Donald Thallon Surveys Pty Ltd v Brisbane City Council [2002] QPEC 14

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Donald Thallon Surveys Pty Ltd v Brisbane City Council [2002] QPEC 014 PARTIES: DONALD THALLON SURVEYS PTY LTD Appellant And BRISBANE CITY COUNCIL Respondent FILE NO/S: Appeal No. 112 of 2001 DIVISION: Planning and Environment PROCEEDING: Appeal ORIGINATING COURT: Brisbane DELIVERED ON: 11 April, 2002 DELIVERED AT: Brisbane HEARING DATE: 18 & 19 February, 2002 JUDGE: Judge Quirk ORDER: Appeal allowed CATCHWORDS: Integrated Planning Act 1997; ss 4.1.52, 6.1.30(3)(a) Local Government (Planning and Environment) Act 1990; s5.1(6) & (6A) COUNSEL: Mr C. Hughes SC for the appellant Mr M. Rackemann for the respondent SOLICITORS: Connor O’Meara for the appellant Brisbane City Legal Practice for the respondent [1] This appeal is against the respondent’s refusal of an application for approval of a reconfiguration of land at Pullenvale. The site has an area of eight hectares and it is intended that it be subdivided into two full hectare allotments. The land is generally fairly steeply sloping and is on the eastern side of Mt Elphinstone. Its physical characteristics are well enough described in the material placed before the court. -- 1 of 10 -- 2 [2] The subject land (lot 2) was one of 11 allotments created in 1999 when a parcel comprising 53.77 hectares was subdivided. Part of that approval process was the designation of Building Local Envelopes on each allotment. At the time of the earlier application it had been proposed that the subject land provide two allotments but, because agreement could not be reached on that matter and the applicant was keen to proceed with the development of the parcel, resolution of the dispute was deferred. It was always understood that a subsequent application would be made. [3] The application was made just before the commencement of City Plan. Therefore, as required by s 4.1.52 of the Integrated Planning Act, the application must be decided under the now superseded Town Plan with appropriate weight being given to the relevant provisions of City Plan. As it happened, City Plan came into force only three days later and, if it was a matter that was determinative of the appeal, the provisions of City Plan would, in the circumstances, attract considerable weight. [4] Because the Town Plan was, at the time of the application, a “transitional planning scheme” within the meaning of chapter 6 of the Integrated Planning Act, s 6.1.30(3)(a) of that Act who requires that the application must be decided under s 5.1(6) and (6A) of the repeal legislation. Section 5.1(6A) provides:- “The local government must refuse to approve the application if:- (a) the application conflicts with any relevant Strategic Plan or Development Control Plan and (b) there are not sufficient planning grounds to justify proving the application despite the conflict”. [5] The key to the case was the ecological value that is to be attributed to Mt Elphinstone particularly its eastern slopes. The importance of Mt Elphinstone in this sense was not contentious. The subject land is included in the Non-Urban zone (specifically in category A). Importantly, the general intent for that zone is that new -- 2 of 10 -- 3 allotments are to have a minimum area of 10 hectares although it is said that relaxation to four hectares: “will generally be allowed by Council except where the constraints of the allotment warrant an allotment size of 10 hectares or greater”. [6] In the 1987 Strategic Plan the land is designated as having “Habitat Value and Natural Scenic Value”. The stated intent for areas so designated includes the following statements:- “these lands exhibit scenic values that are in identifiable with the character of Brisbane and hence form an important landscape function. These areas typically include bushland and wetlands that occur throughout the city, the forested ridges and foothills on the eastern and western boundaries of the city and the Brisbane river and adjoining lands”. [7] In the Strategic Plan Map (No 3) the land is designated as being in a “Nature Based Rural Living Area”. The stated intent for that area includes the following:- “this component of Brisbane Green Space Area is intended to be retained and enhanced for habitat conservation, landscape protection and/or water quality protection. The lands are in both private and public ownership but are generally not accessible to the public. The land is suitable for a range of private uses which minimise environmental impacts and retain the values of these areas. In many parts of the Nature Based Rural Living Area, this will include low density residential uses”. It was not seriously disputed in this case that the proposal involved one for “low density residential use”. [8] To give effect to these planning objectives, the subdivision provisions of the 1987 Town Plan set out (in s 20.2.1.5) criteria for the consideration of applications of this kind. This passage provides:- “Relaxation of the allotment size will only be allowed where all the following criteria are satisfied. Relaxation of the allotment size may be subject to the requirements of nomination of house location(s) on the approved plan in order to ensure the protection of the values of the site. -- 3 of 10 -- 4 (i) Where the site is within Category “A” of Non-Urban Zoned lands as identified in the Strategic Plan and: (a) it can be demonstrated that the subdivision can be carried out without adversely impacting upon the identified ecological and/or landscape values of the site; (b) the subdivision will not result in excessive clearing of the site; (c) it can be demonstrated that appropriate practices and procedures can be implemented to mitigate any adverse impacts created by the subdivision; (d) it can be demonstrated that the subdivision takes into the consideration the cumulative impacts of the numbers of dwellings located on the subject site and surrounding sites on the landscape character of the area and minimises that impact; (e) the subdivision does not affect the viability of buffers for adjoining areas or land uses; (f) it can be demonstrated that the site is accessible for fire control purposes; and (g) it can be demonstrated that for each allotment, a house site is available with the following characteristics: • Access to the site must allow for movement by service and fire tender vehicles; • Access to the site must be able to be constructed in accordance with Council’s Policies and will not create visually intrusive scarring when viewed externally from the subject site; • Sufficient area is available to accommodate on site waste disposal and other facilities ancillary to a dwelling house; • The site is not subject to landslip, subsidence, bushfire, flooding or other unreasonable hazards; • The site is located so that a resulting dwelling constructed on that site will not be visually intrusive; and • The effective management of fire does not result in a substantial portion of the site being cleared of vegetation.” -- 4 of 10 -- 5 [9] As was foreshadowed in s 20.2.1.5, one of the techniques adopted to ensure minimum environmental impact is the fairly precise indication of the area of any allotment which will form the Building Location Envelope. This was done in the earlier subdivision and it was accepted that, if this application was successful, it should be done here. [10] In the City Plan, the Strategic Plan shows the site as part of the Brisbane Green Space System (map A). Reconfiguration where any resulting lot is less than 10 hectares is now simply “impact assessment” and included in the category of “generally inappropriate development”. [11] In map C, the Green Space System is divided into three components namely:- • Conservation and recreation components; • Environmental protection components; • Rural components. [12] The land is included in the environmental protection component, the stated intent for which is given in these terms:- “environmental protection components include land that will be retained and enhanced for habitat conservation, landscape protection and/or water quality protection. These components may accommodate a range of private development only if environmental impacts are minimised and green space values are retained. Some larger sites currently used for major institutions fall into this category. Fragmenting this land has detracted from its bio-diversity and landscape values and is no longer considered appropriate. This practice will be discouraged”. [13] All of this was accepted by the witnesses who gave evidence as providing the background against which the merits of this proposal must be assessed. Evidence for the appellant regarding the determinative issues came from Mr Brown (a Town Planning consultant with extensive experience both as a local authority planner and a private practitioner) and Mr Chenoweth, an experienced planner who is especially -- 5 of 10 -- 6 qualified in matters of environmental impact). For the Council, two witnesses, Mr Veal and Mr King (with comparable expertise and experience) gave evidence. [14] The determinative issue in the appeal was essentially the visual impact of the construction of a residence on the BLE on proposed lot 112. That on lot 13 remains in the position contemplated when the parent parcel was created. The BLE on lot 12 is on the more important eastern slopes of Mt Elphinstone but, as was emphasised in the appellant’s case, ecological impact will be minimised by using an area that was cleared some considerable time ago. [15] This area is the site of a residential frame-like structure which seems to have served as some form of shelter. A rough track leads to the area and is intended, with some necessary (and not extensive) improvements, to provide access to the proposed BLE. Overall clearing of vegetation of any importance will be minimal. The site adjoins an area of dry rain forest which is of undoubted environmental importance. Although there was initially some confusion about it, it was made clear that the BLE will intrude into no part of this rain forest and no interference with it of any kind is intended. [16] All of the witnesses gave their evidence intelligently and with conviction. The matter was certainly not free of difficulty and it has to be remembered that the onus of showing that the application is one that should be approved rests with the appellant. [17] In the end result however I have concluded that the views put forward by Mr Brown and Mr Chenoweth should be preferred to the more conservative approach adopted by the respondent’s witnesses. Mr Chenoweth, in a very careful assessment of the -- 6 of 10 -- 7 matter recognised that the subject land has ecological and landscape values as recognised in its Green Space designation in the Town Plan and in City Plan and in its category A designation within the non-urban zone. [18] He pointed out however that:- “Notwithstanding the above there is a cleared, excavated and weed infested terrace on the subject land formerly used for farming operation which is suitable for building with minimum ecological impact. Conditions which could be applied to subdivision could ensure that the surrounds of the house are rehabilitated and replanted to help protect and restore an adjacent dry rain forest gully of ecological significance. Without active management, this habitat is likely to continue to be degraded by weeds.” [19] He was ready to accept that any proposal to construct a house on lot 12 should be sensitively designed and landscaped to minimise visualise impact and to ensure the house “recedes” into the hillside. He drafted a set of suggested approval conditions to ensure that these objectives are achieved. His conclusion was that:- "with appropriate design, siting and landscape conditions, approval of the proposed subdivision can ensure that the benefits of weed control and rain forest management are realised in circumstances where the visual impacts of an additional house on the hillside and terrace are acceptable.” [20] Mr Chenoweth also demonstrated, in an artistic representation, how a house could present in these surrounds. I well appreciate how one should exercise care in being influenced by such an exercise but, after carefully considering it, I am satisfied that Mr Chenoweth’s work is sufficiently representative of the proposal and demonstrated satisfactorily the points which he made. [21] On the other hand, both Mr Veal and Mr King were fairly absolute in their opposition to any development on the slopes of Mt Elphinstone that could be seen from surrounding areas. It seemed to me that they came close to equating an -- 7 of 10 -- 8 unacceptable visual intrusion with visibility. Perhaps this was best exemplified by their rejection of Mr Harburg’s residence (on the crest of the hill) on one of the results of the earlier subdivision as an acceptable outcome. I accept Mr Chenoweth’s view that this in fact involved a reasonably satisfactory result. [22] While one could not deny the environmental importance of the slopes of Mt Elphinstone, it is not the position that it is in a pristine condition in a visual sense. It comprises land which is privately owned and other houses on the slopes are visible from the surrounds. This proposal will add a further dwelling and, if Mr Chenoweth’s recommendations are followed, the structure is unlikely to “stand out” from its surrounding vegetation to any great extent. [23] I am satisfied on the evidence adduced by the appellant that:- • It has been satisfactorily demonstrated that subdivision can be carried out without adversely impacting upon the identified ecological and/or landscape values of the site to any unacceptable extent; • A subdivision will not result in excessive clearing of the site; • It has been demonstrated that appropriate practices and procedures can be implemented to mitigate any adverse impact created by the subdivision; • It has been demonstrated that the subdivision takes into it consideration of the cumulative impacts of the numbers of dwellings located on the site and surrounding sites on the landscaped character of the area and minimises that impact; • The subdivision does not affect the viability of buffers for adjoining areas or land uses. [24] Aside from visual and environmental impacts, other issues raised in s 20.2.1.5 in respect of category A Non-Urbane zoned land as identified in the Strategic Plan was sufficiently addressed in the evidence. That of Mr Brameld was that satisfactory -- 8 of 10 -- 9 access could be gained to the site including access for service and fire tender vehicles. Such access can be provided without any necessary excavation that might result in visually intrusive scarring. [25] It did not appear to be seriously disputed that there is a sufficient area available to accommodate on-site waste disposal and other facilities ancillary to a dwelling house. Other evidence indicated that the land is not subject to landslips, subsidence, bushfire, flooding or other unreasonable hazards or that the effect of management of fire would not result in a substantial portion of the site being cleared of vegetation. [26] There is one final point that should be mentioned. The respondent drew attention to City Plan and the fact that it does not discuss any criteria for the exercise of a discretion to allow a reduction in allotment area to four hectares. It was suggested that, in so doing, City Plan was taking a harder line in respect of proposals of this kind. [27] It has to be remembered that City Plan does not expressly prohibit such a proposal. What it does is make it impact accessible with the rider that it falls within the category “generally inappropriate”. It remains the position however that the application must be considered on its merits and, notwithstanding City Plan, if a merits assessment is called for, not to do so against the background of the criteria set out in s 20.2.1.5 of the Town Plan would in, my view, be an inappropriate application of s 4.1.52 of the Integrated Planning Act. [28] I am not persuaded that there is, within the meaning of s 5.1(6A) of the repealed legislation, any conflict with the Strategic Plan in either the Town Plan or the City Plan. If I am wrong in that, for the reasons which I have given, I am satisfied that -- 9 of 10 -- 10 there are sufficient planning grounds to justify approving the application despite any such conflict. [29] The evidence indicated that, if the appeal is to be allowed, there should be some minor rearrangement of the boundary between proposed lots 12 and 13 to allow access to the former lot to remain within its area and to allow for further fire management within the lot downhill of the proposed BLE. [30] On the whole of the evidence I am satisfied that the onus of showing that the application is one which should be approved has being discharged. I intend to allow the appeal and will adjourn the matter to allow formulation of appropriate conditions of approval including, of course, those suggested by Mr Chenoweth whose evidence I have accepted. -- 10 of 10 --