CA Hawkins Surveys v Caboolture Shire Council [2005] QPEC 110

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: CA Hawkins Surveys v Caboolture Shire Council [2005] QPEC 110 PARTIES: CA HAWKINS SURVEYS Appellant v CABOOLTURE SHIRE COUNCIL Respondent FILE NO/S: Appeal No BD 4648 of 2004 DIVISION: Planning & Environment PROCEEDING: Appeal ORIGINATING COURT: DELIVERED ON: 22 November 2005 DELIVERED AT: Brisbane HEARING DATE: 27, 28 October 2005 JUDGE: Skoien SJDC ORDER: Appeal to be allowed. CATCHWORDS: Residential development, effect on koala population, adequacy of transit corridor. COUNSEL: Mr W Cochrane for appellant Mr S Ure for respondent SOLICITORS: Lawrence & Associates for appellant King & Company for respondent [1] This is an appeal by Hawkins against the decision of the Council to refuse an application for a Material Change of Use – Development Permit to exclude land from the Special Rural Zone and include it in the Special Residential Zone and for a Development Permit to reconfigure a lot. -- 1 of 11 -- 2 The Site [2] The site, which contains about 4.5 hectares is in the town of Narangba. It is made up of four lots, each roughly rectangular and having its long axis east to west. They are (from north to south) lots 7, 8, 9 and 10. Along the eastern boundary of the site is Main Street and beyond that the main North Coast railway line. Desmond Street, a stub road, joins the site at a point on its southern boundary. To the west and south are conventional Residential A allotments on which dwelling houses are constructed. To the north are large Rural Residential lots which are densely vegetated. [3] Lots 7, 9 and 10 of the site are densely vegetated, lot 8 much less so. A natural shallow gully runs north/south and roughly bisects the site. The land slopes upwards, fairly gently, from the gully towards the east and the west. The Proposal [4] Originally the proposal was, consequent upon a material change of use, to reconfigure the site into 51 residential lots (lot 52 in the south east of the site being excised) the lot areas varying between 793m² and 450 m², with access from Desmond Street. Later the number of lots was reduced to 47. Other than the internal road layout, no provision was made for the ability of wildlife (especially koalas) to cross the site north/south. [5] There were 33 properly made submissions after public notification was given as well as 29 late submissions. These relevantly dealt with stormwater treatment, water catchment, wildlife protection, amenity and traffic. [6] The application was refused on environmental grounds. [7] After the institution of the appeal Hawkins produced an amended proposal plan which reduced the number of lots to 42 (still excluding the south east corner lot) the areas ranging from 415m² to 1119m². Open space of 8168m² was proposed. Importantly the -- 2 of 11 -- 3 layout was altered to provide a park area to the north and another park area to the south with a park corridor linking them. Both Hawkins and the Council regard these as minor changes only. [8] I agree with them, accepting that the proper test on the interpretation of s.4.1.52(2)(b) of the Integrated Planning Act 1997 (“IPA”) is that laid down by Quirk DCJ in Carillon Development Pty Ltd v Maroochy Shire Council (2000) QPELR 216 and Ausbuild Pty Ltd v Redland Shire Council (2001) QPELR 409. In my opinion the changes related to the same type of development and were made up of the same elements but with a reduction of scale and intensity and importantly introduced an attempt to adopt the environmental objects of the Council’s planning documents. I consider that they would not have prompted any person to make a submission over and above those who did so originally. [9] The two consultant town planners who were retained in the appeal have engaged in a conclave and have agreed that: 1. Except for possible environmental impacts, there are no town planning reasons why the development application, the subject of the appeal, should not be approved subject to reasonable and relevant conditions. 2. The subject land is otherwise suitably located for low to medium density housing such as that proposed by the application. [10] The current planning scheme for the shire is, pursuant to the relevant provisions of Chapter 6 Part 1 of IPA, a transitional planning scheme. As the proposal would have required a re-zoning under the now repealed Local Government (Planning and Environment) Act 1990 (“PEA”) I am required to decide the matter pursuant to the provisions of s.4.4(5A) of that Act. That section stated:- “(5A) The local government must refuse to approve the application if – (a) the application conflicts with any relevant strategic plan or development control plan; and (b) there are not sufficient planning grounds to justify approving the application despite the conflict.” -- 3 of 11 -- 4 The Issue [11] The sole issue between the parties relates to the effect of the proposal on the welfare of koalas known (and accepted by both parties) regularly to traverse the site and occasionally to roost, perhaps even temporarily reside, in trees on the site. This was made clear to me by both counsel, despite some mild criticism of the amended plan by the Council’s consultant planner which raised amenity difficulties and design problems. There was also some questioning of the drainage aspects of the proposal but this was not pursued by Counsel in their addresses and in any event I accept on the evidence of Mr Hawkins and Mr Henwood that no real problems will be faced after detailed planning. [12] In short, Hawkins argues that the park referred to in para [7] adequately provides for the welfare of koalas; the Council argues that the width of the linking corridor is insufficient and (without advocating its acceptance by me) advances a preferable alternative. I will refer to them as “the Hawkins corridor” and “the Council corridor”. [13] At once I record that there is scientific debate about whether it is correct to speak of a “corridor” for koalas. It is not for me to make a finding on that question. In the context of this case what Hawkins proposes by the dedication of the parkland can conveniently be named as I have suggested. No one gave evidence that it could provide a permanent habitat for koalas. Nor could the suggested Council corridor. So each is put forward as a solution to the environmental difficulty faced by the Hawkins proposal, namely that of facilitating the north/south movement of koalas (the main use of the site made by them now) as well as the ability to feed or roost on the site as a lesser use. [14] The site was not designated as Koala Management Area A1 or A2 under the recently repealed State Planning Policy 1/05: Conservation of Koalas in South East Queensland. -- 4 of 11 -- 5 The site is designated as Koala Management Area A4 under the draft Nature Conservation (Koala) Conservation Plan 2005. The A4 Koala Management Areas are defined as “fully developed and provide limited habitat value”. The site is not identified in the Interim Guidelines: Koalas and Development, released in August 2005 by the Environment Protection Agency and the Office of Urban Management. Strategic Plan [15] As the appeal was argued the provision of the Strategic Plan most clearly relevant is Strategic Land Use Plan, Objective 3 which is:- “To ensure that residential growth does not occur within, or conflict with, environmentally sensitive or conservation areas” implementation criteria (a) of which is:- (a) Council will not approve applications for residential development in areas where such development is likely to have conflict with, or have a detrimental impact on the environmental qualities of the locality” and implementation criterion (j) of which is:- “(j) Measures shall be undertaken to retain corridors linking environmentally significant areas to permit wildlife movement and linkage of related habitat areas.” [16] There was no dispute that the proposed development would have a detrimental effect on the local koala population. There was no dispute that complete development of the site as originally proposed would destroy a corridor which linked local areas of koala habitat to the north and south of the site. What was argued by Mr Cochrane, counsel for Hawkins, was that the Hawkins corridor would adequately comply with the Strategic Plan provisions. Mr Ure, counsel for the Council, argued that it would not, this being highlighted by an ability to much improve on the Hawkins corridor, as exemplified by the Council corridor. -- 5 of 11 -- 6 The Corridors [17] The Hawkins corridor as planned will be about 250m. long and for about 100m. of that length will be 20m. wide. At its southern end it will splay out to the western boundary of the site becoming close to 100m. wide along the southern boundary. It is in the south western corner of the site that transient koalas are likely to leave or enter the site to or from the south. At the northern end of the 20m. wide corridor it also increases in width to about 60m. and it is here that transient koalas are likely to leave or enter the site to or from the north. The corridor itself is roughly bisected by a planned 16m. wide interior road. [18] The Hawkins corridor is planned also to contain the overland flow of stormwater from north to south. On the evidence of the consulting engineer Mr Henwood, which I accept, the current proposal will properly carry out that function, even in a 100 year ARI flood event. He regards the design (which permits an on-site detention system within the south western park area) as reflecting best management principles. [19] I accept the evidence of Mr Henwood that while earthworks will be necessary within the corridor, only a shallow channel of up to 8m. in width need be constructed and damage to natural ground outside that can be prevented. From a plan (fig. 6) in exhibit 2 that would seem to put only one primary food tree at some risk and I am not prepared to find that it will be destroyed if its preservation is emphasised by a condition. I also consider his calculations of fluid capacities are acceptable and that Mr Jones (of the Council) has been rather too pessimistic. All in all, the engineering evidence did not seem to me to affect the views of the ecologists and environmentalists that over the length of the Hawkins -- 6 of 11 -- 7 corridor it is reasonable to conclude that some seven or eight primary koala food trees can be retained, as well as an unspecified number of secondary food trees and roost trees. [20] Hawkins plans to revegetate the corridor by planting koala food trees. The evidence is clear that time will elapse before they are of any practical use as either food trees or roost trees, somewhere between 7-10 years at best or perhaps as long as 15 years. So even immediate revegetation will be of no use for a considerable time. With a view to the future, however, it would be quite wrong to discourage regeneration. [21] An important witness for Hawkins was Mr Callaghan, the chief ecologist with the Australian Koala Foundation (AKF) which is a private non-profit organisation dedicated to the protection and preservation of koalas. He is very experienced and well qualified on the subject. [22] Mr Callaghan stated frankly that he regretted that residential development on this site should occur but accepted that it was inevitable that it would do so. Faced with that he adopted a highly pragmatic approach. He said that he believed the Hawkins corridor to be the most appropriate and listed a number of reasons. He said that the central drainage line could, by remaining moist, provide higher nutrition to koalas. The Hawkins corridor would be totally within the site and as far removed from the west and east boundaries as possible. However he was of the view that more important was the fact that the developer, Hawkins, was prepared to contribute to the long term management of the site by ensuring sensitive designs, no cats or dogs, slow speed zones, education programs, monitoring the work on the site and making a commitment to the future that would allow the AKF to have an active role in all stages from detailed site design to the construction phase to monitoring and education in the future. I accept Mr Callaghan’s evidence. -- 7 of 11 -- 8 [23] One might say that many of those features of the development could be imposed on the development by reasonable and relevant conditions without the necessity for the developer to encourage their imposition or to approve of them. That would, I think, be over-cynical. The expressed willingness of a developer to accept conditions is obviously better than reluctant acceptance of imposed conditions. And if the expressed willingness proved to be merely a device to win the substantive appeal that device would fail. While a devious developer may, after the court has decided that the development application be allowed to proceed subject to conditions, then exhibit reluctance to accept the earlier proffered conditions, evidence given of that earlier attitude would no doubt be weighty evidence that they should be imposed. [24] Importantly, there is every reason to believe that in this case Hawkins will agree to those conditions which the AKF regard as necessary for the protection of koalas, whether resident or transient on the site. In passing I would say that, of those possible conditions which were discussed, the evidence satisfies me that cats do not pose a danger sufficient to ban them from the residences to be built on the site and nor (provided proper fences are erected along the park corridor) would it be necessary to provide rope escapes from swimming pools. [25] Mr Callaghan frankly conceded that a 50m. wide corridor would be preferable to a 20m. wide one. That was also the opinion of Dr Carrick and Ms Eykamp. Indeed each of those experts would prefer to see a much wider one still, 100m. or more and the virtue of that is obvious. But the fact is that this site is, as the consultant planners agree, suitable for Special Residential development and indeed when the IPA Town Plan (now in the late stages of preparation) is promulgated, the site will probably be designated suitable for more intense development than that, so that the danger posed to koalas would then be -- 8 of 11 -- 9 greater. It is therefore obvious that Hawkins development should proceed if possible, consistent with the Strategic Plan provisions referred to in para [15]. [26] This is not a case in which I should choose between the Hawkins corridor and the Council corridor. The KFM plan (figure 5 to Ms Dryden’s report, ex10) which sets out the Council corridor is not part of the application under appeal. Indeed Mr Ure scrupulously made that clear and proffered the plan simply as indicating that a better approach to the koala question was available. It does indeed have the advantage of a wider corridor, more koala food trees (15) and the fact that it contains no road crossing. On the other hand it abuts the existing western residences, the fences of which cannot be conditioned in this appeal and nor can any there be any restriction placed on dogs in those residences. But the real point is that I have to decide the propriety of the Hawkins proposal, not the KFM plan proposal. [27] On the evidence the site contains no resident population of koalas, other than on a temporary basis. The evidence of the use made by koalas of the food and roost trees is more likely to be by transient koalas. So the relevant question is whether seven preferred food trees, plus no doubt some secondary food trees and roost trees within the Hawkins corridor would reasonably provide for the transient koalas and for the temporary residents. [28] Recognised scientific studies by Prevett (ex. 16) and Moon (ex. 19) establish that koalas are able to cross large tracts of open and alienated land (“hundreds of metres” – Moon) so continuous tracts of vegetation corridors are not essential for koala movement. Dr Carrick also spoke of koalas moving up to 1½ km. at night. This is subject to contact with dogs, which emphasises the need to exclude dogs from the area, and conflict with vehicles, -- 9 of 11 -- 10 which can be ameliorated in this instance by imposed conditions. This encourages me to the conclusion that even the 20m. wide corridor (total length only some 200-250m.) will provide a passage which koalas are likely to use. And of course within that distance are some seven primary food trees as well as an unspecified number of secondary food trees and roost trees which will make the corridor attractive to them and safe to use given the absence of dogs and the presence on the intervening road of slow moving vehicles only. [29] In evidence Mr Hawkins, who is a surveyor, said it would be possible to reduce the size of some allotments so that the 20m. corridor could be widened by 3m., 6m., or even 9m. It is of course tempting to require him to take some such step but I do not do that for two reasons. First, the expert witnesses who were critical of the 20m. corridor did not seem to think that widening by the suggested few metres would make any practical difference. Second, Hawkins’ attitude of co-operation with the AKF may well be adversely affected by such a requirement and I do not want that to come about. Of course if negotiation on conditions, or the course of detailed design, should reveal a good reason to widen the corridor, that could do no harm. It would clearly be a minor change. PEA, s. 44(5A) [30] The Hawkins proposal clearly conflicts with the provisions of the Strategic Plan which I have cited in para [15]. The previously untrammelled use of the site by koalas will be considerably diminished by the creation of 42 residential lots and the road network. I have found that the provision of the park corridor by Hawkins will minimise that effect but nevertheless the conflict with the Strategic Plan remains. [31] What planning grounds are there to approve the application despite that conflict? The parties, at the appeal, tended to let this requirement go, as it were, by default, but I should -- 10 of 11 -- 11 deal with it even if briefly. The answer I think lies in the uncontested evidence of Ms Dryden in her report, ex 10 that: “This density” (of residential development) “is an acceptable planning outcome in this location given the site’s proximity to public transport and urban services in Narangba.” and elsewhere she refers to the fact that the Preferred Dominant Land Use for the site under the Strategic Plan is residential. From this I can comfortably find that Hawkins has satisfied the test laid down in s.4.4(5A) Conclusion [32] In due course the appeal will be allowed. In the meantime I adjourn the appeal to allow the parties to attempt to agree reasonable and relevant conditions. -- 11 of 11 --