Bruce v Caloundra City Council [2007] QPEC 46 (2007) QPELR 571

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Bruce v Caloundra City Council [2007] QPEC 046 PARTIES: ROBERT BRUCE Appellant V CALOUNDRA CITY COUNCIL Respondent FILE NO/S: Maroochydore 393/2005 DIVISION: Planning and Environment PROCEEDING: Appeal ORIGINATING COURT: Planning and Environment Court of Queensland, Maroochydore DELIVERED ON: 1 June 2007 DELIVERED AT: Brisbane HEARING DATE: 26 March 2007 (site inspection); 27 & 28 March 2007 JUDGE: Alan Wilson SC, DCJ ORDER: 1 Appeal allowed 2 Adjourn the matter for further mention on 26 June 2007 CATCHWORDS: PLANNING AND ENVIRONMENT – CONFLICT WITH TRANSITIONAL (SUPERSEDED) PLANNING SCHEME – rural residential development proposed in rural designation – nature and extent of conflict – interpretation of implementation clauses – whether there are sufficient Planning grounds to justify Integrated Planning Act 1997 Local Government (Planning and Environment) Act 1990 Cases considered: Beck v Atherton Shire Council [1991] QPLR 56 Grosser v Council of the City of Gold Coast [2002] QPELR 207 Jenkinson Pty Ltd v Caloundra City Council (2002) QPELR 527 Luke v Maroochy Shire Council & Anor [2003] QPELR 447 -- 1 of 11 -- 2 Mackay Conservation Group Inc v Mackay City Council [2006] QPELR 209 Mooloolah Commercial Pty Ltd v Caloundra City Council [2005] QPELR 648 Palyarus v Gold Coast City Council [2004] QPELR 162 Roosterland Pty Ltd v Brisbane City Council (1986) QPLR 515 Titanium Enterprises Pty Ltd v Caloundra City Council [2007] QPELR 154 Weightman v Gold Coast City Council [2003] 2 Qd R 441 Woolworths v Maryborough City Council (No 2) [2006] 1 Qd R 273 COUNSEL: S Keim SC and C Klease for appellant EJ Morzone for respondent SOLICITORS: P&E Law for appellant Heiner & Doyle, Solicitors for respondent [1] This is an appeal by Mr Bruce against a decision of the Caloundra City Council to refuse1 an application for a development permit over land at 1318 Peachester Road2 , Peachester for a material change of use (consequential amendment to a planning scheme) and reconfiguration (ie, subdivision) of one lot into six. [2] The site is a remnant of the large freehold grazing property established at the turn of last century. Portion 231, as it was then described, has at various times supported a timber mill (logging camp and bullock paddock), an unsuccessful dairy project and, since it was purchased by Mr Bruce and his wife in 1974, small scale grazing and other primary production ventures3 . Mr Bruce deposes to a number of physical characteristics of the land which make it unsuitable for more intensive, and economical, farming activities4 . [3] Since 1986 further subdivisions have resulted in the removal of three parts of the original Portion. First, three acres of the land to the South West was acquired for quarry purposes. Secondly, a rural lot of eight hectares was taken from the land (with an easement providing access to Peachester Road)5 . Finally, the hiving off of a small rural lot of 6,500 m2 was approved by Council at the entrance to the easement, on the western side. Mr Bruce has almost completed the construction of a house on this land, now described as Lot 7 on SP 103477. [4] In the current development application the appellant proposed that four rural residential blocks, between 1.051ha and 1.66ha, and an open space area of 4.959ha, be subdivided from his land, in an area designated as rural6 . The balance is 1 Decision notice dated 2 November 2005, reproduced in Exhibit 5, Report of Gary Dillon, p 44 2 More particularly described as Lot 6 on SP103477 3 Exhibit 8, Statement of Mr Robert Douglas Wallace Bruce dated 23 March 2007 4 Ibid, p2 [8] 5 Now, Lot 5 on RP 912958 6 Exhibit 5, Report of Gary Dillon, p 11, [1.13] and Attachment F, p86 -- 2 of 11 -- 3 proposed to remain a rural allotment of 46.83ha used for small scale primary production activities7 . [5] An inspection of the site and its surrounds showed it to be in an attractive, natural basin, surrounded by a buffer of trees and dense vegetation and bordered by a creek, and quite private – and, relevantly, in a situation where residential development would have little or no impact on the character, amenity, open space and scenic values of the surrounding rural area. The proposed allotments and house sites were already marked out, and their layout and design cemented this conclusion. [6] It was impossible not to be impressed during that inspection by the locale, its surrounds and the proposed subdivision; and driven, by the inspection both of the site and other rural residential areas around Peachester, towards the conclusion the proposal would provide rural residential allotments of considerable charm and amenity. The proposed subdivision already has the benefit, too, of existing underground power and phone facilities; and, is readily accessible to Peachester township via a major sealed bitumen road. The inspection also showed it is markedly different from these other rural residential subdivisions in the area, many of which were plainly the product of pretty indiscriminate clearing. It presents, in contrast, as one which thoughtfully (and with some sensitivity) preserves and enhances attractive elements of existing vegetation and pays a high level of obeisance to the preservation of the existing ecology. [7] Mr Bruce’ application was made in December 2003 under Caloundra’s former planning scheme - what the Integrated Planning Act 1997 (IPA) calls a Transitional Planning Scheme 8 . It was superseded by a new IPA-compliant scheme, Caloundra City Plan (City Plan), on 29 September 20049 . [8] The parties agree the proposal conflicts, on its face, with aspects of the superseded Planning scheme and City Plan (including parts of the Stanley River – Peachester Planning Area Code (the Code)), as well as elements of the South East Queensland Regional Plan (SEQRP), but disagree as to the level of conflict, and whether or not there are sufficient planning grounds to justify approval of the subdivision notwithstanding the conflict. [9] The appellant says the conflict should be characterised as minor, and the proposal approved on the basis that there are sufficient planning grounds to overcome that low level of conflict. Council contends the conflict is serious, offending fundamental strategic planning intentions for the Peachester region which cannot be overcome by the planning grounds asserted by the appellant. Both parties approach the interpretation of the planning instruments differently, and, in so doing, characterise the nature and extent of the alleged conflict in opposing ways. [10] This is an appeal by way of hearing anew, based on the laws and policies operative at the time the appellant’s application was made and, as the Court considers appropriate, any new laws and policies that have come into force since that time: IPA, s 4.1.52. Here, they include City Plan and the SEQRP. 7 Exhibit 8, p2 [8] 8 IPA, Chapter 6 9 The Development Application Acknowledgement Notice to the appellant is dated 23 December 2003 -- 3 of 11 -- 4 [11] The appellant accepts, sensibly, that some weight may be given to City Plan10 but reasonably submits its influence is reduced by the facts that it was not introduced until almost a year after Mr Bruce made his application; and that, when it was in draft form, he made a submission that this parcel should be zoned for rural residential purposes and his submission was refused for reasons which, as the town planner called on Council’s behalf largely agreed, were inapplicable; and which were not, in any event, compelling. The SEQRP also came into effect almost a year after Mr Bruce made his application, and does no more than mimic zone boundaries already appearing in the superseded plan, and City Plan. These circumstances dictate that the later planning documents do fall to be considered in this appeal but cannot exert much influence, or be determinative. [12] Section 6.1.29 of IPA enlivens a number of provisions of the repealed Local Government (Planning and Environment) Act 1990 (P&E Act). These provisions unpack the matters to be considered in assessing the merits of applications which, as here, were lodged when a transitional planning scheme was in operation. In particular, as the appellant’s proposal would affect what were called a rezoning11 and subdivision12 , sections 4.3(1) and 4.4(3), and, sections 5.1(1) and 5.1(3) of the P&E Act apply. [13] IPA ss 6.1.30(3)(a) and (c) call up P&E Act ss 4.4(5),4.4(5A), 5.1(6) and 5.1(6A). These provisions require13 a decision maker to refuse an application in circumstances where it conflicts with ‘any Strategic Plan or Development Control Plan’ and there are insufficient planning grounds to overwhelm the conflict. Subsections 5A and 6A are the key provisions (they are worded identically and are reproduced in s 3.5.14 IPA). Their meaning and effect have already been extensively considered in the jurisdiction. [14] In Weightman v Gold Coast City Council [2003] 2 Qd R 441, the Court of Appeal framed the process required by these provisions in three stages: first, the nature and extent of the conflict is to be determined; secondly, it is necessary to consider whether there are any planning grounds which are relevant to the part of the application which is in conflict with the Planning scheme; and thirdly, a determination is made whether those planning grounds are, on balance, sufficient to justify approving the application notwithstanding the conflict. As has elsewhere been remarked, the application of the test should not be undertaken in a way which is unduly inflexible, or rigid 14 . [15] The areas of alleged conflict with the planning documents are those which remained alive after the meeting of town planning experts, and are summarised in their joint statement 15 . Ultimately the presence of conflict, and its nature and extent, centres on two matters: first, the appellant’s land is in a rural, and not a rural residential 10 See, generally, Telstra Corporation v Caloundra [2005] QPELR 412, and Ross Nielsen Properties v Brisbane [2007] QPEC 3 (at paras [9]-[11]) 11 Consequential amendment to a Planning scheme 12 Reconfiguration of a Lot 13 Weightman v Gold Coast City Council [2003] 2 Qd R 441 per Atkinson J at [36] 14 As Fryerg J said in Woolworths v Maryborough City Council (No 2) [2006] 1 Qd R 273 at 286-287, in reference to the judgment of Atkinson J in Weightman (supra): ‘It would, however, be a mistake to treat the relevant passage in that judgment as if it were a code for the determination of justification’. 15 Exhibit 7, Experts’ Joint Statement on Town Planning Issues signed 24 October 2006 -- 4 of 11 -- 5 designation16 or precinct17 ; and, secondly, the reconfiguration contains allotments less than 40 ha, the minimum lot size in the rural zone 18 . [16] It is common ground that the appellant’s land is in an area designated rural under the superseded scheme (i.e. the preferred dominant land use (PDLU) pursuant to the Strategic Plan map is rural) and the land is four kilometres distant from the nearest rural residential designation, at Peachester Township19 . Under the City Plan Precinct Area Map the appellant’s land is, again, designated rural and continues to be separated from the rural residential precinct at Peachester20 . (In the SEQRP, the land is part of the Rural Landscape and Rural Production Area21 .) [17] The proposal is firstly said, then, to be in conflict with the Strategic Plan which forms part of the superseded scheme and, specifically, objective 7(a) for the rural residential PDLU; objectives 8(b), 8(c) and 8(d) for the rural zone; and s 2.7(1)(a) of the scheme proper, which sets out the intent of the rural zone. [18] Objective 7(a) says Council will only favour rural residential subdivisions in those areas zoned for that purpose on its Strategic Plan maps. 8(b) contains implementation criteria which announce that Council will not support any rezoning of land other than in accordance with the Strategic Plan and into allotments of less than 40 hectares. 8(c) seeks to preserve and maintain the amenity and character of rural areas by applying ‘all relevant provisions of the planning scheme’ including the ‘provisions and intent of the rural zone’. 8(d) seeks to provide for other forms of development that are complementary to, and unlikely to prejudice, rural land activities. These themes are reprised in City Plan, and SEQRP. [19] The rural residential PDLU in the superseded planning scheme states22 : The Rural Residential designation indicates areas which are generally considered suitable for the development of smaller sized rural allotments. These allotments are intended predominantly for residential purposes, but also provide for small scale rural pursuits and the maintenance of a degree of rural amenity in the designated areas. [20] The rural PDLU is in these terms 23 : The rural designation includes land which is intended to be retained in large holdings permitting only sparse settlement. The designation incorporates a range of land types including good quality agricultural land, remote areas, water supply catchment areas, areas close to extractive industry resources and other areas not suited to closer settlement. The Rural designation covers a large area of the City and, in addition to preserving good quality agricultural land, is intended to preserve the 16 Under the Transitional Planning Scheme 17 Under City Plan 18 A minimum size consistent across the Planning documents 19 Exhibit 5, p92-93 20 Ibid, p 95 21 Ibid, p 97 22 Exhibit 11, Planning Scheme Extracts, Transitional Planning Scheme, Tab 1, Strategic Plan Division 2.1, p2 23 Ibid -- 5 of 11 -- 6 existing rural amenity, particularly in the hinterland areas, and provide a contrast to the closely settled urban areas. [21] In s 2.7(1)(a) the intent of the rural zone is said to be: ‘to conserve areas of agricultural, open space and scenic significance and to facilitate a broad range of rural activities. Some non-rural uses which complement or provide a service to rural areas may be allowed.’ [22] The appellant contends that the proposal actually meets the aims of the Strategic Plan24 because the site does not involve good quality agricultural land25 ; there is an unmet community need for this kind of subdivision in this particular natural environment 26 ; and there will be, on the whole, improved conservation outcomes. He also says the Strategic Plan objectives for the rural PDLU are, in fact, satisfied by the proposal. (The joint report of the town planning experts indicates agreement that the proposal does not, in truth, compromise the desired environmental outcomes (DEOs) under City Plan27 .) For reasons which follow, I found some of these submissions persuasive. [23] The oral evidence of the respondent’s town planning expert Mr Ryter exemplified Council’s position with respect to objective 7(a) – and, indeed, the whole question of conflict. Council’s stance is largely, if not absolutely, grounded on the notion that the objective (and, again, all the relevant parts of the planning schemes touching this parcel) reflect planning principles limiting rural residential development to specific, designated areas, for reasons of efficiency and to prevent further land fragmentation. Any variance from these important principles or the way the planning schemes incorporate them must, it is then said, give rise to serious conflict. [24] While accepting that the process of designation of land as rural residential or rural (or, in fact, any other classification of preferred land uses) under the Strategic Plan was the product of careful, purposeful consideration of land use constraints and opportunities (a principle elsewhere affirmed in the Code, s 6.15.2(2)(a) and the SEQRP) the application of the scheme provisions in the way Council contends comes perilously close to an argument that they automatically create a potentially insurmountable hurdle for any proposal which strays outside them. [25] The respondent’s position, and the conflict identified by the planners, was nicely paraphrased in the appellant’s closing submission: the apparent conflict is not, in truth, with the fundamental planning objectives sought to be achieved under the planning documents but, rather, with assumptions embedded in those documents as to the usual way in which those planning objectives are to be achieved. In circumstances when, as here, the site has unique characteristics and the development proposal is attractive, thoughtful and, indeed, not unfairly described as enlightened, those embedded concerns should not be given more weight than may fairly be ascribed to them, and they should not be permitted to be categorised as absolutely determinative. The submission gains support from IPA, and its clear proscription 24 Ibid, p1 25 Exhibit 7, p4 where it was agreed between the town Planning experts that the alienation of good quality agricultural land was no longer an issue in the appeal 26 Exhibit 9, Statement of Mr Graham John King dated 23 March 2007 27 Exhibit 7, p 9 Matters of Agreement 10 -- 6 of 11 -- 7 against any element of a planning scheme that purports to prohibit development, or the use of premises28 . [26] I am not in any event persuaded that objective 7(a) (or s 6.15.2(2)(a) of the Code), properly construed in the context of the planning schemes as a whole, actually goes so far as to imply a blanket prohibition; rather, it simply reflects the general planning principle (discussed above, and affirmed in the oral evidence of both town Planning experts29 ) that rural residential development is often susceptible to being categorised, in general terms, as an unsustainable and inefficient land use, one that requires additional and complementary spatial characteristics – for example, existing electricity, telecommunications, infrastructure – along with its consolidation. [27] While the proposal does not, at first blush, conform to the usual ways in which strategic planning objectives are achieved under this transitional planning scheme, in the manner framed by the implementation clauses, s 6.1.2(3) of IPA reframes any purported prohibition under a transitional planning scheme as an expression of policy. Statements of policies of that ilk are, by their very nature, understood to be of general application. [28] Council also purports to identify specific conflicts with the implementation clauses to the nominated objectives, which it says are significant. In Mackay Conservation Group Inc v Mackay City Council [2006] QPELR 209 Robin QC, DCJ accepted that implementation clauses, as part of a Strategic Plan, are a function of the objectives therein and are to be read in context, and sensibly30 . S 1.4.8 of City Plan has a similar effect on what it terms Acceptable Solutions – they are to be read in light of the achievement of the overall outcomes. [29] This approach aligns with the intention, promulgated within IPA, to direct planning in Queensland away from highly prescriptive forms towards performance based approaches and in ways that achieve the purposes of the legislation, in particular the achievement of ecologically sustainable development (ESD). The proper approach is, therefore, to assess the performance of the proposal against the objectives of the Strategic Plan, sensibly and in the context of the intent of the rural zone, with a view to advancing the purposes of IPA. [30] Under the superseded planning scheme the minimum lot size in the rural zone is 40 ha. This is relevant to the implementation criteria to subsections of objective 8 and has been reiterated in the City Plan (in terms of an Acceptable Solution)31 and SEQRP, by the application of s 2.5A.12(2)(d). [31] Objective 8(b) is, on its face, framed to prevent the extensive fragmentation of primary producing land into uneconomic allotment sizes. Implementation criteria (a) and (b) to this objective oppose the rezoning of rural land into lot sizes less than 40ha, otherwise than in accordance with the Strategic Plan or Part 6 of the planning scheme. However, it has been conceded that the land is uneconomical primary 28 see, eg, the discussion in Luke v Maroochy Shire Council & Anor [2003] QPELR 447, at 457 29 Mr Dillon, TN p 35, ll 21-24; Mr Ryter, TN p78 30 Per Robin QC, DCJ at 237, citing with approval, Jenkinson Pty Ltd v Caloundra City Council (2002) QPELR 527 at 528 per Judge Britton SC 31 Exhibit 11, City Plan Tab7, p 6-142 Acceptable Solution S2.1 to Objective O2 under 6.15.3 Planning Area Specific Outcomes -- 7 of 11 -- 8 producing land; and, in any event, it is already fragmented or separated from the balance of the appellant’s land by physical features including dense vegetation, a riparian corridor, and an existing house 32 . [32] The reasoning of the Court in Mackay Conservation Group 33 supports the appellant’s contention that although the reconfiguration envisages lot sizes from 1ha to 1.6ha which gives rise to an apparent conflict with the implementation clauses in the context of objective 8(b), the conflict cannot necessarily (or automatically) be categorised as major, or serious. Once it is appreciated that this parcel is not a typical or important part of the rural zone; does not contain the features which categorise the land the planning scheme seeks to preserve in that zone; and, actually has elements which would make it an attractive addition to the rural residential zone, describing any conflict as serious or significant is neither logical, nor compelling. This reasoning necessarily extends to the proper characterisation of the alleged conflict with Specific Outcome 2(a)34 of City Plan. [33] The preservation of allotments of at least 40ha is also said, by Council, to be necessary for the preservation of the amenity and rurality of Peachester: features at the nucleus of Objective 8(c) and s 2.7(1)(a) of the superseded scheme and overall Outcome 2(b) of City Plan and specific Outcome 2(b) of the Code. Implementation clause (a) says the achievement of Objective 8(b) arises from the application of s 2.7(1)(a)35 . [34] Again, however, the amenity and character of the area would remain unchanged in the post approval scenario; the site is not typical of other rural parcels because it is buffered by native vegetation, providing a natural screen from the neighbouring land and Peachester Road; the proposal conforms to the rural intent because it will preserve this native buffering (in particular the riparian vegetation along the Stanley River tributary which borders the land); and, the designation of Lot 1 as open space will conserve the rural character of the region. [35] When these factors are given proper weight and amenity and rurality, as elements of the planning documents, are appraised in terms of impacts on the broader community (a utilitarian anthropocentrism36 , and the approach taken by the appellant’s town planning expert Mr Dillon), effects on things like scenic amenity and open space (which are central features of the intent of the rural zone) are seen in truth to be minimal. [36] Objective 8(d) promotes developments in the rural zone that are complementary (and not prejudicial) to existing and future rural land uses and amenity. Implementation criteria (b) says the appropriateness of a development (in form and intensity) is to be assessed in accordance with the rural PDLU and intent of rural zone. An approval for four rural residential lots, on poor quality agricultural land, in circumstances where impacts on the amenity and rurality of Peachester will not arise appears to create only faint conflict with Objective 8(d). 32 Exhibit 7, p4 (the existing house is on Lot 7, SP 103477) 33 [2006] QPELR 209, at 237 34 Exhibit 11 Tab 7, p 6-142 provides that reconfiguring a lot ‘protects the capability of rural lands for ongoing productive use’ 35 Ibid, tab 2, p 29 36 Mr Dillon, town Planning expert for the appellant, was of the opinion that town planning concepts like ‘open space’ were to be assessed in terms of their impacts on the broader community. -- 8 of 11 -- 9 [37] This analysis shows that the conflict which appears to arise because the appellant’s land is removed from the rural residential designation, and the proposal intends lot sizes less than the preferred minimum for rural areas, is in truth more apparent than real, and is fairly described as something less than serious. In other words, the specific characteristics, qualities and merits of this proposal greatly diminish the nature and extent of any conflict with the superseded planning scheme, City Plan and SEQRP. [38] It is then necessary to consider whether relevant, favourable, planning grounds overcome this lower-level conflict. I was reminded that, in Titanium Enterprises Pty Ltd v Caloundra City Council [2007] QPELR 154 assistance in interpreting what the legislature intended by the term ‘planning grounds’ was found in the definition of ‘town Planning’ – a term focussing upon ‘matters necessary or expedient to secure the improvement, orderly development, healthfulness, amenity, embellishment, convenience, conversational or commercial advancement of an area or part of it’37 . In Palyarus v Gold Coast City Council [2004] QPELR 162 it was, also, suggested the term connotes grounds which would establish positive betterment in terms of planning outcomes which would not otherwise be achievable through the existing planning scheme, and justify departure from it38 . [39] The appellant advanced several grounds said to overcome the fact the land is not in the rural residential zone, and the allotments are much smaller than the minimum set for the rural zone: first, the proposal does not alienate good quality agricultural land; secondly, it is not in the path of future urban encroachment; thirdly, it has no visual impact on the character or amenity of Peachester39 ; and, fourthly, it does not compromise City Plan DEOs40 . Council, however, categorised these grounds not as positive attributes of the proposal, but as nothing more than an absence of any planning negatives. [40] This is not an unfair criticism: outcomes that are identified within a planning scheme – directly relevant to an approvals assessment – are, normally, already achievable and do not necessarily embody the notion of positive betterment discussed in Palyaris. In isolation, this distinction between positive and negative grounds might in some cases extinguish any relevance or weight in those grounds41 but, when there are other favourable planning grounds which clearly demonstrate improved town planning outcomes, not otherwise achievable, I think it is fair to conclude that they retain a degree of marginal relevance but are not, by themselves, sufficient to overcome the level of conflict here. [41] The need for rural residential living in Peachester was offered as an additional positive planning ground favouring approval42 . Mr King, a real estate agent very familiar with the region, described the existence of a boutique market for rural residential sites like the appellant’s land. Supply for this market is, in his opinion, 37 Kentbrock Pty Ltd v Gold Coast City Council [2003] QPELR 587 per McLauchlan QC DCJ, p592 [31] 38 Titanium Enterprises Pty Ltd v Caloundra City Council [2007] QPELR 154 39 In Spondor Pty Ltd v Maroochy Shire Council [2005] QPELR 299 Robin QC DCJ determined the absence of amenity impacts on adjoining properties was a relevant Planning ground 40 Exhibit 5 pp 16, 19, & 21 41 McLauchlan QC DCJ in Kentbrock at p593, said ‘it is wrong to say an absence of amenity effects is itself a ‘positive planning ground supporting approval’.’ 42 Kotku Education & Welfare Society v Brisbane City Council [2005] QPELR 267 -- 9 of 11 -- 10 unlikely to be met in the future. The respondent contests this opinion, although it did not call any evidence to the contrary and Mr King was a persuasive witness. [42] In Mooloolah Commercial Pty Ltd v Caloundra City Council [2005] QPELR 648 Robertson DCJ referred to Roosterland Pty Ltd v Brisbane City Council (1986) QPLR 515 where need, in the planning sense, was said to relate to the ‘general wellbeing of the community’. That is not a conclusion which springs, however, from Mr King’s evidence, which went no further than to suggest a need to supply a commercially robust market. Alone, that is not a factor which can readily be seen to translate into a planning need in the requisite sense43 . [43] There are, as previously suggested, other relevant planning grounds which do avail the appellant. The availability of electricity and telecommunications infrastructure, an access easement, water storage, and the site’s close proximity to Peachester and Beerwah townships (on a sealed bitumen road) are accepted by both parties as positive. Issues of efficiency must be relevant to general concerns about isolated, rural residential developments which are reflected in the planning schemes. Service infrastructure requires initial and ongoing capital investment over the long term but, here, the benefit of the services is already being enjoyed by the residents of Lot 7, and by the appellant himself. It makes sense that the presence of the necessary infrastructure is a ‘positive betterment’. [44] Both parties also accept that conservation of existing native vegetation on the site as a positive planning ground. The appellant goes further, submitting the proposal is the most effective means of preserving the ecological qualities of the site. Council’s planning witness, Mr Ryter, properly accepted that good environmental outcomes are an important part of the balancing exercise. Here, conditions attached to any approval which ensure conservation can secure the high level of existing qualities on this site. The relevance and importance of good environmental outcomes has been acknowledged in the jurisdiction: in Mackay Conservation Group Robin QC DCJ suggested, albeit obiter, that in comparison to a ‘do nothing’ scenario improved environmental outcomes would be significant in this balancing exercise. The proposition is, with respect, entirely logical in terms of general planning principles – and, apposite here. [45] It is not inappropriate to describe this development as unusual and, indeed, exceptional. As a rural residential development it has, I am persuaded, significant advantages and benefits in terms of ecological, social and economic outcomes (the three, integrated, themes of ESD under IPA) that constitute relevant, favourable and strong planning grounds and justify its approval, notwithstanding it does, on its face, involve a degree of conflict with the superseded planning scheme, City Plan and SEQRP. [46] That conclusion arises because, in summary, the conflict is of a kind that is primarily referrable to planning scheme provisions encapsulating general, modern town planning principles restricting the spread of rural residential development. These principles, which touch questions of efficiency, preservation of good quality agricultural land, and land fragmentation are reinforced in the various implementation clauses to the superseded Plan, and acceptable solutions under City Plan and are important; but, the circumstances of this case are of a kind where the 43 In Spondor (supra) Robin QC DCJ discussed the notion of ‘genuine community need’ at [58] -- 10 of 11 -- 11 overall proposal does not prejudice them, or other outcomes contained within the superseded, and current planning instruments; and, there are unusual, but relevant and compelling planning grounds which overcome that perceived conflict. [47] For these reasons, I will allow the appeal; and, adjourn the matter for further consideration once the parties have settled appropriate terms and conditions of approval. -- 11 of 11 --