Daikyo (North Queensland) Pty Ltd v Cairns City Council & Ors [2003] QPEC 22 (2003) QPELR 606

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Daikyo (North Queensland) Pty Ltd v. Cairns City Council & Ors [2003] QPEC 022 PARTIES: DAIKYO (NORTH QUEENSLAND PTY LTD (Appellant) v. CAIRNS CITY COUNCIL (Respondent) And STATE OF QUEENSLAND (First Co-Respondent) And CAIRNS AND FAR NORTH ENVIRONMENT CENTRE INC (Second Co-Respondent) And DR JONATHAN FREEMAN NOTT (Third Co- Respondent) FILE NO/S: 139 of 2002 DIVISION: Planning & Environment PROCEEDING: Appeal ORIGINATING COURT: Planning and Environment Court, Cairns DELIVERED ON: 19 June 2003 DELIVERED AT: Brisbane HEARING DATE: 26, 27 March; written submissions 24 April 2003 JUDGE: Skoien SJDC ORDER: Appeal allowed CATCHWORDS: Condition for flood protection in cyclone affected land. COUNSEL: Mr Hinson SC for appellant Mr Cochrane for respondent Mr S Keliher for third co-respondent SOLICITORS: Williams, Graham & Carman for appellant MacDonnells for respondent Environmental Defender’s Office for third co-respondent. -- 1 of 9 -- 2 [1] This is an appeal by Daikyo against conditions imposed by the Council on its preliminary approval of a material change of use and a development permit for reconfiguration of a lot to permit the development of about 60 hectares of land in four precincts to contain residential housing (conventional, detached and multiple), tourist accommodation (apartments and motels), an area of commercial development (shops and restaurants, open publicly accessible recreation areas) and Precinct 4, an environmental area to preserve natural vegetation and land form. Ultimately Daikyo and the Council reached agreement on all conditions but there remains one condition (condition 28) about which dispute remains between them on the one hand and Dr. Nott, on the other. [2] Dr Nott is a Reader (Associate Professor) at the James Cook University whose research interests include the intensity and frequency of pre-historical tropical cyclones. He was an objecting submitter who elected to become the third co- respondent. The other co-respondents took no part in the appeal. The Locality [3] The site forms part of an undeveloped area of the Cairns northern beach suburb of Palm Cove. It is located to the south of the developed area of Palm Cove, which has a mix of both tourist and permanent development. It lies to the north of the suburb of Clifton Beach, which is predominantly permanent residential in character. [4] Land to the south is predominately included in the Residential 1 zone with parcels included in the Open Space zone and the Residential 3 zone located towards the south east. This land has primarily been developed, or is intended to be developed, for the purpose of conventional residential housing with the exception of the land -- 2 of 9 -- 3 included in the Open Space zone and the Residential 3 zone, which is intended to be developed for medium density residential development. [5] Land to the north is predominately included in the Rural zone and is currently vacant. However, located to the north east of the site is land which is included in the Special Facilities zone and currently a large resort development is under construction there with buildings to be constructed close to the beach. Residential buildings to the south of the site are in conventionally sized allotments which front the Esplanade which hugs the sea front. The Site [6] The overall site lies between the Captain Cook Highway to the west and the ocean to the east. The site proper is the part of the land which forms Precinct 4. It has a sandy beach to the east with frontal dunes and natural vegetation such as mangroves. It contains a creek which flows into the sea. There is an escarpment about 200 metres from and roughly parallel to the beach that separates the lower coastal plain from the more elevated land that was previously farmed. [7] The proposal for precinct 4 is to develop an area (covering the western strip of the precinct) for tourist resort purposes (“the resort strip”) and to maintain an area (covering the eastern strip which borders the beach) in its current state, that is, under its natural vegetation. This natural strip will be about 100 metres wide. Buildings are to be constructed up to the natural strip, that is, up to 100 metres from the high water mark. -- 3 of 9 -- 4 [8] The resort strip lies between the natural strip and a slight escarpment at the 5 metre contour which runs roughly parallel to the beach, about 100m west of the natural strip and therefore about 200m west of the beach, or more accurately, of the toe of the frontal dune. The Issue [9] It goes without saying that the site, in tropical North Queensland, is in an area which is subject to the risk of cyclones. A cyclone can cause massive damage both to natural features and to artificial structures. Because of this the Council attempts to impose relevant and reasonable conditions on developments likely to be affected by a cyclone. [10] In its original form condition 28 required all habitable floor levels in all buildings of the development to be located 300mm above the Q100 flood immunity level or the minimum fill level of 3.4 metres AHD plus any hydraulic grade effect (whichever is the greater) in accordance with the Council’s Development Manual Guidelines and planning scheme requirements. [11] The planning scheme provides for floor levels to be 150mm above the relevant benchmark. After negotiation Daikyo and the Council agreed to amend condition 28 by substituting 150mm for the figure of 300mm it originally contained. Dr Nott does not take issue with that. [12] The issue raised by Dr Nott, and the only issue in the appeal, is what is the height above sea level expressed in metres AHD for the development that will achieve a 1% annual excess probability (“AEP”) from marine inundation (i.e. the Q100 level). -- 4 of 9 -- 5 [13] Dr Nott’s expertise in the field is undoubted as is that of Dr Collins, the consultant engineer retained by Daikyo, who wrote a report and gave oral evidence. [14] In his further and better particulars Dr Nott says that: (a) There is a difference between storm tide and marine inundation; (b) The 1% AEP storm tide will have a considerably lower elevation above sea level than the 1% AEP marine inundation; (c) The 1% AEP storm tide level at Clifton Beach is 3.3metres AHD under present climate conditions; (d) The 1% AEP marine inundation level at Clifton Beach is 4.8 metres AHD under present day climate; (e) The marine inundation level is the level that is recommended as a minimum habitable floor level because that is the elevation to which the sandy coast is likely to be eroded during a tropical cyclone event (p12 para 1). [15] The first two points are uncontentious. Mr Collins agrees with them. He does not agree with the third point but nothing turns on this. Condition 28 in both its original and amended form set the benchmark at the higher of the Q100 level or 3.40 metres AHD. If Dr Nott is right and the Q100 (1% AEP) storm tide level is 3.3 metres AHD, the condition nevertheless sets a higher level (at least 3.4 metres AHD) as the level from which an additional 150mm freeboard is to be added. [16] As to the fourth point, Mr Collins’s assessment is that at the shoreline, the design floor level would be up to RL 5.0 metres AHD. The main difference between Mr Collins and Dr Nott is whether wave run-up can penetrate across the site to where buildings are proposed, some 100 metres from the high water mark. -- 5 of 9 -- 6 [17] Dr Nott’s bases for thinking that wave run-up will penetrate 100 metres inland is anecdotal evidence in the appendix to his response report (ex. 8) and the article published in the scientific magazine Nature. The anecdotal evidence does not specifically relate to wave action and the only reference in the article to vegetation is a reference to wind disturbance. It seemed to me that the quoted anecdotal evidence was very likely subject to the exaggeration to which survivors of extreme situations are prone. [18] I am satisfied that Mr Collins’s evidence on this issue is soundly based, and I accept his opinion that it is extremely unlikely that any substantial run-up will reach the proposed buildings even during the 100 year storm tide event with coincident 100 year wave conditions. [19] In any event, as Mr Collins says, even if waves could penetrate through 100 metres of vegetation to the closest buildings, it would be a simple matter to incorporate vegetated landscaped mounding immediately seaward of the buildings to ensure no wave penetration reaches the buildings. On this point, Dr Nott seemed to have misunderstood Mr Collins because his evidence on this point related to the unfortunate effect of solid constructions, not soil mounding. [20] The question ultimately is what is an acceptable design standard. Dr Nott contends that the marine inundation level (i.e. 4.8m. AHD) rather than the storm tide level (i.e. 3.40m. AHD) should be the minimum habitable floor level which the Council has at 150mm. above either the Q100 storm tide level of 3.40 metres AHD plus any hydraulic grade effect, whichever is the greater. -- 6 of 9 -- 7 [21] I consider that Dr Nott’s proposed standard is in effect a counsel of perfection. It is a far higher standard than exists near the proposed development or even generally in Cairns. Dr Nott acknowledged that if a Q100 cyclone hit Cairns squarely, the Central Business District would be under two metres of water. As Mr Collins said if Dr Nott’s proposal were to be accepted the site would have a much higher level of immunity than the CBD and other recent developments in Cairns, for example, that to the immediate north east of the site. If Dr Nott’s approach were accepted, it would be impractical to allow infill or redevelopment works in much of Cairns including the CBD and airport as well as in Townsville and Mackay. Mr Collins said that it is common practice to build at or below the Q100 level and provide revetments or other wave run-up protection on the shoreline, even for highly important infrastructure. I accept that evidence. [22] The prevailing philosophy, based on sound common sense, is to balance risk and economics. The Council has undertaken that balancing exercise in setting the standard reproduced in this condition (as well as others). The Court is not the planning authority and it is not the Court’s responsibility to set the standard: see Grosser v Gold Coast City Council (2001) 117LGERA 153 at para [38] and Telstra Corporation Ltd v Pine Rivers Shire Council [2001] QPELR 350 at paras [117]- [120]. [23] Dr Nott is, in effect, asking the Court to substitute a standard devised by him for the Council’s adopted standard. He proffers no balanced explanation for doing that. The Council’s standard takes into account emergency planning measures of the kind referred to by Mr Collins and the loss to the community in keeping land free from development. That is the sort of practical approach which a Council is required, in -- 7 of 9 -- 8 practice, to adopt. While Dr Nott is understandably passionate about his research, that does not warrant the Court’s intervention, or the Court assuming the role of arbiter of the appropriate standard. [24] Mr Collins response to Dr Nott’s opinion was a measured one. He was not dismissive of Dr Nott’s research but made the point that it had not been subject to industry review as opposed to academic review. The remarks of Judge Newton in Telstra op cit para [119] are apposite in this context. Indeed in the Telstra case what was in issue was an activity (the erection and operation of a mobile telephone tower) which emits electromagnetic radiation which has potential health effects, whereas what is in issue in the present case is an activity which is not in itself potentially harmful. It may be that, as Mr Collins accepts, that Dr Nott’s research will one day change the way we look at the effect of cyclones, but it is not the Court’s function to pre-empt proper consideration by the Council and other relevant bodies of that research. A responsible Council, in making land use planning decisions, takes into account other factors such as risk acceptance, emergency planning measures and community economics. This Court is not charged with that type of, or degree of, planning. [25] In my view, condition 28 in its amended form secures compliance with the Council’s adopted standard. Whether Dr Nott’s preferred level (the marine inundation level) should be substituted for the Council’s adopted level depends on whether wave run-up will penetrate 100 metres inland or not. I prefer Mr Collins’s opinion and in any event, there are simple engineering solutions to prevent wave penetration which are commonly adopted. -- 8 of 9 -- 9 [26] The approval given by the Council is only a preliminary approval, and as Mr Collins says, at the detailed design stage further investigations of wave run-up and penetration will be required. Mr Collins goes on to say that the proposal can be designed to provide an appropriate level of safety adopting lot/fill levels as currently conditioned by the Council and with great confidence. Dr Nott’s evidence does not cast any doubt on that opinion. [27] Finally, s.3.5.30 of IPA requires that a condition be relevant to but not an unreasonable imposition on the development or use of premises as a consequence of the development, or be reasonably required in respect of the development or use of premises as a consequence of the development. The imposition of Dr Nott’s preferred marine inundation level sets the bar far higher than has been set for other comparable developments. So it would be an unreasonable imposition on this development, and is not reasonably required by this development. It requires this development to be immune from cyclonic wave effects to an extent that other development is not required to be. Conclusion [28] The appeal will be allowed to substitute the new condition 28. At this stage, however, I merely adjourn it to a date to be fixed to permit the parties to propose a draft order containing not just that amended condition, but the others which I gather have also been amended by agreement. -- 9 of 9 --