Davies v Pine Rivers Shire Council & Anor [2006] QPEC 99

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Davies v Pine Rivers Shire Council & Anor [2006] QPEC 099 PARTIES: DARYL DAVIES Appellant V PINE RIVERS SHIRE COUNCIL Respondent And JON BAUMANN & ASSOCIATES Co-respondent FILE NO/S: BD 3160/2004 DIVISION: Planning and Environment PROCEEDING: Appeal ORIGINATING COURT: Planning and Environment Court of Queensland, at Brisbane DELIVERED ON: 28 September 2006 DELIVERED AT: Brisbane HEARING DATE: 18, 19, 20, 21 and 24 July 2006 JUDGE: Alan Wilson SC, DCJ ORDER: 1 Appeal refused 2 Matter adjourned for further mention at 9.15am on 27 October 2006 CATCHWORDS: PLANNING AND ENVIRONMENT – PLANNING LAW – whether development application for reconfiguration and material change of use in conflict with planning scheme or Development Control Plan – need – reasonable expectations – amenity issues Integrated Planning Act 1997 Local Government (Planning and Environment) Act 1990 COUNSEL: S Keliher for the appellant A N S Skoien for the respondent -- 1 of 5 -- 2 R S Litster and W G Everson for the co-respondent SOLICITORS: Hemming and Hart for the appellant Deacons for the respondent Crowley Greenhalgh for the co-respondent [1] This unusual proceeding began life as an appeal by a submitter against Council’s approval of a development application for a material change of use (MCU) and subdivision (or reconfiguration of lots – ROL) 1 into 20 allotments of old dairy farming land at Mt Mee Road, Ocean View. Following an earlier appeal against that decision (4277/2002) which was allowed on a limited basis in January 2004, the application was re-advertised and, by the time this appeal commenced, the ROL had changed to 17 lots and a large park dedication. Then, during the hearing, the co- respondent developer applied for a further change so that the ROL would be limited to 6 residential allotments along Townsend and Oceanview Roads, a similar park dedication, and the retention of the balance area in one lot. The MCU was not altered and, if allowed, would apply to the entire parcel. [2] In the course of these events, Council twice changed its position. Having originally approved a larger subdivision it advised, after this appeal began, that it would not after all be supporting approval and proceeded to call a number of expert witnesses adverse to the development. Then, when the co-respondent sought to greatly reduce the scale of the ROL during the hearing, Council’s position changed again and, ultimately, it supported the new proposal. [3] The appellant continues to oppose the ROL even on its new, limited scale and the MCU which is still sought, of course, over the whole parcel. The appellant’s alternative position is that, even if both are granted, the MCU should not extend beyond the 6 new allotments. [4] The land contains about 60ha and is described as Lot 20 on RP 899977. Its only present improvements are an old house, and a dam. Inspection (and a tramp across part of the land) showed it to be roughly rectangular, at the head of a valley facing approximately south and bordered at its rim by Mt Mee Road on the west, Townsend Road to the north, and Ocean View Road to the east. The latter has some existing rural residential subdivisions and development on its eastern side, and at its southern end. The country slopes down into a gully which has its head at Townsend Road. It is steep in parts with, at its higher reaches, excellent and attractive views across Dayboro Valley. The lower part contains the headwaters of Terrors Creek. [5] In its final form the amended ROL application involves the 6 lots (and park area of 6.4ha) planned to abut Townsend and Ocean View Roads, ie lots 12-17 on the plan which is Exhibit 15 which range in size between 2.61 and 3.62ha and run along the ridge line occupied by those roads. As the contour lines on that exhibit show, each slopes down into the gully, sometimes quite steeply but each also has a flat area at 1 Applying the approach mandated by the Integrated Planning Act 1997, ss 6.1.29 and 6.1.30, the application was in the character of a ‘combined application’ (the language used in the superseded legislation – the Local Government (Planning and Environment) Act 1990 , s 4.11) involving an application to rezone under the latter Act - s 4.3 - and to subdivide – s 5.1. -- 2 of 5 -- 3 its top near the roads and that is the logical and likely place for houses to be placed to capture views, and breezes. [6] The issues maintained by the appellant in final submissions are alleged conflict with the planning instruments; slope; effluent disposal; visual amenity; reasonable expectation; and need. [7] The Council has a ‘transitional’ planning scheme, under which this parcel is included in the Rural zone. That designation generally applies to land to the south and southwest of the property. Other nearby land to the north and west adjoining Townsend, Mt Mee and Evans Roads is in the Future Rural Living zone, while land to the east of Ocean View and James Roads lies generally in the Rural Residential zone. [8] The presence of a transitional scheme means the applications were to be dealt with pursuant to ss 6.1.29 and 6.1.30 of the Integrated Planning Act 1997 (IPA), which direct consideration of ss 4.4(3) –(5A) and 5.1(3) – (6A) of the Local Government (Planning and Environment) Act 1990 (PEA). The latter, relevantly, compel refusal if there is conflict with the transitional Strategic Plan or, in this instance, a Development Control Plan for the area (DCP 5) unless there are sufficient planning grounds to justify approval despite that conflict. The PEA also requires that, in this Court, the co-respondent developer bears the onus of proving the appeal should not carry: s 4.1.50. [9] The statement of intent for land designated Rural in the DCP says: Rural – This designation indicates those areas that are constrained to some extent by one or a combination of slope, septic suitability, flooding or lake buffer factors, and which are generally suitable for inclusion in the Rural Zone only. Nevertheless certain limited areas may be suitable for inclusion in the Rural Residential Zone where it can be adequately demonstrated to Council’s satisfaction that such areas do not contain any of the above constraints (emphasis added) [10] The DCP sets out six objectives for Rural land, of which four are pertinent here: Objectives A and F, which protect Lake Samsonvale from pollution and seek to preserve the natural appearance and landscape character in its catchment; D, which requires that all new development is adequately served with roads, drainage and liquid waste disposal; and B, which looks to maintain rural amenity: To prevent the further subdivision for any residential purpose of land designated as Rural on the Development Control Plan except in accordance with the provisions of Council’s Subdivision of Land By-Law where the land is unconstrained by criteria listed in Rural Residential Objectives A and B. [11] Rural Residential Objective B relevantly provides: To allocate land for Rural Residential Development which is unconstrained by slope and flooding. [12] One particular implementation provision of that Objective provides that, where the DCP designates all or part of an allotment as Rural Residential, each proposed new lot must contain an area of not less than 10,000m2 which is unconstrained by slopes of more than 20%. The developer contended the provision did not apply because no part of this land is presently designated Rural Residential. -- 3 of 5 -- 4 [13] Those constraints are plainly directed towards ensuring the suitability of Rural land for Rural Residential development and there is no sensible basis for reading the former in a way which excludes them. As Mr Skoien (for Council) submitted, and I accept, Rural Objective B simply refers to, and applies, constraints listed in Rural Residential Objective B to land designated Rural. The intended, and indeed the literal meaning, must be that the constraints in the latter apply to particular parcels of Rural Residential land, and Rural Objective B also applies those constraints to land designated Rural. [14] The ROL lots cannot meet these criteria but the conflict with them is not of a high order, and there are planning grounds which overcome them. The evidence of Dr Johnson and Mr Virtue was persuasive that the lots can be safely and effectively serviced by alternative means of effluent disposal. The requirement for a large area of relatively flat land in each parcel is a very conservative mechanism to ensure homes are not built on sites which are unsuitable by reason of slope instability, problems with effluent disposal or the potential to affront visual amenity. Each of these lots has an ample area for construction of dwellings on their upper reaches, and the other constraints are not germane. [15] The planning grounds which surmount this relatively minor level of conflict include, as the experienced town planners Mr Brown and Mr Priddle agreed, the fact that development of this land for rural residential purposes is a logical extension of the pattern of development in this area, and is consonant with what is likely to occur in the future. Second, the land is plainly of little use under its present designation and might be said to be on the cusp of sterility. Third, it is in a desirable location where homes will enjoy attractive views, and be complementary to similar development around them. Finally, development can be undertaken subject to conditions which meet Council’s general guidelines for subdivision on a shire-wide basis, and with the benefit of careful and detailed, site-specific and multi- disciplinary analyses of the land and each of the proposed parcels. As that evidence showed, each of the six sites is plainly appropriate for rural residential purposes. [16] The appellant claimed infringement of other Objectives but I was unpersuaded any conflict was made out. In particular, the evidence of Messrs McGowan and Hassal, and inspection (and a traverse) of the site confirmed there will be no significant detrimental impact on visual amenity including, as Objective E mentions, ‘…the natural appearance and landscape character of the Lake Samsonvale Catchment Area’. [17] Need is an issue which only touches the MCU component of the application2 and the relevant legislation only incorporates it to the extent it is relevant. The planning scheme does not impose need as a material consideration for Rural Residential subdivision. In any event, the evidence of Ms Bonwick was persuasive there is need for land of the kind proposed, at least in the traditional sense of an apparent market; and that these parcels will increase choice. Inspection certainly suggested their location and outlook are desirable. [18] The appellant Mr Davies has subdivided land in the vicinity and he was more sceptical about the level of need. He controls, however, other parcels amenable to 2 Integrated Planning Act 1997, s 6.1.30; Local Government (Planning and Environment) Act 1990, s 4.4(3) -- 4 of 5 -- 5 subdivision for similar purposes and his evidence while plainly frank and entirely honest was based very much on his own perspective. [19] Mr Florance, a neighbour on the opposite side of Townsend Road gave evidence of his surprise that subdivision might be possible. A full comprehension of all the ramifications and possibilities of modern planning schemes is never, as this discussion already illustrates, a simple matter and these views of local residents with an interest in their neighbourhoods must be heard. At the same time, analysis of the planning scheme and DCP points strongly to the conclusion they envisage rural residential subdivision of rural land, and the nearby development is an existing manifestation of that. That appreciation means the proposed development cannot fairly be said to be in vivid conflict with reasonable expectations. [20] Council does not oppose the MCU over the balance of the parcel. That is not inappropriate; the provisions of the DCP will continue to apply to any further proposal to subdivide the remainder, and the evidence adduced before the scale of the ROL was reduced was persuasive that some further reconfiguration may be possible. [21] The appeal should be refused and the ROL permitted to proceed, subject to conditions the developer and the council may now work out. The MCU should be permitted. -- 5 of 5 --