential development should be sensitive to and in keeping with the locality’s high natural environmental values, particularly the dense lush vegetation and steep topography; (b) Development for urban purposes is not intended to encroach into the Planning Area.” Precinct 3 [22] Precinct 3 is described as containing “mostly elevated and undulating lands with a significant mosaic of remnant forest and pockets of rural residential development and several regional tourist attractions (Tanawha). The precinct contains significant if somewhat fragmented areas of remnant forest ---. The preservation and longer term rehabilitation of this vegetation mosaic would strengthen the corridor linkage between the Blackall Range, areas to the south in the adjoining Caloundra City and Mooloolah River National Park to the east. The area’s vegetation forms an important part of the southern gateway to the Shire and contributes to the densely vegetated southern backdrop from the Buderim Plateau to the Bruce Highway”. 4 Paragraph 3.20.2. -- 6 of 12 -- 7 [23] The intent of Precinct 3 is for further development “for rural residential purposes with significant areas of remnant vegetation retained as much as possible, particularly along waterways and ridgelines--- It is intended to allow for opportunities to consolidate tourist attractions at Tanawha to be realised where they can prove to be compatible with a rural/residential setting, do not require urban services and infrastructure, have proper regard to the area’s natural environmental values and are unlikely to cause environmental harm or nuisance”. [24] Preferred and acceptable uses in the precinct, not surprisingly, do not include urban subdivision, rather are those uses referred to in the Table of Development Assessment for the Rural Residential precinct class and additionally, where appropriately sited and maintained, Bed and Breakfast, Caravan Park and Outdoor Recreation “may also be considered consistent with the desired character of this precinct”. Planning Area 3 Sippy Downs [25] In contrast Lots 1 and 7 are located within Planning Area 3 Sippy Downs, Precinct 5 Stringybark Road West (Master Planned Community). The intent of this Planning Area is “to provide for the ongoing development of the university in conjunction with a new Major Activity Centre for the Sunshine Coast and surrounding residential communities. It is also intended to recognise and provide for the protection of the significant environmental values of the Mooloolah River National Park”.5 In Precinct 5 standard residential uses and residential support uses are plainly contemplated e.g. detached houses, display home, multiple dwelling units, dual occupancy, home based business, educational establishment, primary school, together with fast food store, medical centre, shop, all in a local convenience centre. Desired Environmental Outcomes [26] DEO 1 is concerned with protection and management of the Shire’s “unique natural open space, climatic, rural and scenic attributes to maintain biodiversity, ecological processes and visually attractive and varied landscapes---” including “the variety of ecosystems and the species they support being maintained and enhanced. Strategic Implementation Measures include: “(b) manage critical nature conservation areas, waterways and wetlands to maintain and where necessary restore environmental values; --- (e) limit uses in rural scenic and natural areas to low intensity generally non urban, activities to be consistent with the environmental capacities of such areas”. 5 Paragraph 3.2.1. -- 7 of 12 -- 8 [27] There was disagreement between Dr Olsen and Ms Duke about the value in an ecological sense of the appellant’s proposal to protect existing native vegetation in and abutting the waterway running through Lot 3. Dr Olsen considered the reconfiguration of the open space other than the relatively narrow strip of vegetation comprising the waterway and the proposed buffers represented a choking up of the potential fauna corridor which would have a significant impact. He considered the proposed buffers to be insufficient. Ms Duke considered the forested land to the north of Taylors Road of more ecological significance than Lot 3 which was largely cleared except for the strip of vegetation referred to. Both views, I think, have some validity. [28] DEO 6 is concerned with achieving a “high quality built environment characterised by premises which ‘inter alia’ are consistent with local desired character --- respect the natural environmental characteristics and capacities of the locality in which they are situated”. [29] Regarding this it may be observed that the proposal which is for a 70 Lot urban subdivision is not consistent with the desired character for the land reflected in the planning intent for the Planning Area and Precinct. The conflicting views of the flora experts bear upon whether the proposal respects the natural environmental characteristics and capacities of the locality. On the one hand the existing vegetation on the creek with 10 metre buffers is to be retained, enhanced and put into public ownership. On the other hand, apart from that vegetation and the small forested area in the north west of the Lot the land is to be developed into 70 standard urban lots. [30] DEO 7 is concerned with achieving “orderly and sequenced development which allows for the efficient, affordable and environmentally acceptable provision (and ongoing maintenance) of engineering infrastructure by service providers in a way which ensures the sustainable use of the Shire’s water and other resources-” To the extent that what is proposed is plainly not intended by the provisions of MP2000 it is out of sequence development which no doubt to an extent impacts upon the respondent’s forward planning even though sewer and water infrastructure exists in the Rainforest Sanctuary urban development to the east of Crosby Hill Road and potentially is capable of servicing the proposal. Code for the Development of Detached Houses and Display Homes [31] The objective of Element 2 is to provide housing at a density consistent with the desired residential character and environmental values of the locality. Performance Criteria 1 is “The density of detached houses is consistent with the Planning Area and precinct intent in which the site is located”. There is plainly inconsistency. Code of Reconfiguring Lots for Residential Purposes [32] Element 5.1 Lot Layout and Design is to provide a range and mix of lot sizes to suit a variety of dwelling and household types with areas, shapes and dimensions that inter alia “take into consideration the environmental values of the site---“. -- 8 of 12 -- 9 [33] Performance Criteria 3 provides inter alia that “lots must have an area dimension and shape that clearly demonstrates protection of natural --- features from any possible adverse impacts”. Performance Criteria 5 provides “Higher residential densities in areas adjacent to parks, public transport routes, in and adjacent to centres and within close proximity to educational facilities must be achieved without compromising the environmental values of the site or the existing or intended residential character of the area”. Putting to one side the disagreement of the flora experts the proposal conflicts with the “existing or intended residential character of the area”. Conflict [34] The various parts of the Planning Scheme which I have set out plainly indicate that what is proposed on Lot 3 conflicts with the Planning Scheme. For impact assessable development (the Lot 3 proposal) the assessment manager and this court’s decision must not: “(a) compromise the achievement of the desired environmental outcomes for the Planning Scheme area; (b) conflict with the Planning Scheme unless there are sufficient grounds to justify the decision despite the conflict”.6 Faced with the clear conflict the appellant advanced various reasons why the proposal nonetheless should be approved. Local Growth Management Strategy (LGMS) [35] During preparation of the appeal it emerged that the respondent has prepared a LGMS a requirement of the South East Queensland Regional Plan (SEQRP). It came into existence after the application was made. It has not yet been publicly notified. Accordingly, I place little weight upon it. It is sufficient perhaps to observe that as it considers MP2000 and the future it does not alter the relevant planning intent in MP2000. It indicates MP2000 in its present form provides sufficient dwelling capacity “to exceed the overall indicative target of 41,000 new dwellings to 2026” and “The rural residential precincts of Tanawha/Mons maintain the current character---Although within the Urban Footprint the Tanawha/Mons rural residential area---is unsuitable for urban redevelopment--”. There appears no planning need for the 70 urban lots proposed. The Appellant’s Reasons for Approval ƒ Three uses indicated as acceptable in the precinct, Bed and Breakfast, Caravan Park, Outdoor Recreation, are not generally included in other rural residential precincts. This tended to distinguish this rural 6 Integrated Planning Act 1994 section 3.5.14. -- 9 of 12 -- 10 residential precinct from others and lend support to the urban subdivision proposed. ƒ There already existed a large church development on the corner of Crosby Hill Road and Tanawha Tourist Drive, a large plant nursery on the low lying flat part of Crosby Hill Road and a couple of houses, all on the western side of Crosby Hill Road to the south of Lot 3. The church development included a large area of lane-marked bitumen surfaced parking and traffic areas. These detracted from the rural appearance and tended to an urban appearance. ƒ Both Lot 3 (and Lots 1 and 7) were within the urban footprint designation of the SEQRP which provided “The urban footprint includes some areas designated or already developed for rural residential purposes that are well located with respect to urban services and facilities. Local Government is required to review these areas in order to identify potential opportunities to develop or redevelop some of these areas for urban purposes”; ƒ The Lot 3 proposal achieves consolidation of urban residential development that is consistent with the urban objectives of the strategic plan. Implementation Criteria 2 of Objective 3.5.1 (to develop upon and consolidate existing residential areas) of the Strategic Plan provided “Council is prepared to negotiate development parameters on innovative forms of urban development which may contribute towards this objective even where such development may not satisfy all Planning Scheme requirements”. Rainforest Sanctuary an urban subdivision in Planning Area 3 Sippy Downs was but a short distance to the east of Crosby Hill Road and a hundred metres or so to the north of the Meads Road Taylors Road Junction with Crosby Hill Road. ƒ Urban infrastructure including reticulated water, sewerage, electricity, telecommunications exist in Rainforest Sanctuary and are potentially available to Lot 3. ƒ Rural residential development is an inefficient use of land. ƒ Lot 3 is relatively close to commercial and community infrastructure such as schools, shops, churches and the Sunshine Coast University. These are available for instance in Planning Area 3 Sippy Downs. ƒ The proposal would result in dedication of significant vegetation into public ownership ensuring its preservation and the appellant will contribute to its enhancement. In practical terms all remaining vegetation on Lot 3 (abutting the creek and in the north west corner) will be retained and enhanced consistent with the intent of Precinct 3. -- 10 of 12 -- 11 ƒ The appellant will dedicate land for road purposes to link Meads Road to Rainforest Sanctuary, an important link in the respondent’s future road network and will contribute to construction. ƒ The appellant will dedicate land at the corner of Taylors Road and Crosby Hill Road to facilitate construction of a roundabout and will fund the construction of the roundabout. Decision [36] Preparation of the LGMS was a response to SEQRP. As well as the passage thereof relied upon by the appellant, SEQRP provided that the urban footprint includes “greenfield areas potentially suitable for future urban development”--- “Inclusion of land in the urban Footprint does not imply that all such lands can be developed for urban purposes. The Urban Footprint includes some land not available or appropriate to develop--- Land in the urban footprint may--- be unsuitable for urban development for a range of more local reasons including constraints such as flooding, landscape, scenic amenity and protection of biodiversity values of state, regional or local significance. Local Government Planning Schemes and detailed local structure plans will be the principal instrument for establishing the desired use of land and the preferred timing of development within the Urban Footprint---”. [37] There is no planning or community need demonstrated for the reconfiguration proposed on Lot 3. [38] The traffic engineering evidence I regard as largely neutral in favour of the proposal. In terms of concern about access to Taylors Road and more particularly in terms of the increased traffic movement on Taylors Road it does no more than show that the proposed development would not face any major traffic engineering impediment. [39] The proposed vegetation planting along the Crosby Hill Road frontage whilst ultimately resulting in a vegetation vista is necessary, at least in part, to block out the solid acoustic fence which in turn is required because of the proposed urban development. [40] It is true Lot 3 is located handy to urban services which is a positive factor in urban planning. However the Planning Scheme both at a broad strategic level and a planning area precinct level makes a clear distinction between the land on the western side of Crosby Hill Road and that on the eastern side. [41] The proffered contributions of money and land for public purposes and for traffic infrastructure are positive matters. Some of these (those related to development to the eastern side of Crosby Hill Road) may be appropriate in any event to the approved development of Lots 1 and 7. -- 11 of 12 -- 12 [42] The respondent’s traffic planning envisages an upgrade of Crosby Hill Road and extension of Meads Road from Crosby Hill Road though to the urban development to the east in Planning Area 3. Presently Meads Road which is not constructed and the road reserve do not extend to the Rainforest Sanctuary Drive road reserve which connects to Stringybark Road. The appellant’s proposal including dedication of land and to the cost of construction is a positive matter but benefits and is related to the development on the eastern side of Crosby Hill Road as much as if not more than the western side. [43] The dedication of forested land into public ownership is a positive matter. [44] In Weightman v Gold Coast City Council [2002] QCA 234 the process to be undertaken in considering whether sufficient planning grounds exist to justify development was set out. The nature and extent of the conflict must firstly be identified. It must be determined whether there are any planning grounds relevant to that part of the application which is in conflict and if the conflict can be justified on those grounds. Finally it must be determined whether the planning grounds in favour of the application as a whole are, on balance, sufficient to justify approving the application despite the conflict. [45] The nature and extent of the conflict with the Planning Scheme emerges in what I have set out above. There is a plain conflict with the intent to protect Planning Area 20 and in particular Precinct 3 from urban development. [46] What must be justified here is this plain conflict with the planning intent in MP2000 for the Lot 3 land. Of the various matters advanced as sufficient to justify approval, a number are neutral rather than positively supportive of what is proposed. The dedication of the waterway and the vegetated buffer land in Lot 3 into public ownership and its enhancement as native vegetation is positive. The other side of that is the creation of 70 urban allotments on what is presently open space, albeit cleared, land. The dedication of land for road purposes to link Meads Road to Rainforest Sanctuary and dedication of land for and construction of a roundabout at the Taylors Road, Meads Road, Crosby Hill Road junction are positive. But something of the former may be reasonably required by the approved development on the eastern side of Crosby Hill Road and the latter is arguably made at least desirable at this time by the increase in traffic from the proposed development on Lot 3. The evidence does not demonstrate any planning need for a seventy lot urban subdivision on Lot 3. [47] When all matters are considered I do not think the appellant has shown the proposal should be approved in the face of the conflict with the provisions of the Planning Scheme. [48] The appeal in so far as it relates to the respondent’s refusal of reconfiguration of Lot 3 will be dismissed. -- 12 of 12 --