Collin Park Pty Ltd v Redland Shire Council & Anor [2004] QPEC 27 (2004) QPELR 617

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Collin Park Pty Ltd v. Redland Shire Council & Anor [2004] QPEC 027 PARTIES: COLLIN PARK PTY LTD ACN 097 349 026 (Appellant) and REDLAND SHIRE COUNCIL (Respondent) and THE WILDLIFE PRESERVATION SOCIETY OF QUEENSLAND BAYSIDE BRANCH (QLD) INC AND ORS (Co-Respondents) FILE NO: BD4007 of 2003 PROCEEDING: Appeal DELIVERED ON: 15 June 2004 DELIVERED AT: Brisbane HEARING DATES: 25, 26, 27, 28, 31 May 2004 JUDGE: Judge Brabazon QC ORDER: Appeal dismissed CATCHWORDS: LOCAL GOVERNMENT – TOWN PLANNING – whether sufficient compliance with Redland Shire strategic plan – whether relevant koala policy an impediment to development. LOCAL GOVERNMENT – TOWN PLANNING – development of land below the Q100 level – permitted where filling is of a minor nature – whether filling was minor in this case. Integrated Planning Act 1997 s.2.1.23(1), s.4.1.50(1), s.6.1.22, s.6.1.30(3)(a) Local Government (Planning and Environment) Act 1990 s.1A.4, ss4.4(5), (5A), ss.5.1(6), (6A) Ambrose v Gatton Shire Council (1980) 1 APAD 179 -- 1 of 36 -- 2 Pacific Seven Pty Ltd v City of Sandringham (1982) VR 157 Weightman v Gold Coast City Council & Anor (2002) 121 LGERA 161 ZW Pty Ltd v Peter Hughes & Partners Pty Ltd (1991) 73 LGRA 268 COUNSEL: Mr Hinson SC and Mr Litster for the appellant Mr Ure for the respondent SOLICITORS: Hopgood Ganim Lawyers for the appellant MacDonnells Solicitors for the respondent The Parties [1] At the hearing of the appeal, the appellant Collin Park, and the respondent, the Redland Shire Council appeared by counsel. A notice of withdrawal had been filed by the co-respondents, and they did not appear. The Development Application [2] On 6 June 2002 the appellant made a development application to the Council for a development permit for a material change of use (“single detached dwellings on residential lots and parkland”) and reconfiguration of a lot in respect of land at 75- 79 Starkey Street, Wellington Point. The aim was to create 72 residential allotments on the appellant’s land. The land is described as Urban-Residential in the Council’s 1998 Strategic Plan, and it is zoned Rural/Non-Urban in the Town Planning Scheme. [3] On the western side, the land is bounded by 13 urban residential sized allotments which front Starkey Street. It has two small frontages to Starkey Street. The site abuts vacant land to the north and the Brisbane-Cleveland railway corridor to the north-east. The Hilliards Park Residential Estate forms part of the southern boundary of the site, whilst the balance of that boundary abuts parkland. A -- 2 of 36 -- 3 proposed transport corridor bisects the proposed development into northern and southern areas. The area of the land is 15.13 hectares. [4] Water flows through the parkland onto the site, and historically exited the site some 350 metres further to the north where it flowed into Hilliards Creek. Between 1964 and 1967, a dam was constructed to intercept this waterway, and it has resulted in a man-made wetland area on the land. The land was previously used for farming. As the 1964 aerial photograph shows, it was almost completely cleared at that time. In the following forty years there has been a good deal of regrowth. Some of the trees are now quite large, especially on the eastern side of the land. [5] Following the issue of an information request the application was amended before it was publicly notified. The application that was publicly notified, assessed and decided by Council was for reconfiguration into 29 lots and parkland. The proposal plan for that application is plan 1189-SK16 and is reproduced in Attachment C of Mr Reynolds' report. [6] The Council's decision on that application was made on 31 March 2003. That decision was relevantly in these terms: “... a Preliminary Approval has been granted subject to conditions ... Subject to the additional requirements listed hereunder being satisfactorily met, the Manager, Assessment Services has been authorised to issue a Development Permit incorporating the conditions set out below. The further assessment required for this development application shall be code assessable development for the purposes of section 3.1.6 of the Integrated Planning Act. Additional requirements to be met prior to the issue of a Development Permit • A revised layout complying with Strategic Plan designations, whereby development will be permitted only in the vicinity -- 3 of 36 -- 4 of the Urban Residential designation above the Q100 fIoodline, without the use of fill or removal or alteration of the existing dam. Proposed lots 27 and 29 are not approved. No development shall be permitted within the Future Transport Corridor. • The revised layout shall include an esplanade road between the Residential A lots and Public Open Space. • …” [7] The decision notice listed 12 “additional requirements to be met prior to the issue of a development permit”. It also set out the “conditions likely to be adopted for any future development permit”. [8] In effect, the Council refused the application for a development permit for the amended proposal as lodged, but indicated that the Council was prepared to issue a development permit for a development where the subdivided lots would be in the vicinity of the Urban Residential designation above the Q100 flood line without the use of fill or removal or alteration of the existing dam. [9] This appeal is against the decision to grant a preliminary approval instead of a development permit. Of the additional requirements in the decision notice, the first two are the most important. Those requirements call for a revised layout, and one that is above the Q100 floodline. [10] The appellant prepared a revised layout, being plan 1189-SK23A. The revised layout was provided to the Council on 1 April 2004. It is this layout upon which the appeal reports of both side's expert witnesses have been prepared, and upon which the Court is asked to decide the appeal. -- 4 of 36 -- 5 [11] The revised layout, when compared with the layout upon which the Council made its decision, responds to the Council's additional requirements in the following ways: (a) the open space or parkland area has been increased from 5.99 hectares (39.6% of the site area) to 10.83 hectares (71.6% of the site area); (b) proposed lots 26 and 29 (in the south-east corner of the site and in the future transport corridor) have been deleted; (c) the area to be developed for residential allotments has been reduced from 9.14 hectares (15.13 hectares of site area less 5.99 hectares of open space) to 3.31 hectares (15.13 hectares less 10.83 hectares of open space and less 0.99 hectare of future transport corridor land); (d) the provision of an esplanade road. [12] Revegetation of 3 hectares with 4000 trees within the open space area is now proposed: see Mr Reynolds' report para 3.1.4. [13] The appellant has accommodated some of Council's demands but not all of them. Counsel made it plain on several occasions that the Council supports urban residential development above the Q100 line but not below it. Whether the proposed development below the existing Q100 line should be allowed is the major issue in dispute. [14] Approximately one-half of the proposed subdivision is above the Q100 line, and one-half of the subdivision is below the Q100 line. This can be seen in Mr Traves' report, at Figure 5.1, where the blue line shows the ARI 100 year inundation level -- 5 of 36 -- 6 (“existing case with dam”). It is referred to here as the Q100 line. There is no dispute between Mr Collins and Mr Traves (both hydraulic engineers) with respect to the location of the Q100 line. [15] Another issue, which is related to that major issue, is the extent to which development may extend beyond the boundaries of the Urban Residential designation under the Council’s Strategic Plan: the first additional requirement in the decision notice calls for a revised layout complying with Strategic Plan designations whereby development will only be permitted “in the vicinity” of the Urban Residential designation above the Q100 floodline. [16] The Strategic Plan designations applying to the land are shown in Figure 5 of Mr Reynold’s report. The development proposal involves filling the land so as to move the Q100 floodline to the eastern boundary of the proposed northern and southern lots and to a line within the eastern boundary of the future transport corridor area: see Mr Collins' report Figure 4-3 and Mr Traves' report Figure 5-2 (the blue line). The area in contention is the area shown in Mr Collin’s Figure 6 - the western boundary of the shaded area represents the existing Q100 line and the eastern boundary represents the post-development Q100 line after the shaded area is filled to the depths shown. The flood profiles of the undeveloped and developed Q100 lines are very close together in terms of depth of inundation as Mr Traves’ Figure 5- 3 shows. [17] There is no issue with the Special Protection Area designation to the east- all of the land so designated will be dedicated as open space. Mr Reynolds’ Figure 5 also shows that land outside the area to be developed is identified as Greenspace Habitat -- 6 of 36 -- 7 under the Council's Greenspace Map. It corresponds with the land in the Special Protection Area designation and is to be dedicated to the Council as open space. [18] The part of the proposed development which is in contention, being that part outside the Urban Residential designation and below the existing Q100 floodline is not in contention because of hydrological issues. Mr Collins and Mr Traves agree that moving the Q100 line as proposed would have no noticeable adverse flooding consequences upstream or downstream of the site. There would be a rise in flood levels at the edge of the filled land, but it would be insignificant. It was made plain at the hearing that the Council’s opposition was based not on hydrological grounds but on environmental grounds. The Appeal [19] The Council’s planning scheme is a “transitional planning scheme”, as the transitional provisions of the Integrated Planning Act (IPA) apply to the assessment of this application. [20] Pursuant to the former Local Government (Planning and Environment) Act 1990 (“the P&E Act”), the establishment of a 29 lot residential subdivision on the land would have required both an application for rezoning and subdivision, as the minimum subdivision size in the Rural/Non- Urban zone is 20 hectares. [21] Consequently, pursuant to s.6.1.30(3)(a) of IPA, the application must be decided under ss.4.4(5), (5A), and 5.1 (6) and (6A) of the P&E Act. [22] Section 4.4(5A) of the P&E Act provides (as does s.5.1 (6A)): -- 7 of 36 -- 8 “(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 reasons to justify approving the application despite the conflict.” [23] The effect of s.4.4(5A) was considered by the Court of Appeal in Weightman v Gold Coast City Council & Anor (2002) 121 LGERA 161 as follows: The proposal must be refused in such a situation if there are not sufficient planning grounds to justify the approval despite the conflict. The discretion, as Justice White observed in Grosser v Council of the City of the Gold Coast, is couched in negative terms, that is, the application must be dismissed unless there are sufficient grounds. This is a mandatory requirement. If there is a conflict, then the application must be rejected unless there are sufficient planning grounds to justify its approval despite the conflict. The primary judge wrongly held that it was directory only. In order to determine whether or not there are sufficient planning grounds to justify approving the application despite the conflict, as required by s.4.4(5A)(b) of the P&E Act, the decision-maker should: (1) examine the nature and extent of the conflict; (2) determine whether there are any planning grounds which are relevant to the part of the application which is in conflict with the planning scheme and if the conflict can be justified on those planning grounds; (3) determine whether the planning grounds in favour of the application as a whole are, on balance, sufficient to justify approving the application notwithstanding the conflict. The first task required of the decision-maker, as the learned primary judge recognized, is to consider the nature and extent of the conflict. The conflict may be minor or major in nature or indeed anywhere on the continuum between those two extremes. The conflict in this case is a major one, arising as it does from an absolute prohibition on the height of any development exceeding the maximum stipulated height of three storeys.” -- 8 of 36 -- 9 [24] The duty of this court is the traditional one. It has to consider the evidence, and reach an independent view of the merits of this application. This is a hearing afresh, so that the court has a duty to consider the matter for itself, regardless of Council’s decision. It stands in place of the Council, exercising the powers and discretions that the Council had. [25] It will be appreciated that the Council is the lawful planning authority for the shire. It is the duty of the court to apply the planning provisions which this Council has adopted, in the context of Queensland’s general laws about planning and environmental matters. This court is not a planning authority. It has no power to impose any views of its own on the Council or other parties. It acts only on the evidence. Often, it has the benefit of a greater range of evidence, including expert opinion, than that available to the Council. An appeal will usually mean that attention is focussed on a particular application, and its merits. That focus should not lead the court to lose sight of the wider aims and strategies of Council, which are expressed in its planning documents. Pursuant to s.4.1.50(1) of IPA, the appellant bears the onus of proof. It is for the appellant to demonstrate on the balance of probabilities that its application should be allowed. Is there conflict with the Strategic Plan? [26] South of the future transport corridor, the land is designated by the Strategic Plan partly Urban Residential, partly Public Open Space, and partly Special Protection Area. It is reasonably clear that the border between Urban Residential and Public Open Space is meant to reflect the Q100 line: see Mr Reynold’s Figure 5. -- 9 of 36 -- 10 [27] The Council has no argument with that part of the proposal located to the south of the future transport corridor and on the western side of, and above the Q100 line. However, that part of the development which is in the Public Open Space designation and below the Q100 line is said to be in conflict with the provisions of the Strategic Plan. That part amounts to about half of the southern part of the development. [28] The Preferred Dominant Land Use intents of the Strategic Plan commence at page 44. They comprise Public Open Space, Restricted Open Space and Special Protection Area: See Section 4.4 and 4.4.1 “4.4 Open Space This group of preferred dominant land uses includes land holdings in the Shire, both publicly and privately owned, which are intended to be retained as open space. These areas are intended to be utilized for a range of purposes ranging from active, formal recreation and sporting pursuits to land managed primarily for conservation purposes, depending on the designation in which a particular site is included. In some cases, other purposes may be conducted on these sites where consistent with these purposes. Land in these descriptions form part of an overall open space system and may perform a number of functions within this system, from recreation to fauna/flora conservation, to environmental management (e.g. storm water, erosion and sediment run-off management). Although there are three separate designations in this group, there is a close relationship and interlinking of these lands in the collective contribution to the integrity of the visual character, conservation land management, environmental functioning and community support services of the Shire. …” “4.4.1 Public Open Space This designation indicates the location of areas which are currently in public ownership or are expected to come under Council control for use for parks and recreation purposes. These areas are intended to perform a role in meeting the recreational needs of Shire residents for active and passive recreational pursuits. -- 10 of 36 -- 11 It is also intended to recognize the importance of these areas in many locations for environmental functions such as waterway preservation, maintenance of fauna habitat and/or corridor and coastal protection/buffering from land uses which would impact on the value of these areas”. [29] The Council's decision notice referred to development being permitted only “in the vicinity” of the Urban Residential designation. It was submitted for the appellant that such an expression acknowledges the fact that the boundaries between strategic plan designations is conceptual rather than having a cadastral base: see Mr Reynolds' report para 5.2.7. Indeed, there are examples where final development boundaries do not align with conceptual strategic plan designations: see Mr Reynold’s report para 5.2.9 and Attachment E and Mr Priddle's Preferred Dominant Land Use map. The adjoining residential estate to the south of this land was approved by the Council in 1998 with residential allotments in the Public Open Space and Special Protection Area designations. Mr Priddle (a town planner) said that he would not expect development to correlate to the exact boundaries of the Strategic Plan and that it depended on site-specific investigations, and that there was some degree of flexibility in the boundaries. Mr Priddle also said that there was no reason why the Q100 line couldn't change because of filling, subject to the impacts of that being assessed. It is submitted for the appellant that where site specific criteria warrant adjustment of the Strategic Plan designation boundaries, it is appropriate to do so because those boundaries are indicative and conceptual, rather than being precisely fixed and immutable. [30] While it is true that there are examples of inexact correlation between the Strategic Plan and actual development, the presence of the Q100 line is the dominant demarcation in this area. To put it another way, a site-specific investigation here shows that a significant conceptual boundary passes through the proposed -- 11 of 36 -- 12 development. The Q100 line can only be moved by filling the land. If there is to be no filling, then the existing Q100 line is the significant feature. [31] It is submitted for the appellant that the reasons why the development is appropriate are set out in Mr Reynolds’ report at paras 5.2.6 to 5.2.12, and Mr Chenoweth's report paras 5.2.3 and 2.13.2. In substance, they say that the land is of no great conservation value (having been farmland) and that 71% of the land is to be available to the public, which is very generous. [32] The true position can be summed up this way - (a) The extension of residential development under consideration is an extension into an area not contemplated for residential development by the Strategic Plan; (b) There is nothing remarkable about the dedication of over 71 % of the site to the Council as Open Space. This figure is a function of the ground's low-lying nature and the fact that it contains at least one endangered regional eco-system. The dedication is in accordance with the planning scheme designations, including Public Open Space. (c) The drainage corridor on the subject land is reduced by up to 75 metres from what it would be if there was no intrusion into the Public Open Space designation. (d) The degraded, former farmland does not mean that it has no value for public recreation, and also for drainage and environmental purpose. -- 12 of 36 -- 13 [33] It was also suggested that need could be considered a planning reason to approve the proposal despite the conflict. It is true that the Redland Shire is obviously a significant growth area, as Mr Warren’s report makes clear. There is no evidence of any pressing demand for the relatively small number of allotments in this particular location. [34] The Open Space and the Public Open Space provisions make it clear that urban residential development is not contemplated within these areas. There is a conflict with the Strategic Plan, created by the proposal to develop urban residential allotments below the Q100 line. The proposal is in conflict with the Strategic Plan The Drainage Problem Designation [35] This is the provision in the 1998 Strategic Plan: “4.5.4 Drainage Problem This designation indicates the location of areas which are considered by the Council to be subject to, or likely to be subject to drainage problems and access and servicing constraints. These areas also have environmental wetland value in many cases. Generally development will not be permitted within these areas unless it can be demonstrated that the land is either not susceptible to drainage, access, servicing or environmental constraints or suitable planning, environmental and engineering solutions (probably involving a number of allotments together) area available. Future development options for any such areas will be considered by Council on the basis of surrounding Strategic Plan Designations and an assessment of relevant local planning issues.” See Mr Reynolds’ Figure 5. [36] Proposed lots 26, 27, 28 and 29, north of the future transport corridor, are in this designation. Much of the access road, and about half of the four allotments, are below the Q100 line. As a proportion of the whole site, the intrusion into the -- 13 of 36 -- 14 drainage problem area is not great. There will be some intrusion into the natural path of storm water at the Q100 level. [37] The intent for this designation is that generally development will not be permitted unless it can be demonstrated that the land is either not susceptible to drainage, access, servicing or environmental constraints, or suitable planning, environmental and engineering solutions are available. Those tests are satisfied in this case. There are no access or service constraints: Para 5.2.17 and Mr Flanagan's report page 14. There are no drainage constraints affecting that part proposed for development - the northern lots would be above the Q100 floodline after filling. [38] So far as environmental constraints are concerned, there is no wetland in the area to be developed. The loss of trees in that area would be offset by the revegetation of 3 hectares of the land to be dedicated to the Council. The species to be revegetated include the two described species (Swamp She-Oak and Broadleaf Paperbark) in the regional ecosystem. None of the affected trees are primary koala food trees. [39] Mr Chenoweth, the landscape architect, described the effects of development this way: “In the case of the northern part of the subject land, a small proportion (less than 10%) of the designated Drainage Problem Area) is of conservation significance … The trees on the dam wall, although not a natural remnant, also have some local environmental values and therefore could be considered constrained by the Drainage Problem Designation. However, the remaining large proportion of the Drainage Problem Area (approximately 75%) is unconstrained by natural wetland or other environmental values. The proposed development will protect in public urban space more than 90% of the existing “of concern” trees and a substantially greater proportion of revegetated flood plain area downstream of the dam.” -- 14 of 36 -- 15 [40] Although the land after filling would be low lying, the evidence is that a suitable drainage system could be installed. It may have to be a surface drainage system. [41] Overall, the intrusion into the Drainage Problem Area is a slight one, and no real barrier to the development proposal. A Koala Habitat [42] It is common ground that koalas are often to be seen on this land. [43] State Planning Policy 1/97, which deals with the conservation of koalas, applies to the land. There are three land designations under SPP1/97 – the Koala Conservation Area, the Other Major Habitat Designation and Koala Coast Balance Area. The allocation of those designations throughout the area covered by SPP1/97 (the Koala Coast Area) is shown in Appendix 10 of Mr Warren's report. The majority of that part of the area proposed to be developed is in the Koala Coast Balance Area, with small parts within the Other Major Habitat designation: see Mr Reynolds’ Figure 5. The Balance Area is to the west of the dark grey line, while the land to the east is Other Major Habitat. [44] This policy was promulgated by the Governor-in-Council under the powers given by s.1A(1) of the now repealed P&E Act. Under s.6.1.22 of IPA, State planning policies made under the repealed Act remain in force and have continuing effect. The policy has been specifically incorporated into the Council’s 1989 Strategic Plan: see para. 3.1.1(c). Paragraph 1.2 of the policy says that local governments, this Court, and the Queensland Government, are required to have regard to the policy when carrying out their planning functions. Paragraph 1.3 says that the policy aims to provide a high level of direction and support to governments and -- 15 of 36 -- 16 others called on to make planning decisions on development relevant to koala conservation in the Koala Coast. [45] The basic position statement of the policy is this: “The Queensland Government considers that the extensive koala habitat areas in the Koala Coast should be conserved to allow for the long term survival of the koala population. Important koala habitat should be protected from inappropriate future developments and changes in land use, without affecting existing uses and development rights or removing development commitments.” [46] Paragraph 3 sets out the threats to koalas. Traffic and dogs pose significant threats to them. Another major threat to their long term survival is the loss or fragmentation of their habitat through human activities. As the paragraph concludes: “3.5 Many forms of development in and near areas of koala habitat threaten the long term survival of the koala. Even low-density residential developments, which may involve limited habitat clearing, still caused increased traffic, risks from dogs, and effects on adjacent habitat areas. Therefore, they require more detailed attention and control in the planning process.” [47] Paragraph 4 explains the hierarchy of conservation designations. The Koala Conservation Area comprises a large, integrated and relatively undisturbed area of koala habitat. The Other Major Habitat designation has the same intent, with two exceptions: • Most of the Other Major Habitat does not form part of a single cohesive area (as in this case); • While the boundaries of the Koala Conservation Area designation are determined by the policy, the precise alignment of Other Major Habitat designation boundaries can be amended by the local government, either in their -- 16 of 36 -- 17 planning schemes or through development assessment, as described in s.6 of the Policy. Because the Other Major Habitat is generally located in existing or developing urban areas, the boundaries of the designation might need adjusting to achieve the best practicable outcome for the conservation of koala habitat values. [48] Paragraph 4.7 of SPP1/97 provides that the Koala Coast Balance Area (in which most of the proposed development is located) will be subject to a wide range of developments and land uses in the future, including accommodation of urban growth, but nevertheless any significant koala habitat should be conserved wherever practicable. [49] Paragraph 5.3 of SPP1/97 provides that developments that might have uncertain or detrimental long-term impact on koalas and their habitat should generally be excluded from the Other Major Habitat designation. [50] Paragraph 6 says that the issues identified earlier in the Policy must be addressed when decisions on development applications are made: “It is the role of the planning system to reconcile development requirements for the need to protect, conserve and, where appropriate, improve the koala habitat values of the Koala Coast.” [51] The Policy includes guidelines for development. Some significant guidelines were mentioned during this hearing, in counsel’s submissions: “5.2 Wherever practicable, proposed developments should be in existing cleared areas to minimise any additional clearing of habitat. 5.4 Clearing should be restricted to areas of lowest koala habitat value where practicable. … Where existing cleared areas cannot be used, new clearing may be acceptable, provided an equivalent cleared area is revegetated for koala habitat. -- 17 of 36 -- 18 …” [52] Paragraph 5.13 sets out examples of incompatible developments. As it says, the following types of land use are generally incompatible with conserving koala habitat values, which would be generally inappropriate in the Koala Conservation Area and Other Major Habitat: “Urban residential and low density residential (eg park residential) subdivisions. …” [53] The guidelines stress the importance of habitat links. The low lying land to the east of the proposed development site can be seen as a significant link between the northern wetlands and southern areas of land where there is no development. Links should be as wide as possible, and no less than 100 metres, to minimise edge effects (that is to say, dangers to koalas which increase closer to the boundaries of developed allotments). The same paragraph mentions the desirability of a revegetation program to rehabilitate cleared or partially cleared areas. [54] It can be seen from Figure 5 to Mr Reynold’s report that the southern part of the proposed development barely intrudes into the Other Major Habitat Area. There is a significant intrusion in the northern part of the development. About half of the development is on the eastern side of the dark grey boundary line. [55] There is no ‘development commitment’ with respect to this land. There is no evidence of any “overriding public interest need” for the proposed development. It is not said that no other site is suitable and reasonably available for a similar proposal. For the Council, it was submitted that in the absence of any development commitment or overriding public interest need, public interest would be enough to see the development refused. -- 18 of 36 -- 19 [56] It is necessary to look at the other submissions, and expert observations, that were made about the proposed development, and its impact on koalas. Mr McNeilage, an engineer, pointed out that at least 22 koala food trees will be destroyed by the development. That is, if the development proceeds, fill has to be introduced on to at least half that land and so it will very probably be totally cleared: see his illustration at para. 166 of his report. (That aerial photograph also shows the different qualities of revegetation on the site. The densely covered land to the east will not be disturbed (except for a borrow area for fill) while the area of the development itself is, generally speaking, quite sparsely vegetated.) Mr McNeilage does not mention the proposal for revegetation. That is dealt with in a number of places, including the former assessment report by Mr Warren. Mr Warren observed that a maximum of 37 trees, of which 28 were a suitable koala food source, might be lost as a result of this development. All those plants occur within an area which is described as ‘exotic grasses plus scattered trees’. In addition, a small proportion of land in the northern part of the development will be lost. About 13% of the available food trees on the site will therefore be lost. He says that the losses will not result in a significant loss of movement along the corridor to the east. In his opinion, this small loss would be more than offset by the planting of 4,000 trees in the proposed three hectare revegetation area. That measure would provide a significant net increase in the koala habitat on this land. [57] Mr Warren explains that any development will have an impact because of the introduction of more cars and dogs. The boundary between private open space and public open space will see an increase in edge effects, including the dumping of garden waste and rubbish. In each case, he does suggest some measures to -- 19 of 36 -- 20 ameliorate the impacts. Some depend on rather capricious and unpredictable things, such as the education of the public and the discouragement of dogs in the public open space area. [58] In his conclusion, Mr Warren says that the proposed development of the site represents the best ecological solution, and a balanced environmental outcome – that is, balancing development and the maintenance and enhancement of the natural environment. He gives significant weight to the revegetation proposal, compared to the loss of land to housing – land which is already in a fairly degraded state in his opinion. An assumption in his conclusion is that the larger area of open space which will remain is quite adequate to link the adjoining residential areas in the south with Council’s wetland areas to the north. [59] Overall, it can be seen that the koala policy is not a significant impediment to this development. That is because the revegetation would see an enhancement of the existing open space areas, and the corridor to the east would remain a large open space, particularly in relation to the amount of land to be used for this development. The Q100 Floodline [60] It was submitted for the Council that an examination of its planning documents reveals a firm intention that land below the Q100 level not be developed. That intention is consistent, it was submitted, with significant hydraulic and environmental considerations. [61] There was expert evidence to the effect that it was generally desirable to retain flood plains in a natural or undeveloped condition for a variety of reasons. Mr -- 20 of 36 -- 21 McNeilage, an hydraulic engineer, agreed with that proposition and set out his views, as follows: “Why? -- I think it's very desirable. I think there are a range of reasons, both environmental and hydrological. I would briefly mention the hydrological ones, but then move past them because that's not the area I'm appearing here in - the area that I'm addressing here, but it is clearly strongly desirable to retain the ability to pass flows through a catchment and not alter them because of the impacts it would cause both upstream and downstream and the alterations, perhaps, in an area that already has been subjected to development, but I'll leave that argument to the experts dealing with that matter. In terms of the environmental aspects, I have made some notes for myself and I will go through those very quickly. Existing valuable habitat would be removed - and in this case including well developed koala habitat trees and melaleucas - if that land below the Q100 was developed. Development would occur closer to the waterway centre line with the resulting loss of buffer distance which will impact on habitat core values and the opportunities for water quality improvement processes. This will also reduce the actual and potential width of habitat corridors and habitat across the land. If it is developed we lose that opportunity. Thirdly, the area of land available for water quality improvement processes will be reduced. This applies to water originating from the proposed development, upslope of the proposed development and also from the upstream catchment. Four, water quality processes that will be occurring in land within a waterway influence - that is below the Q100 line - includes the filtering of sediments and the control of erosion and siltation and also the nutrient uptake by plants of waters coming down through that catchment. And five, in general, land below the Q100 will retain moisture longer than upslope areas and generally have more fertile soils than upslope areas. As a result, land below the Q100 will actually or potentially, in regenerating areas, support a high diversity of plants and animals resulting in a wide range of habitat food types. Many native plants are found only, or primarily only found in riparian areas, and these areas I regard as essential for many animals for all or part of their life cycle. I think that probably covers the main reasons why I think it's highly desirable to retain flood plains in a natural, undeveloped condition.” [62] Mr McNeilage was of the view that this vegetated riparian land below the Q100 should be preserved and protected. He said, in his report: “3.3.1 Land below the Q100 level 89. It appears undisputed that the subject land contains habitat with important environmental values. The currently proposed -- 21 of 36 -- 22 development layout includes the filling of land below the existing Q100 and the use of this land for residential lots. From the material I have been shown, while there are relatively minor differences between the locations of the existing Q100 line calculated by the different experts, it appears to be broadly agreed that about half the proposed lots fall on land that is currently estimated to be below the existing Q100 level. 90 I consider that the land below the Q100 level within the subject land is especially important in terms of both downstream protection and the important habitat it contains. Land below the Q100 level is closely involved with occasional flooding and, due to its relative low-lying position in the landscape, contains special environmental attributes. … 91. While the protection of land below the Q100 level on this site is very important, the issue also has implications for other developments through the Redland Shire. I understand that the protection of land below the Q100 level from development to ensure residences are protected from regular flooding and to preserve the environmental attributes of the land has been a consistent principle in planning decisions made by the Redland Shire Council in recent years. This principle is reflected in a range of Council documents, many of which are discussed above. I strongly support this Redland Shire Council principle for environmental reasons. Furthermore I note that the beneficial effect of this environmental protection on all land below the Q100 level throughout a given catchment is cumulative and highly desirable in order to protect environmental values both within the catchment and further downstream. I consider that this protection of environmental values through the avoidance of development below the Q100 level is important on both the subject land and throughout the Redland Shire area. 92. I consider that lands below the Q100 level exhibits riparian land characteristics and therefore have important environmental values, and development in those areas should not be permitted. … 101. The values of riparian land are summarized by Lovett and Pricell (page A:3): 'Riparian land is important because it is usually the most fertile and productive part of the landscape, in terms of both primary production and ecosystems. It often has better quality soils than the surrounding hill slopes and, because of its position lower in the landscape, often retains moisture over a longer period. -- 22 of 36 -- 23 Riparian land often supports a higher diversity of plants and animals than does non-riparian land. This is a result of its wide range of habitats and food types, its proximity to water, its microclimate and is ability to provide refuge. Many native plants are found only, or primarily, in riparian areas, and these areas are also essential to many animals for all or part of their lifecycle. Riparian land provides a refuge for native plants and animals in times of stress, such as drought or fire. From an aquatic perspective, vegetation on riparian land regulates in-stream primary production through shading; supplies energy and nutrients (in the form of litter, fruits, terrestrial arthropods and other organic matter) essential to aquatic organisms; and provides essential aquatic habitat by way of large woody debris.’” [63] The intention of the Council to protect areas below the Q100 level is also outlined in the Redland Shire Council Strategic Plan Review, the relevant portions of which are reproduced in Mr McNeilage's report at para 106, as follows: “(a) Traditional approaches to stormwater drainage of cut and lined channels will be actively discouraged in favour of a more natural approach. This includes: • retention of existing overland flowpaths and stream beds; • dedication of land affected by the 'major' storm event, for drainage purposes; • total retention of existing vegetation in those drainage purposes areas; • design of hydraulics based on the retention of existing vegetation; • the use of natural ponds and basins to provide for flood retention; • the use of gross pollutant traps (GPTs) to capture course pollutants before they contaminate drainage paths; • development of artificial wetlands to improve water quality. (b) Drainage paths, if property designed, should serve a useful recreational and ecological purpose. It would be useful to plan public -- 23 of 36 -- 24 open space in association with drainage paths for complementary purposes.” and on page 7-8: “These documents describe in detail the relevant stormwater drainage parameters. From a Strategic Planning concept, the following are the primary matters to be considered when assessing any land for particular uses: (i) The minimum level to which Council will permit land along any watercourse to be used for development is the calculated 100 year Annual Return Interval (ARI) flood level. … (iii) All land which has been identified as being below the levels determined above is to be dedicated to Council for drainage purposes in accordance with current Local Planning Policies.” [64] There are several relevant provisions in the 1998 Strategic Plan. The Vision in para. two includes this: “The Shire’s urban areas will be framed by its green space involving the conservation of natural environment and bushland areas in the south of the Shire and viable habitats which connect this area to Moreton Bay, including those along Tingalpa, Hilliards … Creeks.” [65] Goal 4 is: “To manage the Shire’s natural environment, including bushland areas and Moreton Bay so that its ecological functions and biological diversity are protected and enhanced.” [66] The Environmental Protection Strategy seeks to conserve the natural environmental assets of the Redland Shire and, through sound environmental management practices, to maintain and strengthen the role of these areas in the Shire’s overall strategic planning framework. This will be achieved by: “(a) Conserving significant environmental landscape and visual elements through: • protecting areas identified in s.5.0 Greenspace and on the Greenspace map in this plan from -- 24 of 36 -- 25 incompatible forms of development which would adversely affect the environmental landscape and visual significance and attributes of these locations; • ensuring that development in these areas is approved only where it respects the dominant environmental landscape and visual features and incorporates appropriate mitigating measures to ensure the retention and promotion of these identified characteristics; • … (b) Conserving the water quality and ecological functioning of Moreton Bay, coastal areas, streams and water supply sources through: • … • avoiding inappropriate forms of development and, where necessary, establishing buffer areas on land adjoining and in close proximity to water bodies, wetlands and waterways. • …” [67] Paragraph 5.2.2 of the Strategic Plan applies to this land, as it is in the Urban - Residential designation on the Preferred Dominant Land Use Map. Paragraph (f) says this: “Council shall have regard to the Greenspace Assessment Report in considering any application for development approval for land included in or adjoining the Greenspace habitat. Council may only approve such development where it is satisfied that the environmental values of the site have been adequately identified and adequate measures will be incorporated into the development to protect, retain and where appropriate, enhance those environmental values.” The boundary of the Greenspace Habitat is shown on Mr Reynolds’ Fig. 5. It is just to the east of allotments 15 and 16. This land is, therefore, “land adjoining the Greenspace Habitat”. Local Planning policy “Waterways Wetlands and Coastal Zone” [68] This Local Planning Policy was adopted by the Council in 1995 under s.1A.4 of the P&E Act. Mr Priddle, a town planner, told the court that the policy has been -- 25 of 36 -- 26 consistently applied by the Council, and there is no reason to doubt that. At the time the policy came into existence, the 1987 Strategic Plan was in force. The policy in terms on page 3 provides: "Applicants should refer to the Strategic Plan map for guidance on the location of waterways, wetlands and foreshores in the Shire." [69] In the 1987 Strategic Plan map, a “watercourse” is shown on the land. There is no doubt that this is the feature that transports water through the subject land and which has been altered by the man-made dam. This constitutes a “waterway” within the meaning of that term as used in the policy. It is of no consequence that the policy uses the expression “waterway” and the Strategic Plan map uses the expression "watercourse". As Justice Thomas said in ZW Pty Ltd v Peter R Hughes & Partners Pty Ltd, when dealing with the construction of planning documents: “In the end courts endeavour to give some meaning to such provisions and endeavour to adopt a common sense approach or the approach which seems to make most sense out of provisions which may be contradictory as well as obscure (cf Pacific Seven Pty Ltd v City of Sandringham (1982) VR 157 at 162).” The evidence showed that the low lying parts of this land (below Q100) could be described as a watercourse, waterway, drainage path, flood plain, or riparian zone. [70] There is no doubt that the policy applies to the low lying areas of land which convey water through the land to the north. It seeks to promote, amongst other things, the establishment of appropriate buffers between development activities and certain waterway elements as a means of accommodating: “The maintenance of physical and biological processes, storm surge or flooding inundation, public use and access and visual amenity.” [71] Policy objectives specifically relevant to this matter include: -- 26 of 36 -- 27 “A. Hydrology (1) To protect residential housing from floodwaters by excluding such development from lands inundated by the average recurrence interval of a one in 100 year flood; (2) ... (B) Ecology (i) To ensure that development is set back from waterways, wetlands and the coastal zone to allow for the preservation and rehabilitation of vegetated riparian zones for physical and ecological processes, the maintenance of species and the establishment of wildlife corridors. (C) Water Quality … (iv) To ensure that the chemical composition of fill material proposed to be placed in or adjacent to waterways or wetlands is compatible with the environmental values of adjacent receiving waters. (D) Open Space and Recreation (i) To preserve and create continuous waterway Greenspace corridors to allow for unimpeded public access to waterways, for use as recreational areas and for pedestrian/cycle/equestrian links (ii) To ensure the protection. preservation and rehabilitation of any tidal or freshwater wetlands. (iii) To facilitate the re-vegetation of riparian zones with endemic species and to ensure that any new vegetation is tolerant to the expected frequency and duration of flood water immersion.” [72] ……………………………….. “POLICY STATEMENT: In determining whether or not planning approval should be given to any proposal, and the nature of conditions to attach to any approval, Council will ensure that all relevant Policy Objectives are considered. It should be noted that many of the Policy Objectives are interrelated and as such may have effect on one another. Consequently all of the Policy Objectives and their potential interactions should be considered for any proposal. " -- 27 of 36 -- 28 [73] An examination of the definition of “waterway” and “vegetated riparian zone” indicates that both those concepts extend to the Q100 flood level. The diagram in the Policy shows that the riparian zone extends from the edge of the waterway to the ARI 100 year flood level, and the setback area referred to in the policy extends to the ARI 100 year flood level (the Q100 line). [74] Therefore, it can be seen that the Policy is concerned with wider issues, such as ecology and recreation. The Council’s Design Standards for Development [75] The Design Standards for Development are imported into the Planning Scheme by the provisions of Chapter 25, Part 1, clause 21(1): see page 128 of Exhibit 15, which allows standards to be issued by the Director of Engineering Services. “Natural Gullies and Flood Plains ‘It is Council’s intention, as stated in Local Planning policies, that watercourses, flood plains and significant natural drainage paths are retained for environmental purposes. Natural vegetation shall be maintained in all natural gullies and flood plains. Filling shall not be permitted on land below the 100 year ARI flood level where natural drainage paths exist and are to be retained for environmental purposes. Allotment levels adjacent to natural gullies and flood plains shall not be less than 300mm above the 100-year ARI flood level.’ ” -- 28 of 36 -- 29 Local Planning Policy “Park Requirements in New Subdivisions” [76] This Policy deals with park requirements. Two definitions are of interest. A ‘drainage path’ is defined this way: “Any drainage path whether constructed or natural not being a creek or flood plain thereof which from time to time contains flowing water which has been concentrated because of the contours of the land and will continue as flowing body of water on the surface of the land.” [77] On page 3 of the Policy, one of the primary objectives is stated to be: “… to ensure that creeks and their flood plains should be returned as far as possible to their natural state and that filling of flood plains should not be permitted for any purpose. This land may not always be suitable for acceptance as park dedications under this policy and may be more appropriately designated as a natural drainage path … ” [78] A “flood plain” is defined to include: “Land which is inundated from time to time by the passage of floodwater from a creek which for the purposes of this study is all land adjoining a creek or drainage path situated below a level calculated to be the one in one hundred years average exceedance level.” [79] Mr McNeilage described the area below the Q100 level on the subject land as a flood plain. Mr Chenoweth described it as a flood plain in his report. Mr Collins shared this view. Local Planning Policy “Development in Areas Having Bushland Scenic Landscape or Cultural Heritage Values” [80] The inappropriateness of development in this riparian zone is reinforced in Local Planning Policy. "Policy Statement: -- 29 of 36 -- 30 Circumstances under which development will generally not be favoured. Council will not favour a development of land for Urban purposes if all or substantial parts of the land satisfy one or more of the following criteria: … (t) the land is within the vegetated riparian zone coastal zone or wetland area as defined in Local Planning Policy Waterways Wetlands and Coastal zone.” [81] Mr McNeilage was of the view that the land below the Q100 level exhibit riparian land characteristics and therefore have important environmental values and development of those areas should not be permitted. Part 4, Division 5, Cl 16 and Cl 17 Town Planning Scheme “Filling and Drainage” [82] Clause 16 deals with the need for approval if filling is to change the natural surface level of any allotment. The last paragraph of clause (1) of s.16 provides: “Provided that an approval pursuant to this subclause to fill an allotment or group of allotments which are subject to flooding at a frequency of more than one (1) in one hundred (100) years shall not be granted except where such filling is of a minor nature.” [83] Clause 17 deals with minimum development levels: “Notwithstanding any other provision of the Scheme or the by-laws, no person shall, without the written approval of the Council, erect a building with a floor level of less than 300mm above flood level at a frequency of one in a hundred years where such building is located on an allotment within or adjacent to a flood plain.” (As almost all houses in the area are built slab on ground, this provision requires 300mm of additional fill above the Q100 line, if the land is to be filled.) -- 30 of 36 -- 31 [84] Clauses 16 and 17 of the planning scheme do envisage that filling may be approved below the Q100 floodline. Clause 16(1) potentially allows the natural surface levels of land to be changed as a condition of approval to subdivide land. The present application is for subdivision as well as for a material change of use. The proviso to the clause also says that where the allotment is subject to flooding of a frequency of more than 1 in 100 years, approval shall not be granted to fill except where the filling is of a minor nature. [85] “Minor” is defined in the SOED relevantly as: “Comparatively unimportant or insignificant … small scale.” [86] It was submitted for the appellant that the filling proposed here is of a minor nature: (a) The word “minor” is essentially a relative term, and requires that regard to be had to the context of the filling. The context here which is relevant is the impact of the filling, its area and its depth. (b) The filling does not cause any flooding impacts upstream or downstream. (c) The area of the filling is minor in the context of the area of the land which is 15.13 hectares. (d) The depth of filling is described by Mr Collins’ report page 14. Over 70% of the area to be filled requires less than 200mm of fill and depths are generally less than 300mm in the south and less than 400mm in the north. (e) Clause 16(1)(d) treats filling of no greater than 300mm where no concentration of storm water runoff onto adjoining properties occurs as acceptable where done for landscaping purposes. -- 31 of 36 -- 32 (f) Section 4(2) and Schedule 5 item 5 of the Standard Building Regulation 1993 treats filling which is for or incidental to building work as self-assessable development (ie. no development permit is required) where the fill is no deeper than 1 metre in relation to natural ground level and any fill embankment satisfies specified steepness criteria. (g) The context in which the expression “filling of a minor nature” is used in the proviso to clause 16(1) is the context of filling an allotment subject to flooding. “Minor” is to be judged in the context of flooding impacts. There are no flooding impacts here and the Council does not contend that flooding issues justify refusal of the application. The proposal satisfies clause 16(1)(d) and the filling below the existing Q100 line should be approved. (h) Clause 17(2) is directed towards the floor level of buildings above the Q100 floodline. The effect of filling part of Lot 14 is to move the Q100 line eastwards of the proposed allotments and roads. All the proposed allotments will be above the relocated Q100 line. When buildings are erected on those allotments they will have to comply with clause 17(2). (i) The Waterways Policy has as one of its objectives the protection of residential housing from flood waters by excluding such development from lands inundated by a Q100 flood. The proposed allotments, if the filling is approved, will not be inundated by the Q100 flood. The policy objective will be achieved. (j) The Waterways Policy does not prevent filling below the existing Q100 floodline. It does not say so. Objective C(iv) plainly -- 32 of 36 -- 33 contemplates filling in a waterway and seeks to ensure that such fill is compatible with the environmental values of adjacent receiving waters ie. it is not contaminated material. (k) The Policy states that it sets out the objectives on which the Council shall base decisions in determining any form of development over any land within or in close proximity to any waterway. The Policy should not be construed as depriving the Council of the discretion it has under clause 16(1). To do so is to render the discretion sterile or devoid of content: see Ambrose v Gatton Shire Council (1980) 1 AP AD 179 at 184 and 186. The Policy cannot be used as a justification for refusing to exercise the clause 16(1) discretion without regard to the merits of the cases, as that would be an improper exercise of power. (l) The Council's Design Standards state in s.4.0 that filling shall not be permitted on land below the 100 year ARI flood level where natural drainage paths exist and are to be retained for environmental purposes. The standard is directly contrary to clause 16(1) of the scheme and is unlawful because it purports to take away the discretion under the scheme: see Ambrose v Gatton Shire Council. The planning scheme has the force of law: s.2.1.23(1) of IPA. The standard is not a local planning instrument or a planning scheme policy – it is a document issued by a Council officer under clause 21(1) of the Subdivision Local Law. The standard is also directly contrary to the Waterways Policy which does not prevent filling below the Q100 line and which contemplates that such filling may occur. This part of the standard is of no legal effect. -- 33 of 36 -- 34 (m) The standard also provides that allotment levels adjacent to natural gullies and flood plains shall not be less than 300mm above the Q100 flood level. If such an allotment needs to be filled to achieve that standard (ie. the allotment is at the same level as the Q100 flood level) then it would seem that approval under clause 16 for filling would be forthcoming. Such filling, because it is above the Q100 level, does not have to satisfy the test of being of a minor nature – that test only applies under the proviso to clause 16(1) to filling an allotment below the Q100 level. Mr Collins said that an additional 300mm of filling has no effect on flooding results (T69 1.55) and was not necessary (T88). Mr Traves thought that it might be required if there was further development downstream but agreed that there was not likely to be such development: T122 1.40. Compliance with the design standard is unreasonable in this case. [87] All those submissions depend on a finding, that the proposed filling to Q100 is of a minor nature. That is the requirement in the Planning Scheme. [88] There is a consistent principle which runs through the Council’s planning documents, and that is, that it is the intention that there be no development of the sort contemplated here below the Q100 level. This is a sound principle from both a planning and an environmental perspective. Effect should be given to this consistently expressed planning policy of the Council. It has substantial expert support, if that be needed, particularly in the reports of Mr Priddle and Mr McNeilage. -- 34 of 36 -- 35 [89] The extent of the fill can be seen in Figure 3 to Mr Flanagan's report. That is conservative, as Mr Flanagan agrees that if the 300mm “freeboard” required by the provisions of the Development Standard are met, the extent of the fill will extend further to the west. [90] The fill will range from a maximum depth of 700mm to very little as it extends to the west over the gently rising ground. [91] This filling extends up to 75 metres into the flood plain below the Q100 level. The total volume of it can be in the order of 7,200m3, which would require, if transported by standard 5m2 earthmoving truck, 1,440 truck movements, or if by “truck and dog", (truck and large trailer rigs), 350 such loads. Transport from the proposed borrow pit of the land would probably be by scraper. There is little doubt that the effect of such fill would be to kill all vegetation upon which it was placed. [92] It was submitted for the Council that the planning scheme contemplates the placing of some fill, but it does not contemplate the creation of filled allotments within the flood plain. The fill proposed intruding up to 75 metres into the vegetated riparian zone on the flood plain below Q100. Up to 700 mm deep could not be regarded as of a “minor nature”. [93] Expert opinions varied about the scale of fill. Some thought it was minor, or small. Others disagreed, pointing to its large area and depth. No doubt the idea of “minor fill” depends on its context, and the scale of a development. -- 35 of 36 -- 36 [94] It is difficult to see that this operation would only amount to “minor fill”. It would be more than that. The opinions of those who thought that the fill was more than minor should be accepted. It is more than that envisaged by Council. [95] Overall, it should be found that the development is contrary to a widely expressed policy, of preserving land below the Q100 line for recreational and environmental purposes. [96] It has already been noted that there is a conflict with the Strategic Plan, because land will not be preserved as Public Open Space. There are no planning grounds to justify that departure. The Objections [97] Exhibit 18 is a substantial folder containing objections to the development. They have been taken into account. The Decision [98] The Appellant has failed to discharge its onus of showing that the appeal should be allowed. The Council was correct. The appeal must be dismissed. -- 36 of 36 --