Allied Estates Pty Ltd v Noosa Shire Council & Anor [1999] QPEC 49 (2000) Q.P.E.L.R. 97

IN THE PLANNING AND ENVIRONMENT COURT HELD AT BRISBANE QUEENSLAND [Before Quirk DCJ] [Allied Estates P/L v Noosa SC & Anor] P & E Appeal No 3235 of 1998 BETWEEN: ALLIED ESTATES PTY LTD Appellant AND: NOOSA SHIRE Council Respondent AND: NOOSA PARKS ASSOCIATION Respondent by Election JUDGMENT Judgment delivered: Catchwords: Counsel: ~ Solicitors: ~ Hearing Date(s): ~ -- 1 of 27 -- -- 2 of 27 -- IN THE PLANNING AND ENVIRONMENT COURT HELD AT BRISBANE QUEENSLAND P & E Appeal No 3235 of 1998 BETWEEN: ALLIED ESTATES PTY LTD Appellant AND: NOOSA SHIRE Council Respondent AND: NOOSA PARKS ASSOCIATION Respondent by Election REASONS FOR JUDGMENT -QUIRK D.C.J. Delivered the 22nd. day of October 1999 This appeal is against the respondent’s refusal of an application made under the Local Government (Planning and Environment) Act for the rezoning of an area of land at Noosaville. The land, which occupies a little over 72 hectares, comprises five allotments on the southern side of Lake Doonella. To the south, it fronts Beckmann’s Road. In the Town Planning Scheme for the Noosa Shire, the land is included in the Future Urban and Non Urban Zones. The applicant sought the rezoning of the land to the Special Residential and Open Space Zone to allow its development as a residential estate. The appellant company is part of the “Kawana Estate Group” which has, for some time, been actively and -- 3 of 27 -- 2 successfully developing land in the north coast area on a scale similar to that here proposed. It is intended that the estate be of a high standard of design in keeping with other examples of the group’s work. The proposal was described by the group’s town planning consultant, Mr Buckley, as “an exclusive enclave defined by trees and water that creates a distinctive and individual place”. The original application (submitted in December of 1996) was accompanied by the required Environmental Impact Statement and there was subsequent response to matters raised by the various agencies to whom the Environmental Impact Statement was referred. There have been a series of revisions of the Plan of Development initially put forward. Again these changes were in response to concerns raised in respect of the proposal. The final edition (Plan 11C), which the court was asked to consider, involved a reduction in the number of allotments from 640 to 522. A mix of allotment sizes from 400-600 square metres in area is intended, but no more than 25% of the total number are to be less than 500 square metres. Two medium density precincts that were part of the earlier proposal have been omitted, and the buffering of the established residential areas has been increased. Notably, the width of the buffer to the lake has been extended from about 40 metres to 114 metres. Residential development is to be confined to areas above RL5.0 and that part of the site below this contour level is to be allocated as public open space. Access to the site would be primarily from Beckmann’s Road through an existing road reserve beside the school property immediately to the west. A recent amendment to the layout has added a collector loop via Swanbourne Way. Access to individual precincts is gained by a series of loop roads and culs-de-sac. Full details of the design and layout of the proposed estate are found in the drawings and other material before the court. -- 4 of 27 -- 3 The relatively small area to the north west of Crank’s Creek is intended for the Open Space Zone, with the balance of the land to be included in the Special Residential Zone. It is accepted that the latter zone is appropriate for an estate of this kind with its mix of allotment sizes. The Statement of Intent for this zone includes the following: “This zone caters for specific residential developments which may be appropriate upon particular sites, but where such developments do not strictly accord with the provisions pertaining to the conventional residential zones ........”. The importance (under the Town Planning Scheme) of an approved Plan of Development with such a zoning should be understood. It is part of the appellant’s case that a Plan of Development (generally in accordance with plan 11C) be approved. Under the Table of Zones (Division 4 of Part B) in the Special Residential zone, where an approved Plan of Development depicts development parameters (as is here intended) any purpose specified on a Plan of Development is “permitted development subject to conditions”. Section 7.5.1 provides: “Any development within the ... Special Residential zone shall accord with:- (a) the Plan of Development where a Plan of Development has been approved in respect of this site: ...” The statutory Subdivision of Land controls now in place provide, in s.5.3.1.6, that land in the Special Residential zone (such as the subject land): “shall not be permitted to be further subdivided except in accordance with an approved Plan of Development.” Accordingly the form in which a Plan of Development is proposed is a matter of some consequence. -- 5 of 27 -- 4 The application was lodged at a time when the Local Government (Planning and Environment) Act was in force. Prior to the Council’s decision (June 1998) relevant provisions of the Integrated Planning Act commenced. However by reason of s.6.1.25(1) of that Act: “processing of the application and all matters incidental to the processing of the application (including any appeal made in relation to a decision about the application) must proceed as if the repealed Act had not been repealed.” A number of objections to the proposal were received. These objections are before the Court. One of the objectors (Noosa Parks Association Inc.) took an active part as a respondent to the appeal. On the 18th June 1998 the Council, having considered the material before it, decided to accept the recommendation of its Town Planning Department that the application be refused. There were 14 stated grounds of refusal. In general terms the grounds of appeal picked up and put in issue these reasons for refusal. It is sufficient to say that the major issues in the appeal were; 1. Whether the proposal would represent; A. an unnecessarily adverse intrusion upon the area’s environmental values particularly (i) the water quality of Lake Doonella and the Noosa River catchment (ii) the area’s existing flora and fauna B. an unwarranted visual intrusion 2. Whether the proposal conflicted with formally expressed planning strategies that intended to: A. ensure that the matters referred to in 1. are avoided B. achieve appropriate and orderly development in the area 3. whether the proposal would be likely to give rise to unacceptable difficulties in respect of traffic 4. whether there was a sufficiently demonstrated need for the proposal. Strategic planning provisions were of considerable importance to the issues so raised. This importance is underlined by s.4.4(5A) of the Local Government (Planning and -- 6 of 27 -- 5 Environment) Act which provides that an application of this kind must be refused if it conflicts with any relevant Strategic Plan and there are insufficient planning grounds to justify approving the application despite the conflict. At the time when the application was lodged a Strategic Plan gazetted in 1988 was in place but an extensive review of it had been undertaken. A revised Strategic Plan (in draft form) was publicly exhibited in December of 1996. The new Strategic Plan was gazetted on the 15th September 1997. The effect of s.3.4(1) of the Local Government (Planning and Environment) Act is that an application must be decided in accordance with the planning scheme in force at the time the application was lodged but such weight as is considered appropriate is to be given to any new Town Planning Scheme. It has never been the Council’s position that no part of the subject land was suitable for development as a residential estate. In the 1988 Strategic Plan the subject plan was given two designations. While the greater part of it was designated Urban, two separate parts of the site were designated “Public and Private Open Space”. A strip of a width in the order of 200m. (on the scale of the plan) follows the shore of the lake. The designated area extends back a little way along Cranks Creek and another lower lying area to the east. There is a smaller separate discrete area near the Beckman’s Road frontage. While it was understood that the delineation of these designations was not intended to have been given on any exact or cadastral basis, in evidence estimates were made regarding the areal distribution of the two designations and it was suggested that some 19 hectares (or approximately 26%) of the site had been designated as Open Space. Without going into a detailed examination of relevant objectives and implementation provisions of the 1988 Strategic Plan, it can be safely said that the relevant Open Space designation was intended to further the objectives of ensuring that urban expansion does not result in undue environmental impact and that the Noosa River and lake system are preserved as -- 7 of 27 -- 6 a natural resource within the Shire. Such strategies were further developed in the 1997 Strategic Plan. The result was the production of a plan on a more cadastral base although the delineation between the designations remained indicative rather than exact. What was clear was that the Open Space area (now designated “Open Space - Conservation and Waterway Protection”) has been increased substantially. The width of the area separating the Urban (now “Detached Housing”) designation from the lake was widened by about 50m and it now extended along both sides of the land and internally along a natural watercourse. Estimates were made that the Open Space designation has been enlarged to about 36 hectares (50% of the total area). The fundamental point made against the proposal is that it does not sufficiently respect the Strategic Plan’s differentiation between areas intended for urban residential use and those which are not. Even though Plan 11C represents a considerable improvement on its predecessors, there remains in it deficiencies in its intended provision of Open Space. In the important areas of the lake shore, figures put forward by the respondent (and derived from surveying evidence) indicated that Plan 11C allocates approximately 9.18 hectares for Open Space (with a buffer width of approximately 114m). The 1988 Strategic Plan designated approximately 16.5 hectares of Open Space in this area (buffer width approximately 200m) and this was increased to approximately 24.5 hectares (buffer width 250m) in the 1997 Strategic Plan. In fairness to the appellant it has to be recognised that the proposal’s total area of intended Open Space is not far from the total area so indicated in the Strategic Plans but the distribution of the area so provided is a matter of some importance about which more will be said in due course. In dealing with this primary difficulty the argument of the appellant was, broadly, that one should not be distracted by the extent and apparent dimensions of the Strategic Plan’s designation of Open Space for this site. Attention should focus upon the planning objectives on which these -- 8 of 27 -- 7 designations are based. It was said that the proposal is demonstrably capable of meeting these objectives and should not be rejected by too rigid an interpretation of the Strategic Plans. This approach gave rise to evidence on a number of issues including; 1. Whether development as intended would indeed pose a threat to water quality in Lake Doonella and the Noosa River catchment. 2. Whether it would have an unacceptable impact upon the area’s flora and fauna. 3. Whether it would result in an unacceptable intrusion upon the area’s visual amenity. There was no real dispute about the importance of maintaining water quality in Lake Doonella and the Noosa River catchment of which the lake is a part. In evidence two experienced environmental scientists, Dr Greenaway and Professor Saenger (called by the respondent), described the ecology of the aquatic and wetland habitat and explained its importance as a fishery reserve. Both the Lake and Crank’s Creek are within a Declared Fish Habitat. The adverse impact of the introduction of sediments, nutrients and pollutants was explained as was the effect that increased turbidity would have on the large areas of sea grass (an important component of the fish habitat). Dr Thorogood, an experienced environmental scientist called by the appellant expressed an opinion that a buffer width of as much as 250m to separate the aquatic ecosystem and urban development was not called for in the circumstances of this case. As will be later explained this was noteworthy as some earlier work of Dr Thorogood (“Noosa River Systems Bed and Bank Habitat Study” 1995) was included in the material upon which the “Network Study” (one of the studies acknowledged specifically in the 1997 Strategic Plan) relied in its discussion of the importance of maintaining natural vegetation along watercourses. -- 9 of 27 -- 8 However what has to be said at once is that Dr Thorogood’s opinion was premised upon the supposition that the proposal will lead to no substantial increase in storm water discharge nor any substantial increase in sediment nutrient or pollution loading in that discharge. The level of confidence to be had in that supposition was a matter which depended on the views of other experts. Dr Thorogood did not dispute the importance of water quality in the lake and the river catchment. The advantages of a vegetated buffer to the extent identified in the Strategic Plan ( as a conservative approach to water quality control) was explained in the evidence of Dr Greenaway and Professor Saenger. It was indicated that the lake is already threatened. The merits of further artificial deepening of it were discussed but it is not necessary to go into this as it would take us beyond what is relevant to the determination of the Appeal. The desirability (in planning terms) of seeking to protect the lake was not in dispute and the appellant’s case was advanced on the footing that no adverse impact upon the lake would result from the proposal. In relation to matters of hydrology, I had the benefit of the views of civil engineers highly qualified and experienced in the field. Dr Johnson was called by the appellant, Mr Collins by the respondent and Dr Miller by the respondent by election. The evidence on the topic occupied a very substantial part of the hearing. It was highly technical in nature and an almost bewildering array of published engineering opinion in respect of water quality control was referred to. A series of guidelines (subject to repeated revision) put forward by various bodies involved in this area were identified. As we are dealing with a site not yet developed and in respect of which no runoff measurements or monitoring has been able to be carried out, opinion as to the likely consequences of the proposed development is necessarily dependent upon a range of assumptions. How and from what database such opinion should be reached was the subject of keen debate. -- 10 of 27 -- 9 Dr Johnson set out to show that an engineering result could be achieved: 1. That would adequately attenuate any increased stormwater flow rates; 2. That would see no worsening of the quality of water finding its way into the lake. It was acknowledged that the size of the retention basins suggested by Dr. Johnson would probably be adequate to attenuate peak flow rates and the only point really made was whether his approach was as conservative as was suggested. In this context, whether he had (in examining the capacity of his retention basins to deal with peak flow rates) appropriately considered the rainfall that would actually occur on site was questioned. His use of the three month average recurrence interval and his assumption of likely storm durations was also mentioned. In respect of the quality of any runoff, here are two stages of the proposal that must be carefully examined, namely; 1. The construction stage (when drainage lines road construction and other engineering works are being undertaken); 2. The operational stage (when development of the estate is in place). Before turning to the engineering evidence in respect of water quality control measures something should be said about the matter of the erodability of soils on site which was examined by two experts in this field, Mr Sutherland (consultant to the appellant) and Professor Sullivan (called by the respondent). There was considerable controversy about the use of the “Revised Universal Soil Loss Equation” to determine a “Soil Erosion Hazard” classification for the site and particularly how one should bring into account the use of “best management practices” in the application of that equation. This proved to be something of a distraction. In the end result, just how important it was to the case to classify “hazard” for the site was not entirely clear. Professor Sullivan expressed concern (based on soil sampling carried out) regarding the proportion of “fines” which suggested the presence of highly colloidal material that might prove -- 11 of 27 -- 10 difficult to trap in the soil erosion control measures adopted. This is a matter of particular importance in the construction phase. However, after a consideration of the evidence on this topic, I am prepared to accept that of Mr Sutherland. The results of his investigations provide a basis for the opinion that management practices that were capable of satisfactorily controlling soil erosion during the construction phase could be put in place. The construction phase is one where there is a possibility of a substantial risk of sediment being carried to the lake at times of excessive rainfall. Accordingly special care is required. It is also clear that, in recent times, when there has been increasing awareness of the need to avoid environmental harm. Engineering techniques have been developed whereby appropriate sedimentation management at the construction stage may be achieved. This was explained by Dr Johnson in his evidence. Mr Collins, while calling for a more conservative approach, accepted that satisfactory construction management measures could be adopted. His suggestions are set out in paragraph 8.5 and figure 6 of his report (Exhibit 30). He pointed out however that, notwithstanding appropriate engineering design, measures of this kind are subject to human error and not immune to failure. In this case the results of such failure would be difficult to reverse and would be particularly harmful for the lake. For the operational stage, Dr Johnson has relied upon treatment trains for each of the catchments involved in the estate. These comprised retention basins and vegetated filter strips. The likely efficiency of these measures was subject to close scrutiny in the evidence. A demonstration that there will be “no worsening” requires an appreciation of the existing situation in respect of sediment and nutrient loadings entering the lake. Dr Johnson relied upon figures taken from a paper by Moss and others (‘A Preliminary Assessment of Sediment and Nutrient Exports from Queensland Coastal Catchments”- Exhibit 44). The respondent suggested that this -- 12 of 27 -- 11 involved an inappropriate use of this study and an exercise that was far from conservative. Notwithstanding that the figures appearing in the paper were at the lower end of a range of available data on the topic, it was pointed out that they had been discounted by Dr Johnson in a way that was not called for. Mr Collins pointed to another study (B.C.C. AQUALM-Exhibit 45) which threw up quite different results. Whether this model was an appropriate indication of conditions on the subject land was a matter of some debate. Figures derived from other areas were also mentioned. The importance of these differing opinions on likely export rates was not entirely clear. Dr Johnson maintained that his suggested treatment train was capable of dealing with the export rates reflected in the work of Mr Collins. The criteria upon which Dr Johnson relied to demonstrate the likely efficiency of the elements of his treatment train was called into question and a number of points were made in respect of this. · It was pointed out that the 1996 draft guidelines for the NSWEPA upon which he relied have been overtaken by a 1997 publication which adopts a more conservative approach. · He was also criticized for applying removal efficiency derived for a yearly period overlooking the fact that on many occasions the sediment load will exceed the daily average. · His use of a five-day hydraulic retention time was queried and it was said that such an approach was no longer adopted by environmental bodies in New South Wales and Victoria. To the untrained mind an accurate appreciation of these highly technical matters is not easy. However, while I would not be prepared to say that my confidence in Dr Johnson as a competent -- 13 of 27 -- 12 and experienced engineer was seriously shaken, I was left with some doubts whether his approach was as conservative as it might have been and the real difference in the approach of the two engineers was in the level of conservativeness that should be adopted. For reasons which he explained in his evidence Mr Collins accepted that engineering measures could be employed to control water quality but feared that they would involve the use of greater areas of the site than would be available with Plan 11C. It was his opinion that the proposal in its present form (with 13 retention basins located in the gullies as shown) involved a very comprehensive use of these gully areas. He believed excavation would be necessary to produce required volumes and, perhaps most importantly, he doubted whether the proposal allowed any opportunity to introduce further control measures should their need become apparent as a result of monitoring which would be a necessary part of any environmental management plan. In demonstrating how appropriate water control could be achieved, Mr Collins put forward two options. The first involved retention basins in the gullies with the use of existing natural vegetation for filtration. The second option avoided retention basins (and the removal of vegetation which this necessitated) and employed minor localised earth mounds to control water flow. The results are shown in figures 4 and 5 of his report (Exhibit 30) and would not be compatible with Plan 11C. When looking at these figures, two areas (identified as areas A and B) are noted. These areas (because of existing contours) would drain naturally into the lake. Residential development shown on Plan 11C would intrude into these areas. Dr Johnson was of opinion that storm water from these areas could be piped to retention basins elsewhere on the site. However Mr Collins believed that, apart from the extensive excavation that would be necessarily involved, the -- 14 of 27 -- 13 retention basins would need to be lower in the gullies and this would present difficulties for vegetative filtration of runoff. There were other matters which arose in the context of water quality control (e.g. an accurate identification of the lake catchment and whether proper account had been taken of sediment that would be likely to be redeposited on site rather than reaching the lake). The discussion on these matters, while lengthy, proved inconclusive and did not really assist in the determination of the appeal. Dr Miller, called by the respondent by election, agreed with Mr Collins in the contention that the appellant’s case did not provide sufficient support for a conclusion that the proposed development (in accordance with Plan 11C) could be carried out without any reasonable apprehension of a threat to water quality in Lake Doonella and the Noosa River system. I have not attempted to deal exhaustively with this complex area of evidence. In the end it was difficult to say that one body of opinion should be preferred over the other. That experienced engineers were not able to agree was due, in my understanding of what was said, to a difference in approach rather than to any difference in engineering ability. As said at the outset, in the circumstances of this case much depended on the suppositions made about conditions likely to be encountered in the future and the guidelines and other data chosen to support those suppositions. In the absence of data specific to the site the engineers had to turn to the wealth of material that has emerged in a rapidly evolving area of study. This material, though not always consistent, indicates an increasing level of conservativeness in this sensitive dicipline. I was referred to other cases decided in this Court where environmental concerns were overcome by a demonstration, on a balance of probabilities, that such concerns could be met by a properly engineered solution. (Esteedog Pty Ltd v Maroochy Shire Council [1991] QPLR 7; -- 15 of 27 -- 14 GFW Gelatine International Ltd v Beaudesert Shire Council [1993] QBLR 342; Pinjara Hills Pty Ltd v B.C.C. [1995] QPLR 334). These were cases where such concerns were raised directly as a reason for an adverse exercise of discretion in respect of a particular proposal. This case is somewhat different in that the matter of a proposal’s ability to meet environmental concern arises in a discussion of the rigidity with which certain strategic planning indications should be understood and applied. In respect of the site’s flora and fauna, I had the advantage of a large body of suitably qualified expert opinion. For the appellant, evidence came from Mr Carter and Mr Chenoweth (both experienced environmental consultants), Dr Cohen (an acknowledged fauna expert) and Dr Ingram (a respected environmental scientist whose special interest is frogs, but who also discussed the glossy black cockatoo). For the respondent, Ms Anderson (an experienced environmental consultant), Dr Carrick (a fauna expert with a special interest in matters relating to koala bears), Mr Warren (a specialist in matters relating to frogs) were called. For the respondent by election, Dr Harrold gave helpful environmental evidence, particularly in respect of the importance of the scribbly gum forest in the area. A number of distinct plant communities were identified on site, the nature and environmental value of which were discussed in detail. The scribbly gum eucalyptus forest was said to be the only remaining sizeable and intact example of a sandstone eucalyptus forest adjoining the Noosa River system. A wealth of “old growth trees” on the site was said to be unusual and of importance as a refuge for birds and arboreal mammals. The difficulty of maintaining such communities (in anything like pristine form) with urban development was discussed as was the problem of “edge effects” that inevitably occurs with such development. The practical difficulty in siting residential development in close proximity to old and large trees was explained. -- 16 of 27 -- 15 In a series of helpful drawings (part of Exhibit 37) Ms Anderson demonstrated the effect that various development scenarios would have on the existing plant communities. The areas in which the individual communities are found were identified and the approximate position of the demarcation between the Strategic Plan’s designations was identified. The effect of Plan 11C on those communities was shown. Ms Anderson (in Figure 8.2(f)) illustrated the limit of urban development that she would be prepared to support. She pointed out that while the proposal appeared to preserve acceptable amounts of the wetland communities and blue gum swamp mahogany forest, it was the important scribbly gum community that was most affected. It was accepted that with urban development of the subject land to any extent, some loss of the scribbly gum was inevitable however Ms Anderson demonstrated that considerably greater areas of this species of eucalyptus would be maintained if the Strategic Plans’ designation of Open Space was respected and even more if her recommendations were adopted. The ill-effects of the introduction of nutrients (especially phosphorous) into the runoff in the gullies was also averted to. For reasons which he explained, Mr Carter expressed the opinion that an acceptable level of biodiversity on site would follow the proposal. The riparian plant communities would be essentially retained and the survival at regional level of relevant species of flora and fauna would not be threatened by the proposal. He pointed out that no endangered, vulnerable or rare plant species are found on site and that scribbly gum communities are well represented and protected elsewhere in the Shire. By the use of historical photos, it was shown that clearing of natural forest had occurred over the years particularly in the areas designated as Open Space in the Strategic Plans. The evidence of the site’s fauna and the effect upon it of the proposal was also extensive. These inhabitants of the site were discussed as were their contribution to the area’s -- 17 of 27 -- 16 environmental value. The importance of seeking to maintain environmental corridors on site was debated at length and it was a matter where views differed. It was Dr Cohen’s opinion that the requirement for a 250m buffer at the Lake Doonella frontage was unnecessary because of the narrow bank of riparian vegetation and the lack of habitat complexity and diversity within that area. The role of the busy Beckman’s Road in interrupting the progress of fauna to and from the State forest was examined. The suggestion made that the provision of corridors “which do not lead anywhere” was futile was dismissed by Ms Anderson as being too simplistic. For reasons which she explained, she saw the areas retained as Open Space by the Strategic Plans as being more advantageous to fauna as “bigger blocks of habitat” were preserved rather than small lines subject to fragmentation. Opinion as to the site’s use by koalas was not uniform but some evidence of their presence was accepted. Dr Carrick was not prepared to dismiss the area as being unimportant in this context. He added that development of the land consistent with the 1997 Strategic Plan would (from the koala’s perspective) be preferable to that reflected in Plan 11C which would, in his opinion, constrain opportunity for the animals to move about the site. The nature and importance of the site’s population of frogs was discussed as was (for them) the fairly grim prospects of urban development of any substantial part of the land. Fortunately it would appear that vulnerable species of this form of life are fairly well represented in better protected areas in the region. The connection of the glossy black cockatoo to the site was shown to be tenuous. With matters of flora and fauna, and the level of protection that should be given to them, one is dealing essentially with value judgments which may vary according to one’s perspective. Development of any form will inevitably have some effect, in absolute terms, on an area’s -- 18 of 27 -- 17 environment. However it is clear on the evidence that the proposal reflected in Plan 11C would represent a level of protection for the environment of a lower order than that offered by development that would be consistent with the Strategic Plans. While there are provisions of general effect (e.g. s.4.4(3)(f) of the Local Government (Planning and Environment) Act) which make environmental impact a relevant consideration in a case of this kind, these provisions give little assistance in a decision as to what extent such impact should occur in any case. As has been said in the past, where privately owned land is environmentally sensitive, an indication (by the elected planning authority in the statutory planning instruments) of the extent to which its development is considered acceptable is the preferred approach (Sabdoen Pty Ltd v Redland Shire Council [1989] QPLR 149, Marriott v Maroochy Shire Council [1994] QPLR 178, Liongrain Pty Ltd v Council of the Shire of Albert [1995] QPLR 353). The subject land is plainly in that category and in respect of it each of the Strategic Plans has recognised that there must be a balance between the proprietor’s interest in developing the site and those of the community in providing appropriate environmental protection. This is seen in the designation of part of the site for urban use and part to be retained as Open Space. The merits of the decision made might be debatable and this is illustrated by the differences in the views of the experts who gave evidence. What cannot be said however is that the balance that has been struck by the planning authority demonstrably lacks foundation. The strategic planning decision taken in 1988 and reaffirmed (and reinforced) in 1997 to identify a considerable part of this land as not intended for urban development was plainly seen as a major obstacle to the proposal. The area close to the lake shore is particularly important in that context and, as stated, Plan 11C looks for a part of that area for residential use. -- 19 of 27 -- 18 The major thrust of the appellant’s case was that, from available material, it is reasonable to conclude that the 250 metre buffer width has had its origins in a perceived need to protect water quality in the lake. The argument went on to suggest that where the evidence demonstrated that a proper proposal presented no serious threat to that water quality, the Strategic Plan’s buffer requirements could be tempered. As already mentioned, considerable emphasis was placed on opinions such as those of Dr Thorogood. Accordingly, two important questions arise, namely - 1. To what degree does the apparent extent of the open space designation in the Strategic Plan depend upon an apprehension of a threat to water quality in the lake. 2. What level of conservativeness should be adopted before these requirements of the Strategic Plan can safely be set to one side. An answer to these questions must be provided by the Strategic Plans themselves. In respect of the 1988 Strategic Plan, the extent of the “Public and Private Open Space” designation has been described. The stated aim of the Strategic Plan for this designation is: “To provide and maintain a range of open space areas of local to regional scale and to promote where appropriate the use of these areas for conservation, education, recreation and tourist purposes” The first of the Strategic Plan’s stated objectives is: “to preserve the Noosa River and lakes system is a natural resource within the Shire” In this context, reference is made to - “The incorporation of broad buffer strips which visually screen and isolate...man made developments” It is added that the Strategic Plan maps indicate: “That the preferred dominant land use along most river and lake foreshore areas is Public and Private Open Space.” -- 20 of 27 -- 19 The point was well made that one has only to study the 1988 Strategic Plan map itself to see that the width of the designation was not applied to the shores of Lake Donella in any arbitrary way. It changed around the lake shore in response to variations in topography. It is apparent that more extensive and detailed study lay behind the 1997 Strategic Plan. The extent of the “Open Space - Conservation and Waterway Protection” designation at the lake shore has also been described. The Strategic Plan deals separately with the areas which it governs. The Tewantin locality is dealt with specifically. For this area under the heading “Intent” the Strategic Plan states, inter alia: “Environmental values across the Tewantin locality warrant protection. Many of these values have been identified in studies which support this plan.” Lake Donella and Crank’s Creek are identified specifically as having environmental and aesthetic values which: “are of the highest significance and will require the highest order of protection” For this designation, “Preferred Dominant Land Use” is given as: “Open Space, where the protection of environmental values or adjacent waterways is of key importance.” The stated objectives include: “to protect the environmental values which exist in the Tewantin locality” and specifically “the Open Space - Conservation and Waterway Protection designation has been used to identify land with environmental values:- · of the highest order · which warrant conservation status or · which is in or should be included in public tenure” (23.7.1.2) It is made clear that the designation includes riparian corridors adjacent to Lake Donella and Crank’s Creek (23.7.1.3) and the stated objectives go on: -- 21 of 27 -- 20 “The intent for the areas identified in 23.7.1.3 is to maintain the environmental values of that land to the exclusion of development which would have impact on those values irrespective of the scale of impact or the time taken to result in a measurable impact.” Against that background I believe that it is very difficult to say that the purpose of the designation is, in this instance, confined to the protection of water quality in the lake, even though that purpose is certainly important among the purposes that supported the designation. The point was well made that the function of the designation is not confined to that of a buffer which appeared to be supposed by the argument advanced by the appellant. That argument depended substantially upon selected extracts from some of the studies (particularly the “Networks” (26) and the “Bed and Banks” (32) studies acknowledged in s.28 of the Strategic Plan (and specifically in respect of the Tewantin locality at s.23.7)). The argument developed along the lines that the 250 metre buffer width had been taken from recommendations of more broad application and adopted for the foreshores of the lake without any site specific study, leaving the door open for the modification of that width when closer investigation of the site warranted it. It must be accepted that these studies, though acknowledged in the Strategic Plan, do not form any part of it in a formal sense. Caution should therefore be exercised in the use of such studies in the interpretation of the Strategic Plan (Zieta No. 59 Pty Ltd v Gold Coast City Council (1987) 2 Qd.R.116). In any event it can be seen that the network study concerns itself with a number of “Principal Open Space Values” other than water quality. “Visual amenity” and “biodiversity” are among these. For these reasons I am not satisfied that the applicability of the Open Space designation in the Strategic Plans is necessarily influenced by a demonstration of the efficiency of intended water quality controls. Even if one accepted the protection of water quality in the lake as the rationale for the Open Space designation, there is the added difficulty of deciding what level of satisfaction -- 22 of 27 -- 21 (regarding the adequacy of intended protective measures) is required before one might depart from the designation. This is especially so as the Strategic Plan adopts fairly strong language when it indicates that the environmental and aesthetic values of the lake and the creek “are of the highest significance” and require protection “of the highest order”. A level of protection of such an order may well require the corresponding level of conservativeness and a sufficient level of satisfaction may not be gained by simply showing that it is within the capacity of an engineer to design a treatment chain capable of achieving a “no worsening” result. The generous separation distances provided by the designation in the Strategic Plan may be taken to allow for many contingencies beyond what might be overcome by skilled engineering design. The preservation of a high level of visual amenity is emphasised in both the 1988 and 1997 Strategic Plans. The former Strategic Plan and its Public and Private Open Space objectives sought to prevent development causing “visual intrusion on the rivers and lakes system”. Its intended use of “broad buffer strips” in this context has already been referred to. In the more recent Strategic Plan, in respect of the Tewantin locality; “The key land forms on the south west side of Lake Donella are the riparian lowlands adjacent to the lake and creeks with more elevated land as a backdrop” (Clause 22.1) That the environmental and aesthetic values of Lake Donella and Crank’s Creek has been given “the highest order of protection” has been mentioned. The protection of these environmental and aesthetic values is developed in the strategic objectives. The “Strategic Aims” are set out in Clause 27 wherein the theme of protecting visual amenity is repeated. “Views and vistas which characterise particular localities in the Shire” warrant special mention (27.4.3.16) as do views “to and from waterways and riparian corridors” (27.4.3.17). Views across the lake from the Tewantin area clearly fall within the former description. -- 23 of 27 -- 22 It is reasonable to infer that the implementation of these objectives is reflected in the drawing of the Strategic Plan map and its designation of a substantial part of the subject land (particularly along the lake shore) as “Open Space - Conservation and Waterway Protection”. The position is somewhat comparable to that of the protection of water quality in the lake. The Strategic Plan has signalled its intent to afford these matters “the highest order of protection” and has decided to apportion the subject land to the designations indicated in the Strategic Plan. The decision thus made is an important Strategic Planning one. And whether, in dealing with particular proposals for development, these designations should be modified simply because a lesser order of protection might be shown to be capable of a not unpleasing result is, in my view, doubtful. The matter of visual impact was examined by two experienced consultants, Mr Chenoweth (for the appellant) and Mr O’Brien (for the respondent). The results of his thorough investigation are set out in Mr Chenoweth’s report, amplified as it was by his evidence in court. He was of the opinion that the development would be “effectively concealed” by the areas allocated to Open Space by Plan 11C. Mr O’Brien’s view was that further setback from the lake would be required to achieve “total concealment” and there was one area (his transect D) which caused him particular concern. While it is true that the Strategic Plan does not refer specifically to “total concealment” it is clear that the more extensive the depth of Open Space separating development from the lake, the better the visual result. Without wanting to be repetitive, it seems to me that the level of protection that should be given to the area’s visual attributes is a matter which the planning authority is entitled to decide. The decision that has been made is reflected in the manner in which the plan is drawn. -- 24 of 27 -- 23 Views of the developed site from other areas further removed were also examined. It appears to me that these consequences were less important. Whether the proposed development would be significantly more notable than development of the subject land in line with the Strategic Plan was debatable. The view of the proposed development from Beckman’s Road was also mentioned, but I believe that there is force in the submission made by the appellant that this aspect is already influenced substantially by the presence of the school and would not be a matter of great concern. There had been, in the assessment of the proposal in its earlier versions, some concerns expressed about the form of the development. Because of its content of lower sized allotments, reduced boundary clearances and road widths, it was feared that it might produce a “cramped” or “claustrophobic” character. Reference was made to part of the Statement of Intent for the Special Residential zone wherein it is said that: “The nature, intensity and character of development will not exceed that of surrounding areas” It has to be recognised that this Estate will be a rather discrete one and whatever differences there would be in its form of development to that of other developed areas in the region will have little impact on the amenity of those other areas. It is accepted that the revisions to the proposal that have led to Plan 11C have produced a more satisfactory outcome. There is also evidence from the appellant’s executive, Mr Long, that the development was intended to be comparable to earlier work by Kawana at the Alstonville and Glenfields Estates. A helpful description of the results of that work was given in evidence and the respondent’s planning consultant, Mr Challenor, fairly conceded that these developments were “well designed” and had produced “a good result”. If the approved plan of development incorporated conditions that ensured development of the subject land adhered to the standards set -- 25 of 27 -- 24 by Kawana in these earlier examples, then concerns relating to internal design and layout should not stand in the way of an approval in this case. A point was made that one of the planning objectives of allowing smaller allotment size is to provide scope with a better provision of areas for community purposes. Reference was made to Clause 23.1.3 of the 1997 Strategic Plan where this is mentioned. Although there was some mention of a possibility of future community use of school property, there is no specific provision in this Estate for an area suitable for active recreation. Against this, it has to be recognised that, whatever form of development of the subject land takes place, there will be a considerable provision of land for Open Space purposes. This has been dictated by the Strategic Plan. Bearing in mind the intended character of the Estate, I do not believe that the absence of specific provision for active recreation in the proposal warrants its rejection. Possible difficulties in the area of traffic engineering were examined by two experienced consultants, Mr Olsen (called by the appellant) and Mr Beard (called by the respondent). While Mr Beard recognised that a reduction in the area to be developed and the introduction of a collector loop to Swanbourne Way represented considerable improvement, he drew attention to possible problems as a result of the presence of the school. This related to parking and manoeuvring near the school on or near the collector road leading from Beckman’s Road into the Estate. Possible conflict between children on bicycles and vehicles being driven too fast along what is a long and straight stretch of roadway (necessitated by the narrow width of the road reserve) was mentioned. In the end, it appeared to be accepted that none of these difficulties were incapable of correction by design amendment and traffic engineering did not prove to be a determinative matter in the appeal. Much the same may be said about the matter of need to which some evidence was directed. Noosa is a popular and growing area. The provision of suitably developed and -- 26 of 27 -- 25 appropriately located residential opportunities in such an area is rarely contrary to the public interest and the evidence did not suggest that it would be in this case. The planning strategies that were relevant to the consideration of this matter had their genesis in the 1988 Strategic Plan and were reinforced in the 1997 Strategic Plan. The latter instrument was uniformly acknowledged (by those whose evidence was heard) as a concise and well explained planning document. As far as the subject land is concerned the task facing the planning authority was clear enough. It involved an allocation to either a designation that envisaged urban development or one that did not. The result might well be said to be a careful approach to the matter of environmental protection but that is something clearly within the province of the elected planning authority and not a matter with which the Court should interefere. The essential difficulty for this proposal was its intended departure from the balance that had been struck by the strategic planning of the respondent. I am satisfied on the evidence that the proposed plan of development would represent a substantial departure from that balance and not one that has been shown to be justifiable. However I would emphasise that I have not decided the matter under any compulsion arising from S. 4.4 (5A) of the Planning and Environment Act. While that section might underline the importance of conformity with strategic planning, reliance upon it might open the way for debate whether “conflict” (within the meaning of the provision ) existed. The onus of showing that an application of this kind should be approved remains with the applicant. On the evidence given, I am not satisfied that the onus has been discharged. The appeal must therefore be dismissed. -- 27 of 27 --