Breadsell & Anor v Bundaberg City Council [2004] QPEC 60

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Breadsell & Anor v. Bundaberg City Council [2004] QPEC 060 PARTIES: J.R. & O.M. BREADSELL & R.O. SHAW (Appellant) v BUNDABERG CITY COUNCIL (Respondent) FILE NO/S: 2482 of 2003 DIVISION: Planning and Environment PROCEEDING: ORIGINATING COURT: Planning and Environment Court, Brisbane DELIVERED ON: October 2004 DELIVERED AT: Brisbane HEARING DATES: 18-21 October 2004 JUDGE: Senior Judge Skoien ORDER: APPEAL DISMISSED. CATCHWORDS: Material change of use, rural land to residential allotments; Good quality agricultural land; State Planning Policy: 1/92; Planning principles. COUNSEL: Mr B Cronin for the appellant Mr S Ure for the respondent SOLICITORS: Edgar & Wood for the appellant Baker O’Brien and Toll for the respondent [1] This is an appeal by Mr Breadsell (and others) against the decision of the Council to refuse their application for a material change of use for land at Telegraph Road, Kalkie, Bundaberg from rural use to residential use. -- 1 of 13 -- 2 The Site [2] The site which was the subject of the application contains 9.35 ha. and is part of a larger piece of land (32.75 ha.), which I will call the parent land. [3] The site (and parent land) have frontage to Telegraph Road to the north. The parent land is regular in configuration and also has frontage to an unnamed and unconstructed road to the west and F.E Walker Street to the south. [4] The site is three kilometres from the central business district of Bundaberg and is approximately one kilometre to the east of an industrial precinct. Being on the eastern side of Bundaberg, it is between the city and the coastal city of Bargara in the Burnett Shire. [5] The parent land is predominantly level. A drain traverses it in the north-western corner and it also contains, within an easement, a cane train line. When the application was lodged the parent land was under sugar cane (a pursuit long carried on there) but has since been allowed to lie fallow. Surrounding Land Use [6] Land immediately to the west of the site is vacant and is referred to as the “Gympie Estate”. This is a historical subdivision into small residential allotments over vacant land owned by the Council. It is completely undeveloped and is covered by scrub. Land to the north across Telegraph Road is approved for residential purposes and is being developed for that purpose. Further to the north is an Anglican high school and the Kalkie State primary school. The Bundaberg East State primary school is -- 2 of 13 -- 3 about one kilometre to the west of the site. Cane fields abut the parent land to the east and south. [7] A future ring-road is proposed by the Department of Main Roads to provide direct access to the eastern beaches without the need for traversing the central area of Bundaberg. This ring-road would diagonally cross the Gympie Estate and touch the parent land at its north-western corner. The Proposal [8] The development application, effectively, is to give Residential A development entitlements to the 9.35 ha. site. The application did not seek reconfiguration approval, although the IDAS Form 1, Part A described the proposed use as ‘Residential Subdivision’. The application was accompanied by a conceptual subdivision layout over the site showing a total of 61 residential size lots. The plan for the 23.4 ha. balance of the parent land strongly suggests future similar subdivision. [9] Sewerage and water are available to the parent land and, leaving aside the issues argued in this appeal, all of the parent land seems to be generally suitable for residential development. [10] The application was refused by the Council at its meeting held on 4 July 2003, for the following reasons. (1) The land is included in the ‘Rural’ Zone under the provisions of the Transitional Planning Scheme for the City of Bundaberg. (2) The land is included in the ‘Non-Urban’ precinct in Council’s Draft City Plan. The Structure Map, which forms part of this Draft City Plan also designates the site as ‘Non-Urban’; -- 3 of 13 -- 4 (3) The land is not in accord with the ‘Residential Strategy’ as set down in Council’s City Plan; (4) Council’s Adopted ‘Bundaberg Sewerage Scheme – Strategy Report’ does not include the site in its Short Term (10 year) or Long Term (30 year) future planning for the provision of infrastructure for the City. The proposal represents development inconsistent with Council’s adopted Bundaberg Sewerage Scheme – Strategy Report; (5) The site represents Good Quality Agricultural Land and the proposal is in conflict with State Planning Policy 1/92 – ‘Development and the Conservation of Agricultural Land’. There is not an overriding community need for the development, in that there are other sites – already included in the ‘Residential A’ zone in Council’s Transitional Planning Scheme, as well as included in the ‘Residential A’ Precinct on Council’s Draft City Plan available in the immediate area with potential to supply some 750 lots. (6) The issuing of a development permit would have an adverse impact on the economic base of the district and an incremental effect on reducing the viability of the sugar industry to the region with significant adverse social and economic impacts.’ The Issues [11] The points of dispute can be summarised under the headings of sewerage, State Planning Policy and Planning Scheme. [12] Although the actual application related only to the site it is clear that Mr Breadsell’s wish is ultimately to develop the whole parent land for residential A use. That being so, in considering the appeal it would be artificial to restrict the inquiry simply to the site. Each of the issues involves the wider picture. The effect of re- development of the site alone on Council infrastructure and the effect of the availability of only some 61 residential sites to potential buyers would be minor compared with the effect of re-development of the whole parent land. Furthermore the argument in relation to the loss of agricultural land, if restricted to just 9.35 ha. -- 4 of 13 -- 5 could be put on the basis of de minimus, an argument which would not be available when the potential loss of 32.75 ha. is contemplated. Sewerage [13] There is no suggestion that the proposed residential lots cannot be sewered. There is a convenient access point and in the ordinary course of things Mr Breadsell would, by imposed conditions, pay the proper cost. The Council’s argument is that the planning of Council expenditure is necessarily based on the expected pattern of development. Infrastructure (such as sewerage mains) is put in place according to that expected pattern at considerable cost to the Council, that is, to the ratepayer. It is obviously advantageous to both to have a return on that cost as soon as possible. If a development takes place out of turn that return on cost already incurred may be delayed. [14] In this case the proposed development would possibly retard the Council’s expected return on the cost of constructing the existing sewerage line which swings off to the south (the line which this proposal would use). To what extent, if at all, that would be balanced by the return to the Council of money from the Breadsell development is impossible for me to say. So, finally, this is a minor point and probably only slightly argues against the proposal. State Planning Policy [15] An important statutory provision in this appeal (see IPA ss. 2.4.1-2.4.6) is SPP1/92 Development and the Conservation of Agricultural Land. It states, at Clause 1.2: -- 5 of 13 -- 6 ‘1.2 Local authorities, the Planning and Environment Court, and the Government are required to have due regard to this Policy when carrying out their planning functions.’ [16] Clause 2.2. is: ‘2.2 The agricultural industry remains one of the most important components of the national and state economies. As with any industry, world markets and economic factors create cycles of prosperity interspersed with periods of difficulty for agriculture. Economic downturns and particular crop surpluses should not obscure the fact that productive land provides the long term basis for an efficient and flexible agricultural industry that can be responsive to changing demands for products and which generates community wealth through income and employment. [17] Clause 4.6 is: ‘4.6 Cases will arise where local authorities have to consider development proposals on good quality agricultural land. In such circumstances, a ‘key’ principle should be whether an overriding need in terms of benefit to the community can be demonstrated for the development at that particular location.’ [18] The Guidelines that are attached to SPP1/92 contain: “4.12 If the subject land is found to be good quality agricultural land, the local authority should refuse the application unless: • There is an overriding need in terms of public benefit for the proposal, and the proposal cannot be located on alternative sites of poor or nil agricultural quality; or • The subject land is located so that farming, either alone or in association with surrounding parcels, is not practicable: for example, a small isolated parcel of land surrounded by urban land uses. Determining ‘Overriding Need’ 4.13 Determining ‘an overriding need in terms of public benefit’ depends upon the circumstances of the particular proposal. Some obvious cases of ‘overriding need’ which are likely to justify the loss of the agricultural land illustrate the principles.” “4.16 Instances of proposals for residential development on good quality agricultural land are likely to be more frequent. In such cases, the need for the development should be established in the context of other undeveloped land designated for urban or residential development by the -- 6 of 13 -- 7 strategic plan. Also relevant is the availability of alternative sites that are not of good agricultural quality, but could be serviced reasonably and could meet the same housing demand. Where an area is reasonably close to a local authority boundary, consideration of suitable alternative sites should include those in the neighbouring local authority.” [19] Evidence was given by two agronomists, Mr Frick on behalf of Mr Breadsell and Mr Walker for the Council. In my opinion the methodology adopted by Mr Walker was preferable to that of Mr Frick. Mr Frick investigated six sites on the parent land; Mr Walker investigated thirty two. The scale of mapping relied on by Mr Frick was considerably less detailed than that of Mr Walker (which was more in accord with the Guidelines). In fact it rather seems that the 13 ha. of land which Mr Frick conceded was good quality agricultural land predominantly coincided with the actual site itself. But as I have said [para 12] I do not restrict this aspect of the appeal to the actual site but to the parent land as a whole. As to that I accept Mr Walker’s evidence that it comprises good quality agricultural land without any serious limitations because of salinity or other undesirable chemicals, wetness or the presence of rocks. [20] To fortify that finding is the evidence that Mr Simpson farmed the parent land to cane for 40 years (in conjunction with cattle) and it was an economic proposition. A comparison between the tonnage of cane from it in 2002 (62/ha) with the district average (64.4) does not suggest that as cane land it is an uneconomic proposition. [21] The provisions of SPP1/92 therefore stand firmly in the way of the application unless one or more of the enabling provisions in the Policy or the Guidelines is activated. The most likely such provision would be “overriding need … in benefit -- 7 of 13 -- 8 to the community” (s 4.6 of the Policy, echoed in s 4.12 of the Guidelines, which adds the qualification of lack of alternative sites). Because this involves certain similarities to a consideration of the relevant planning scheme, I will deal with it under the heading “2004 Bundaberg City Plan”. Traditional Planning Scheme [22] When the application was made on 25 February 2003 the relevant planning scheme was the 1976 scheme for the former Shire of Woongarra. It was a “Transitional Planning Scheme” (IPA chapter 6). [23] It was a simple scheme based on a zoning regime. The parent land was included in the “Rural” zone which had a minimum allotment size, for the purposes of subdivision, of 40 ha. The scheme did not include a Strategic Plan and accordingly there was no applicable statement of preferred planning intent. [24] However the Transitional Scheme contained a Future Urban zone. The minimum lot size in the Future Urban zone was 8 ha. and the only permitted development in the zone was for agriculture and minor extensions (25m² or less) to dwellings and relatives’ apartments. It is clear that the Future Urban zone (as the name suggested) was a holding zone that was intended to accommodate urban (including residential) development when required. It is noteworthy that the parent land was not included in this zone. [25] So notwithstanding the unsophisticated nature of the Transitional Planning Scheme, it is sufficiently clear that the subject land was not specifically earmarked for urban residential development when appropriate in the future. -- 8 of 13 -- 9 2004 Bundaberg City Plan (The IPA Scheme) [26] The 2004 Bundaberg City Plan was formally adopted by the Council on 15 March 2004, after having been on public display from 26 August 2002 to 15 November 2002. Both of the consultant planners who gave evidence regarded it as the operative scheme and I agree with them. It is the most up-to-date presentation of the planning authority’s intentions with respect to the distribution of land uses and development within the City. It was prepared after an exhaustive process. [27] That process included a detailed assessment of development opportunities and constraints within the City, extensive public notification and consultation and a detailed consideration and review by all relevant statutory authorities, in a manner consistent with the current ‘whole of government’ approach to the preparation of Planning Schemes. [28] It is noteworthy that a submission, dated 30 October 2002, was lodged by Mr Breadsell’s solicitors during the public notification period of the City Plan. The submission sought the inclusion of the parent land in the Residential A Precinct. After considering the submissions, council officers reported and recommended as follows: “Report this land is currently being used for the growing of sugar cane and is appropriately zoned Rural. The owners’ Solicitors have outlined various reasons to suggest that this land ought to be changed to the Residential A Precinct. However, they also state it is their clients intentions to continue farming the land until a need for residential development arose. Council sewerage strategy does not propose extending sewerage to this land in the short term. There is sufficient supply of zoned Residential A land together with lands already designated Residential in the eastern section of the City to more than cater for -- 9 of 13 -- 10 the City’s needs (even using high growth scenarios) for the life of this proposed planning scheme. Designation of this land as Residential A is ‘out of sequence’ with Council’s planning intentions for the city. The non-urban precinct is the correct and appropriate designation for this rural land. RECOMMENDATION That the precinct designation for this land remain unchanged as Non- Urban.’ [29] This report and recommendation were accepted by the Council. This determination related specifically to a submission to change the designation of the parent land; it was a site-specific consideration by the Council of the appropriateness of the Non- Urban designation for it, and it was left in that designation. [30] Section 4.4.1.50(1) of IPA places the onus of proof in this appeal on Mr Breadsell. Subsection (2) requires me to decide the appeal: “based on the laws and policies applying when the application was made, but may give weight to any new laws and policies the court considers appropriate.” and as I have said I, like both consultant planners, consider that the most weight must be given to the 2004 Bundaberg City Plan, the relevant provisions of which I now set out. [31] While the land to the north and west of the parent land is predominantly included in the Residential A Precinct the parent land and all land to the east and south is included in the Non-Urban Precinct. The Non-Urban Strategy is as follows: ‘2.8 Non Urban Strategy 2.8.1 Background In accordance with the principles of ecological sustainability the Planning Scheme seeks to protect Bundaberg’s resources or areas of economic value such as good quality agricultural land. Agriculture is important to the region’s economy and the current cane assignment should be protected from incompatible land uses (i.e. rural residential development) to maintain flexibility in future use. -- 10 of 13 -- 11 2.8.1 Primary Measures KEY STRATEGIES 7.1 Good Quality Agricultural Land is protected from incompatible development. 7.2 Land currently used for agriculture is to be retained unless an overriding and demonstrable need for an alternative land use can be substantiated. 7.3 New urban development does not compromise the existing productive agricultural use of land in the Non Urban Precinct. 7.4 Land shown as Non Urban on the Structure Plan (not being under cane assignment or existing rural residential use) is not used for urban development during the life of the Planning Scheme. 7.5 The fragmentation of Non Urban areas by the creation of residential allotments is inappropriate during the life of this Planning Scheme. PREFERRED SETTLEMENT PATTERN AND DEVELOPMENT CHARACTERISTICS 1. Land included in the Non Urban Precinct in the Local Area maps are generally expected to continue in current use over the next 10 to 15 years and these lands will not be approved for closer subdivision or urban purposes. 2. The creation of residential allotments in Non Urban area often fragments farmland and may lead to land use conflicts between residential and rural uses. Single residential allotments i.e. concessional lots and family excisions, should not be located in Non Urban areas, particularly in good quality agricultural land. 3. Non Urban land is also intended to identify areas that are generally unsuitable for urban purposes because of physical constraints, particularly those related to flooding or drainage problems and existing land use commitments. Development of land within this area is intended to be mainly for land uses that are unlikely to be affected by or affect flooding.’ [32] It is difficult to imagine a clearer or more direct statement of intention in relation to Non Urban land, that is, agricultural land in Bundaberg. It stands in stark contrast, for example, to the provisions of the Transitional Scheme, and as I have said in paras [26] and [27] its adoption followed the careful, almost pedantic, regime laid down by IPA. Furthermore (paras [28] and [29]) in its preparation the parent land was considered specifically for excision from the proposed Non Urban Precinct and that excision was specifically rejected. -- 11 of 13 -- 12 [33] So unless I am satisfied that Mr Breadsell has demonstrated an “overriding and demonstrable need for an alternative land use”, that is, for the provision of 61 residential lots now with another substantial number to be provided in the near future (and no alternative sites are available), the City Plan directs rejection of the application and the dismissal of the appeal. That test is, at least in the context of this appeal, materially the same as the test laid down in SPP1/92 (para [21] above). [34] To what “overriding and demonstrable need”, to what “overriding need … in benefit to the community” does Mr Breadsell point? [35] It was argued by Mr Buckley, the consultant planner called by Mr Breadsell, that the Bundaberg community requires a spread of available residential allotments to cater for the varied preferences of purchasers based on considerations such as proximity to work, to utilities such as schools, desirable areas to live and so forth. He was of the view that there were insufficient residential lots either actually available or likely to be so in the near future (only about 667) to provide the necessary “bank” of such alternative choices. He also said that the appeal site was too small to be of consequence (a concept I have dismissed in para [12]). [36] I accept Mr Buckley’s general proposition that a choice of different available residential lots in a city can properly be seen to constitute a need for the benefit of the community. When it becomes an “overriding need” is of course a matter of degree but I am satisfied that it has not reached that degree in Bundaberg. On the evidence (which I accept) of Mr Ryter, the Council’s consultant planner, it is unlikely to do so for at least ten, (probably up to fifteen) years even if no more residential land becomes available than is presently developed or is suitably -- 12 of 13 -- 13 designated under the City Plan. I am sure that as a demand comes into existence, the owners of the undeveloped residential designated land will respond to it. The actually available and potentially available residential land is widely spread throughout the city and, relevantly, there is a considerable amount of it in the general area of the site. [37] Of course in this context the “need” which is being considered is not the need so often considered in the former rezoning cases, that is, something which on balance would improve the quality of life in a particular area. The “need” in this case is really what used to be called “demand” for suitably zoned land. See Fogg “Land Development Law in Queensland”, 1987 Law Book Co, pp 368 it seq; Bundaberg City Council v Burnett Shire Council delivered 10 March 2004, para [67]. [38] I should point out that this appeal is quite distinguishable from the appeal in Bundaberg (above), where Bundaberg was applying for a regional municipal sanitary landfill. First, the planning intent of the Burnett planning scheme which applied to most of that site was far less directory than is the case here (see Bundaberg paras [55]-[62]). Furthermore, in Bundaberg the need or demand for the particular site was found to be a real and very important one, with some urgency attached to it, which is not the case here. And there was a finding that other suitable land was not available whereas in the present appeal, there is. Conclusion [39] The appeal is dismissed. -- 13 of 13 --