Cooroy Golf Club & Anor v Noosa Shire Council [2005] QPEC 16 [2005] QPELR 561

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Cooroy Golf Club & Anor v Noosa Shire Council [2005] QPEC 016 PARTIES: COOROY GOLF CLUB INC AND ROBERT BROS HOLDINGS PTY LTD (appellants) v NOOSA SHIRE COUNCIL (respondent) FILE NO: 49 of 1997 PROCEEDING: Appeal DELIVERED ON: 11 March 2005 DELIVERED AT: Brisbane HEARING DATES: 17, 18, 19, 20, 21, 24 and 25 January 2005 JUDGE: Judge Brabazon QC ORDER: Appeal dismissed. CATCHWORDS: LOCAL GOVERNMENT – TOWN PLANNING – Development consent – rezoning application – Golf course, motel and residential allotments – 1990 Planning Scheme – Draft Noosa Plan – Draft South-East Queensland Plan – Where court must give consideration to all planning documents. LOCAL GOVERNMENT – TOWN PLANNING – Development consent – Rezoning application – Where development proposed in drinking water catchment – Whether development would degrade water quality – Where there is a low level of risk. Integrated Planning Act 1997 ss 2.5A.24(1); 4.1.50(1); 4.1.25; 6.1.26. Local Government (Planning and Environment) Act 1990 s 4.15 -- 1 of 60 -- 2 Planning and Environment Act 1990 ss 3.4(1); 4.3(1); 4.4(5A). Cases considered: Alati and Protettore Pty Ltd v Brisbane City Council [1994] QPLR 112 Buderim Private Hospital Pty Ltd v Maroochy Shire Council [1996] QPELR 251 Cherrabun Pty Ltd v Brisbane City Council [1985] QPLR 205 Cooroy Golf Club v Noosa Shire Council [2001] QPELR 431 Indooroopilly Golf Club v BCC [1987] QPLR 178 McPherson v Caloundra City Council [1990] QPLR 272 Strathpine Developments Pty Ltd v Pine Rivers Shire Council [1974] Qd R 374 Tamborine Mountain Progress Association v Beaudesert Shire Council (1994) 88 LGERA 398 Vynotas Pty Ltd v Brisbane City Council (2001) 112 LGERA 206 Weightman v Gold Coast City Council (2002) 121 LGERA 161 COUNSEL: Mr M Hinson SC and Mr S Keliher for the appellant Mr T Trotter and Mr M Williamson for the respondent SOLICITORS: Robert Milne Legal for the appellant Wakefield Sykes for the respondent The Appeal [1] The appellants want to use land adjoining the Cooroy golf course to build a motel, and create a subdivision of 75 residential allotments. The land comprises two lots, and has a total area of 9.262 hectares. It is presently zoned Rural Catchment, under the 1990 planning scheme. [2] To do that, they first want the land to be rezoned. They want it rezoned to the Village Residential, Residential Low Density and Open Space zones. There might be some other consequential changes. Council opposes the rezoning. This appeal is about the application for rezoning and whether it should be allowed, or not. -- 2 of 60 -- 3 The Application [3] The application to Council, and the course it has taken, is unusual. The application was made as long ago as September 1992. It related to five parcels of land. It sought the rezoning of the land and amendment of the Cooroy DCP so that its preferred dominant land use designations reflected the proposed new zonings. The intended uses were:- (a) a 9 hole extension of the existing Cooroy golf course; (b) a 77 lot residential estate; (c) a motel. [4] There were three objections made in response to public notification of the application. Each objector has since withdrawn its objection. [5] In July 1994 the Council resolved to commence the process of amending the Strategic Plan and Cooroy DCP, to allow for approval of the application. That decision was affirmed in August 1994, but was rescinded in October 1994. [6] In November 1996 the Council approved that part of the application relating to the golf course extension, but refused the application in so far as it related to the residential estate and motel. Subsequently, the Council approved the material change of use on the further golf course land, and the necessary reconfiguration of that land. [7] This appeal was lodged in January 1997, against the refusal of the application for the motel and residential estate. -- 3 of 60 -- 4 [8] The golf course extensions are still under construction. They are expected to be completed in mid 2005. [9] In November 2000 an application was made to modify the application so far as it related to the balance of the land. In March 2001 the Court held that the modifications were minor modifications under s 4.15 of the Local Government (Planning and Environment) Act - see Cooroy Golf Club v Noosa Shire Council [2001] QPELR 431. [10] The development proposal has been further modified. For a time there was an issue in this appeal about the extent of these changes, but it was withdrawn during final submissions. The proposal is now shown on Drawing G4068SK01 dated 10 November 2004. It consists of:- (a) 75 residential allotments (down from 77); (b) a 60 unit motel; (c) 1.64 hectares of public open space. The Legal Framework [11] Some basic principles have to be kept in mind. The duty of this Court is to give an impartial decision on the merits of the application, based on the evidence before it. [12] The Court is in no sense a planning authority. That is the role of Council. The Court’s usual duty is to have regard to the general law in Queensland about planning matters, and to apply Council’s planning strategies and schemes, to the facts revealed by the evidence. -- 4 of 60 -- 5 [13] The applicants have the task of persuading the Court, on the balance of probability, that the application should be approved. See the Integrated Planning Act 1997 s 4.1.50(1). The hearing is a fresh one. That is, the Court has to reach its own view about the merits of the application, on the evidence before it. Sometimes, the information before the Court is more extensive than the information available to Council. [14] The application to Council was lodged when the 1990 Planning Scheme was in force. Because of the provisions of IPA, it is a transitional planning scheme. Section 6.1.26 of IPA says that this appeal is to be determined as if the former P&E Act had not been repealed. [15] Council refused the application in November 1996. This Court may be in a different position from Council, now that further planning provisions have been adopted or proposed. The Court may have to take the new provisions into account. That is because of s 3.4(1) of the P&E Act. Literally, it applies to decisions of the local authority, but the Court has always accepted that the provision applies to the Court, when considering appeals (see Alati and Protettore Pty Ltd v Brisbane City Council [1994] QPLR 112 at 117: “… (the Court) in deciding the appeal in accordance with the planning scheme in force at the time the application was lodged is to give such weight as it considers appropriate to the new planning scheme.” That approach is now confirmed in s 4.1.52 of IPA which refers, in terms, to the Court’s duty to consider the impact of new laws and policies. [16] The usual course is also to consider any draft planning document, even if it has not been formally adopted, or given legal effect. The reason is that care should be taken not to cut across planning intentions that can be expected to come into effect. In practice, draft plans -- 5 of 60 -- 6 which have been put on public display are taken into account. In this case, the draft Noosa Plan and the draft SEQ Regional Plan are in that category. [17] Under IPA, any prohibitions in the previous planning scheme lose their emphatic quality, and become expressions of policy. See IPA s 6.2.1.2(3), which says that a prohibited use in a transitional planning scheme is to be taken as an expression of policy. However, that does not mean that the provisions of a transitional planning scheme can be ignored. The decisions of the Queensland Court of Appeal show a need for the consistent application of a planning scheme, and that this Court should be careful and restrained when considering any departure from the provisions of the scheme. See Vynotas Pty Ltd v Brisbane City Council (2001) 112 LGERA 206 and Weightman v Gold Coast City Council (2002) 121 LGERA 161. The Planning Framework [18] The 1992 application was made under s 4.3(1) of the P&E Act 1990, then in force: “ (1) A person may make application to a local government to amend a planning scheme … . (2) An application under (1) is limited to – (a) The zoning or rezoning of land … (b) … (c) … (d) The amendment of a regulatory map (e) The amendment of a development control plan … where the map confers use rights. 4.4(3) In considering an application to amend a planning scheme or the conditions attached to an amendment of a planning scheme a local government is to assess each of the following matters to the extent they are relevant to the application – -- 6 of 60 -- 7 (a) whether the proposal, if approved, or buildings erected in conformity with the proposal, or both the proposal, if approved, and the buildings so erected would – (i) create a traffic problem, increase an existing traffic problem or detrimentally affect the efficiency of the existing road network; (ii) detrimentally affect the amenity of the neighbourhood; (iii) create a need for increased facilities; (b) the balance of zones in the planning scheme area as a whole or that part of that area within which the relevant land is situated and the need for the proposed planning scheme amendment; (d) … (e) whether, having regard to the permitted or permissible uses of the land and the potential for subdivision in the zone in which it is proposed to be included water, gas, electricity, sewerage and other essential services should be made available to the land and to each separate allotment thereof if the land were subsequently subdivided; (f) the impact of the proposal on the environment (whether or not an environmental impact statement has been prepared); (g) the situation, suitability and amenity of the land in relation to neighbouring localities; (i) … (j) … (k) ... (l) such other matters, having regard to the nature of the application, as are relevant. (4) … (5) In deciding an application made to it pursuant to section 4.3 a local government is to – (a) approve the application; or (b) approve the application, subject to conditions; or -- 7 of 60 -- 8 (c) refuse to approve the application. (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.”. [19] Section 4.4(5A) involves a three stage process as explained in Weightman at 453: (a) examine the nature and extent of the conflict; (b) determine whether there are any planning grounds relevant to the part of the application in conflict, and if the conflict can be justified on those grounds; (c) determine whether the planning grounds in favour of the application as a whole are, on balance, sufficient to justify approval despite the conflict. [20] The application is not an application for consent under the table of zones. If the application is approved it is common ground that a further reconfiguration application will be required for the residential estate and a further material change of use application will be required for the motel. Details of the proposed development have been put forward here because it was thought necessary to understand the nature and extent of development which is proposed to be pursued if the application succeeds. A rezoning will lead to further applications for reconfiguration and material change of use. [21] In a rezoning application, it is not necessary for complete details of any proposed development to be provided. Those details can be left to the application stage, when that is reached. See the decisions of the Full Court of Queensland in Strathpine Developments Pty Ltd v Pine Rivers Shire Council [1974] Qd R 374 and Buderim Private Hospital Pty Ltd v Maroochy Shire Council [1996] QPELR 251. -- 8 of 60 -- 9 [22] Indeed, it is necessary to keep in mind that a rezoning application is fundamentally different from an application for consent according to the table of zones. In that more usual case, the authority of the zoning provisions has to be accepted. On the other hand, a rezoning application seeks to deny that authority by changing the zoning itself. [23] The zones are accompanied by a statement of intent, which provide a helpful indication as to the manner in which the Council, or the Court, should decide an application for town planning consent. However, such statements are not meant to restrict an application to rezone. A rezoning, being an amendment of a planning scheme necessarily involves a departure from the form in which it originally appeared. It would be inappropriate to take the view, that the opportunity for such an amendment should be seen to be limited by the express wording of the existing planning scheme. See Cherrabun Pty Ltd v Brisbane City Council [1985] QPLR 205 at 208. [24] It also appears that attention should be focussed on the impacts of the application if it should be successful, rather than the actual proposal for development. Note the emphasis on the application, in s 4.4(5A). That emphasis was noted by Pincus JA in Tamborine Mountain Progress Association v Beaudesert Shire Council (1994) 88 LGERA 398 at 401-2. Indeed, the actual proposed development may never proceed if it is refused or if the developer decides not to proceed. On the other hand, the application will have permanently changed the planning scheme, and that fact itself is likely to have an important effect on other proposals for development on the land. They may be as of right or with the consent of Council. -- 9 of 60 -- 10 [25] So, while it is not the usual function of this Court to substitute its own planning strategies for those which a Council has chosen to adopt, the Court has to do its statutory duty in considering a rezoning application. There must be the enquiry, as to whether or not a particular application will be justified, particularly if there are any conflicts with the planning strategy. In an appropriate case there will be an obligation on the Court to allow the rezoning notwithstanding conflict with the planning scheme. [26] It is only Queensland that gives an applicant a right to apply to the Council, and the Court, to change the zoning of land. It is thought necessary to have the possibility for a scheme to be amended, not just on the occasions when it is formally reviewed, but also to accommodate other changes which may become necessary during the life of the Scheme. There is always the possibility of an inconsistency or anomaly in the zoning coming to light after the Scheme is gazetted, and which requires rectification. See generally Fogg: Land Development Law in Queensland LBC 1987, at 333. [27] Some of the relevant matters that the Court should consider are set above, in s 4.4(3). In this case, particular attention was paid during the hearing to the question of need, the quality of water in the catchment, the planning intentions and strategies of Council and the planning merits of the application. The Land [28] The land is in the catchment of Lake MacDonald, a dam which holds a substantial supply of drinking water for the Shire. -- 10 of 60 -- 11 [29] The subject land: (a) Comprises two lots having an area of 9.262 hectares; (b) Lies to the east of Myall Street; (c) Has a frontage to Myall Street of about 560 metres (see Ex. 17 p 51). (d) Is generally undulating with its highest point about 121 metres and its lowest point about 100 metres; (e) Has its lowest point in the north-western corner where a tributary of Six Mile Creek traverses the subject land in a generally north-easterly direction; (f) Is well grassed, and apart from the north-western corner, where Six Mile flows across the land, is largely cleared; and (g) The site may well have been used for grazing purposes at some time in the past, however, presently it appears to have been vacant and unused for some considerable period of time. (h) Is attractive in appearance. The Proposed Zoning [30] The appellants seek to have the land included in three different zones. The land to be occupied by a motel would be in the Residential Low Density zone, while the housing subdivision would be in the Village Residential zone. The revegetated area around the existing creek would be in the Open Space zone. See Judge Robin’s order of 10 May 2001. [31] Under those new zones, detached houses are permitted developments. The motel would be a consent development. The minimum subdivision size of allotments would be reduced from 40 -- 11 of 60 -- 12 hectares to 600m2 in both those zones and also the intents of those zones in the 1990 planning scheme. The Residential Low Density zone is intended to provide for areas of low density residential development of a height which is compatible with dwelling houses. The intent is that mixed residential uses will feature within the zone and dwelling houses, duplex dwellings, group housing developments and multiple dwellings will be the predominant forms of development. [32] The Village Residential zone is to be predominantly utilised for dwelling house purposes in the rural towns of the shire. Duplex dwellings may be achieved with the consent of the Council. [33] It follows that the rezoning would be likely to have a substantial impact on the use of the land. Both the Court and subsequently the Council would have to take into account the more intensive use of the land which would be permitted. [34] The zoning, and the fact that the land is enclosed on three sides by the golf course, can be seen in Fig 4 to Mr Ryter’s report. The golf course is in the Open Space zone. Before its recent expansion, the new 9 hole course was in the Rural Catchment zone. [35] The site is roughly rectangular in shape. One of the long sides runs along Myall Street, and the other long side adjoins the golf course. Each end of the rectangle also adjoins the golf course. Six Mile Creek runs through the north-western corner of the rectangle. -- 12 of 60 -- 13 The Proposed Development [36] The proposal is graphically illustrated in the layout of the proposed development – see Ex. 10 Fig 5. The main vehicle access from Myall Street is over the existing vehicle entrance to the land. A proposed public road then crosses Six Mile Creek over an arched bridge, leading both to the subdivision and to the motel. The road also extends to the boundary of the land. It is proposed that it will give access to a relocated club house for the golf club, to be built on the golf course. [37] A secondary road branches off to the proposed subdivision. Of the 75 lots, 24 will have frontages and views to the golf course. Those closer to Myall Street will be protected by increased plantings along the street frontage. The proposed residential lots average about 650m2 in size, with a maximum lot size of 958m2 and the minimum of 601m2 . It seems that those sizes would be comparable to the typical size of residential lots in Cooroy. [38] The proposed lots have building envelopes which, as well as meeting the minimum setback requirements of the Noosa Shire Council, set aside space for the planting of new vegetation. The proposed setbacks from the rear boundaries have been increased to 6m, to ensure sufficient space for vegetation corridors between buildings and rear boundaries. [39] It is anticipated that the subdivision would contain single and double storeyed detached residential housing. -- 13 of 60 -- 14 [40] The creek corridor would be protected and enhanced by a 50m wide vegetation buffer on each side of the creek. The creek corridor will be the dominant feature of about 1.64ha to be designated as public open space. [41] The proposed motel is situated in the northern corner of the site, overlooking the golf course. It will be closer to the proposed new club house than any of the residential lots. It is proposed that it will be a two-storey structure containing 60 motel units. There would be vehicle parking for 194 vehicles, including 92 spaces for golfers. It is also proposed that there will be a bus set down area and three bus parking bays beside the access road, and close to the new club house. The Planning Schemes [42] First, it is necessary to look at the planning position at the time the application was lodged in September 1992. The 1990 Town Planning Scheme is still in effect, and the Cooroy Development Control Plan has been in effect since June 1992. The 1988 Strategic Plan was in effect, though its provisions have since been overtaken by the 1997 Strategic Plan. The planners agree that the 1988 version is now of little relevance, but it should be mentioned. The 1988 Strategic Plan [43] In all the planning provisions set out below, the emphasis has been added. [44] The relevant provisions of the 1988 Strategic Plan are as follows: -- 14 of 60 -- 15 “(10) Dam Catchment Area The Lake MacDonald Catchment Area is coloured grey. Areas secured for public or private open space, within the catchment, are the only significant exclusions from that area coloured grey. Whilst the catchment area is not a dominant land use in the strict sense, use of land within the catchment requires specific management and control to preserve water quality, and consequently has significant strategic planning implications.” …….. Dam Catchment Objectives “Aim: To protect and to preserve the existing water supply source contained within the Lake MacDonald catchment. Objectives (1) To control development which occurs within the dam catchment area Lake MacDonald is the principal source of water for the urban areas of the shire, although this source is to be supplemented by water drawn from the Mary River. The protection of Lake MacDonald will at all at times be essential to the health and well being of the Shire’s population. Accordingly, it is necessary to weigh carefully the level of impact which any development proposal may have on this source. To assist in this assessment, Council has undertaken to prepare a development control plan for lands included within the dam catchment area. This plan will define controls upon development within the catchment area, and set performance criteria for consideration of applications for development of land within the catchment. Until such time as the plan is enacted, the protection and preservation of the water quality source is to be the principal criteria in assessing any proposal. (That proposed DCP has not been prepared) (2) To limit the extent of any urban development within the dam catchment area, and in particular within the Town of Cooroy -- 15 of 60 -- 16 Urban development has been determined to have excessive impacts upon water quality within Lake MacDonald. One area of urban development exists within the dam catchment, comprising part of the Town of Cooroy. No extensions to the urban area of Cooroy within the dam catchment, apart from within that area zoned Future Urban on the Town Planning Scheme Maps will be permitted. Proposals for creation of urban type developments within areas of the catchment will also not receive favourable consideration.” (This land is not zoned Future Urban). There are provisions about the Urban Area: “(3) Urban Area This area is coloured pink on the maps and essential (LY) defines those areas which will be developed for residential uses, comprising both permanent and tourist accommodation. .” (It is assumed that this land is not in the pink area.) “Urban Objectives 4 Aim: To encourage residential growth to meet community and tourist needs and lifestyles, having regard to the needs of the natural environment and commensurate with infrastructure servicing capabilities. Objective 1. To provide for a diversity of accommodation styles to cater for the varying needs of the urban community. The population of the Shire comprises a diversity of people be they residents or tourists, of different ages, family structures and income all having different needs and preferences regarding housing. It is necessary therefore to provide for a diversity of accommodation styles. As a broad means of change of achieving this objective the schedule contains a number of residential zones varying in terms of the type of -- 16 of 60 -- 17 development which may be achieved in each and spatially graduated in terms of the intensity of use permitted. The statement of intent of the zones, contained within the schedule sets out further details as regard the nature of development which may occur within those particular zones. (2) To direct the expansion of the urban area having regard to the orderly progression of basic infrastructure services. The economic provision of basic infrastructure services is a major factor in consideration of expansion within the urban area. The cost of providing facilities such as water supply, sewage, electricity supply and access roads may be inordinately high unless the provision of these services follows an orderly pattern of extension. In order to ensure the most economic use of land within the Shire, the sporadic development of urban subdivisions in areas isolated from existing urban development should be discouraged. (3) To consolidate the existing urban areas The advantages of consolidation relate to the availability of services and support facilities which may not be fully utilised or which may be simply and economically augmented. Council therefore considers it desirable to encourage consolidation of existing urban areas prior to commitments being made for urban expansion. (4) To encourage redevelopment of existing older areas Council considers that some of the older developed areas within the coastal district are suitable for redevelopment. In order to realize the tourism objectives it will be necessary to upgrade by encouraging the redevelopment or renovation of those areas …. (5) To ensure that the expansion of the urban area occurs in areas which do not create significant environmental impacts, and within areas which do not suffer physical or engineering constraints which cannot be overcome. -- 17 of 60 -- 18 In consideration of proposals for expansion of the urban area, into areas hitherto, undeveloped, Council will consider – (a) The effect of the proposal on the natural environment where the progress and development is encourage, the destruction of important areas and natural environment is not to be condoned. It is recognized that the protection of certain natural areas is necessary for the future image of the Shire. In order to determine the potential effect of any proposal upon areas determined to have environmental significance, Council may require the submission of an environmental impact statement. Wherever possible environmentally significant land should be retained as open space and appropriately buffered from adjoining development.” 102. Part B of the Strategic Plan, page 63, describes the dam catchment area thus: “Dam catchment; this area is the catchment for the Lake MacDonald Dam. Constraints upon most development have been imposed by the way of the town planning scheme and Council’s subdivision by-laws and policies.” The 1990 Table of Zones [45] The 1990 Planning Scheme contains the intent of the zones, set out at page 1734. The Future Urban Zone is described thus: “(6) Future urban zone The intent of this zone is to set aside areas for planned urban development until all services and all urban facilities can be provided. The ultimate land use will be predominately residential and the table of zones reflects this intention by limiting land uses which may be achieved with consent, to those which are -- 18 of 60 -- 19 likely to be conducted on a temporary or interim basis or those which may be compatible with urban residential functions.” [46] The Rural Catchment zone, the zone in which the subject land is included, refers primarily to those lands within the Lake MacDonald catchment. The intent of the Zone provides: “(16) Rural Catchment Zone This zone includes the majority of lands within the Lake MacDonald dam catchment area. Protection of the water supply source from intensive land uses and sub division is intended. Approval of application for subdivisional consent will only be granted where it has been clearly established that detrimental effects upon water quality will not arise. A development control plan will address further controls upon the nature of development permissible with the consent of the Council.” [47] The table of development contains the Rural Catchment Zone. Of all of the rural zones the rural catchment zone is the most restricted. The range of permitted development and permitted development subject to conditions is extremely restricted. The table of development indicates that the permitted uses are few in number. Dwelling houses and domestic animals [48] Other permitted uses are capable of being controlled by the imposition of conditions. [49] Permitted development allows only a dwelling house, and domestic pets, on each lot. Agriculture and animal husbandry is allowed, subject to conditions. Perhaps crops and a limited number of cattle might be permitted. -- 19 of 60 -- 20 [50] With Council consent, there can be group housing development (which, as a matter of definition, is not a “subdivision”).. While some group housing might be very intense, it is likely in this case that the number of units would be small. Otherwise, all development is prohibited. Reconfiguration Provisions [51] The IPA-ised version of the 1990 Schedule contains provisions relevant to reconfiguration of a lot. Table 7.1 provides that the minimum area in the Rural Catchment Zone into which land can be subdivided is 40 hectares. [52] Section 7.3.6, and s 7.5, have the effect of prohibiting this proposed subdivision being carried out in this zone. While there is a power to relax the various subdivisional requirements in other cases, such power does not exist where the land is contained in the Rural Catchment Zone. The Cooroy Development Control Plan [53] This document came into effect in June 1992. It remains in effect. The introduction provides: “This DCP applies to the township of Cooroy as shown on the Development Control Plan Map. Population growth within the township and the immediately adjoining hinterland is placing development pressure on the town. The town has an attractive, but fragile, country town character. This plan seeks to provide for development which is in harmony with the existing character of the town. The intent of this development control plan is to: provide a framework for development in and around Cooroy – indicate to land owners, developers and other interested people, the objectives of Council and -- 20 of 60 -- 21 dealing with land development proposals; and assist the Council in its assessment of land development applications. The goals of the development control plan are – (1) To provide for orderly residential growth within the township of Cooroy; (2) To provide for and encourage the establishment of facilities to service the needs of the residents of the township and surrounding rural area; (3) To protect and enhance the existing town character of Cooroy; (4) To foster a sense of community amongst the residents of the town and the immediately surrounding rural area.” [54] The subject land is contained in the Rural and Rural Residential Designation. That Designation provides: “This designation applies to those areas which are presently not committed for urban use and are not intended to be used for urban purposes. Those areas are located west of the township where they serve as a buffer between the town and the industrial area and north where they mark the northern limits of residential expansion. It is intended that land included in this designation will be used for Rural and Rural Residential purposes.” [55] The subject land does not lie to the north, or west, of the township; however, this is explained in the planning study in section 3.1.5 which addresses the rural and rural residential objectives. (The subject land is called “A small section of rural land …”) It provides: “Existing rural residential and rural areas abut the northern and western boundaries of the Development Control Plan area. These areas form a gradation of development intensity between the urban area of the township and the hinterland. Within these areas residents have established dwellings and have enjoyed the advantages of acreage living in very close proximity to the services available in Cooroy. -- 21 of 60 -- 22 There is an opportunity to maintain these areas both as a buffer both around the township and as an attractive residential alternative. A small section of rural land within the Lake MacDonald catchment area is included in the southern extreme of the Development Control Plan Area. This land is currently zoned Rural Catchment under the planning scheme. In accordance with the dam catchment objectives of the Strategic Plan (refer to clause 2.3.1 herein), this land should be retained for rural purposes appropriate in a dam catchment only, except that consideration may be given to the Cooroy Golf Course extending into this area. … The emphasis of the DCP is for rural use …” [56] The aims relevant to the Rural and Rural Residential Designations are as follows: “3.8 Rural and Rural Residential Aim to maintain a rural and rural residential buffer around the urban area of Cooroy. Objective 1 (a) To protect the existing Rural and Rural Residential areas abutting Cooroy from urban uses. (b) Implementation (1) Council will not favourably consider any application for consent or rezoning within the Rural and Rural Residential areas to provide for a use which is not rural or allied and compatible with rural uses. Objective 2 (a) To protect existing rural land in the dam catchment from inappropriate Land uses (b) Implementation -- 22 of 60 -- 23 (1) Council will not favourably consider any application for rezoning to rural residential of land within the Rural and Rural Residential area which is zones Rural Catchment under the planning scheme.” [57] The Cooroy Development Control Plan’s objectives are to maintain urban boundaries within the township of Cooroy and also to maintain appropriate open spaces abutting those boundary areas. An additional aim relates to the preservation of water quality in Lake MacDonald. There is no encouragement for residential subdivision of this land. However, the plan shows that existing and future residential land is not far away from this land. Being separated by the Bruce Highway, Myall Street, and the golf club land, it does not adjoin the nearby residential area. The 1997 Strategic Plan. [58] It is apparent that much greater weight should be given to this strategic plan, than to its predecessor. [59] Section 6.1, Physical Setting, provides: “…….the locality includes part of the catchment of Lake MacDonald, a dam constructed on the Six Mile Creek, which is the primary source of water for the coastal urban areas of the Shire and the rural towns and villages of Cooroy, … … Six Mile Creek, Cooroy Creek and tributaries of Six Mile Creek which lead to Lake MacDonald traverse the locality and are important environmental and flooding influences. Flooding, Lake MacDonald catchment boundaries and the steeper range systems have influenced and defined the boundaries for the town of Cooroy.” [60] Section 6.2 provides: -- 23 of 60 -- 24 “……Water supply is available to the town of Cooroy and the area served by water is capable of extension. The extended area will be developed for urban purposes. It is not intended to reticulate water generally throughout the Cooroy locality. The central parts of the town of Cooroy are provided with sewage. Expansion and upgrading of the treatment plant located to the north-west of the town, will provide for an extended area to be serviced. It is intended that the extended area be developed for urban purposes. Sewage will not generally be provided throughout the Cooroy locality.” [61] Section 6.4 Intent provides: “The urban boundaries of Cooroy will be expanded to the north and to the west,… and will be consistent with the environmental capacity of the land to support development. ……some consolidation of existing development in town will occur as larger town lots are subdivided for urban purposes. New allotments will be consistent with the size of allotments in the surrounding area, assisting in the maintenance of the character of those areas and for that part of the locality within the Lake MacDonald catchment, assisting with the maintenance of water quality……..The town of Cooroy also serves significant recreational roles, … Within that part of the locality within the catchment area of Lake MacDonald, the dominant goal is the protection of water quality within the primary water supply source. As a consequence of this goal, new areas of urban development, including industrial functions and residential and commercial development in urban settings, are not supported by the Strategic Plan in the Lake MacDonald catchment.” [62] Key concepts for the particular area are as follows: “3. Provision for residential expansion of the town of Cooroy to the west and north, while maintaining defined town boundaries and Cooroy’s country town character and heritage. 11. Maintenance and improvement of water quality standards in the waterways of the Cooroy locality, particular those of Cooroy and Six Mile Creek. 12. Protection of major open space network links comprising: -- 24 of 60 -- 25 • … • the catchment of Lake MacDonald outside the town of Cooroy. • …” [63] Section 7.1.1.4 provides: “7.1.1.4 Within areas other than those considered in 7.1.1.3, it is intended to maintain the distinct character and identity of individual neighbourhoods by- • …. • In the Lake MacDonald catchment area, the maintenance of allotment sizes will also assist with the maintenance of water quality within Lake MacDonald.” [64] Section 7.1.1.3 refers to areas where it is intended to provide for expansion of the detached housing area in Cooroy. The areas mentioned in 7.1.1.3 are not areas which encompass the subject application. They are remote from it. [65] Detached Housing is intended to be provided for in the Semi-Detached and Attached Residential Designation. Section 7.2.1.1 provides that the Semi Detached and Attached Residential Designation provides for resident accommodation in Attached, Semi Detached and Attached development form. In the Cooroy locality, land with this designation is in close proximity to the Cooroy Business Centre as well as Recreation and Employment. [66] Section 7.8 deals specifically with Lake McDonald water quality. Paragraph 7.8.1 provides: “Objective: ensure that the protection of water quality within Lake MacDonald is the paramount factor in the determining of planning applications in the Lake MacDonald catchment.” -- 25 of 60 -- 26 [67] Provision 7.8.1.1 provides: “Whilst there are a range of issues to be considered on planning applications, in the Lake MacDonald catchment achieving strategic aim 27.8.3.1 will be a factor of the highest significance in determining those applications. [68] Mention therefore should be made of section 27.8.3.1 which deals with water supply aims: “Protect water quality within the Shire’s primary water supply source of Lake MacDonald and within that part of the Cedar Pocket Dam catchment in Noosa Shire, by ensuring that development does not adversely impact or potentially adversely impact that water quality. Where there is any doubt as to the impact or potential impact, land use decisions will favour the protection of the water supply source.” [69] The subject land is designated as “Open Space – Conservation and Waterway Protection” in the north-western section, and Open Space – Recreation” in the balance. It is relevant to have regard to Section 7.9.1.2 which provides: The Open Space – Conservation Waterway Protection designation has been used to identify land with environmental values:- • of the highest order; • … or. 7.9.1.3 Based on 7.9.1.2, the open space – conservation and waterway protection designation in the Cooroy locality includes:- • riparian corridors adjacent to Cooroy Creek, Six Mile Creek and their tributaries • land with significant vegetation values.” [70] The final provisions of the Cooroy locality which are relevant are those in 7.9.1.4: -- 26 of 60 -- 27 “The intent for the areas identified in 7.9.1.3 is to maintain the environmental values of that land to the exclusion of development which would have impact on those values, irrespective of the scale of impact or the time taken to result in a measurable impact. Where there are threats to the maintenance of those values or where a development is proposed which may result in adverse impacts on those values, actions such as the following will be considered … 7.9.1.5 For allotments within the open space – Conservation and Waterway Protection Designation, the highest order of use is a dwelling house and sub division of those allotments is not intended. 7.9.3.2 Population growth in the locality and the southern part of the Shire’s hinterland may necessitate additional recreational facilities. In particular, the Cooroy Golf Course and the Cooroy Sports Complex are facilities which require additional land resources. The Strategic Plan supports the expansion of these facilities, with any expansion preferably being located on adjoining land.” Lake Macdonald Locality [71] Whilst the subject site is not located in the Lake MacDonald locality, the provisions of that locality, which are to be found in the 1997 Strategic Plan, are relevant. Para 12.1 describes the physical setting of the lake: “The landscape of the locality is highly modified as a consequence o the areas’ cultural history, which has had its focus on the areas below the ranges where the land undulates. … environmental values in the waters of Lake Catchment are distinguished by the need to maintain water quality in Lake Macdonald in order to produce a safe and economic water supply for more than 80% of the Shire’s population. …” [72] “The Lake MacDonald locality will retain its rural and rural settlement character, with no urban development. Its residents will be predominately supported by the towns of Cooroy and Tewantin. A resident population in the range of around 2600 persons may be expected -- 27 of 60 -- 28 ……..Within the catchment area, the dominant goal is the protection of water quality within the primary water supply source of Lake MacDonald. Provided water quality is maintained, a safe and economic supply of water will be available for up to 60% of the needs of more than 80% of the Shire’s anticipated resident and visited population. As a consequence of this goal:- • Long-standing controls specific to subdivision in the Water Supply Catchment will be continued to be exercised. As well as assisting with the protection of water quality, these controls will also assist in the protection of the character of existing rural settlement and the lifestyle of existing residents. • More extensive regulation of agricultural undertakings, including animal husbandry and forestry, is intended. Such controls will not prevent the continued operations of existing agricultural, though may necessitate modification to the management of those operations. A consequence of the controls on subdivision, is that existing agricultural operations will have protection from rural settlement establishing on surround lands. • New urban development, including industrial functions and residential and commercial development in urban settings, are uses which are not supported by the Strategic Plan in the Lake MacDonald water supply catchment. …….Environmental values across the Lake MacDonald locality are dominated by the need to maintain high water quality standard within Lake MacDonald. Outside of these needs, significant values also exist, with some areas already protected within the Mount Cooroy Conservation Park. Other values have already been recognized in the State Forest, Six Mile and Ringtale Creeks and their tributaries and the vegetated rain systems of the sub-costal escarpment to the north, east and south of the locality. Many of these values have been identified in studies which support the Plan.” [73] Whilst there is no room for doubt as to the importance of these provisions, they are summarized in the key concepts. Such key concepts are: -- 28 of 60 -- 29 “(1) Protection of the primary water supply source of Lake MacDonald to ensure a safe and economic water supply for 80% of the Shire’s population. (2) Maintenance of the Lake MacDonald locality as a rural and rural settlement area with the focus on new rural settlement outside of the Lake MacDonald water supply catchment. (4) Improvement to the management controls on agricultural, industry and recreation undertakings in the Lake MacDonald water supply catchment to reduce impacts on water quality. (7) Protection of the key character and entry defining role of the Bruce Highway and Cooroy Noosa Road. (8) Improvement of the water quality standards in the waterways of the Lake MacDonald locality (9) Protection of major open space network links comprising:- • The catchment of Lake MacDonald • The riparian corridors of the Six Mile and Ringtale Creeks and their tributaries.” [74] It is clear that many of the passages in the intent refer not to the locality but to the Lake MacDonald catchment. Those provisions are consistent with the provisions in the Cooroy locality which similarly relate to planning matters within the catchment. The subject site lies on the immediate border of the Cooroy locality and given the importance of the water supply catchment it would be wrong to assess this application without having regard to these provisions relating to the Lake MacDonald catchment. [75] Section 27.3.1 provides:- “The natural core values of the Shire and the character, lifestyle and environment enjoyed by its residents are closely associated with the Shire’s extensive conservation -- 29 of 60 -- 30 reserves, waterways and the high proportion of vegetated private land in the Shire, as compared to the proportion of developed land.” [76] Section 27.4.3.3 provides: “Ensure that development does not diminish the quality of water in ground water systems, waterways or along the Coast. [77] Section 27.4.3.4 provides: “Ensure that does not diminish the volume of water flows in the ways.” [78] Section 27.7.1.3 provides: “Population analysis based on the urban commitments made in association with the 1985–1996 Planning Scheme indicate ample capacity to accommodate the Shire’s projected population to at least to the year 2011. As a consequence, the expansion of urban boundaries beyond those defined by the 1998-1996 Strategic Plan is not necessary, assisting the protection of the Shires cores values.” [79] Section 27.7.3.7 provides:- “Ensure that residential development is adequately serviced in a timely, cost effect, coordinated and efficient manner.” [80] Section 27.7.4.1 then goes on to provide:- “Ensure that urban detached housing areas are confined to • The rural town of Cooroy and Pomona.” [81] With respect to limitation on urban expansion in the town of Cooroy, regard must be had to Sections 27.8.3 which deal with water supply aims and Section 27.8.4 which deal with sewage -- 30 of 60 -- 31 infrastructure aims. It is clear that such provisions relate to orderly planning in the area and provide as follows: 27.8.3.1 Protect water quality within the Shires primary water supply source of Lake MacDonald and within that part of the Cedar Pocket Dam catchment in Noosa Shire, by ensuring the development does not adversely impact or potentially adversely impact that water quality. Where there is any doubt as to the impact or potential impact, land use decisions will favour the protection of the water supply source. 27.8.3.2 Ensure that urban development in …” [82] The Strategic Plans makes specific reference to areas intended to be served by reticulated water and such plan is to be found as part of Exhibit 16. The subject land is not within an area intended to be served by reticulated water. [83] The aims relating to sewage infrastructure are as follows:- 27.8.4.1 Ensure that urban development in Castaways Beach, Cooroy, Noosa Heads, Noosaville, Sunrise Beach, Sunshine Beach and Tewantin and the rural village of Cooribah is confined to those areas planned to be served by sewage infrastructure.” [84] Again, part of Exhibit 16 provides an illustration, that this is not an area planned to be served by sewage infrastructure. [85] Perhaps of equal importance to these specific aims is the aim contained in Section 27.8.4.3. That section provides:- “Ensure that development which is not planned to be served with sewage infrastructure but lies in the vicinity of those urban areas in 27.8.4.1, is designed so that pressure is not generated to provide a reticulated service to such area.” -- 31 of 60 -- 32 The Draft Noosa Plan [86] The draft Noosa Plan contains specific strategies with respect to residential development those strategies provide as follows [87] Section 1.7.6 with respect to Residential Development provides: “(a).The planning scheme consolidates urban residential development to the existing urban settlement of Breen Point, Casterways Beach, Cooran, Cooroy, Kin Kin, Marcus Beach, Noosa Heads, Noosaville, Perigan Beach, Pomona, Sunrise Beach, Sunshine Beach, Tewar and Tewantin. (b) The physical boundaries of urban settlement allow for limited expansion with most growth being through infill and where appropriate, redevelopment.” [88] Section 1.7.12 relates to nature environment protection: “(b) Activities that have potential to impact on water quality, bank or slope stability former habitats and linkages, or significant scenic vistas are inconsistent with the scheme.” [89] The strategy for infrastructure provides: “1.7.15 Water and Sewage infrastructure (a) There are adequate water treatment and transport facilities in place to service the residential population allowed for in the planning scheme. (c) Lake MacDonald water catchment is protected form further development that could have an impact on water quality.” [90] Section 1.8 of the draft divides the local government area into 9 localities. The relevant locality is contained in paragraph 1.8.3 which is referable to the Cooroy and Lake MacDonald -- 32 of 60 -- 33 locality, shown on Map ZM3. Under paragraph 1.9, those localities are then divided into 9 zones which are referred to in paragraph 1.9.3; those 9 zones are identified on map ZM3. The town boundary is shown in the inset to include the subject land. The subject land is included in the open space recreation zone and one can see the detached housing, semi attached housing and attached housing zones shown in the legend, to the northwest of the land. The golf course is included in the Open Space zone. [91] It is of interest to see (at 6-116) that in the Open Space Recreation Zone all agricultural uses and a detached house are regarded as an inconsistent uses in that zone. This is not difficult to understand when one looks at zoning map ZM3, because the nature of such open space recreation zoned land is extremely sparse. The subject land is the only such land in the catchment, and it is next to the golf course. [92] Section 6.7 contains the overall outcomes for the Cooroy and Lake MacDonald catchment. Of relevance are the following provisions:- “(g) Outside the town of Cooroy, development is characterised by – (i) Conservation of good quality agricultural land for agricultural purpose; (ii) Conservation of open space for biodiversity and water quality purposes; and (iii) Rural settlement of varying density consistent with the available levels of convenience and accessibility, environmental constraints and the proximity to the Lake MacDonald water supply catchment.” “(k) New areas of urban and rural settlement development are precluded from the part of the locality within the catchment area of Lake MacDonald where the dominant goal is the protection of water quality within the primary water supply source. -- 33 of 60 -- 34 (p) Water quality standards in the water courses of this locality are maintained or improved through land management practices. (aa) For the Open Space Recreation zone – areas of open space contribute to the desired lifestyle of residents by offering a variety of passive and active recreational experiences that are conducive to community international and well being; and” [93] Part 13 of the draft contains provisions relating to overlays the natural resources overlay designates the subject land as water supply catchment. Section 13.41 contains overall outcomes for the natural resources overlay code. [94] Paragraph 13.41.2(c) refers to the overall outcome for the Natural Resources Overlay Code for water supply catchment areas – i. Lake MacDonald and Cedar Pocket Dam water supplies are not adversely effected by development or the effects of development; ii. Costs of water treatment and infrastructure maintenance are minimized; iii. The expected life of dam infrastructure is maximized; iv. The visual amenity of Lake MacDonald is not adversely effected by development; and” [95] The specific outcomes for the Natural resources Overlay Code include outcome 5 which provides: “Development does not have adverse effects on the quality or quantity of water entering Lake MacDonald, Cedar Pocket dam or their tributaries including effects on – a) nutrient or other chemical levels; and b) sediment loads; c) and turbidity.” -- 34 of 60 -- 35 [96] Reference is also made to the Reconfiguring a Lot Code s 14.152.2 (says that an overall outcome is “acceptable impacts on watercourses …” section 14.156 sets out Outcome 4:: “No additional lots are created within the Lake MacDonald water supply catchment identified on overlay maps OM3.5 and OM 9.5.” [97] It is helpful to read this provision with Table 14.55. One sees in that table that subdivision in the Lake MacDonald water supply catchment area is, in practical terms, prohibited irrespective of the purpose for which it is intended. Although in respect of the open space recreation zone no minimum is specified, this is to be read with the earlier provision which provide that no additional lots are to be created. In any event perusal of the table suggests that no further subdivision is to be allowed for many of these zones. See detached housing, semi attached housing and attached housing in the case of the open space creation zone. There is no minimum area specified provided no additional lots are created. [98] In relation to storm water management one sees these specific outcomes in paragraph 14.163. The outcome required is:- “Storm water run off is managed so as not to cause any adverse impacts on the built or natural environment including changes in quality, quantity or location of storm water discharges.” The Draft South East Queensland Regional Plan [99] Under this draft plan for consultation the subject land is designated as Regional Landscape And Rural Production Area. Part D of the plan provides:- “The rural and natural landscape areas of SEQ support many environmental, rural production, recreational, cultural and scenic features that are highly valued by the -- 35 of 60 -- 36 regions population. These natural environmental and economic resources underpin the regions liveability, former substantial component of the economy and will be protected from urban and rural residential development.” [100] What could be referred to as the intent for the Regional Landscape and Rural Production Area is found at page 13: “The regional landscape and rural production area includes land comprising of regionally significant area with one or more of the following values:- • Water storage impoundments, water storage catchments and ground water areas; • Land forming strategic and regionally significant inter-urban breaks.” [101] (In the glossary of terms, one sees the definition of inter-urban break: “Inter urban breaks; non urban land areas that separate and/or surround urban villages, town and metropolitan areas.”) [102] The intent goes on to say: “The intent of the regional landscape and rural production area is to ensure its long term protection from inappropriate forms of development, particularly the encroachment of urban land uses and the further fragmentation of land holdings for rural residential and other similar activities. [103] The Urban Footprint intent is important. That Urban Footprint intent covers a large part of the town of Cooroy as well as the nearby golf course use. The Urban Footprint provides:- “The Urban Footprint identifies land predominately allocated to provide for the regions urban development needs to 2026. This area includes more than sufficient land to accommodate the full range of normal urban uses such as housing, industry, business, infrastructure, community facilities and urban open spaces, as well as some rural -- 36 of 60 -- 37 residential areas contiguous to urban areas and well located with respect to urban services and facilitates. Inclusion of land in the Urban Footprint does not imply that all such lands can be developed for urban purposes. The Urban Footprint includes land with a side range of opportunities and constraints including areas identified as having biodiversity values of state, regional or local significance. There will, therefore, be some land within the Urban Footprint which is protected under state legislation such as the Vegetation Management Act 1999 or Local Government Planning Schemes, or is otherwise unsuitable for urban development for a range of more local reasons. Local Government Planning Schemes and detailed local structure plans will be the principle instruments for establishing the desired nature of use nature and use of land and the preferred timing of development within the Urban Footprint”. [104] Of similar importance are the principles and strategies relating to urban form. Principle 2.1 urban pattern provides:- “Consolidated the regions urban development footprint provides for discrete urban areas separated by inter urban breaks. Reduce ad hoc and dispersed development and improve the links between residential areas, employment locations and transport services”. [105] The relevant Strategies are as follows: Strategy S2.1 provides:- “Consolidate urban development within the Urban Footprint” Strategy S2.2 provides:- “Prohibit development for urban purpose outside the Urban Footprint.” Strategy S2.3 provides:- “Protect inter-urban breaks to separate and frame discreet urban settlement areas.” -- 37 of 60 -- 38 [106] It can be seen that the Urban footprint for Cooroy does not include this land. See the map at Ex 17 p 87 – Mr Brown’s report. It is interesting to see that the footprint to the south east is in the shape of a boot, which is the golf course land. The subject land is surrounded by it on three sides. The footprint, follows the DCP’s map ZM3. [107] It is also interesting to see that the golf club land is described as urban, rather than rural. It seems that there is no consistent pattern elsewhere in Queensland, as such land is variously described as urban or rural. The urban description in this case might be seen to be of assistance to the appellants. Water Quality [108] It must be accepted that good quality drinking water is essential for all communities which rely on a reticulated water supply. There was no dispute about the fundamental principle: “The greatest risks to consumer’s drinking water are pathogenic micro- organisms. Protection of water sources and treatment are of paramount importance and must never be compromised. Water borne pathogens can cause outbreaks of illness affecting a high proportion of the community and in extreme cases causing death. How much treatment is needed will depend on the level of protection of water supplies … Disinfection is the single process that has had the greatest impact on drinking water safety. There is clear evidence that the common adoption of chlorination on drinking water supplies in the 20th century was responsible for a substantial decrease in infectious diseases. Disinfection will kill all bacterial pathogens and greatly reduce numbers of viral and most protozoan pathogens. Combined with protection of water sources from human and livestock waste, disinfection can ensure safe drinking water. In the absence of complete protection of source water, filtration could be required to improve the removal of viruses and protozoa.” (Australian Drinking Water Guidelines, June 2002.) -- 38 of 60 -- 39 [109] As the above extracts from the planning document show, the emphasis on water quality in Lakc MacDonald has led to a cautious and restricted approach to potential development on this land. It is easy to see why a development application, without a rezoning, is not likely to succeed. [110] In this case, the appellants have launched a substantial attack on the assumptions underlying the planning documents. If it can be demonstrated that the proposed development here would have no effect on water quality, then much of the foundation of the Council’s opposition would be destroyed. Much evidence dealt with a variety of issues about opposition water quality. In the result, attention should be focused on several things. [111] The preparation of any subdivision site will create the risk of surface runoff before the site become stable. The applicants’ engineers have prepared a detailed plan to manage the risk during the construction phase. The emphasis is on sediment and erosion controls which are to be put in place, the management of dust, and the monitoring of surface water runoff. It should be accepted, that they are measures to mitigate potential environmental impacts rather than eliminate them. It is true that such systems will not always work all of the time. However, Mr Sutherland’s view should be accepted, that the risk of a downstream impact is a small one. As his report shows, a great deal can now be done to minimise the impacts of the construction phase. [112] The engineers have also given a good deal of thought to the continued operation of the site. The main measures suggested to reduce the environmental impact of surface runoff include rainwater tanks, vegetated swale drains, bio-retention trenches, gross pollutant traps, a bio- -- 39 of 60 -- 40 retention basin, and a 50m revegetated area along the creek. It is also assumed, which is reasonable, that water taken off the site by the creek will cross the golf course, where it will enter the existing golf course drainage system. The flow of water will be slowed down by a weir before entering a pond. [113] It should be accepted that there would be some deterioration in the quality of the water leaving the site, compared to the present position. At the hearing much of the comparison was between the land in its present state compared to the land after this proposed development. The land is now vacant, and covered in grass. However, the land could be used at any time for, say, breeding cattle or growing crops. The draft Noosa Plan could see it used as a caravan park, for visitor accommodation. Those potential activities must be kept in mind, in judging the relevant impact of intense urban development. Overall, the evidence suggests that such activities (particularly cattle grazing) would be likely to produce more serious effects on the water flowing into Six Mile Creek, particularly by an increase in pathogens. There was some criticism of the stormwater management plan, where it required the motel proprietor to be responsible for some routine maintenance. Will the motel ever be built? Such criticisms could be dealt with by appropriate conditions, such as the need for a bond to secure such an obligation. [114] It was suggested for the appellants that the water leaving the site would actually be of a better quality than the water presently running off the site. In large part, that was a conclusion reached by running a computer program called MUSIC. That is the program which is used by the Brisbane City Council to monitor the likely effects of development on stormwater runoff from the land. -- 40 of 60 -- 41 [115] There was a good deal of evidence about the reliability of that modelling, and its assumptions. An expert such as Dr Walton (who was called for the Council) was of the view that one could always expect some deterioration in water quality after such a development. Apart from visible things such as rubbish, the usual downstream of effects include nutrients (especially from the use of fertilisers) and pathogens (harmful organisms brought on to the land by humans and animals). An urban development changes the surface of the land, leading to the run-off of contaminants (Ex 26). [116] It is true that all development of any kind within the Noosa Shire takes place in one water catchment or another. Here, the catchment of Lake MacDonald forms part of the much larger catchment of the Mary River. They both drain towards the area around Gympie. However, Lake MacDonald is much closer, being about 6km downstream from this development. It is too much to criticise the Council for having a particular sensitivity towards Lake MacDonald which does supply about half of the Shire’s drinking water. It is true that most of the town of Cooroy is in the Mary River catchment, and water runs down to another treatment plant before Gympie but it is a long way off, so that its quality is improved by natural surface effects. [117] The existing state of the Lake MacDonald catchment should be kept in mind. It is not a pristine area, and has not been so for many years. As the reports show, some 10 years ago there were about 3,000 cattle in the catchment, grazing over about 50% of the land area. There were then about 800 houses, 534 of which were unsewered. The presence of cattle is significant, because they result in pathogens carried by the stormwater runoff. Agricultural uses mean the use of fertiliser, which adds to nutrients flowing into the lake. They are the cause of unwanted algae growth. It is interesting to note that golf courses are significant users -- 41 of 60 -- 42 of fertiliser. This golf course before its recent extension used about 4 tonnes of fertiliser a year, and it is likely that a similar amount will be used on the new 9 holes. It is likely that the golf course alone supplies about two thirds of the total fertiliser load in the sub-catchment. [118] There is no doubt that concern about safe drinking water starts with the state of the catchment and ends with the final process at the treatment plant. In that way, several barriers can be erected against the dangers of unhealthy water. Such an approach lies behind the prohibitions on development on Lake MacDonald catchments, seen in the Noosa Shire’s planning documents. It also lies behind the approach of Dr Walton, who concluded his report, considering many issues, this way: “Despite current water sensitive urban design “best practice” in management of urban stormwater quality, with respect to drinking water catchments, the accepted scientific approach is still to strongly discourage urban development within the catchment. Current ‘best practice’ in management of drinking water quality considers the prevention of contamination through catchment management at least as important as water treatment. The Shire of Noosa Strategic Plan places considerable emphasis on the protection of Lake MacDonald water quality; from a scientific viewpoint I consider this justified.” [119] On the other hand, it was suggested for the appellants here that the provision of safe drinking water was essentially an exercise in risk management, relying upon the use of that expression in Ex 25, which was a collection of papers dealing with treatment of waterborne pathogens. [120] Fortunately, the Lake MacDonald water treatment plant is of high quality. It not only chlorinates the water, but treats it with ozone and also uses micro filtration. In recent years there have been no concerns about the water quality. There have been no outbreaks of illness. The system is working well. Indeed, the Council has had experts, including Dr Walton consider the quality of the Lake MacDonald water. Pathogenic contamination has been -- 42 of 60 -- 43 measured since 1983, but has not revealed any problem with the water. None of the reports has made any further mention of them, or any concern that the Council may have held over the level of pathogens. The latest report has recommended that water samples no longer even be tested for them. That was Dr Walton’s report. [121] Opposition to urban development on this land rests on the assumption that it would have a worse effect on water quality than its present use, or other uses to which might be lawfully carried on. Dr Walton’s own work shows that to be a doubtful assumption. The Lake MacDonald catchment has been divided into a number of sub-catchments for the purposes of testing of water quality. An attempt was made to judge the difference between runoff from urban, rural, and pristine areas. The 1996 study found that the sub-catchment containing most of the Cooroy township ranked three out of five sub-catchments in terms of overall average water quality. A later study by Dr Walton concluded that the quality of the water entering and within Lake MacDonald overall was good, and recommended all but one monitoring station be dismantled. [122] The sub-catchment which contains this land is about one-quarter urban, and also includes the school farm and the golf course. It will be remembered that the golf course is a producer of nutrients, because of its use of fertiliser. [123] It is interesting here to note that Dr Walton was not able to find a statistically significant difference between various land uses, when using the raw data for all the sub-catchments derived over periods up to 12 years. His data showed no significant difference between water quality and each land use, apart from the pristine area. In other words, the study did not -- 43 of 60 -- 44 provide any basis for an assertion that urban development adversely affected water quality to a greater extent than other land uses. [124] The present proposal is for the urban development to be sewered. Dr Walton was aware of that, and took into account the potential impact on Lake MacDonald of an overflow from the sewerage system. [125] When cross-examined, he qualified some of the statements in his report. He also conceded that his use of statistics contained errors. That concession lead to the conclusion that there was no evidence to show that some uses in the catchment resulted in lower water quality. [126] Overall, Dr Walton maintained his assertion, that this development would present a risk to Lake MacDonald. He accepted that the risk of further microbiological contamination from this development was “approaching zero” but insisted that was still a real risk which would not be allowed according to “world’s best practice” (see T303). [127] It can be seen that Dr Walton’s opinion was also a counsel of perfection. A consequence is that there is no need to appeal to the precautionary principle, which demands caution in the face of uncertainty or ignorance. There is no uncertainty or ignorance about this water quality issue. The real issue is about the level of risk. If some risk is acceptable, then Mr Sutherland’s opinions are to be preferred – the low level of risk provides no real obstacle to this development. -- 44 of 60 -- 45 Water Supply and Sewerage [128] The Council says that it has no plans to supply reticulated water or a sewerage system to this land. Paras 27.8.3 and 27.8.4 of the 1997 Strategic Plan show an aim of making no extensions, beyond the planned areas for these services. [129] The Reticulated Water Supply Study was completed in August 1995. The resulting plan shows the extent of areas that are planned to be served with town water prior to the year 2011, and if required as a consequence of development of the land. See Plan 3, (Ex 17 Appendix 10). The reticulated area wraps around the northern part of the site, and extends about halfway down each of its long boundaries – on the west, that is along Myall Street. The impression is that there would be no physical difficulty in extending the supply to this land. [130] Similarly, a Sewerage Infrastructure Study was completed in 1996. The resulting plan(s) (Ex 17 Appendix 11) shows that this land is not included in the area which is intended to be sewered. The plan shows the sewered area stopping just to the north of this land. In fact, that area has already been extended somewhat to the south-west, with the school site being sewered. Council has also expressed its willingness to extend sewerage to the Nandroya mill site, which is some distance to the south-west of this land. [131] The assumptions of those studies were not investigated. However, it seems most likely that the boundaries on the above plans were drawn on the assumption that certain land would be developed, and other land (including this land) would not be developed. -- 45 of 60 -- 46 [132] There is no reason to doubt the evidence of Dr Johnson, a hydraulic engineer, who was called by the applicants. No evidence was called to contradict his assertions. His evidence can be summarised this way: (a) It is possible to connect water to the site, as a main passes the site. There is adequate capacity to supply water to this development. (b) The Council has approved and indicated a willingness to approve the connection of water to a number of sites outside its water supply headworks area in Cooroy. (c) From the point of view of water quality protection, it is preferable to connect this site to the present sewerage system, rather than having its own sewerage system. It is possible to connect sewerage to the site, with the upgrade of a pump lying near the north of the site. That upgrade would be paid for by the appellants. (d) The existing sewerage treatment plant uses old technology, and does not work very well, unlike the water treatment plant at Lake McDonald. It will be necessary in the near future for the Council to either upgrade it or close it and pump the sewage elsewhere. (e) The existing treatment plant could not cope with the flows expected to be generated in any event, from the existing areas of Cooroy which are already intended to be developed for residential purposes. (f) The existing treatment plant could cope with the volume of the additional sewage from this proposed development. However, increased volume would mean a drop in its capacity to treat the sewage. -- 46 of 60 -- 47 (g) The Council has both approved and indicated a willingness to approve the connection of sewerage to a number of sites outside its sewerage headworks area at Cooroy. (h) The water headworks area and the sewerage headworks area, referred to in the plans above, are significantly smaller than the Urban Footprint for Cooroy shown in the Draft South-East Queensland Regional Plan. That is, expansion is inevitable, in any event. (i) Therefore, Council will be required to improve both the performance and capacity of the system in the immediate future. In that case the additional flow which would be added by this proposed development could be easily accommodated in any improved plant. Alternatively, if the plant is closed, sewage flows in this development could be accommodated in the upgraded sewerage transfer systems which would be required. [133] Dr Johnson expressed the view, which was not contradicted, that there was an exceptionally low risk of a failure in a sewerage system which would service this development. The pumping station which would be used already has a telemetry control which sends a signal back to the Council if the pump is to fail, either mechanically or electrically. There is also a level sensor within the pump station which triggers a red flashing light on top of the metal cabinet if the sewerage in the pump station reaches a certain level. [134] Dr Johnson did suggest that attention should be paid to the risk of an overflow, should the pump fail. Each pump station typically holds several hours of storage in that event. He -- 47 of 60 -- 48 recommended the addition of an overflow tank to hold, say, a day’s storage until the pump could be fixed or replaced. [135] It is clear that development on the land would “create a need for increased facilities”, because of the need for an upgraded sewerage treatment plant. That is a matter to be taken into account. Need [136] The 1997 Strategic Plan described Cooroy as “the principal business centre for the hinterland of the Noosa Shire”. An aim was “the maintenance of the town of Cooroy as the major business centre and residential and employment base for the hinterland of the Shire” (see paras 6.2 and 6.4). [137] Cooroy is a small town of about 2,240 people. Traditionally based around timber, dairy and beef cattle, the town has faced economic difficulties caused by the closure of the timber mills, the contraction of the dairy industry, and the bypassing of the town by the Bruce Highway. The last eight years has seen a growth in population of only 225 persons. [138] Compared with the rest of the Sunshine Coast’s populations, the town has a greater proportion of people over 60 years, a low workforce participation rate, a higher unemployment rate, a low standard of education, and a high proportion of labourers - see Mr Norling’s report. There are few tourists, compared with other parts of the Sunshine Coast. -- 48 of 60 -- 49 [139] If this development went ahead, the 75 dwelling houses would support around 190 new residents. That would be about a 9% increase in the population of the town. [140] Evidence was given about the available urban residential land in and around the town. The actual number of potentially available blocks was somewhat uncertain, particularly because of some other constraints over land on the northern side of the town. Mr Norling thought that around 200 additional lots might be created, while Mr Brown, the town planner, thought that 300-400 potential lots were still available. [141] Significantly, both Mr Norling and Mr Brown believe that there would be no need for further urban residential land for at least the next 10 years. After that time there may well be a need to create further urban residential areas around Cooroy. Not surprisingly, the planning documents assume population growth. The draft SEQ Regional Plan assumes an urban footprint up to 2026 which is larger than the present town (not including this land). [142] So, in purely quantitative terms, there is no need for this rezoning to create additional residential land. It would certainly provide some additional choice for land buyers, but it was submitted on behalf of the Council that the possibility of increased choice did not amount to a need. [143] It is true that a choice about more of the same things does not amount to satisfying a community need. However, if it can be seen that something different is provided, then there may be a need for that. -- 49 of 60 -- 50 [144] Here, a substantial proportion of the proposed residences will enjoy golf course views. There seems to be no doubt, that the mix of residential housing and golf courses has been an attractive one to many people. There is no reason to think that this project would be any less attractive. Those houses which do not immediately join the golf course would have the benefit of being near to it, and so enjoy a pleasurable sense of place. The opinions of Mr Norling and Mr Ryter should be accepted, that a development like this one would provide an enhanced level of choice to Cooroy residents, and so satisfy a community need. (Note the similar approaches of this Court in the Indooroopilly Golf Club v Brisbane City Council [1987] QPLR 178 at 181 (also houses on a golf course) and McPherson v Caloundra City Council [1990] QPLR 272 at 279. Some support might also be seen in the Council’s planning documents – see Mr Ryter’s report at p 12(DEO (i) and (ii) and p 16 (s 1.7.6(d). [145] There is a clearer need demonstrated for a motel. At the present time, Cooroy has a rundown and shabby motel in the centre of the town. There is a possibility that a new motel will be built near the Bowls Club, but there is a clear need for a modern motel with restaurant and function facilities in Cooroy. Also see Objective 5 of the DCP at p 6 – the development of overnight tourist accommodation is encouraged. [146] The hoped for relocation of the existing golf clubhouse is also linked to the question of need. It is not immediately a part of this application for rezoning, as it is on the existing golf club land. The plan is for the club to redevelop the present clubhouse (which is an old, small building) into a more attractive clubhouse near the motel. It seems likely that the new clubhouse will be built, if this project proceeds. In that case, the co-location of the golf -- 50 of 60 -- 51 course, the new clubhouse, and the proposed onsite car parking should provide an attraction for Cooroy residents and visitors. Futility [147] It is submitted for the Council that the application should not be allowed in any event, because it would be futile to do so. The argument is based on the Draft Regulatory Provisions which are part of the Draft South East Queensland Regional Plan published in October 2004. Notwithstanding the use of the word “Draft” the Regulatory Provisions now have effect until the SEQ Regional Plan comes into effect. See IPA 2.5A.24(1). Provisions 2, 4 and 6 are relevant: “The Provisions affecting planning schemes 1. The Draft SEQ Regional Plan allocates all land in the SE Q region into one of the following areas: (a) Regional Landscape and Rural Production Area; (b) … (c) Urban Footprint (d) … 2. Certain material changes of use assessable development. A material change of use for urban purposes other than for a single dwelling on an existing lot is assessable development requiring impact assessment of all or part of the premises the subject of the development is in the … Rural Production Area …. Provisions regulating development. Certain reconfiguration prohibited 4(1) Sub-section 2 applies for land in the following areas … the Rural Production Area … -- 51 of 60 -- 52 (2) Reconfiguration of a lot may not occur if any resulting lot would have an area less than: (a) If the planning scheme states a minimum lot size greater than 100 hectares – the area stated in the planning scheme or (b) To the extent the land is located in a designated agricultural area the minimum lot size stated in the planning scheme or (c) In any other case – 100 hectares. (3) However sub-section 2 does not apply if (a) … (b) The reconfiguration is associated with a material change of use for which a development approval is in effect or … (c) The reconfiguration is: (i) for rural residential purposes on land designated or zoned for rural residential purposes, and (ii) the application for the reconfiguration is made within two years of the day the Draft Regulatory Provisions came into effect. (iii) … Transitional arrangements For development applications affected by the Draft Regulatory Provisions. 6. Development applications may continue These Draft Regulatory Provisions do not apply for a development application made before the day these Draft Regulatory Provisions came into effect. [148] It is not necessary, or appropriate, to decide if the Provisions would make any rezoning futile. The Regional Plan is still in draft form. That Plan, and the recent amendments to IPA are part of a new strategy which may well see other changes before the Regional Plan and the Provisions are in their final form. -- 52 of 60 -- 53 The Planning Grounds [149] It is clear that there is a conflict between this application and all of the planning documents. The conflict with the draft Noosa Plan and the draft SEQ Queensland original plan is strong – both would prohibit any subdivision of this land. [150] The fundamental question is this – can this rezoning be justified on the basis that there are sufficient planning grounds to support it, notwithstanding that conflict? [151] The opposing arguments are captured in the careful and comprehensive reports and evidence of the planners. Mr Brown thought that the planning grounds were not in favour of rezoning. Mr Ryter thought that they were. The conclusions of each planner are attached to these reasons. [152] It can be seen that Mr Brown’s conclusions are substantially based on the planning documents. Undoubtedly, there is much material which supports what he says. His report is also based, with respect to water quality issues, on Dr Walton’s report. As we have seen, that is a report that did not entirely survive a capable cross-examination. [153] On the other hand, while Mr Ryter has paid attention to the planning documents, he has also considered some merits in this particular proposal – how the development of the site in co- location with the golf course would make an attractive tourist destination; how that would be a better result for the residents of Noosa than a caravan park and camping ground, and the significant level of public support, judged by a petition with 575 signatures and 85 individual submissions which were in favour of the development. He relied on a planning need for the -- 53 of 60 -- 54 development. (Mr Brown thought there was no planning need, because of the availability of land for urban expansion). [154] If this appeal were to be decided by choosing between the planners’ conclusions, then the appellants would be successful. There is much that is persuasive in Mr Ryter’s report, as there is in the submissions for the appellants. [155] However, in deciding whether the planning grounds in favour of the application are, on balance, sufficient to justify approval despite the conflict, the status of Council’s planning intentions has to be kept in mind. The Council is the planning authority for the Shire. It has consistently and emphatically set out its intentions with regard to this land. Even if the Council’s views are really a counsel of perfection with respect to the catchment area, and if it is taking an overly cautious approach when that might not be necessary, respect still has to be paid to Council’s declared intentions. Even though the appellants have been largely successful in showing that the Council’s fears about water quality are probably exaggerated, that is not enough. For example, Council’s view is that a potential danger is to be avoided, by having no additional subdivision of this land. If the Council takes that approach, then it is not this Court’s role to refuse to follow it. [156] It must be remembered that there are some other expressed reasons why the land is in the Rural Catchment zone – the desirability of a buffer, the limited extent of the water and sewerage plans, and a wish to preserve the character of the land. [157] Once due respect is paid to the planning documents, it can be seen that a rezoning of this land would cut across Council’s intentions, including those in the draft Noosa Plan. The intention -- 54 of 60 -- 55 of the Draft Regional Plan is also significant. That would be a substantial step. It should not be taken in this case. Despite the body of evidence in favour of the appellant’s proposal, it does not go far enough to overcome the clear conflict with the planning documents. [158] The appeal must be dismissed. -- 55 of 60 -- 56 Mr Ryter’s Report: RYTER P LANNING 9. CONCLUSIONS For the reasons considered in this report, and summarised below, I consider that the current proposal should be approved subject to the imposition of reasonable and relevant conditions. l. The subject land is physically well situated to residential development, being elevated, undulating and largely cleared of any significant vegetation. 2. The significant vegetation along the creek at the north-western corner of the subject land is to be retained, enhanced and _extended along Myall Street. 3. The subject land is suitably located for residential development, being close to schools, the Cooroy Business Centre, community facilities and services, and the Cooroy Railway Station, and adjoining the Golf Course. 4. The proposal is generally consistent with the Intent Statements and Objectives of the 1997 Strategic Plan. The Intent of the Open Space - Recreation designation allocated to part of the subject land has been met by various components of the original application and the current development proposal. The Intent of the Open Space - Conservation and Waterway Protection designation has been met based on the evidence of the water quality and ecology experts. 5. The proposal is generally consistent with the provisions of the DNP. 6. I am advised that the Draft Regional Plan does not apply to the application However, when the principles of the Draft Regional Plan are applied to the site, the conclusion is that the site is suitable for urban development. 7. The proposal will result in an improvement to the existing traffic situation in the subject locality. 8. To the extent that there is any conflict between the proposal and the planning documents, the following town planning reasons warrant approval of the application despite that conflict: -- 56 of 60 -- 57 a) The proposal is generally consistent with the Desired Environmental Outcomes of the Draft Noosa Plan as well as the Overall Outcomes for the Cooroy & Lake Macdonald Locality. b) The quality of water leaving the subject land will be acceptable and the water quality of Lake Macdonald is not threatened. c) Water will be re-used on site with the use of rainwater tanks and will be used by the golf course for irrigation. d) The proposal will provide for the relocation of the golf course clubhouse. The new clubhouse site will have appropriate access, be properly serviced and will have car parking and bus parking. e) The watercourse vegetation will be rehabilitated and extended as public open space and will provide significant passive recreational opportunities for local residents and tourists, together with an enhancement of the ecology of the area. f) The motel, restaurant and public open space to be dedicated will form a highly functional tourist node due to the co-location with the new clubhouse, and the golf course itself. g) The rehabilitation and extension of the riparian vegetation will preserve and improve a valuable wildlife corridor. h) The site is largely cleared, however the proposal will provide for revegetated corridors along the Myall Street frontage and through the middle of the site, in addition to street planting. This would be ensured by building location envelopes and covenants. The choice of vegetation is based on expert ecological advice and would reinstate some of the historical remnant endangered ecosystem of the site, i) Architectural design will reflect the timber and tin character of Cooroy and be protected by building covenants. The buildings will incorporate water re-use and energy efficient design. j) Based on the report and recommendations of Mr O'Brien, the proposal will provide a model for ecologically functional landscaping and positive visual amenity. k) Headworks payments required by the proposal will provide a significant financial contribution to improving the sewerage system in Cooroy. RYTER P LANNING -- 57 of 60 -- 58 l) The proposal provides a range of positive benefits that would not be possible if the site was developed for uses being described as appropriate pursuant to the Draft Noosa Plan, such as a caravan park and campground. m) There is a clear need for a modem motel with restaurant and function facilities in Cooroy. There is also a clear need for the relocation of the golf clubhouse, the provision of safe access, and adequate, safe on-site car parking. The subject land is particularly well situated to meet this need, because of the benefits of co- locating these facilities with the golf course and new clubhouse. n) As Mr Norling concludes in his report, the 75 proposed residential allotments will provide a greater range of choice of quality residential development for potential residents of Cooroy. This conclusion is entirely consistent with my experience with a number of residential/golf course developments in the SEQ Region. Lots with frontage to a golf course, or in close proximity to a golf course are highly sought after. This choice being made available in Cooroy constitutes a town planning need for the proposal. o) It is evident that there is a significant level of public support for the proposed development. This support is evidenced by the overwhelming body of submissions in support of the development. p) The residential and motel components of the proposal will integrate the residential development and motel complex with the golf course in its water management, landscaping, architecture, access, parking and services. RYTER P LANNING -- 58 of 60 -- Mr Brown’s Report: CONCLUSIONS ( a) Council's Planning Intentions Regarding Land in the Lake Macdonald Catchment (i) The provisions of successive planning instruments-vividly illustrate the intention by Noosa Shire Council to use Lake Macdonald as a significant supply of potable water for use by residents within the Shire. (ii) As a consequence the Council has invested significant funding carried out significant planning and implementation of services to residents within the Shire based upon the continuing intention to maintain Lake Macdonald as a water supply source. (iii) To the extent that development of the type proposed occurs within the Dam catchment then the Council's intended protection of this water supply is made more difficult due to impacts upon the quality of this water supply source to the Noosa Shire. (iv) The report by Or Richard Walton confirms that there will be detrimental impacts upon water quality in Lake Macdonald resulting from urban development. This was identified in the disputed issues at issue 1.6. (b) The Role of Planning Schemes in dealing with Strategic Planning Issues. v) The Council has adopted and implemented planning scheme provisions which seek to maintain the Lake Macdonald as a source of good quality water supply for the Shire. These provisions have been included in the primary planning documents for many years and clearly point to the direction the Council intends in relation to the subject land. vi) The planning scheme provisions direct urban development to other areas of the Shire (including other areas at Cooroy, outside the catchment area of Lake Macdonald) in pursuance of the Council's objectives in maintaining this water supply source. -- 59 of 60 -- 60 (vii) Refusal of this amended application is consistent with this approach given the extent of proposed urban development and the extent of inconsistency with the Planning Scheme. (c) Insufficiency of planning grounds despite conflict with the Planning Scheme (vii) The Planning Scheme sets out a framework for orderly residential development by urban expansion within Cooroy township. (ix) The land which has been allocated and planned for urban expansion remains available for such purposes. There is other land in Cooroy which can be developed for mote purposes, and for urban subdivision. (x) There is no town planning reason why the Council should approve urban development on the Site, particularly given the primacy of the Strategic Plan and Cooroy DCP, the overwhelming importance of maintaining water quality and Lake Macdonald and waterways feeding into it, and the availability of other land in Cooroy which is intended and planned for urban expansion. (xi) The Strategic Plan does not intend any expansion of the urban area over this land. The extent of the conflict with the Strategic Plan is significant. Particularly having regard to Councils consistent position as demonstrated throughout the respective planning instruments there are not grounds to approve the Application despite the conflict with the Strategic Plan and the Cooroy DCP. (d) Draft IPA Planning Scheme (xii) The draft IPA Planning Scheme opposes any further subdivision of land in the Lake Macdonald catchment resulting in additional lots and does not intend urban development of the subject land. (e) Draft Regional Plan (xiii) The subject land is not included in the Urban Footprint in the draft Regional Plan, and accordingly is not seen as an appropriate location for urban development. -- 60 of 60 --