Etsi v Maroochy Shire Council [2006] QPEC 5

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Etsi v Maroochy Shire Council [2006] QPEC 005 PARTIES: ETSI PTY LTD (appellant) v MAROOCHY SHIRE COUNCIL (respondent) FILE NO/S: D 90 of 2005 DIVISION: Planning and Environment Court PROCEEDING: Appeal DELIVERED ON: 25 January 2006 DELIVERED AT: Maroochydore HEARING DATE: 22/11/05, 23/11/05, 24/11/05, 25/11/05, 30/11/05 JUDGE: K S Dodds DCJ ORDER: Appeal adjourned for parties to consider reasons CATCHWORDS: ENVIRONMENT AND PLANNING –Reconfiguration of land with preferred dominant land use designation of Rural or Valued Habitat with overlay of Permissible Rural Residential, density of reconfiguration sought, conflict with Maroochy Plan 2000. SOLICITORS: P & E Law for the appellant Maroochy Legal Services for the respondent COUNSEL: Mr Keim SC for the appellant -- 1 of 24 -- 2 Mr Hughes SC and Mr Williamson for the respondent [1] This is an appeal by an applicant pursuant to section 4.1.27 (1) Integrated Planning Act 1997 (Qld) (IPA) against the respondents refusal of its application to reconfigure vacant land at 79 Sunrise Road, Eumundi, Lot 14 on RP812043, Parish of Maroochy (the Site) into thirteen rural residential lots. [2] Section 4.1.50 (1) IPA requires that the appellant establish the appeal be upheld. An appeal is by way of hearing anew (section 4.1.52(1)). [3] In the respondent’s Planning Scheme, Maroochy Plan 2000, the site is in Planning Area No. 25 Northern Coastal Plains, Planning Precinct No. 4, Doonan. Its precinct class is Sustainable Rural Residential. Its preferred dominant land use designation in the Strategic Plan is Rural or Valued Habitat with an overlay of Permissible Rural Residential. It includes a special management area because of vegetation on some of it. [4] The application was impact assessable. One properly made submission resulted. [5] Section 3.5.14 IPA applies to an impact assessable application. For such an application the Act requires the assessment manager’s decision not: • compromise the achievement of the desired environmental outcomes for the Planning Scheme area or; • Conflict with the Planning Scheme unless there are sufficient planning grounds to justify the decision. [6] Sunrise Road adjacent to the site may be regarded as running north-south along a ridge line. Most of the site has steep slopes. Slopes range up to in excess of 40%. The site falls away steeply to the east from about RL140 at its Sunrise Road frontage to about RL60 at its eastern end. A ridge line traverses the site north-west, south-east. A creek or gully system runs generally north-south through the site. [7] Soils are variously clayey silts and sands of low to medium plasticity over sloping rock. Near the crest of the ridge there are soils weathered from the parent bedrock. There are areas of colluvium i.e., soil and rock which has moved downwards to a lower level of slope. -- 2 of 24 -- 3 [8] The site area is 11.05 hectares. It is heavily vegetated; in some areas there is mature vegetation, in other parts, relatively thick re-growth. There are some small cleared areas. There is weed and lantana growth. Remnant vegetation, not of concern regional eco-system (Vegetation Management Act 1999) is located in the south- western corner of the site (part of proposed lot 12) and the north-eastern corner of the site (part of proposed lots 6 and 7). [9] The 13 proposed lots varied in size. Lots 1 and 2 had areas of 4515m2 and 4491m2 respectively. Lots 3, 4, 9 and 10 had areas of 6547m2 , 6349m2 , 6105m2 and 6169m2 respectively. Lots 5, 6, 11 and 13 had areas of 8609m2, 8008m2, 8213m2 and 8310m2 respectively. Lot 8 had an area of 1.113 HA. Lots 7 and 12 had areas of 1.00 HA and 1.537 HA. The average lot size over the whole of the proposed reconfiguration was 7845 M 2 . [10] To the north, east and west of the site is rural residential land. Development of this land occurred under a previous planning scheme. Single, detached houses predominate. To its south is an existing rural residential estate known as Rafter Country, approved under the superseded planning scheme. On the west side of Sunrise Road, there is some rural residential development and a scattering of larger rural properties, generally used for grazing. [11] Access to three of the proposed lots (lots 1, 2 and 3) is proposed from Sunrise Road. Access to the others is proposed from an extension of Blueberry Lane into the eastern end of the site. The application included an internal road from Blueberry Lane ending in a cul de sac. A fire trail was proposed to be established running roughly north-west and west from the cul de sac to provide access to Sunrise Road. [12] The application involved clearing of vegetation for roads, driveways, 600 M 2 building envelopes, rainwater tanks and 300 M 2 effluent disposal areas. It also involved crossing the creek. Consequently the Department of Natural Resources was a concurrence agency. A ‘riverine protection permit’ was granted to the applicant for construction of creek crossings by the cul de sac road from Blueberry Lane. [13] The respondent’s planning staff recommended refusal of the application. Underlying the refusal was the view that the proposal was too intensive a -- 3 of 24 -- 4 development for the site. This view had been expressed in a series of meetings between the respondent’s planning officers and councillors and the appellant’s representatives commencing shortly after the application was lodged. See exhibit 1, page 172. In its decision notice dated 25 February 2005 refusing the application a number of reasons for the refusal were provided. They may be compressed into: • Failure to uphold the precautionary principle; • Conflict with the planning scheme resulting from the proposed density; • Conflict with the planning scheme because of unacceptable impacts on the environment; • Inconsistency with a number of codes in the planning scheme; • Intensification of use of bushfire prone land; • Risk of landslip and erosion. [14] On the first day of the appeal, leave was given to the appellant to amend its application. The appeal then proceeded on the basis of the amended layouts in exhibit 5; Drawings No 10065-4 Rev C and 10065-5 Rev B. In essence, changes were made to the location of some building envelopes with resulting changes to driveway accesses, to the location of some effluent disposal areas and rain water tanks had been relocated into the 600M 2 building envelopes. The intention plainly was to address some of the respondent’s concerns underlying its refusal of the application. [15] The respondent made it clear that it was not opposed to a less intensive reconfiguration of the site and invited the court to indicate that the application would be approved in part (with conditions), subject to the submission of an amended plan of layout reducing the number of allotments. It submitted that if the appellant failed to discharge its onus, the appeal should be adjourned to enable the parties to consider an amended layout and formulate appropriate conditions. Maroochy Plan 2000 -- 4 of 24 -- 5 [16] The scheme provisions provide the setting against which the matter may be considered. It is useful to set out some of them. The underlining is mine. [17] In its introductory passages the plan broadly describes what it sets out to achieve: Under land use it says “The division of the Shire into Planning Areas and Precincts provides a key element of the development assessment process intended to better achieve ecological sustainability. ----------------------------------------------------------------------------------------- For development and use for Rural Residential purposes, the Strategic Plan has identified areas in which such development may be acceptable provided site specific considerations are addressed. Such considerations include the protection of land resources --------------- water resources and environmental values and the availability of adequate infrastructure provision. This intent is carried through into the statements of desired character for the Sustainable Rural Residential Precincts. In Special Management Areas and in Rural and many Special Purpose Precincts the balance in assessing development proposals will be a favour of the protection or enhancement of environmental values and resources. This may include a need to demonstrate the sustainability of any proposed development and use of premises. This balance will also be sought in other areas (assessed on a site by site basis) where specific features of environmental, scenic, cultural or heritage value have been identified.” [18] In volume 1 paragraph 3.2 of the Planning Scheme, Rural Residential Lots are described as “intended to have a minimum lot size of 6000M2 and an average lot size of approximately 8000M2 or greater over a site, excluding any area dedicated as parkland.----------- This type of lot will usually be restricted to the Sustainable Rural Residential Precincts and the steeper areas within the other residential precincts---.” These lots sizes are repeated in the Code for Reconfiguring Lots, Table 8.2.5. The Code contains applicable performance criteria and acceptable measures for different types of lots created by a reconfiguration. One of the acceptable measures with respect to size is that lots smaller than the minimum or average outlined in Table 8.2.5 are created in accordance with section 8.5 of the Code. Section 8.5 contains provisions supplementary to other provisions of the Code whereby the respondent -- 5 of 24 -- 6 may acquire Environmentally Significant Land, which is part of land for which a reconfiguration is sought and allow a higher density of development on the balance land. Special Management Area is described as “an area in which the particular environmental conditions need to be considered and addressed in the development and use of premises in that area and is subject to the provisions of section 4.2 of volume 1 of the Planning Scheme.” [19] The Strategic Plan sets out desired environmental outcomes (DEO) for the whole shire. DEO 1 provides: “The shires unique natural open space, climatic, rural and scenic attributes are protected to maintain biodiversity, ecological processes and visually attractive and varied landscapes and managed to provide a sustainable focus and setting for the Shire’s community and economic development. This includes: ----- • premises which are sensitively sighted and designed having regard to local climate conditions, vegetation cover and topography.” Implementation measures to be employed for this DEO include: (a) “Comprehensively assess and effectively manage the likely individual and cumulative impacts of development on the natural and built environments to ensure ecologically sustainable development. (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.” DEO 6 is for “A high quality built environment characterised by premises which: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ • Respect the natural environmental characteristics and capacities of the locality in which they are situated.” -- 6 of 24 -- 7 Implementation measures to achieve this DEO include “(a) ensure that individual development, landscaping and signage complement and strengthen the key elements of character reflected in the intent statements for the Planning Area and Precincts.” [20] With respect to urban development “key issues” in the Strategic Plan dictating the planning strategy in the Shire’s Urban Areas and Permissible Areas for Rural Residential include: • “the serious impacts that such growth (urban growth) if not properly managed can have on the important natural and aesthetic resources ---- the loss of character and liveability---; • the continued availability of the current diversity of housing options from high rise units to rural retreats recognising the limited suitability of some forms of development in the light of other sound objectives, such as the containment of urban areas, the preservation of important habitats---the image and character of the Shire.” [21] Land with a Preferred Dominant Land Use designation of Rural or Valued Habitat (this site) is dealt with in the Natural Resources, Part 10 section of the Strategic Plan. Key issues of the Natural Resources planning strategy include: • “managing a landscape which exhibits important connection and linkages including linkages between the coast and hinterland, between scattered rainforest remnants----- • recognising and valuing the diversity of significant natural landscapes ---- including ---- the vegetated and open rural character of much of the Shire----- • recognition that substantial areas of natural habitat occur on freehold land and that the rights of property owners will be considered equitably in regard to protection and management of natural resources on these lands.” Strategies to be employed include: • “10.3.3 Rural or valued habitat allocation include areas of remnant vegetation often in private ownership which form broad linkages between the principal conservation areas and major vegetation zones within and outside the Shire. -- 7 of 24 -- 8 They also incorporate other land where vegetation protection or rehabilitation is considered appropriate due to slope, potential for landslip or for its catchment recreational or aesthetic values.” • “10.4.2 “The emphasis of this allocation is generally on the retention of land in its present situation, although development allocation in accordance with the Natural Resources Strategy and the development management and relevant code provisions of the planning scheme are envisaged--- While it is intended that rural and non urban uses and the retention of valued habitat should be the dominant activities occurring, in the Rural or Valued Habitat areas, the allocation provides for a range of other uses suited to establishing in rural areas- ------------ In Rural or Valued Habitat areas, it will be a requirement that all development and use of premises protect the natural resources of the sites and that all development activities incorporate appropriate design solutions and other best environmental management practices.” Objectives include: • “10.5.1 To protect and maintain the bio-diversity values of the Shire; • 10.5.3 To protect or provide connections and linkages to or between areas of conservation significance; • 10.5.4 To protect waterways, water bodies and wetlands in a manner which protects and enhances water quality and aquatic habitats.” [22] In a Permissible Area for Rural Residential, the strategic plan provides: “The Permissible area for Rural Residential provides for the opportunity of rural residential living where it is considered such use of the land is appropriate, given the locations of substantial urban areas, the existing rural residential development and the topographical characteristics of the land. -- 8 of 24 -- 9 The Permissible Area for Rural Residential does not replace the Preferred Dominant Land Use (for this site Rural or Valued Habitat) over which it is located but provides an opportunity for rural residential development subject to it being justified on town planning grounds. In determining if such grounds exist, consideration will be given to whether the land includes areas of good quality agricultural land or areas of significant vegetation or other important, natural or cultural features. Upon justification for the land being suitable for rural residential development, its use should be regarded as an acceptable land use.” [23] In the Slope and Geological Stability, Part 18 section of the Strategic Plan, objective 18.4.1 is “To encourage activities appropriate to the slope of the land.” Implementation measures include: • preference being given to proposals “which recognise the natural characteristics of the site”; • on land steeper than 20%, regard being given to the probability of soil erosion, land slip, the potential for structural failure, the likely impact of drainage on adjoining properties, the impact on permanent water courses and the potential for visual scarring. • the recognition of the importance of vegetation protection as an appropriate land management strategy. “Development in these areas shall be in accordance with the provisions relating to Rural or Valued Habitat as described in section 10 of this Strategic Plan.” • addressing the respondent’s code for the assessment and management of land on steep and unstable land. • if council is not satisfied that a development can be appropriately managed, it may not support the application. Planning Area 25 [24] The vision statements for Planning Area 25, Northern Coastal Plans includes: -- 9 of 24 -- 10 • “3.25.2 (1) the Northern Coastal Plains Planning Area will retain its natural and rural landscape attributes dominated by Noosa National Park, Lake Weyba, large tracts of remnant vegetation and a mosaic of rural activities. The protection of the natural and rural attributes of this Planning Area will ensure that the coastal plains remains a naturally attractive rural area which provides a pleasant gateway to the Shire and a meaningful contrast to the Shires urban areas and the urban areas located in Noosa Shire to the north.” [25] Key Character Elements for the Planning Area include: “3.25.3 (1) (a) Any new development in the Planning Area is to provide for the rural landscape character to be retained through low density of development, retention of vegetation, provision of large building setbacks to road frontages and the use of architectural styles which respond to and reflect the rural setting. (b) Further rural residential development at Doonan should be sensitive to and in keeping with the areas landscape values, including land form, vegetation and drainage patterns.” Environmental values for the Planning Area include: “3.25.3 (3) (c) Rural residential development is to retain extensive tree cover, particularly on elevated lands, roadsides and waterways, so as to protect the environmental values and landscape character of the Planning Area.” [26] In Precinct 4 (Doonan) the intent is “that it remain predominately used for rural residential purposes in ways that are sustainable in terms of the areas environmental values and physical capacities. This requires consideration of issues of: - environmentally sustainable waste and effluent management - protection of sensitive habitats - minimisation of landform alteration, potential for ground water contamination, bush fire hazard, vegetation clearing and erosion and - management of declared and other environmental weeds.” So far as the environment is concerned: -- 10 of 24 -- 11 • development is to be is sympathetic to the characteristics and capacity of the physical and natural environment through environmentally sensitive design and construction techniques. • development is to occur as much as possible in existing cleared areas and minimise further fragmentation of remnant, native and other mature vegetation, • significant areas of remnant habitat and vegetation are to be retained as far as practicable, particularly on steep slopes, along corridors running north into Noosa Shire and along ridgelines, roadways and waterways. So far as amenity and character is concerned: • The areas scenic and natural forested character is to be respected, • development is to remain subordinate to the natural landscape and unobtrusive when viewed from major roads and prominent public vantage points; So far as hazard management is concerned: • adequate measures are to be incorporated in the design and construction of lots, buildings and roads to avoid or minimise the risk of bushfire, • development on land with slopes of more than 20% or otherwise prone to erosion and landslip, is limited to that established as sustainable by competent geotechnical and engineering assessments, • earthworks are to be minimised and erosion and sediment controls are to prevent unacceptable off-site impacts.” [27] I will touch on some of the Planning Scheme Codes with which the respondent asserted inconsistency. Code for Development on Steep and Unstable Land [28] The code applies to a reconfiguration such as this. It recognises that the physical condition, environmental values and visual appeal of steep land (i.e. with slopes -- 11 of 24 -- 12 generally greater than 15%) or land prone to landslip and/ or subsidence may be adversely affected by earthworks (excavation and filling), removal of vegetation, the erection of building (and other structures like swimming pools, tennis courts, retaining walls, roads and driveways), on site disposal of effluent, stormwater and waste water and other significant changes to natural surface or underground drainage patterns. Its purpose is to avoid or minimise undesirable consequences by ensuring development on steep or unstable land “is consistent with the desirable physical, environmental and visual characteristics of the land.” It goes on to provide: “2.1.4 (2) Development is intended to be on land with slopes generally less than 25%. Development on land with greater slope may only occur if the development proposed ------ (c) is consistent with the character intent of the relevant Precinct ---------; and/ or it has an overriding community benefit; and/or will achieve acceptable levels of geotechnical / environmental impact and design outcomes.” Relevant to this Code is the likely extent of vegetation clearing, the extent of cut for road works and accesses, the need for retaining structures, the potential alteration of both surface and ground water flows. All of these considerations bear upon an acceptable density of Rural Residential development on the site. Code for Reconfiguring of Lots for Residential Purposes This Code applies to a reconfiguration such as this. Element 5.1 has an objective to provide lots with area shapes and sizes that “take into consideration the environmental values of the site (including slope and local and regional biological diversity where possible) and are consistent with or enhance the preferred rural character of an area.” Applicable performance criteria and acceptable measures are set out. For Rural Residential lots, performance criteria call up the area of lots and acceptable measures call up minimum lots sizes of 6000 M 2 and the average of 8000 M 2. Acceptable solution A 1.1.1 provides that all proposed lots comply with all parts (including the comments) in Table 8.2.5. Where lots sizes are smaller than the maximum or average outlined in Table 8.2.5 they are to be created in accordance with section 8.5 of the Code. As referred to earlier, section 8.5 makes -- 12 of 24 -- 13 provision for the respondent to obtain Environmentally Significant Land in excess of the open space contribution in exchange for allowing a greater density of development or the remaining land. That is not the case here. Performance criteria also call up the desirability of minimising the need for earthworks and/or retaining walls associated with building or operational works, land stability, bushfire risk, on site waste disposal areas, erosion, drainage. All these considerations are factors in an acceptable density of Rural Residential development. Code for Nature Conservation Management and Biodiversity Protection Element 2 of the Code applies to a reconfiguration such as this. It recognises the potential for adverse effects on environmental values when development involves or is likely to involve clearing of native vegetation, earthworks including filling and /or recontouring of the land, drainage, bridges or other structures or work, off site pollution, sediment or stormwater impacts. Performance criteria require ecological values and functions occurring within and/or adjoining the site be identified and assessed. Significant values and functions are to be conserved and/ or enhanced. Vegetated areas are to be recognised, protected and/ or enhanced in the development of premises. These considerations bear upon an acceptable density of Rural Residential development on this site. Code for Development in Bushfire Prone Areas This Code applies to a reconfiguration such as this. It recognises the danger and the cost bushfire poses to person and property. It utilises work done by the Queensland Fire and Rescue service. Its purpose is to minimise the density of development in bushfire prone areas so as to reduce the number of people and properties subject to bushfire risk. Performance criteria include that development not materially intensify the use of bushfire prone land, that buildings be sited or able to be sited in cleared areas where the environmental impacts of vegetation clearing is acceptable. These considerations bear upon an acceptable density of development on the site. Plainly a reconfiguration which increases the potential for persons and buildings will intensify the use of the land to a degree. -- 13 of 24 -- 14 Conflict with other Codes referred to in the respondent’s refusal e.g. Code for Operational Works and Site Development, Code for Waterways and Wetlands, Code for Extraction, Excavation and Filling, Code for the Development of Detached Houses and Display Homes was considered by the respondent to be due to the extent of clearing of vegetation and earthworks inevitably accompanying the reconfiguration sought, the environmental consequences of that and the adverse affect on visual amenity flowing from clearing, earthworks and buildings, with particular regard to the steep hillside. The Evidence [29] The appellant sought to address the respondent’s reasons for refusal of the application with quite a large body of evidence from a number of witnesses with qualifications and expertise in various fields. Various alterations to aspects of the proposal resulted and further conditions were suggested as appropriate. [30] Mr Hickey, the surveyor responsible for the survey information which accompanied the application gave evidence. It was apparent that at that stage the geotechnical information he had was limited. As he saw his brief at that time maximising lot yield from reconfiguration was to be achieved. He was also responsible for the revised plans in exhibit 5. He identified lots 1, 2, 3, 6, 7, 9, 10, 12 and 13 as lots where the proposed building envelopes were on land where slope exceeded 25%. The steepest of the grades of the building envelopes was 43%. [31] Mr Schomburgk, a town planner, gave town planning evidence. Subject to experts from other disciplines adequately addressing the concerns of the respondent, he supported the proposal. [32] Mr Thompson, a civil engineer, gave evidence about civil works, environmental issues of concern and control of adverse environmental effects of the proposed configuration; for instance pole house construction was to be adopted for dwellings with building envelope grades exceeding 25%, single level concrete slab construction was to be avoided where building envelope grades were greater than 20% but less than 25%, rainwater tanks were to be located within the proposed 600M 2 of the building envelopes. Initially Mr Thompson recommended a condition requiring storm water management swales as proposed by the consultants, whose -- 14 of 24 -- 15 report accompanied the application. He recommended they be constructed wherever possible inside proposed building envelopes and access easements. In all other cases, removal of existing vegetation was to be minimised. During his evidence, he retreated from his recommendation regarding swales, opting instead for storm water management as depicted in his drawing, exhibit 23. This was in response to geotechnical concerns about concentrating overland flow of water on the site. [33] Mr McMahon, an engineer specialising in soils and water, gave geotechnical evidence. His company had undertaken a slope stability assessment which formed part of the original application. After the application was refused and the appeal lodged, he undertook further test-pit investigations to determine the presence and depth of rock in areas identified as proposed building envelopes. [34] Mr Hurley, a geotechnical engineer/engineering geologist gave evidence commenting on the respondent’s reasons for refusal based on the steepness of the site, erosion and landslip. [35] Mr Napier, a principal of Napier and Associates, environmental management consultants gave evidence about effluent treatment and disposal. He reviewed (and supported) the report about storm water management and effluent disposal which had accompanied the application. He undertook some further investigations of his own. He recommended an effluent disposal system, which he said would not require clearing of existing native vegetation on proposed disposal areas. [36] Ms Duke, an environmental scientist gave evidence about vegetation management, to address the respondent’s concerns about the environmental consequences of the proposed reconfiguration. She was responsible for a vegetation management plan for the work involved in the proposed reconfiguration and thereafter. [37] Mr Burrell, a landscape architect gave evidence about visual amenity. He undertook investigations with regard to the respondents concern that the proposed development would yield an unacceptable amount of visual scarring. [38] Mr Siddle, an environmental scientist gave evidence directed to the respondent’s concerns about bushfire, reflected in its reasons for refusal of the application. He undertook a natural hazard assessment of the site. -- 15 of 24 -- 16 [39] All these witnesses expressed the opinion that, with appropriate conditions, including conditions suggested by them and the amended layout plans in exhibit 5, the respondent’s concerns reflected in its reasons for refusal were adequately addressed. They supported the amended reconfiguration proposed. [40] The respondent put evidence before the court to the opposite effect. Mr Amaral, an experienced geotechnical engineer gave geotechnical evidence. Mr Chenoweth, a landscape architect and environmental planner, gave evidence about vegetation, fauna and landscape values of the site and the potential environmental impacts of the proposed development. Mr Brannock, a town planning consultant gave town planning evidence. The effect of their evidence was that the proposal was too intensive a development. [41] Conclaves involving various of these witnesses for both parties took place. Areas of apparent disagreement were narrowed. Some further geotechnical investigation took place and a further conclave on geotechnical issues occurred. The points of agreement and disagreement resulting from the conclaves I have mentioned are collected in exhibit 2 and regarding geotechnical matters to an extent in exhibit 24. In the end, though, there was no meeting of opinions about the central matter; the density of development for the site. [42] Ms Duke and Mr Chenoweth remained in disagreement about proposed lot 12. Mr Chenoweth considered it should be deleted, partly because of the location of the house site. The access driveway would require considerable earthworks and disturbance. His concern about the location of the house and the driveway was alleviated by the relocation of the house site. See exhibit 5. Mr Chenoweth considered there were too many allotments with sleep slopes, requiring building envelopes on slopes in excess of 25% and that building envelopes of 600M 2 represented an exceptionally large footprint on steeply sloping land with regenerating rainforest. Ms Duke disagreed. Mr Chenoweth considered that the areas of lots 12 and 13 along with lot 11 were important from a vegetation connectivity perspective. Ms Duke disagreed with this, at least to the extent that it would result in the proposed lots not being developed. Mr Chenoweth considered that the regrowth vine forest vegetation on most of the site was important as habitat, continuous with other native vegetation to the north and as a vine forest community progressing towards one of the vegetation types listed by council as significant. Ms -- 16 of 24 -- 17 Duke disagreed. She considered the significant vegetation on the site, were those areas mapped as remnant and/ or shown on Maroochy Plan 2000 as special management areas. Nonetheless Ms Duke’s proposed vegetation management regime for the reconfiguration addressed the retention so far as practicable, of all native vegetation and removal and control of weed infestation. [43] Mr Burrell and Mr Chenoweth remained in disagreement about some matters. Mr Chenoweth considered that the proposed 13 allotments was over development requiring excessive clearing of vegetation, even with effluent disposal areas remaining uncleared. Mr Burrell disagreed. Mr Chenoweth considered that the three houses on proposed lots 1, 2 and 3 would have an unacceptable impact; they would be visually prominent and intrusive on local views. Creation of lots 11 and 12 and ultimately houses on them would also have an unacceptable visual impact on external views. Mr Burrell disagreed. Both Mr Chenoweth and Mr Burrell were agreed that allotments on steep vegetated slopes required management of surrounding vegetation in order to reduce bushfire hazard. To that end, all canopy trees required removal from an inner radiation zone of 10 metres width and some thinning and understorey removal was required in outer radiation zones down slope of houses. Some canopy trees could be retained in the outer radiation zone and would, over time grow taller and may provide some screening and filtering of the lower parts of houses. [44] Mr Schomburgk and Mr Brannock remained in disagreement about some matters. Mr Brannock considered the development was too intensive due to the extensive earthworks and vegetation clearing required. Mr Schomburgk considered the sites carrying capacity was determined by the ability to minimise earthworks and clearing. Lot size provisions were not mandatory but indicated an acceptable measure and regard should be had to relevant performance criteria which he considered other expert’s supporting the proposal had addressed. Both agreed that any development proposal must address (at least) matters such as significant vegetation and fauna habitat, important natural and cultural features, topography, visual impacts, bushfire hazard, water quality and geological stability. [45] There was an ongoing conclave involving Mr Amaral and Mr Hurley and to some extent Mr McMahon as results of further geotechnical investigations emerged. Mr Thomson also participated in the latter stages. Ultimately, with respect to Lot 1, it -- 17 of 24 -- 18 was agreed that the proposed house site was steep (34%) with depth of soil to rock about 2 metres and with residual soils at about .8 of a metre. Mr Amaral considered the site involved concave topography which tended to concentrate surface and ground water and was often associated with landslip. He considered lot 1 should be refused for geotechnical reasons. Mr Hurley (and Mr McMahon) considered cost effective engineering solutions could be applied to lot 1 so that the building envelope could be safely built upon. Mr Amaral acknowledged the engineering solutions could be applied for a dwelling if the lot existed but considered it preferable the lot not be created. The balance of the lot, apart from a house, remained of concern. Initially, Mr Amaral considered lots 4 and 5 should not be developed. With the house site on lot 4 relocated to the west where there was shallower soil to rock, he withdrew his objection to lot 4. He remained of the opinion that lot 5 should not be developed. It contained an old toe bulge of colluvium representing landslide debris susceptible to reactivation. Although the site was relatively flat (8%), the depth of soil to rock exceeded three metres. It was also adjacent to the creek with a steep batter between the proposed house site and the creek. It had deep soil (2.4 metres) in the proposed effluent disposal area. Mr Hurley considered that with appropriate engineering works, lot 5 could be safely developed. Mr Amaral maintained his reservations, he acknowledged Mr Hurley’s engineering solutions could be applied but would prefer the risk be avoided; the lot not be subdivided. It was agreed that access driveways, albeit steep could be constructed with appropriate engineering works. Mr Amaral considered that driveways should be cut into slopes with appropriate engineering designed retention into rock where necessary. No or minimal fill should be used. Generally Mr Hurley and Mr McMahon agreed. It was agreed surface water diversion swales should not be developed to direct surface water run off into concentrated areas with a possibility of promoting instability. A non worsening condition should be adopted, that is, overland flow over natural slopes should not be increased as a result of development works. This latter agreement led to Mr Thompson abandoning the surface water diversion swales which were part of the original application. Mr Amaral was critical of the storm water design which accompanied the application and the alternative put forward by Mr Thompson in his evidence. He also had concerns about proposed 500mm deep cut off drains for the effluent disposal systems. They were to be provided to intercept surface water from -- 18 of 24 -- 19 reaching the effluent disposal areas. His concern related to surface water being taken into the sub surface and then being discharged elsewhere in more concentrated form affecting local areas of the ground water table. Another concern was a rising groundwater table as a result of the removal of vegetation. [46] I indicate that I accept the evidence of Mr Amaral. I regard his evidence as balanced, careful and thorough. [47] Mr Burrell’s investigations are displayed in his report, Exhibit 12. It included a number of photographs of the site from different vantage points. His photo “A” at page 12 of his report contains a reconstruction of what may be observed from a particular vantage point if the reconfiguration sought were to occur. The effect represented in photo “A” would be muted by the mitigating measures discussed at paragraph 4.5, page 17 of his report to the extent they may be achieved. In photo “A” lots 6, 7, 8 and 9 are not observable from the vantage point used, Lilly Pilly Rise. [48] Mr Siddle’s hazard assessment for bushfire over the whole site investigated compliance with Maroochy Plan 2000 and State Planning Policy 1/03. He divided the site into sub units. The bulk of the sub units scored as medium risk for bushfire using State Planning Policy 1/03 Appendix 3. A few of the sub units which scored as low approximated proposed house sites on lots 4, 5 and 6. Under Maroochy Plan 2000 Planning Code 2.1.7, a percentage of the site scored as a confirmed bushfire prone area. Mr Siddle concluded that a precautionary approach required that the site be regarded as a “confirmed bushfire prone area”. In such an area “layout and design of premises should incorporate measures which assist in the control of any bushfire in the locality in an emergency, prevention of damages to property and persons.” [49] Mr Siddle made reference to the proposed 600m2 building envelopes which he understood would be adjusted for each lot to allow for a 10 metre set back from uncleared vegetation. He considered the building envelopes would enable sufficient buffer distances (firebreak) between dwelling and vegetation. [50] It is not clear to me from Mr Siddle’s evidence whether he had in contemplation, a 10 metre fire break surrounding a dwelling. Specific Outcome 6 of State Planning -- 19 of 24 -- 20 Policy 1/03 requires development maintain the safety of people and property, by inter alia, mitigating the risk through including fire breaks that provide adequate set backs between buildings/ structures and hazardous vegetation. If a 10 metre fire break buffer were required around a dwelling, clearing would involve a greater area than 600 M 2 . Even if a 10 metre cleared area for an inner radiation zone was provided only down slope, the remaining available cleared area for a house and 45,000 litre water tank would be tight. [51] The extent of clearing was also an issue with respect to the cul de sac road into the site from Blueberry Lane and the driveway access to each lot. In its most recent form, this is depicted on one of the drawings in exhibit 5, drawing 10065-5 rev B. This drawing sought to show pictorially the extent of vegetation clearing for roads and driveway accesses and 600 M 2 building envelopes in the context of vegetation over the whole site. Witnesses in the appellant’s case said that what was represented on the drawing was achievable in practical terms by limiting the type of machinery to be used. Witnesses in the respondent’s case were less optimistic. Regarding this I think the view expressed by the respondent’s witnesses is more likely to be correct. I think clearing of vegetation would inevitably exceed that which is attempted to be represented on the drawing. Conclusion [52] The respondent submitted that the number of lots be reduced by amalgamating lots 1 and 2, lots 3 and 13, lots 11 and 12 and lots 4 and 5. As to lots 6 and 7 the respondent submitted that they should be amalgamated or at least share a combined driveway to reduce clearing of vegetation. [53] The provisions of Maroochy Plan 2000 which I have extracted and included above are I consider a fair representation of the general thrust of the planning scheme for land such as this site. Matters such as minimum and average lot size, steep slope, geotechnical findings and considerations, likely clearing of vegetation, retention/ preservation of vegetation, connectivity of vegetation, alteration to landform, bushfire risk and associated risk to person and property, visual amenity and a land owners rights, all have to be considered and balanced. -- 20 of 24 -- 21 [54] The site is steep and as it is, presents as a vegetated hillside. Reconfiguration of whatever density will result in vegetation removal and require quite considerable earthworks. There will be an accompanying alteration to the vegetated appearance of the site. Soil stability over the whole site is an important issue. Stormwater management bears upon soil stability and is important. I consider it is inevitable that development will, to an extent, divert and concentrate surface flow over this steep land. I think the concerns Mr Amaral expressed during his evidence regarding the proposed management of stormwater flow over the land post development are valid. As an example the 500mm deep proposed cut off drains for the effluent disposal systems will put surface water into the subsurface and then discharge it elsewhere on the site. Removal of vegetation will remove the contribution that vegetation made to erosion control and management of the ground water table. No one of all these various matters in isolation or in some other combination, may necessarily lead to the conclusion I have reached. When all matters are accumulated however, I am not persuaded the appellant has shown the appeal should be upheld. [55] In what follows I will indicate the view I have reached regarding the density of development on the site using the proposed lot layout in Exhibit 5. Lots 1 and 2 [56] These proposed lots should be combined. I accept Mr Amaral’s evidence that lot 1 should not be created for geotechnical reasons. Even if a practicable engineering solution would reduce the risk of a dwelling failing the balance of the lot remains of concern. Slopes are in excess of 25%; where the proposed building envelopes are, slope exceeds 30%. Both lots are in an area with an amphitheatre (concave) shape. The depth of soil to sloping rock for a house site on proposed lot 1 is excessive. [57] Both of these lots have areas less than the minimum lot size of 6000m2 and the average lot size over the whole proposal reconfiguration is slightly below the minimum in the planning scheme. Lot size specifications in a planning scheme are a clear indication of the schemes planning intent and it may be expected will be met in any reconfiguration. That is not to say that in an appropriate case some leeway may be acceptable for good planning reasons. Here I am not persuaded any sufficient planning reason exists for reduction in the minimums in the scheme. To -- 21 of 24 -- 22 the contrary when other matters such as likely vegetation clearing, alteration to landform, impact on visual amenity are included. [58] Both lots are high up the slope adjacent to Sunrise Road and consequently especially visually prominent. Amalgamation will contribute to a reduction of the visual impact of the development. Lots 4 and 5 [59] I consider these proposed lots should be combined. Proposed lot 5 is not particularly steep but has very deep soil to rock and evidence of colluvium. Mr Amaral exampled cases of soil failure on similar slopes elsewhere. The building envelope for proposed lot 4 has been moved west to an area where further geotechnical investigation has shown there is shallower soil to rock. Mr Amaral withdrew his opposition to development of proposed lot 4 but maintained his opposition to proposed lot 5. It has an area of amphitheatre or concave shape in its south east corner and a large bulge feature of colluvium on most of the balance of the site. There is a steep batter between the proposed house site and the creek which runs through the proposed lot. Additional fairly extensive engineering would be required at the edge of the creek between the creek and the house site and at the house site. Lots 6 and 7 [60] Although these proposed lots are amongst the steepest over the whole site I do not think they need to be amalgamated with one caveat. In addition to clearing for house sites, considerable clearing and earthworks will be required for driveway access. As I have already said I consider clearing will inevitably exceed that which is attempted to be represented in exhibit 5, drawing 10065-5 Rev B. It will, I think probably be in the order of that estimated by Mr Amaral (with adjustment made for relocation of house sites and some non-clearing of effluent disposal areas). For reconfiguration of these lots to proceed and to minimise vegetation clearing to a degree, these lots should share a common driveway for the longest practicable distance. Lots 11 and 12, Lots 3 and 13 -- 22 of 24 -- 23 [61] I consider one of these proposed lots should not proceed. These lots spread, north across the hillside from the southern edge to the northern edge of the site. They are elevated being towards the western end of the site. Development will be visually prominent in the presently vegetated landscape. In conclave Mr Burrell and Mr Chenworth agreed the vegetation was “significant in terms of landscape value and natural character”. [62] The proposed lots are on land which contains a band of uninterrupted vegetation across the site providing connectivity with vegetation to the north. Mr Burrell’s Figure 4, exhibit 12 further represented in photo “A” provides one view of development of these proposed lots from a particular viewing point. The view is of a band of houses and associated clearing of vegetation across the hillside. [63] Lot 3 contains steep land, amongst the steepest on the site. Lots 12 and 13 also contain steep land. [64] As a consequence of the relocation of the proposed building envelope on lot 12 because of concerns about clearing and earthworks for driveway access, the proposed dwelling sites for proposed lots 12 and 13 are located close together. [65] I would not think lot 3 and lot 13 need be combined. However, lots 11 and 12 may be combined. In that case the dwelling site presently indicated on lot 12 should be scrapped. The dwelling site for the combined lots should provide the maximum practicable separation from the dwelling site on lot 13. [66] In coming to this view, I have not overlooked the issue of flora and fauna connectivity with the land to the north. However, given the size of the proposed lots and likely clearing for dwelling sites, I do not think what I have indicated will have an unacceptable impact on this. [67] I consider what I have indicated above will address geotechnical issues arising from slope and risk of soil failure, will reduce the visual impact of a reconfiguration of the site and allow for better management of bushfire risk by provision of more adequate separation of houses and vegetation, will reduce overall to some extent clearing of vegetation and earthworks, will address (to a degree) concerns about the effect of development on stormwater over the site expressed by Mr Amaral by -- 23 of 24 -- 24 reduction of the overall number of lots while having regard to the rights and reasonable expectations of the owner of the site. [68] Were the reconfiguration to proceed reflecting the amalgamations I have indicated, it provides an opportunity, if the appellant wishes, to revise boundaries of the lots to increase the size of some lots. As presently advised I think the house site on combined lots 1 and 2 should remain where indicated on lot 2 unless the respondent agrees to another location. For amalgamated lots 11 and 12 the house site should be as shown on lot 11 on drawing no 16500-4- Rev C (exhibit 5) unless the respondent agrees to another location. For amalgamated lots 4 and 5, the house site should be in its revised position on lot 4 unless the respondent agrees to another location. [69] Since I have concluded the appellant has not established the appeal be upheld the usual order would be for dismissal of the appeal. The parties however, have apparently agreed that if the appellant does not discharge its onus I should adjourn the final disposal of the appeal so the parties may, if possible, reach an agreement about reconfiguration of the site acceptable to them and to the court. [70] Accordingly, the appeal is adjourned to a date to be fixed on a minimum of three days notice. -- 24 of 24 --