Evans & Evans v Caboolture Shire Council [1994] QPEC 45 (1995) QPLR 28

/Re; State Reporting f ~E 911045 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.) PLANNING AND ENVIRONMENT COURT /JUDGE SKOIEN, Senior Judge p & E Appeal No 55 of 1994 NORMAN DANIEL EVANS and CAROLINE MARY EVANS and. CABOOLTURE SHIRE COUNCIL BRISBANE .. DATE 17/06/94 JUDGMENT 1 r----------. REVISED COPIES ISSUED State Reporting Bureau DateoU-1 G/ Appellants Respondent '- 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 227 4360. Facsimile: (07) 227 5532 -- 1 of 9 -- 170694 T 1/NN M/T CMS100/94 (Skoien DCJ) HIS HONOUR: For the reasons which I now publish I am allowing this appeal. HIS HONOUR: The appeal is adjourned to Tuesday 19 July for mention. 2 JUDGMENT -- 2 of 9 -- IN THE PLANNING AND ENVIRONMENT COURT HELD AT BRISBANE QUEENSLAND BETWEEN: Appeal No. 55 of 1994 NORMAN DANIEL EVANS and CAROLINE MARY EVANS Appellants CABOOLTURE SHIRE COUNCIL Respondent REASONS FOR JUDGMENT - SKOIEN S.J.D.C. Delivered the Seventeenth day of June 1994 This is an appeal against the refusal of the Council to approve an application by the appellants to rezone a parcel of land. The application was made on 18 November 1993 and was refused on 1 February 1994. The land is rectangular, contains 2.033 hectares, and is located at the corner of Old Gympie and Hammond Roads, Caboolture. It is about five kilometres to the north of the town centre of Caboolture. It is zoned Rural Residential A, as are adjoining properties to the north and the properties to the west across Old Gympie Road. Adjoining properties to the east and the properties to the south across Hammond Road are zoned Rural Residential C. In the general area the predominant zoning is Rural Residential A but there are also substantial pockets of Rural Residential C, small isolated pockets of Rural Residential Band some Rural zonings. Further afield are very large areas zoned Rural. Other areas of Rural Residential land, substantial in size, are located within the Shire. -- 3 of 9 -- 2 The appellants' application is to have the land rezoned into the Rural Residential C zone in order to subdivide it into six allotments each slightly larger than 3000 sq. metres. There is no suggestion that a subdivision of that type would be difficult or that the land is not suitable for development as Rural Residential c land. Indeed in his report to the Council (exhibit 5) the shire planner Mr. Tabulo concluded that the application satisfied all applicable criteria for approval except for the criterion that the land should be of greater than three hectares in area. Tbe grounds argued by Mr. Ure for the Council to justify the refusal of the application were that the application was in total conflict with the statement of intent of the Rural Residential zone, the Strategic Plan which was in force when the application was made, and the Council's Rural Residential policy. The Town Planning Scheme for the Shire, in Part II, Division II sets out the stated intent of the zones. As their names would imply, each of the three Rural Residential zones is stated as being intended for rural and residential uses, the A zone being designed to cater for lots of at least two hectares, the B zone for lots of at least 8000 sq. metres and the C zone for lots of between 3000 and 5000 sq. metres. Paragraph 5, which deals with the Rural Residential C zone, contains the following clause:- "Rezoning to the Rural Residential C zone will only be permitted where it is clearly established that:- (c) the particular parcel of land over which the rezoning is sought is at least three hectares in area." The land here, of course, is less than three hectares in area. -- 4 of 9 -- 3 Appendix A to the Town Planning Scheme was a Strategic Plan which included in Part A, a statement of objectives. The objective for the Rural Residential areas is said to be:- "4(1) Objective - To provide an adequate supply of land to cater for . the demand for rural/residential allotments of various sizes in appropriate locations in the Shire." There is no evidence that the Rural Residential A zone, in any part of the Shire but particularly in this part, is in short supply. Mr. Tabulo's report (exhibit 5) records that there is demand for rural residential land generally. Also contained in the Strategic Plan is this passage:- "In addition to the locational criteria applicable to all rural residential development, land to be included in the Rural Residential C zone must also satisfy the following requirements in recognition of the type of development facilitated by this zone - ( i ) rezonings to Rural Residential permitted over parcels of land hectares or larger in area;". C will which only be are three That Strategic Plan was in existence when the application was made on 18 November 1993 but was repealed by the adoption of a new Strategic Land Use Plan on 17 December 1993. Thus it was not in force when the Council made its decision on 1 February 1994. In those circumstances it would be quite unrealistic to give it more than the slightest weight. Indeed the plan which replaced it, the Strategic Land Use Plan 1993, does not contain the three hectare requirement for Rural Residential C rezoning. The omission to repeat the earlier provision must be taken to have been intended rather than inadvertent and to indicate that from 17 December 1993 less importance should be placed on the area requirement. -- 5 of 9 -- 4 Considerable weight was placed by Mr. Ure on the third of the three factors relied on to reject the application, that is the provisions of the Rural Residential Transitional Policy which was adopted by the Council on 12 January 1993. The policy created "Transitional Areas" within the Shire by reference to an attached map and provided that within those areas "Council will not approve applications to rezone land to Rural Residential C". The subject land lies within a designated transitional area. The underlying aim for the policy was expressed to be:- "To identify areas within the Shire which should be retained as large lot rural residential developments to act as.a buffer between communities as well as areas which are considered to have potential for long term residential development." The evidence shows that the policy was adopted by the Council without undertaking any detailed planning study. Thus there was no study carried out to determine the areas most suitable for Rural Residential C development, nor to determine whether any areas (and particularly the identified transitional areas) were especially required to be preserved for future residential development. No public comment or other public participation was called for nor provided. With this is to be contrasted the statutory requirements for detailed planning studies when a planning scheme, a strategic plan or a development control plan is proposed. See ss. 2. 1 - 2. 1 4 of the Local Government (Planning and Environment) Act 1990. In this regard it is important to note that the current Strategic Land Use Plan 1993 lists as objective (3) for the Rural Residential Areas:- " The preferred location of the different rural residential zones shall be determined in conjunction with a Development Control Plan for the Rural Residential Areas." -- 6 of 9 -- 5 Thus the Plan contemplates that there will be detailed studies and the receipt of submissions from the public before the preferred location of the Rural Residential c zone is settled. That would seem only fair and appropriate before something so seriously affecting the rights of landowners were to be adopted. To my mind a unilateral act of the Council which purports to have the same effect as a development control plan should be approached very cautiously. In the absence of the development control plan (which is in its infancy) any reliance on the Rural Residential Transitional Policy ought to be supported by evidence directed to the expressed aim of the policy, that is the need for the buffer between communities, the suitability of the land in question for long term residential development and the particular effect on that suitability should the rezoning from Rural Residential A to Rural Residential C occur. Nothing like that was done in this case and consequently I cannot give weight to the Policy. I find that the land is eminently suitable for the rezoning and the projected subdivision. In that finding I act on the evidence of Mr. Ryter that the rezoning would complete, by infill, an enclave of Rural Residential C land. Five of the proposed six allotments will have their frontages to Hammond Road. Someone passing along Hammond Road would then be aware of a homogeneous neighbourhood of Rural Residential C development extending from Old Gympie Road through to the extremities of Ynanda Court to the north-east. It also seems to me that there is much in the submission of Mr. Hughes for the appellants that the result achieved by the -- 7 of 9 -- 6 rezoning would be a consolidation of an area well in excess of an area of three hectares in a manner completely consistent with good planning. The important question remaining is whether this suitability of the land for the rezoning should be outweighed by the statement of intent of the Planning Scheme which on its face calls for a refusal if the land is, as it is here, of less than three hectares. The statement of intent for the zone in the Planning Scheme cannot be taken as inflexible. Rather it provides guidelines. See Eddie Thompson's Carpet Emporium Pty. Ltd. v. Brisbane City Council (1980) 1 A.P.D. 130 at 131; Cherrabun Pty. Ltd. v. Brisbane City Council (1985) Q.P.L.R.205 at 208. Compare Director of Planning v. Vinall (1981) 45 L.G.R.A.380 at 384-5. A useful approach to the weight to be given to the Statement of Intent is to try to determine the reason behind the provision, the evil it seeks to avoid. The evidence of Mr. Ryter is that to a planner the existence of isolated allotments of less than three hectares is undesirable. I can easily accept that proposition; such allotments could prove to be difficult to subdivide, and it seems to me that this was the sort of evil at which the provision was directed. But this is not a case of an isolated small pocket of land; rather it is an infill or consolidation of a much larger area. See Zorich v. State Planning Authority (1983) 7 A.P.D.353 at 356. The fact that the statement of intent has not always been regarded as inflexible by the Council has been demonstrated on -- 8 of 9 -- 7 at least three occasions in the Wirth, Sivyer and Flydaily applications. I think in this case on proper planning principles the statement of intent should give way so as to permit the proposed rezoning. I do not need to deal with the alternative argument by Mr. Hughes that, as a matter of law, the Rural Residential Transitional Policy is invalid. The appeal will be allowed. -- 9 of 9 --