Chittick & Broekroelofs v Brisbane City Council & Anor [1994] QPEC 25

P~~ 9'+f 0,25 ,Re 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 Bu:-eau.) I' PLANNING AND ENVIRONMENT COURT JUDGE SKOIEN, Senior Judge ./ p & E No 4 of 1994 MR GARY K CHITTICK and JA BROEKROELOFS and BRISBANE CITY COUNCIL and DEVELOPMENT CONSULTING PTY LTD BRISBANE .. DATE 28/03/94 JUDGMENT Appellants Respondent Respondent by Election -l----------~--..;,_____~~~~~~-::-:~- :.l4th F/oo,, The Law Cou,ts, Gmge Stn,et, B,isbane, Q. 4/)()() Telephone: (07) 227 4360. Fa,s/m;/e, (07) 22 7 5532 -- 1 of 13 -- 280394 ck (Skoien DCJ) HIS HONOUR: For the reasons which I now publish, I dismiss the appeal. Doctor Chittick, as you may or may not know, there is a right of appeal to the Court of Appeal from my decision on matters of law. Mr Haydon? I think that is still the case, isn't it, MR HAYDON: It is, Your Honour. HIS HONOUR: You will no doubt consider your position. ORDER 2 10 20 30 40 50 60 -- 2 of 13 -- J IN THE PLANNING AND ENVIRONMENT COURT HELD AT BRISBANE QUEENSLAND Appeal No. 4 of 1994 Before His Honour Senior Judge Skoien [Chittick v. Brisbane City Council and Development Consulting Pty. Ltd.] BETWEEN: MR. GARRY K. CHITTICK and J.A. BROEKROELOFS - and - BRISBANE CITY COUNCIL - and - Appellants Respondent DEVELOPMENT CONSULTING PTY. LTD. Judgment delivered: Catchwords: Counsel: Solicitors: Hearing Date(s): Respondent by Election REASONS FOR JUDGMENT 28/3/1994 or. Chittick in person for Appellants Mr. T. Trotter for Respondent Mr. Haydon for Respondent by Election Appellants: Nil D.M. Smith, Solicitor for Brisbane City Council Sly & Weigall Cannan & Peterson, Solicitors for Respondent by Election 14 and 15 February 1994, 3 March 1994 -- 3 of 13 -- j IN THE PLANNING AND ENVIRONMENT COURT HELD AT BRISBANE QUEENSLAND Appeal No. 4 of 1994 BETWEEN: MR. GARY K. CHITTICK and J.A. BROEKROELOFS Appellants BRISBANE CITY COUNCIL Respondent AND: DEVELOPMENT CONSULTING PTY. LTD. Respondent by Election REASONS FOR JUDGMENT - SKOIEN S.J.D.C. Delivered the twenty-eighth day of March 1994 This is an objectors' appeal against the decision of the respondent Council to allow, subject to some conditions, an application by the respondent by election (D.C.) to re-zone an area of land. D.C.'s original application to the Council was a combined rezoning and subdivision one but subsequently the subdivision application was withdrawn. The site The site, at Beaudesert Road, Calamvale, Brisbane, (which also has some frontage to Benhiam Street) is made up of a number of parcels of land, with a total area of 22.7572 ha. It is currently undeveloped with light scrub and some sizeable trees. There are a few rough tracks and a well-defined gully which in wet weather drains the site. The head of the gully is just to the west of Beaudesert Road, from which it runs approximately west until it reaches and crosses Benhiam Street via a culvert. -- 4 of 13 -- 2 The catchment drained by the gully contains about 45 ha. and is more particularly shown outlined in red on the map, exhibit 2. The site is zoned Future Urban on the Town Plan. The locality The site forms part of a much larger locality which is bounded, virtually on all sides, by established residential sub- di visions·. Within the locality the allotments are generally of areas ranging from one to five hectares. Established housing within the locality is sparse and the overall effect is of bushland with a rural residential lifestyle. The whole locality (excluding small portions which are not relevant to the appeal) forms a drainage catchment which is made up of four distinct sub- catchments. The sub-catchment drained by the gully running through the site ( which I have described) is one of these. There is a rather larger sub-catchment which is generally to the north of the site's sub-catchment. These two sub-catchments connect to the west of the site, immediately west of Benhiam Street. That combined drainage channel is then joined by two more from sub-catchments to the south of the site. The ultimate channel runs then to the west to Algester Road. At this point it passes through concrete culverts under Algester Road and continues on towards Oxley Creek within a concrete channel. The catchment of the site, when developed, will be about 55 ha. in area which is about one sixth of the total catchment of the locality. The land of the chief objector and appellant, Dr. Chittick fronts onto Algester Road and is at the extreme west of the locality I have described. It is a rectangular piece of land of -- 5 of 13 -- 3 almost two hectares and contains a low-set dwelling house. The combined channel passes through the Chittick land, virtually bisecting it. When I saw it the channel had water in it making it a small creek and I gather that is usually the case. Where it passes the house it is quite a defined channel containing a long pool of water. The grassy, tree-lined banks showed evidence of erosion in the form of at least one toppled tree and fresh bare earth banks. The entire locality, with the sub-catchments and drainage channels marked is shown on exhibit 2. The land in the entire locality is zoned Future Urban. The application The application to re-zone was to remove the site from the Future Urban zone and to place it within the Residential A zone. The ultimate intention obviously is to subdivide it into residential blocks. The application was made on 12 November 1992. After due advertisement the application received three objections including one by the two appellants. On 29 October 1993 the sub-division component of the application was withdrawn. On 7 December 1993 the Council resolved to approve the re-zoning application subject to certain conditions the relevant one being: "(j) Construct trunk drainage through the site including a detention basin or equivalent, such that the stormwater runoff from the developed site does not exceed undeveloped run-off." Other conditions laid down, at least in outline, the type of ultimate development which would be permitted. Condition (j) has been expanded and considerably detailed. The details can be found in appendix A to the report (exhibit 3) -- 6 of 13 -- 4 of Mr. Collins from Lawson and Treloar Pty. Ltd. A useful summary of them is set out at paragraph 2.0 of that exhibit. The most relevant are:- (a) the detention basin should ensure that the full range of flows, right up to the ARI 100 year flood event should not be greater than they are now; (b)· the basin should be designed to pass safely the ARI 500 year flood event. Measures against stormwater runoff D. c. proposes to construct a system of stormwater collection to channel it into the existing drainage gully. At the western end the gully will be excavated somewhat and the sides landscaped. An earth wall will be built so that water flowing down the gully will be trapped and detained in this detention basin. Pipes through the earth wall will permit a flow down the gully but if the arrival of water to the basin exceeds the pipes' capacities, the detention basin will fill, if necessary until the spillway is reached. The water leaving the basin flows into a reinforced stilling basin to reduce its turbulence and velocity. The water which ultimately flows from the stilling basin and off the site is, by the design, to be at or below the velocities which currently occur. The computer model which Mr. Collins used to design the system is the RAFTs XP model, a model which was probably over-pessimistic (that is, conservative) in its assessment of stormwater run-off. I accept that it is very similar to another computer model, called the URBS model. Mr. Collins, in estimating the stormwater run-off assumed a heavy urban development in impervious cover such as roofs, -- 7 of 13 -- 5 concrete, bitumen and other hard surfaces over the entire sub- catchment. Planned earthworks will actually enlarge the presently existing sub-catchment with, obviously, a reduction in the adjoining sub-catchment areas and run-offs. An ARI 100 year flood event would cause a maximum depth of a little over two metres of water in the detention basin. An ARI one year flood event would cause a water depth of about 200 mm. Lesser rainfalls will not produce ponding in the bed of the basin. It is estimated that heavy falls will pond water in the basin only two or three times a year and even serious ponding should drain in less than three hours. The grounds The grounds of the appeal narrowed themselves to two. The first is whether the design of the proposed detention basin meets the conditions laid down by the Council. The second is whether those conditions are stringent enough. On each of these the respondent by election bears the onus of proof on the balance of probabilities. See Local Government Act (Planning and Environment) Act 1990, s.7.1A(2)(a). Detention Basin Mr. Collins' s expertise as a hydraulic engineer was not disputed. His four primary conclusions are:- "1. Appropriate hydrologic and hydraulic analysis has been carried out by Lawson and Treloar to ensure that BCC's conditions for rezoning have been satisfied. 2. By use of an appropriate sized detention basin as part of the proposed development, there will be no worsening of flooding at the Benhiam Street creek crossing, for a range of flood events, from less than the ARI 1 year up to the ARI 100 year event. -- 8 of 13 -- 3. 4. 6 The basin has been designed to ensure that it can safely pass an extreme flood event (an ARI 500 year flood) over its spillway. The proposed development will not worsen peak flooding on the objector's property. The only effect of the proposed development will be that low flows, (significantly less than the ARI 1 year event) may run for a little longer after a rainfall event as the basin drains." The Council had Mr. Collins's design checked by Mr. Lawson, also an 'experienced hydraulic engineer, of Neville Jones & Associates Pty. Ltd. He considered that the proposed detention basin met the condition. Initially, in his report exhibit 4, he raised the possibility that for lower ARI events (say 1-5 years) there could be a slight increase in peak discharge where the Benhiam Street culvert meets the adjacent sub-catchment's channel from the north but he considered that to be "remotely possible given extreme circumstances". In oral evidence he said he was satisfied that Mr. Collins had properly attended to the question. So I am satisfied that for rainfalls of the ARI 1 to 100 year flood events the proposed detention basin will ensure that flows off the site will be no greater than they are now. In fact I am satisfied that the peak of such flows will be rather less than occur now with some possible increase in length of flow-time for low flows. Thus I am satisfied that the Council's condition has been met. Both Mr. Collins and Mr. Lawson were subjected to detailed cross-examination by Dr. Chittick who clearly was well-prepared and understood the subject matter. I am not able to say, however, that either of these two expert witnesses were made to shift from their conclusions. -- 9 of 13 -- 7 Dr. Chit tick himself· called Dr. Jenkins, a lecturer in computational hydraulics at the Queensland University of Technology. Dr. Jenkins did not, as I understood him, challenge the evidence of Mr. Collins and Mr. Lawson on the performance of the detention basin. Council Condition Dr. Jenkins' main contention was that because no overall study of the whole catchment had been undertaken it is impossible to gauge the effect of the building of this retention basin and the development of the site on the flooding characteristics of Dr. Chittick's land. He said it was quite possible that it could make it worse. Accepting that the retention basin would lengthen the discharge time, that could mean that its lengthened flow could co-incide with the later arrival of peak flow from other sub-catchments, particularly the one to the north. So while the detention basin on the site would actually lower the peak flow from the site it could raise the combined peak at Dr. Chittick's land. It is the peak of a flood which is most likely to put Dr. Chittick's house under water. There is a prime reason why I do not accept that. It is contrary to the considered opinions of Mr. Collins and Mr. Lawson which I accept. Ultimately, it seemed to me, Dr. Jenkins was saying that he did not believe that anyone could say from the research which had been done whether there would or would not be increased flooding on Dr. Chittick's land because of the development. on the other hand Mr. Collins and Mr. Lawson, who seemed to me to be not only well qualified but also highly practical, said that they were satisfied that such a result was -- 10 of 13 -- 8 very unlikely. so on the facts I decide the matter in favour of the respondent by election. Further I think it is unrealistic to expect that D.C.'s application to re-zone land in accordance with the plain intent of the Town Plan (which obviously contemplates that land will move from the future urban to an urban zone) should be delayed until someone carries out a study for the whole catchment area. Who is to do it? The Council is unlikely to embark on an exercise which might more logically be seen to be a developer's cost. A developer of a small part of the locality may be most reluctant to pay for an exercise which will ultimately benefit (at no cost to them) developers of the much larger balance area. Land eminently suitable for residential use (as this is in the eyes of the Town Plan and, clearly, in the eyes of D.C.) may remain undeveloped if D.C. is made to carry the burden of the study of the entire catchment area. Potential developers of other parts of the locality would be similarly reluctant. The entire locality could remain undeveloped well past the time when a pressing need for residential land in the area is felt. There was no suggestion of lack of need for this residential land in this appeal. The practical difficulties of carrying out the study have been adverted to in evidence. What assumptions are to be made for the land which D.C. does not own? In what way is it likely to be developed? There is no suggestion that any development plans have yet been prepared for the balance five- sixths of the locality which would assist in making the necessary assumptions. -- 11 of 13 -- I ' 9 Lastly, I see no reason in principle why each developer of land in the locality in turn should not be required simply to satisfy the Council that his development will not worsen flooding upstream or downstream. If each does that, the ultimate flood flow cannot be worse than the pre-development flood flow. In that scheme of things the first developer, o.c. is required to show that the "developed flow" from its site creates no worse flooding. The evidence of Mr. Lawson and Mr. Collins satisfies me of that. A subsequent developer will have to show that his development does not worsen flooding. That study will take into account flood discharge from the subject site, a task which will no doubt become easier as the building of roads, houses etc. on the earlier-developed subject site exists on a plan or actually occurs. To that extent the practical difficulties which face D.C. as first developer will be less for subsequent developers. Dr. Jenkins voiced concerns that the increased time of flood flow could add to Dr. Chittick's previously experienced erosion problems. However in cross-examination by Mr. Haydon for D.C. it became obvious that his comments were not based on any quantitative studies. The types of flows which will be lengthened in time will be low flows only in Mr. Collins' s assessment. Neither Mr. Collins nor Mr. Lawson thought there was any real likelihood of erosion being worsened by this type of flow and I accept their evidence. General It seemed to me from Dr. Chittick's evidence that most of his concerns date from 1990 when flooding occurred which threatened his house. Whether that was caused by any act of the -- 12 of 13 -- 10 Council in clearing the natural drainage gullies I cannot say. My jurisdiction in this case is not to enquire into past actions but, accepting the current situation, to be satisfied that it will not be worsened by this development. A developer can be asked to do no more than to ensure that his development does not worsen an existing situation and that I have found in D.C.'s favour .. It cannot reasonably be required to improve an existing situation. Conclusion The respondent by election has satisfied the onus of proof, and the appeal will be dismissed. ( -- 13 of 13 --