Begley v Pine Rivers Shire Council & Ors [1994] QPEC 73

, f ~E q4{ ol 3 State Reporting Bureau TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) r::::::-:::::=--:-:-----REVIS ED COPIES ISSUED State RG;Jorting Bureau Date If/ If I ~r PLANNING AND ENVIRONMENT COURT SENIOR JUDGE SKOIEN u p & E Appeal No 764 of 1994 BELINDA BEGLEY and PINE RIVERS SHIRE COUNCIL and IAN KEILAR, KEILAR FOX & McGHIE PTY LTD and QLD RURAL HOLDINGS PTY LTD BRISBANE .. DATE 03/17/94 JUDGMENT . Appellant Respondent Respondents by Election -- 1 of 20 -- 031194 RDT (Skoien DCJ) HIS HONOUR: I publish my reasons. I dismiss the appeal. HIS HONOUR: I order the appellant to pay the costs of the respondent of and incidental to the hearing on 12 October 1994 10 to be taxed. HIS HONOUR: I adjourn any further euestion of costs to a date to be fixed. JUDGMENT 2 30 50 60 l J -- 2 of 20 -- IN THE PLANNING AND ENVIRONMENT COURT HELD AT BRISBANE QUEENSLAND Appeal No. 164 of 1994 Before His Honour Senior Judge Skoien [Begley v. Pine Rivers Shire Council & Anor.] BETWEEN: BELINDA BEGLEY Appellant PINE RIVERS SHIRE COUNCIL Respondent AND: IAN KEILAR, KEILAR FOX & McGHIE PTY. LTD. and OLD. RURAL HOLDINGS PTY. LTD. Judgment delivered: Counsel: Solicitors: Hearing Date(s): Respondents by Election REASONS FOR JUDGMENT 3 November 1994 Mr M. Gynther for the Appellants Mr C.L. Hughes for the Respondent Mr R.S. Litster for the Respondents by Election Messrs Hawkins Lawyers for the Appellant Shire Solicitor for the Respondent Messrs Hemming and Hart Solicitors for the Respondents by Election 17-21, 27 October 1994 - -- 3 of 20 -- IN THE PLANNING AND ENVIRONMENT COURT HELD AT BRISBANE QUEENSLAND P & E Appeal No. 164 of 1994 BETWEEN: BELINDA BEGLEY Appellant PINE RIVERS SHIRE COUNCIL Respondent IAN KEILAR, KEILAR FOX & McGHIE PTY. LTD. and OLD. RURAL HOLDINGS PTY. LTD. Respondents by Election REASONS FOR JUDGMENT SKOIEN SJDC Delivered this Third day of November, 1994 This is an objector's appeal against the decision of the Council to approve an application by the respondents by election for a combined rezoning/subdivision application. The owner of the land (Q.R.H.) made the application on 1 December 1993. It was to rezone the land (which is partly in the Rural zone and partly in the Future Rural Living zone) to the Rural Residential zone and then to subdivide it. The application was duly advertised and six objections were received. On 16 May 1994 the Council resolved to approve the application subject to conditions. Mrs Begley, who was one of the objectors, then appealed to this Court against the Council's decision. -- 4 of 20 -- 2 The Site and its Locality The site is at the northern boundary of the Shire in the area known as Ocean View, and abuts the Caboolture Shire. It is about 54 kilometres by road from Brisbane via a main road, the Mt. Mee Road. Beginning at the township of Dayboro, Robinson Road, a gravel road, provides the link between Mt. Mee Road and the site. Robinson Road continues past the site for a few kilometres to give access to a handful of farms. Ocean View is a hilly area, sometimes quite steep. The uses to which the land in Ocean View is put include rural residential living and rural activities such as animal husbandry and dairying. Some of the land has been cleared for grazing but there are extensive areas of natural and dense forests which often form long corridors. There are two areas which have been subdivided into rural residential lots of about 2 hectares in size. One, of about 30 lots, abuts the site to its south-west. The other, of about 60 lots, lies a couple of kilometres to the south east of the site. The site contains about 250 hectares in two parcels, Lot 4 of about 24 hectares and Lot 97 of about 228 hectares. It is generally rectangular in shape with its longer dimension oriented on an east-west axis. A major ridge runs through the site in an east-west direction and it has also some other smaller ridges. To the south of the main ridge the site generally has relatively gentle slopes while the area to the north is steeper with some steep slopes into gullies which run generally north-south. The site, which has been owned by Q.R.H. for 10 years, is used for grazing cattle. Much of it has been cleared and regularly -- 5 of 20 -- l slashed to control noxious weeds such as groundsel and lantana. It is well covered with native grasses and even the cleared areas have retained attractive trees, some standing alone as specimen trees, some in clumps. The steep areas, especially the gullies and an area to the north-east, are thickly wooded and virtually pristine. The views from the main ridge towards the south are of pleasantly undulating land under rural and rural residential development. From the area to the north of the main ridge the views to the north are wide, extensive and quite spectacular, taking in lower forested ridges, Caboolture, the Glass-House Mountains, the sea and Moreton Island. The site has about 600 metres of frontage on its western boundary to Robinson Road. The road then leaves the site for about a kilometre, rejoining its north-western boundary for a further 350 metres or so. Mrs Begley's 16 hectare lot (zoned Rural) lies immediately to the north of the site. She has an impressive easterly outlook to the sea. Her views to the south-east take in the northern slopes of the site. If the proposal proceeds and all lots are built on, she would be able to see about ten houses. At the moment the only habitation on the site within her view is a caravan. The Proposed Rezoning Lot 4 is entirely within the Future Rural Living zone. Lot 97 is partly within the Rural zone and partly within the Future Rural Living zone. It is proposed to rezone all of the site to the Rural Residential zone. -- 6 of 20 -- The Proposed Subdivision Should the rezoning occur, it is intended to subdivide the site into 109 rural residential lots (including 7 group title lots) and some parkland. The rural residential lots range in size from 1.5 to 4 hectares (approximately) and the group title lots are to be a little larger than one hectare. The common area of the group title lots comprises some steep bushland. The proposed parkland at the thickly wooded north-eastern corner of the site is to contain about 30 hectares or about 12% of the site. The proposed layout is comfortably within the guidelines set by the Town Planning Scheme for lot size, density and parkland requirements. The proposed internal roads will give access to Robinson Road at both frontages and provide possible linkages with neighbouring land to the east and south in the event of their future development. It is intended to seal Robinson Road along the two frontages but not the intervening section. The intersection of Robinson Road and Mt. Mee Road is to be upgraded. Grounds of Appeal Before turning to the grounds of appeal it is convenient to consider the effect of the town planning documents which apply. Town Planning Documents The relevant documents are the Town Planning Scheme and the Strategic Plan. Within Part B of the Strategic Plan, that is its supporting information, are guidelines for development of the Ocean View district about which much evidence was given and submissions made. There is no applicable development control plan. -- 7 of 20 -- ~ The intent of zones in the Scheme states (paraphrasing it) that the Future Rural Living zone identifies land suitable for eventual rezoning to the Rural Residential zone. I think it can correctly be described as a holding zone for future rural residential use. In the event, no strenuous attempt was made by Mr Gynther, for Mrs Begley, to argue that the rezoning and subdivision should not occur as far as the Future Rural Living zone is concerned and in evidence Mrs Begley frankly conceded the right of Q.R.H. to achieve that. As the real co~flict in the appeal concerned the rezoning of the Rural-zoned land, it is proper to set out the statement of intent for the Rural zone:- "The intent of the Rural zone is to designate areas of the Shire which are to be retained for rural activities or which are physically unsuitable for closer residential settlement. The Rural Zone is also intended to protect the rural amenity of the less closely settled areas of the Shire, which is important to the overall character of the Shire. In some areas, the Rural zone is intended to protect the long-term viability of agricultural or pastoral land use. Activities which may prejudice rural operations will not be permitted in these situations ........ . Further, in areas subject to a development control plan, some lands zoned Rural may also be suitable for rezoning to allow closer development if it can be demonstrated to Council's satisfaction that these lands meet the relevant criteria for closer settlement as set out in the particular Development Control Plan." I accept the submissions of Mr Hughes for the Council and Mr Litster for Q.R.H. that the words of the statement of intent show that the conversion of Rural zone land to a zone permitting closer residential settlement is contemplated, and certainly not forbidden. It would be odd if the statement of intent were to be read so as never to permit a rezoning to occur no matter how desirable the result. Specifically, the introductory words use -- 8 of 20 -- the disjunctive word "or". Implicitly, land which is suitable for closer residential development may not always remain rural. rt was also submitted that the second paragraph supports this rezoning in that, while there is no development control plan, there are the guidelines which operate in place of one. In my opinion that interpretation is contrary to the plain words and must be rejected. That is not to say, however, that the guidelines cannot be given weight in applying the Strategic Plan to the suggested rezoning. All of the planners who were called accepted that as a proper planning approach. I think also that the way in which the zones have been allocated is significant. Lot 97 has been divided, by a straight line, into the Rural zone and Future Urban Living zone. Development in straight lines without reference to topography or cadastral boundaries cannot be good planning. Such an arbitrary division into zones must sensibly be taken as providing only a guide, to be adjusted according to the particular case. The Strategic Plan (Part A) is important. The Strategic Plan Map (which is conceptual rather than cadastral) suggests to me that the Ocean View area is within the designation of the preferred Non-Urban Residential Area. The precise limits of that area must be determined by a careful study of that particular area. That determination will be influenced by many things. It will for example, as Mr Higginson the town planner called by Mrs Begley said, be influenced by a consideration whether to set the limit at a natural feature such as the main ridgeline of the site. It will also, as Miss Calio (the Council's planner) and Mr Vann (Q.R.H.'s planner) clearly thought, be influenced by the -- 9 of 20 -- l opportunity to accept what they each regarded as an integrated development which approaches a sensitive area in a way likely to preserve important elements of the area, a preservation which might not be achieved if the land remained zoned. Rural. The approach of Miss Calio and Mr Vann is not contrary to the wording of clause 2(5) of Part A of the Strategic Plan which contains the following:- "(5) Rural Areas The Rural designation comprises agricultural dairying and horticultural land, balance of the Shire not suitable for other dominant land use .... existing and the preferred Generally, it takes in land which is so constrained (that) it is unsuitable for more intensive forms of development. There may possibly be specific allotments within this area which may be suitable for other forms of development, such as rural residential subdivision. These other forms of development may be supported subject to a detailed planning report being provided which satisfies Council that they are consistent with the objectives for Rural Areas; they will not detrimentally affect any area considered as environmentally sensitive by Council; and they do not conflict with other planning policies of Council." Even if such statements of preference are to be taken literally and inflexibly, (and I think they are not), I note the reference to suitability for other uses and the specific reference to rural residential use subject to the expressed cautions. I turn now to the guidelines. A few things must be said about them. First, they are not part of the gazetted Strategic Plan (Part A) nor are they a development control plan. Second, they are as the name implies guidelines, not straitjackets. Third, the guideline's concept plan is also by definition, merely a concept. Last, the guidelines, read as a whole do not -- 10 of 20 -- .fl necessarily prohibit development. Thus, in paragraph 6. 1 . 2, they suggest the use of group title development to permit subdivision of difficult areas to take advantage of good views. Paragraph 6. 1. 4 refers to "improving the area's ability to absorb the higher intensity development forms proposed for the area". I see nothing in the guidelines which prohibit Q.R.H.'s application. On the contrary, I see some support for it provided care is taken with what is obviously a sensitive area. While not a part of the planning documents I should mention the "Green Plan". It is an environmental paper prepared by Mr Chenoweth, and others. It is simply a study produced by learned authors and deserving of respect accordingly. It is not binding law. In any event it does not seem to have been transgressed by this proposal. So I see nothing in the planning documents which prohibits the application. I now turn to the grounds of appeal. Some overlap with each other and to a greater or lesser extent my discussion of the planning documents has already dealt with them. In this examination I bear in mind that, although six objections were lodged to the proposal only one objector, Mrs Begley, has taken any further action and she and her husband were the only lay witnesses called to voice their opposition. I found them candid witnesses and compared with many objector witnesses in cases like this, unusually ready to concede the rights of Q. R.H. to develop its land. In short, I think they are honourable people seeking to preserve what they honestly believe to be their rights. They seemed to me to bear no malice to -- 11 of 20 -- 2. Q.R.H. or to its principal Mr Davies. I feel bound to say that in view of their evidence it is odd that so much time (and, I conclude, money) was spent on evidence on issues which they either did not deal with themselves, or merely touched on in passing. Still, having been raised, all the issues have to be referred to. Amenity The existing amenity of the area is rural. The proposed amenity is residential and rural. Of course even rural amenity involves human habitation as the outlook Mrs Begley has of the ridge to her north~east demonstrates. It is, after all, her amenity which is most closely under examination here. The proposed development would involve the building of a number of houses within her immediate view and people would live in them. If the land were left in the Rural zone she would either see no houses on the site or, if divided into the minimum-sized rural allotments of 16 hectares, she would see two or three. I accept that was her actual expectation when she bought the land. However her expectation should have been a little more pessimistic. On the evidence of all the planners, even of Mr Higginson, she ought to have considered the possibility of a visible road along the ridge which forms the limit of her view to the south and she should have considered the possibility not just of a few rural lots with houses but also of some group title development in that area. That is contemplated by the guidelines. I do not think it necessary to decide exactly how many houses could have been foreseen. It may have been only a few but it would have effectively transformed her view of rolling -- 12 of 20 -- .1Q hills only, to rolling hills with some houses. The important point is that the proposed development, fully built upon, will present only about 10 houses to her view. That is, I accept, slightly more than her expectations might have warned her of but is, despite that, of the same order of magnitude. It involves a change from purely rural views to some scattered housing in a generally rural setting. Of course, as was pointed out in Mrs Begley's case, it is impossible to be certain what activities will be carried on by the owners of those 10 lots. They could conceivably all fall into the extremes, all being either dedicated conservationists or committed vandals. However on the balance of probabilities, bearing in mind the locality, its distance from Brisbane and the likely price of these allotments, I consider that the purchasers will not be unlike Mr and Mrs Begley. They are likely to be concerned to preserve what they have bought into, that is, a pleasant rural environment. Any inexperienced over-stocking with horses, cattle and the like will probably quickly prove to be expensive and non-productive and be brief. Destruction of trees is unlikely and to emphasise that, a tree preservation order is a volunteered condition of the proposal. I do not assume that it will be transgressed, especially in such a locality as this, where preservation of existing specimen trees would be likely to be a priority. I think it quite unlikely that the dense scrub of the deep gullies would be threatened. The fact that Q.R.H. has volunteered to accept a tree preservation order over the entire development is in my opinion an unusual thing, indicative of Q.R.H.'s attitude to the -- 13 of 20 -- 11. environment. Reinforcing that is the management of the site over the past 10 years, the sensitive (as I see it) siting of building pads so as to preserve existing stands of trees or individual trees, the provision of more than the minimum parkland area and the suggestion of a group title development. I accept that one or two extra building sites could have been surveyed from the proposed parkland and that the group title is the best way of preserving a steep and heavily wooded area. Then there is the fact that Q.R.H. consents to make available 100 trees per allotment for each purchaser that is, a total of 11,000 trees, free of charge. Mrs Johnson, an environmental scientist called by Mrs Begley was very critical of that, pointing out the obvious flaws: will anyone take up the offer; will the trees be properly planted and cared for? It seemed to me however that she became uncomfortable when it was put to her that the natural consequence of her criticism was that Q.R.H.'s offer be withdrawn. I think it is important to say something about Q.R.H. 's offer to provide those trees. It is an offer made in consultation with an active local conservationist group. I think it is an unusual offer and I think it is a generous offer. I think Mr Da'vies is correct when he says that planting now by Q.R.H could be futile. I think it, with the volunteered submission to a tree preservation order and the generous parkland offer, demonstrate a desire to protect the predominantly rural amenity of the area. If Q.R.H. were not of that mind, and if it preferred to rezone without opposition, the likely result would be rural -- 14 of 20 -- .11 residential development to the south of the ridge, and some group title development along the northern edge of the ridge. That would leave, north of the ridge, a crescent shaped rural zone capable of subdivision into a handful of 16 hectare rural allotments. The Council might very well have considered that, with its possibility of over-grazing and zonal isolation, as less than desirable. The integrated plan offered by Q.R.H. was obviously considered to be attractive for reasons of amenity if none other, and I accept that approach as a sensible one. Environmental Impact Statement No E.I.S. was required by the Council and none was prepared by Q.R.H. The argument was not that an E.I.S. was necessary but that it should have been provided so that the appropriate environmental issues could be properly assessed. The fact is, however, that there is nothing to which I was referred which obliged the preparation of a formal E.I.S. Further, the Council has actually considered the relevant topics which an E. I. S. would have dealt with. So has this Court, hearing the matter de novo. I was not referred to any particular topic which ought to have been considered but which was omitted. Impact on the Environment (a) Caboolture River Catchment The site is at the extreme end of the catchment for the Caboolture River. It is separated from the nearest actual stream by large areas of heavily forested bushland. I am satisfied, particularly by the evidence of Dr. Charles-Edwards, that the possibility of any pollution of the river water from this site is extremely remote. -- 15 of 20 -- ll (b) Wildlife Habitat It goes without saying that any human contact has the potential to threaten natural flora and fauna. But on this site it is most probable that the substantial areas of natural vegetation in the gullies and elsewhere (including, of course, the large proposed park) will remain in their natural condition and will provide protection. In fact the likelihood of preservation of these areas is greater under the conditions which the Council has imposed than if the land were left as rural land. Quite a lot of time was spent in evidence on the question whether the grass owl is present on the site. Even though there is no evidence that anyone has seen a grass owl there, the finding of two feathers on the site indicates that there probably is a small colony. The area in which the feathers were found suggests that the colony is in the south to south-eastern part of the site, near lot 52. That is not within the area which Mrs Begley, the only objector who has continued her objection, regards as of importance to her. Furthermore, it is within the Future Rural Living zone, the zone about which the least argument was generated. I am not persuaded that the subdivision will destroy the colony al though it may cause the colony to relocate to other grasslands within the area. I note that while it is classed as a rare bird it is not an endangered species and indeed can be quite abundant in areas and at times when its natural prey of mice or rats are prevalent. Road Construction Conditions There is no valid reason to require Q. R.H. to seal the kilometre of Robinson Road which runs between the two separated frontages. It is likely that it would seldom be used, people -- 16 of 20 -- li preferring to use the sealed road within the site. In fact to seal the middle bit of Robinson Road would cause the destruction of a fine stand of eucalypts. The internal road is quite suitably planned. The occasional passage of a large vehicle such as the milk tanker will, on Mr Eppell's evidence, cause no difficulties or danger. Need The concept of need has been described as follows:- "'Need' in cases such as this does not mean pressing need, critical need, widespread desire, or anything of that nature. A thing is needed if its provision, taking all things into account, improves the physical well-being of the community". See Cut Price Stores Retailers & Ors. v. Caboolture Shire Council (1984) Q.P.L.R. 126 at 131. The evidence of Miss Calio, Mr Vann, Mr Clair and Mr Doyle satisfies me of a demand for rural residential land in the Shire. It also struck me that Mr Davies was not devoid of business acumen and that Q.R.H. would not be entering on this venture without well-founded expectations of success. Balance of Zones This seemed to relate to the question of population. However the expected population would seem to be within the locality population of about 1350 referred to in the guidelines. There is no suggestion that the rezoning would lead to an undersupply of rural land in the Shire. Effluent Disposal and Erosion The evidence of Mr Hewitt, the Shire engineer, is that the soil testing carried out to date is satisfactory and rather more extensive than is strictly necessary at this stage. It is important to recall that before any plan of subdivision can be sealed Mr Hewitt will have to be satisfied that each lot has a building area of 1500 square metres with a minimum width of 30 -- 17 of 20 -- ll metres, a slope of less than 20% and can be properly served by a septic system and sullage disposal system approved by the Council. See Local Law 22, Part 3, Division 4. The evidence is that septic systems work well as long as they are properly maintained. Evidence of actual septic system failures related to greatly different localities and do not assist me much. Notably there was no evidence of failures in comparable areas, particularly within Ocean View. It is to be hoped that the Council will adopt a policy of regular inspection of septic and sullage systems. The fact that other councils have . such a policy, that people like Dr Johnson have been pressing this Council to adopt one, and perhaps also the airing of the matter in this case, may be cause for some optimism. The short point, it seems to me, is that these types of waste disposal systems have been used for many years, apparently successfully. The areas of land available for the dispersal trenches are very great. I have no doubt that more than adequate areas for dispersal, containing suitable soil, can be found for each lot. Of course, as I have noted, the Council will satisfy itself of this before sealing any subdivision plan. Mrs Begley's specific concerns are, in my opinion, satisfactorily allayed by the evidence. Dr. Johnson who was called by her said that the 4 to 6 house sites which might drain d h · t have II some concerns" . towards Mrs Begley's am cause im o He did not lead me to believe that the danger was, in his opinion, very great. I prefer the evidence of Dr Charles-Edwards, who thought the septic/ sullage systems would pose no realistic threat to anyone off the site. The question of erosion seemed mainly to relate to erosion of soil from building pads or other works in heavy rain during -- 18 of 20 -- 12 construction. I think Mr Gynther was right when he submitted that the conditions (no. 4 relating to the rezoning and no. 13 relating to the subdivision), by their wording apply only to Q.R.H. and to the actual applicant for the sealing of the plan of subdivision, which may or may not be Q.R.H. So those conditions would not run with the land despite the provisions of s. 4. 4 ( 1 2) ( b) and s. 5 . 1 ( 8) of the Act. However they do impose stringent conditions on the major work which will be undertaken pursuant to a rezoning and a subdivision and make it unlikely that erosion at that time will occur. It is conceivable that the future construction of such features as darns, swimming pools and sheds could produce erosion at that time, but again I think the risk is small. People nowadays are increasingly aware of these dangers. People do not generally permit erosion to threaten an expensive building project. Councils increasingly apply conditions to building permits to guard against such things as erosion. Finally, and obviously, most of such projects are completed without serious interference from rain. Conflict with Strategic Plan, Town Plan, Guidelines and Green Plan I accept Mr Chenoweths's evidence that the proposal, rather than conflicting with the Green Plan ( of which he was the principal author) in fact is in harmony with it. I have already said that the Town Planning documents do not forbid the rezoning nor the proposed subdivision. Provided a careful study shows no serious objection to the development it can be seen to be consistent with the aims and objectives of the documents. I consider that the Council's study, as revealed by the evidence of Miss Calio (whom I thought to be an impressive -- 19 of 20 -- 1.1 witness) was a careful one. The conditions formulated for each of the two components of the application reveal great care on the council's part to apply good planning principles. The very lengthy and exhaustive evidence before me on the grounds of the appeal (which I have discussed) has led me to the same conclusion as the Council reached. Conclusion Q.R.H. has satisfied me that the Council's decision to approve its application was sound. dismiss the appeal. I therefore propose to -- 20 of 20 --