Castro v Douglas Shire Council & Anor [1992] QPEC 9 (1992) QPLR 146

IN THE PLANNING AND ENVIRONMENT COURT HELD AT CAIRNS 3-12th March, 1992 BETWEEN: P. & E. Appeal No. 21A of 1991 (Cairns Registry) ANTON CASTRO Appellant DOUGLAS SHIRE COUNCIL Respondent AND: HARTLEYS CREEK CROCODILE FARMING COMPANY PTY. LTD. Respondent by Election I]) REASONS FOR JUDGMENT - ROW D.C.J. - 1 April, 1992 - BRISBANE The appellant who duly objected to a combined application made by Respondent by Election for the rezoning of land and for the approval of the respondent to use part of the land for intensive animal husbandry (crocodile farm) and caretaker's residence appeals herein consequent upon the decision of the respondent proposing to approve, subject to conditions, the said combined application. The said application was submitted to the !l) respondent on or about 9th May, 1991 . The last day for objection was the 8th July, 1991. The subject land is located adjacent to the western side of the Captain Cook Highway at Wangetti. It is described in the application as part of Timber Reserve 315 and part vacant Crown land, being in the Parish of Duinban, County of Solander. It has a frontage of 100 metres to the Cook Highway. The subject land is presently included partly in the Special Purposes ( State Forest zone) and partly in the Rural (Agricultural) Zone. The -- 1 of 33 -- 2 rezoning sought is to part Special Facilities (Crocodile Farm and Tourist Facility) and the balance to th·e Rural (Agricultural) zone. The area of the proposed Special Facility zone was 18.67 hectares including 3.5 hectares for access and that for the Rural (Agriculture) zone 1 4 . 5 hectares being a total area of 33. 17 hectares. Access is proposed from Quaid Road. The proposed development will be separated from the Captain Cook Highway by a Recreation Reserve (approximately 100 metres wide) which runs along the entire eastern boundary of the subject land. The subject land is approximately 400 metres south of the township of Wangetti, which is a small township situated on the eastern side of the Cook Highway approximately 40 kilometres north of Cairns. The nearest Residential zoned land is about 350 metres, and the nearest residence about 400 metres from the site. The site to the north adjoins the southern side of what is locally known as Quaid Road and extends to the vicinity of Tin Creek to the south. Negotiations have been held with the Department of Lands and subject to conditions of lease being finalised, the land shall be identified as "Priority Special Lease for Business (Tourist Facility and Crocodile Farm)" purposes and "Priority Special Lease for Business (Access)" purposes. Of the total area proposed to be developed in accordance with the application, 18.67 hectares was proposed for the combined use of tourist facility and crocodile farm display including access. The balance of the land, approximately 15.17 hectares, was proposed to be developed solely for crocodile farming purposes. The area of land presently zoned Rural (Agriculture) is minor covering a small area of the vacant Crown -- 2 of 33 -- 3 land along the eastern boundary of the site. zoned Special Purpose (State Forestry). The balance is I· ! Under the Strategic Plan for the Shire of Douglas, the I1 ! subject land is included within the Preferred Dominant Land use 1 designation of Major Public Open Space. The site is currently vacant, although it has in the past been cleared and used for a variety of uses including cropping, grazing and, of more recent times, as a water source for road construction purposes J'_{rssociated with Quaid Road. The applicant is presently the : holder of a licence to occupy an extensive area of land in excess 1 of 16 square kilometres which includes the subject land. The •• '~ Jtlbject land is surrounded by land which remains in public 1 ownership. The land to the east is reserved for recreation purposes while land to the south, west and north is currently part of Timber Reserve 315 control over which area is vested in the Department of Forestry. The Respondent by Election proposes to utilise that area l proposed to be zoned Special Facilities (Tourist Facility and ,' Crocodile Farm) for use of a tourist park based on a crocodile '11\ '.~ _::heme which shall include a main lake used for the display of c crocodiles; a tourist centre and a tourist area comprising picnic . i areas and displays of native animals. That area proposed to be i rezoned Rural (Agriculture) would be used as a crocodile farm c comprising the principal uses of crocodile breeding/ growing facilities supported by ancillary facilities such as incubating facilities, cold room and growing pens. The proposed development , will cater both for fresh water and salt water crocodiles. It is proposed that the development be staged with the tourist park -- 3 of 33 -- 4 development being Stage 1 with some limited crocodile farming display activities associated with the tourist activities. The\ optimum development is expected to provide for approximately 17,700 crocodiles. The crocodile farming activities are related to the whole cycle from egg laying up to the time when the crocodiles are ready for processing and sale of the various components. No tanning is proposed on site. Once the animal is killed it will shortly afterwards be placed under refrigeration and transported from the site for processing. Whilst in area the crocodile farm would form the Major component of the proposed development, the project as such ought properly to be seen as an integrated development embodying both the crocodile farming activities and the tourist orientated facilities. However, each aspect of the integrated development has to be considered in relation to the subject application. Under the Town Planning Scheme for the Shire of Douglas which was gazetted on 6th June, 1981, that part of the proposed use which relates to the farming of crocodiles is within the definition of intensive animal husbandry. Under the Planning Scheme, intensive animal husbandry is defined as follows:- "Any animal husbandry carried on as a viable self contained farm on an allotment or allotments in the ·same ownership with an area less than 100 hectares." rt is difficult to encapsulate the balance of the proposed use within any of the defined terms under the relevant Planning Scheme. However, as the zone within which it is sought to locate such activities is a Proposed Special Facilities zone, the purposes indicated by red lettering on the Scheme Map will be purposes for which buildings and other structures may be erected -- 4 of 33 -- 5 or used or for which land may be used without the consent of the respondent. In those circumstances, the fact that the proposed tourist facility may not comfortably fit within a defined term is of no consequence provided the purpose indicated on the Scheme Map sufficiently and adequately identifies the various components of the proposed use. The nominated Special Facilities zone appears to be adequate for that purpose. In the Rural (Agricultural) zone, intensive animal husbandry is a purpose for which buildings and other structures may be erected or used or for which land may be used only with the consent of the respondent under and pursuant to Column IV of the Table of Zones. Intensive animal husbandry is not a permitted use within any of the zones in the Planning Scheme. Such a use is generally prohibited save that it is permissible under Column IV in the Rural (General Farming); Rural (Agriculture); Rural (Horticulture); and Future Residential zones. The Strategic Plan for the Shire of Douglas was gazetted on 12th April, 1986. The overall aim of the Strategic Plan is to enhance and safeguard the amenity of the Shire together with the advancement of the health, safety and convenience of the people and their economic, cultural, social and general welfare .... The Major Public Open Space designation includes National Parks, Reserves and other areas of public land which are of such scenic or ecological interest as to warrant minimum change and includes Major areas outside urban centres developed for recreation purposes. Some relevant amendments to the Strategic Plan were gazetted on 15th June, 1991. -- 5 of 33 -- 6 Subsequent to public notice having been given of the application, six objections were duly lodged with the respondent. Four of the objections, including that of the appellant, Castro, come from two households; one from a person giving a residential address at Cairns, the other from the President of a Rifle Club which operates a rifle range used for small bore weapons. The mound of the rifle range does not face towards the subject land and is not frequently used. It is about 1.5 kilometres south of the site with substantial vegetation existing between the two sites. The subject land is also included in the Wet Tropics World Heritage area, which area was gazetted on 15th December, 1988. The area covered by the listing totals approximately 8,900 square kilometres. The application included documents which comprise an Environmental Impact Statement being entitled "Impact Assessment Report on Proposed wangetti Crocodile Farm by Holden Project Management and Associated Consultants and a Town Planning Report on Hartley's Creek Crocodile Farming Co. Pty. Ltd." by Chapman and Balderson Pty. Ltd. Further information was supplied by Chapman and Balderson Pty. Ltd. at the request of the respondent. The combined application was reported on by Brannock Humphreys, Town Planning Consultants for the respondent. Much of the consultants' report is related to matters associated with the wet Tropics world Heritage listing. However, the significant aspect of the correspondence was the approval, subject to conditions, by the Ministerial Council which was not adverted to in the Report. The views of the Wet Tropics Management Authority -- 6 of 33 -- 7 and the Wet Tropics Management Agency, neither of which at present has any statutory recognition, were given substantial weight. The references in the Report to a proposed new Town Plan are of no relevance and/or significance in that a proposed Planning Scheme has not been produced neither adopted by the respondent nor placed on public exhibition, but is still under consideration by the respondent. The respondent has not adopted any document furnished by the consultants to it as policy, or in any other way evidenced its formal intention to adopt such matters as planning strategy for the locality. In those circumstances, the weight given by the consultants to its proposals in the proposed new Planning Scheme should be ignored. The Report concluded that environment impact of some significance would be likely having regard to the objectives and those matters identified by the World Heritage listing. The consultants were of the opinion that the proposed development was not consistent with the pattern of development that was implied for Wangetti in the Strategic Plan. The consultants recommended that the rezoning should be refused for the reasons set out in para. 3.5 of Exhibit 25. It should be noted that a number of such matters refer to the fact that the proposal was said to be incompatible with the proper objectives for the management of the Wet Tropics World Heritage area. However, the fact that the responsible authority, namely the Ministerial Council, had approved the development subject to conditions was not adverted to. The Town Planning officer of the respondent concurred with the recommendations of the consultants that the respondent refuse the combined application for the reasons stated in s. 3. 5 of the -- 7 of 33 -- 8 consultants' report. His report added little of substance. He did not give evidence on the hearing of the appeal. The respondent at its meeting on 10th September, 1991 approved the subject combined application and notified conditions in relation to the approval to the respondent by election by letter dated 15th October, 1991 (Exhibit 15). An appeal by the respondent by election against part of the conditions being P. & E. Appeal No. 22 of 1991 (Cairns Registry), was resolved· between the parties. An order was made whereby the variation of conditions was approved. The Notice of Appeal filed herein raised many issues which were substantially enlarged upon by the giving of further and better particulars by the appellant of some 26 pages. Amended reasons for appeal were filed on the first day of the hearing of the appeal which had the effect of abandoning many of the matters which had earlier been raised (Exhibit 28). In general, the amended reasons for appeal relate to inconsistency with various provisions of the Strategic Plan, incompatibility with the listing of the subject land within the Wet Tropics World Heritage area, that the proposal would detrimentally affect the amenity and the environment and need. At its nearest point, the subject land is approximately 400 metres south of land which is zoned Residential within the township of wangetti. The area zoned Residential within the township consists of 24 urban lots all of which are located on the eastern side of the Cook Highway running generally in a north-south direction along the highway to a depth of 2 allotments. Approximately half of the allotments are undeveloped -- 8 of 33 -- 9 and are vacant. The existing Hartley' s Creek zoo which is operated by the respondent by election is developed on the western side of the Cook Highway at Hartley' s Creek, approximately 1. 0 kilometres north of the subject land. The Managing Director of the respondent by election and his wife conduct a tourist activity associated, amongst other things, with the display of crocodile under the name "Wild World" which is situated approximately 21 kilometres south of the subject site, being on the western side of the Cook Highway. On the hearing of the appeal the area sought to be rezoned Rural (Agriculture) was reduced by reason of a straightening of the boundaries and the exclusion of a relatively small area of land near the creek on which there exists a rare vegetation community of Notophyll Vine Forest, part of which had been included within the original area. The area sought to be rezoned is now 11 . 6 hectares in lieu of the 1 4. 5 hectares. The variation in area is not of such significance to warrant the re- advertisement of the application. Although the Notice of Appeal raised many separate issues as a consequence of further and better particulars and of conferences between the parties, the issues were significantly limited. Expert reports were exchanged between the appellant and the respondent by election in respect to environmental vegetation and town planning issues. On the appeal corning on for hearing, the appellant indicated to the Court that it proposed not to rely upon either the Vegetation Report or the Environmental Report which addressed issues of general environmental concern, vegetation impacts, water quality and -- 9 of 33 -- 10 geotechnical matters. In those circumstances, the Court is left with the evidence given on behalf of the respondent by election on those matters which evidence I accept without any hesitation. Other than for evidence of a town planning nature, it may be said that the evidence of those professional witnesses called on behalf of the respondent by election was in no way impeached or seriously challenged, if at all, during the hearing of the case by Counsel on behalf of the appellant. The appellant did not give evidence on the hearing of the appeal nor did any other local resident give evidence opposing the combined application. A local resident, Mr. Jones was called by the respondent by election and his evidence was in favou! of the application. The substantive evidence on behalf of the appellant was adduced from Dr. Hitchcock, who is described as the Director, Wet Tropics Management Agency; Mr. Humphreys, a consultant town planner, and Mr. Robinson, a consultant town planner. On all other fields of expertise which were raised on the hearing of the appeal, I have no hesitation in accepting the evidence adduced by various witnesses called on behalf of the respondent by election. The evidence adduced on behalf of the respondent by election clearly establishes that much thought and consideration has gone into the proposed development both from a technical point of view and also from the practical point of operations of the proposed development. The geotechnical, water quality, vegetation, smell and odour issues were adequately covered by these various reports. Accepting the reports and the oral evidence of the various witnesses called on behalf of the respondent by election, I have -- 10 of 33 -- 11 no hesitation being satisfied on all of such issues as being capable of proper engineering and other solutions so as to warrant approval of the application. That evidence establishes that the treatment of waste both from the crocodile farming activity and human sewage can be aptly dealt with on site in such a manner so that no pollution of the Tin Creek area will occur and that no nutrient-laden water will discharge into Tin Creek catchment so as to cause any damage or detriment to the vegetation. The maintenance and management systems proposed by the respondent by election will ensure the safe keeping of the crocodiles on site within the development. Whilst a fear of escaping crocodi1es may be real, the reasonable likelihood of such an occurrence is overcome by the practices and systems proposed. The report and the evidence of the expert witnesses establishes that the ecosystem of Tin Creek will not be adversely affected by the proposed development. The use of what is basically a closed designed system for the recycling of water will further ensure that no adverse effects are likely to occur within the catchment of Tin Creek. A number of witnesses including the Managing Director of the respondent by election gave evidence in relation to the manner and methods of conduct of the proposed crocodile farm and tourist activity. such evidence was most persuasive having regard to the experience of the various persons associated with management of crocodile farm activities and/or tourist activities wherein a crocodile theme is of some significance. I was further impressed by the extensive nature of the investigations that have been -- 11 of 33 -- 12 carried out by the Managing Director and Director of the applicant company in relation to the proposed development. The experience of each gives great confidence that if approval is granted, the proposed integrated facility both in relation to the crocodile farming and to the tourist activity will be carried out in a most efficient and acceptable manner having regard to issues of public safety and of management of each aspect of the proposed integrated development. The evidence of other persons associated with crocodile farms, namely Mr. Onions and Mr. Manolis, further confirmed the evidence given by the Director and Managing Director of the respondent by election. I am further satisfied on the evidence that no odour problems will arise from the proposed development accepting the method of operation and the management proposals in relation thereto. The proposed use of a ponding area to present crocodiles in a natural environment I am satisfied will not produce any adverse effects. The soil types on the subject land are of such an impermeable nature that the dams and/or ponds proposed to be constructed will not result in any damage to the underlying aquifer or be likely to result in any discharge of nutrient or other organic material which may be prejudicial to the catchment area of Tin Creek. The proposed methods of construction will ensure that overland flows will not be a likely area of concern. The water supply which the respondent by election proposes to utilise will tap into an aquifer which is not relied on by residents of Wangetti. It appears to be of a substantial capacity but pursuant to one of the conditions -- 12 of 33 -- 1 3 imposed by the respondent there is a further necessity to satisfy that condition ln relation the quantity of supply. The vegetation on the subject land as originally included in the combined application included a small area of what has been identified by Miss Goosem as 7c/7a. The balance of the vegetation is of such a nature that the vast majority of it is either regrowth or open woodland such that it does not represent a significant or rare vegetation resource that is in any way jeopardised or threatened by the proposal. The amendment and realignment of the area sought to be rezoned Rural (Agriculture) now excludes the totality of that vegetation area classified 7c/7a. This somewhat rare riverine vegetation would further be protected by virtue of conditions imposed by the respondent in relation to buffer areas proposed around the site. The rare riverine vegetation is clearly acknowledged by the respondent by election and is seen by the Managing Director to be a significant attribute to the site and one worth promoting by way of an educative experience for visitors to the proposed facility. The proposed development on the evidence of Miss Goosem will undoubtedly enhance the viability of that rare riverine vegetation comrnuni ty which would otherwise be susceptible to further damage by the increase of exotic and other existing vegetation on the subject land. The evidence of Messrs. Low and Mayor establish that the subject land is not of a pristine nature, it having been utilised over many years for a range of activities. That evidence confirms that the natural vegetation has been profoundly degraded. -- 13 of 33 -- 14 The evidence of Dr. Hitchcock called on behalf of the appellant is of little value. Whilst his status and the status of the authorities for which he is the Director are somewhat doubtful and, as conceded by him, do not have any legal status at the present, he nevertheless is a person who has expertise in the management of natural areas. Be describes himself as having worked in the field of professional conservation since 1970. His qualifications relate to forestry and forest science. The weight of his evidence is to be gauged by the fact that the Ministerial Council which, under current legislation, is the authoritative body in relation to lands included within the World Heritage Listing, on two occasions, has approved the development subject to conditions. The most recent resolution of the meeting of the Wet Tropics Ministerial Council on 25th September, 1991, after noting the recommendation of the Wet Tropics Management Authority that the Wet Tropics Ministerial Council object to the proposal, resolved as follows:- "To reaffirm the previous decision of the Department of the Arts, sport, the Environment, Tourism and Territories to allow the Wangetti Crocodile Farm and Tourist Facilities to proceed subject to: ( i) conditions outlining Senator Richardson's letter of 4th July, 1989 (ii) environmental guidelines to be determined by the t " Queensland Governmen • At its meeting on 25th September, 1991 the Wet Tropics Ministerial council had before it a recommendation and report of or. Hitchcock which, on behalf of the Wet Tropics Management Authority, recommended that the Wet Tropics Ministerial Council object to the proposal. Included within the agenda documents was a Memorandum from another technical officer of the agency and/or authority which recommended approval of the application. It was -- 14 of 33 -- 15 submitted by Counsel on behalf of the appellant that no weight should be given to· the two decisions of the Wet Tropics Ministerial Council as such decision was contrary to the recommendation made to it by the Wet Tropics Management Authority. On some occasions the Court has expressed dissatisfaction with a decision of a local planning authority where that decision is contrary to the technical advice given without any material being placed before the Court as to the reasons for the rejection of the report of technical officers. In such circumstances the Court has cast doubt as to the value and weight to be given to such a decision. The circumstances herein clearly establish that there· was an earlier approval by the Wet Tropics Ministerial Council on 4th July, 1989 and that within the agenda papers for the meeting of 25th September, 1991 was a report favourable to the application. In the circumstances herein I am satisfied that the decisions of the Wet Tropics Ministerial Council ought to be given significant weight as being the decision of the responsible authority in relation to the management of the Wet Tropics of Queensland World Heritage area. Despite the views of the Wet Tropics Ministerial Council, Dr. Hitchcock, in his evidence, opposed the application. The respondent properly consulted the Wet Tropics Management Authority and/or Agency in relation to the proposed development. By letter dated 22nd August, 1991, Dr. Hitchcock, as Secretary of the Authority wrote to the Shire Clerk of the respondent in relation to the matter. Many of the facts stated in his response were subsequently found to be inaccurate having regard to the evidence adduced on the hearing of the appeal. Whilst provision -- 15 of 33 -- 16 has been made for visual screening of the development from the Cook Highway, his statement that the screening would not be fully effective is contrary to the evidence given by Mr. Prowse, a landscape architect. Having regard to the fact that there is a natural barrier of approximately 100 metres between the carriageway and the boundary of the subject land and a further area is proposed under the conditions of approval to be landscaped, I am persuaded on the evidence that the development will be screened most significantly, if not totally, from the Cook Highway. The reference in the letter to Commercial Signage is a matter on which the respondent has placed conditions and which the respondent by election has accepted. The proposed signage will be required to fit in with the existing natural environment. The statement in the letter in relation to pumping of ground water failed to take account of the known and established source available to the proposed development. There is no evidence which supports that the pumping of ground waters or contamination may adversely impact on the rain forest. The evidence is to the contrary. The rain forest on beach sands east of the Cook Highway is of a different character and nature to that of the riverine community in the vicinity of Tin Creek on the western side of the Cook Highway. His statement that the development, when viewed from the escarpment on Rex Lookout, would constitute the only obvious sign of human presence in the wangetti basin has been disproved by expert evidence from a licensed surveyor. I reject his evidence on that point. His suggestion of alternative sites overlooks the nature of the application and the town planning principles that apply. The -- 16 of 33 -- 17 application is not to be assessed on the basis of a "best site" test but on the suitability of the proposed site for the proposed development, and whether there are other adequate lands appropriately zoned in the locality upon which the proposal may be developed. His evidence at pp.418 to 420, wherein reference is made to the guidelines being based primarily on goodwill, bluff and ultimately the right of the Commonwealth Minister for DASSET to block a proposal by proclamation is most remarkable and shows a complete lack of understanding and knowledge of what is required when one is assessing an application such as is before the Court. If it be the basis on which the proposed Wet Tropics Management Authority or Wet Tropics Management Agency proposes to act, then it is most desirable that the normal system of balances and checks be available to the Planning and Environment Court in relation to any matter wherein land the subject of an appeal is within the Wet Tropics World Heritage area. Whilst being very critical of his evidence and of the basis on which guidelines are apparently to be proposed, nevertheless it is recognised if the guidelines are properly based, such guidelines should be given consideration by a planning authority and, on appeal, by the Court in relation to matters that are relevant. The evidence of Dr Hitchcock was lacking balance and objectivity. Most of the matters of concern as expressed in his letter dated 22 August 1991 (Exhibit 63) was covered by evidence adduced from various expert witnesses. That evidence demonstrated that the concerns have no basis in reality. In particular the evidence of Miss Goosem establishes that the development will enhance the and Cons ervation of the riverine rainforestpreservation -- 17 of 33 -- 18 community in the vicinity of Tin Creek. The rainforest comrnuni ty on the beach sands on the eastern side of the Cook Highway is of a different classification to that on the western side in the vicinity of Tin Creek. His evidence is a classic example of the need for a system of checks and balances as provided by the Court. Whilst the evidence before the Court was of much greater detail and substance than the material that was before Dr Hitchcock the lack of a proper factual basis as a foundation for the expressions of concern demonstrates his lack of balance in reporting on the application. Reports by John Geoffrey Tracey, a Senior Experimental Scientist, and Richard Lear, Environmental Scientist and Consultant, subject to the usual undertakings, were tendered by Counsel for the appellant during the opening. During the hearing of the appeal, Counsel for the appellant informed the Court that he did not propose to call either witness or to rely upon the reports in those circumstances. The propriety of the respondent consul ting with the Wet Tropics Management Agency and/or authority is demonstrated by the fact that the respondent, prior to formally adopting the conditions of approval, forwarded a copy of draft conditions to the Agency for its consideration. By letter dated 2nd October, 1991, Dr. Hitchcock, as Director of the Wet Tropics Management Agency replied thereto (Exhibit 65). It is significant that the respondent did not publish its conditions to the respondent by election until after the receipt of such communication from the Wet Tropics Management Agency. The relevance of the inclusion of the subject land within the Wet Tropics World Heritage area -- 18 of 33 -- 19 is further evidenced by the number of visits made by the Managing Director of the respondent by election to the Wet Tropics Agency in relation to the proposed development. The wet Tropics Agency has, in those circumstances, been in a position to put forward its views and have those views considered by the respondent by election and by the respondent. The absence of any other evidence called on behalf of the appellant in relation to the vegetation characteristics of the subject land is of some significance in assessing whether the proposed development will have any adverse affect on the Wet Tropics World Heritage area and in particular on the subject land being part of that area. The evidence of Miss Goosem establishes that no adverse affect will be created thereby. Evidence on town planning matters was adduced from Mr. Humphreys and Mr. Robinson on behalf of the appellant. Mr. Buckley gave evidence on behalf of the respondent and Mr. Dalton on behalf of the respondent by election. The abovementioned persons are well experienced and competent town planning consultants. The evidence adduced is indicative of a multiplicity of town planning views and opinions that can be honestly expressed in relation to a particular application. Contrary to the view expressed by Mr. Dalton I am satisfied that the subject land is within a Preferred Dominant Land Use category of Major Public Open Space. Whilst the Strategic Plan Map is not cadastrally based, I am of the view that it is straining the interpretation of such a document to include the land within the Preferred Dominant Land Use designation of Forestry as was the view adopted by Mr. Dalton. ·Although he adopted that view, Mr. -- 19 of 33 -- 20 Dalton nevertheless examined the proposed development if, contrary to his assertion, the subject land was included within the Major Public Open Space designation. As was recognised by all town planning witnesses the Strategic Plan for the Shire of Douglas plays a significant part in the assessment of the subject application. The Strategic Plan should be gleaned as a broadly based planning document of the respondent evidencing in general terms the planning strategies and planning philosophies to be adopted by the respondent in the planning and development of its local authority area. As the Strategic Plan is a broadly based document, it is not surprising that all witnesses sought assistance from various provisions of the Strategic Plan and arrived at conclusions wherein the proposed rezoning and subsequent development was both inconsistent and consistent with the provisions of the Strategic Plan. The significance of the Strategic Plan is further demonstrated by it being one of the specified matters to which the local authority and, on appeal, the Court should have regard to within the relevant statutory provisions. In assessing the subject application as an integrated development, regard must be had to the two components of the proposed development, namely the tourist activity and the crocodile farm activities. Accepting that the public will not have access to the crocodile farm activities per se, it is clear from the evidence of the Managing Director and Director of the appellant that, to a limited extent, the farming activities will play a part in the tourist activities in that the stock from the farming activities will be available for viewing to the members -- 20 of 33 -- 21 of the public who attend at the tourist activity. Undoubtedly, the crocodile farming component of the development has a commercial aspect in relation to the farming and sale of products of crocodiles. As regularly appears, the Strategic Plan document is not as clearly expressed as may have been desired. Nevertheless, the Court is obliged to interpret the Plan having regard to its broad connotation in relation to the planning of the local authority area. The significant aspect for consideration is whether the proposal substantially conflicts with the Strategic Plan. This may be further enlarged as to whether there are conflicts of a major nature or whether there are a large number of areas within which there is some degree of conflict with various objectives of a Strategic Plan. The interpretation of a Strategic Plan Map, which is not cadastrally based, presents some difficulties where a number of symbols are indicated on a Scheme Map without any particularity in relation to specific parcels or areas of land. This is evident by a perusal of the Strategic Plan Map in relation to the area around Wangetti wherein a number of symbols are shown thereon. I prefer the broad approach in relation thereto adopted by Mr. Buckley and his analysis of the indication on the Strategic Plan Map of such various symbols so far as such is relevant to a consideration of the combined application. The Strategic Plan has a number of aims, objectives and implementation provisions in relation to the various Preferred Dominant Land Use designations. As could be expected in areas designated Rural, the aim is to protect and encourage the development of primary industry in the Shire and to provide for -- 21 of 33 -- 22 the needs of people supported by primary industry and to conserve agricultural land so that it may produc~ in perpetuity. The significant relevant aims relate to the designations of Major Public Open Space and Tourism. The aim of the Major Public Open Space designation is to protect and enhance the high visual quality of the Shire and areas of environmental value. It is clear from a perusal of the objectives within that Preferred Dominant Land Use designation that there is envisaged that there will be subdivision, development and other activities including quarries which may be carried out within this designated area. A thread which runs through much of the implementation criteria relates to the visual affect that a proposal may have on the existing landscape. In general, the implementations and provisions are expressed in negative terms in that the respondent ought not favourably to consider certain applications in circumstances therein prescribed. Objective (a) is to protect the areas of forest which create a visual backdrop to the agricultural, urban and tourist areas of the Shire and are environmental significance. It is doubtful that the subject land could be described as an area of forest which creates a visual backdrop to the agricultural, urban and tourist areas of the Shire. Nor could the subject land be said, having regard to the evidence of Miss Goosem, which I have accepted, as being of particular environmental and/or conservation significance other than for that riverine forest area along Tin Creek which is external to the area sought to be rezoned. The implementation provisions in relation to Objective (b) which is to protect land forms of conservation significance is aimed towards the -- 22 of 33 -- 23 restriction of clearing of vegetation and major road works and the carrying out of, for example a quarry or Group Title subdivision. The implementation criteria of Objective (d) are indicative of the intention of the respondent to enhance the visual quality.of the Shire by requiring landscaping and other conditions where buildings may impact on the visual amenity. The possibility of tourist activity or development of a tourist nature within the Major Public Open Space designation is recognised in Objective (e) implementation provision (iii). As was stated by Mr. Humphreys in his report (Exhibit 25) "apart from their general impact, none of the implementation criteria is directly applicable to the proposed development". An analysis of the Strategic Plan in relation to the Major Public Open Space designation is not indicative that the proposal is contrary to any specific provision therein. On the contrary, subject to the provision of a condition requiring landscape and other matters associated with the vegetation in and around the subject land, the proposal may be said to be in conformity with those provisions of the Major Public Open Space designation. Al though the subject land is not included within the Preferred Dominant Land Use designation Tourism, the aims, objectives and implementations of the Tourism designation have some relevance in relation to the subject application. The aim of the Tourism designation is to develop the Shire's significant tourism potential in a planned and orderly manner so as to preserve the key resources and provide a broad range of facilities and experiences which will appeal to domestic and international tourist markets. Pervading through the various -- 23 of 33 -- 24 objectives and implementation provisions is the desire to preserve the· significant scenic resources· of the area. Objective (b) in particular which is to preserve the scenic coastal highway corridor between Buchan Point and Oak Beach provided that Council would support progressive upgrading and beautification of the road as required by increased traffic and tourism activities is significant. The implementation provisions require the Council in considering consent and rezoning applications within the area marked Scenic Corridor on the Strategic Plan to require development to be designed with the utmost care to ensure compatibility with the high natural amenity. The importance of the visual impacts are reiterated in a number of the objectives and implementation provisions in relation thereto. The subject land is within the Scenic Corridor. However, it is at a position along the Scenic Corridor where the land form flattens out and the distance between the ocean and the foothills of the mountain is greater than in other areas where, in many instances, the road is cut into the area between the sea and the foothills of the ranges. Difficulty arises in relation to the Tourism designation where in sub-clause 6 a reference is made in describing major accommodation to major tourist resorts whereas in other classifications, the reference is to tourist development. Amenity is also seen as a matter of significance in determining applications which are made to the local authority. Under the provisions of sub-paragraph ( d) the respondent in considering any application for a tourist development is required to take into consideration certain broad criteria as therein set out. The aims, objectives and implementation provisions in relation to the -- 24 of 33 -- 25 Tourism designated areas are such that it cannot be said that the proposal is contrary thereto or in conflict with those provisions. The amenity of the locality will not be adversely affected by the proposal to any significant extent. The present amenity is affected by traffic noise from the Cook Highway. The form of residential development is not of high quality and the appearance is predominantly of an open area interspersed with residential development at Wangetti. The existence of the 100 metre reserve and the conditions imposed by the respondent will ensure minimum interference, if any, with visual impacts. Noise, odour and safety problems will not occur. Traffic considerations were not an issue in the appeal. I am satisfied that animal and human waste can be properly treated. The safety measures proposed are proper and adequate. During the hearing of the appeal reference was made to Part B of the Strategic Plan ( Supporting Documents) . Whilst the supporting documents reveal the basis upon which the Strategic Plan (Part A) was formulated, I do not see that the document in itself provides any assistance to the interpretation of the Strategic Plan unless, on the face of the Strategic Plan, some difficulty arises in relation to interpretation which may be resolved by a consideration of Part B. In some instances there appears to be inconsistency between the provisions of Part A and Part B which is not capable of resolution. That in itself does not, in my view, adversely affect the construction that ought to be given to the ordinary meaning of the Strategic Plan (Part A). The Strategic Plan and Strategic Plan Map are indicative that within the local authority area there are two recognised -- 25 of 33 -- 26 major nodes of urban development namely Port Douglas and Mossman. The Strategic Plan and Strategic Plan Map specifically envisages Wangetti to have a higher profile in the Shire's urban structure than localities immediately to the north and the south. A full range of community facilities is envisaged including tourist facilities to a controlled level. It is clear that Wangetti has a relatively important status in the many small communities that comprise a balance of urban areas of the Douglas Shire. Wangetti displays an Urban designation whereas Buchan Point, Oak Beach and Cape Tribulation do not. The four symbols or designation at Wangetti are shown on the Strategic Plan Map include Tourist Attraction; Tourist-Minor Accommodation; Urban (General) and Special Purpose. Immediately outside the Wangetti node are designations showing extractive industry and tourist attraction. The relevant corresponding descriptions, as amended, are:- "Minor Accommodation - This designation identifies area where only small, low impact tourist development is appropriate." "Tourist Attraction - This designation shows natural and man-made features of tourism interest." "Urban (General) - This designation is for all uses associated with an urban area, including residential, retail, commercial, community and public uses." "Special Purposes reserves ..... and areas uses." This designation shows of committed or desired major public The fallacy that lays in attempting to particularise to a high degree of precision the location of symbols or nodes on a Strategic Plan Map can be gauged by the placing of the Urban (General) designation at Wangetti on what appears clearly to be the western side of the Cook Highway. The existing zoned -- 26 of 33 -- 27 residential area and developed residential area is in fact to the east of the highway. Part A of the Strategic Plan gazetted on 12th April, 1986 seems more to be unrelat~d to the totality of the recommendations for a hierarchy of tourist facilities than were contemplated in Part B of the Strategic Plan. The 1991 amendment is considered to reflect an acceptance of the rationale evident in the supporting information. The "Minor Accommodation" designation identifies areas where only small or low impact tourist development is appropriate. The Urban (General) designation is for all uses associated with an urban area including Residential, Retail, Commercial, Industrial. Community and Public Uses. The Tourist Attraction designation shows natural and man-made features of tourism interest. The Urban (General) designation is indicative that Wangetti was proposed to accommodate some urban growth as opposed to the more heavily constrained Oak Beach and Buchan Point. Objective 4(e) relative to the Urban Area - (General) designation seeks to enhance the visual qualities of town).within the shire. The implementation provisions thereof seeks to consolidate development in existing towns and to minimise ribbon and scattered development. Within the Strategic Plan Map the indication of the Urban (General) designation is indicative that there would be controlled growth and development in the vicinity of Wangetti. It is to be noted that the Strategic Plan contemplates Minor and Intermediate Tourism Accommodation in rural areas not identified as preferred sites throughout the Shire. Having regard to the relative importance of Wangetti as demonstrated by the Strategic Plan Map within part -- 27 of 33 -- 28 of the Scenic Corridor, it is to be inferred that Wangetti is to accommodate growth of both an urban and tourist nature. Appropriate criteria against which such development should be tested is set out within the provisions of the Strategic Plan. In so far as the intensive animal husbandry activity is concerned, there is nothing in the Strategic Plan which prohibits that form of activity within the Major Public Open Space Preferred Dominant Land Use designation. The reference, in a number of occasions, to a rural activity within that designation is indicative that within that designation, rural activities may be permitted subject to the development complying with the various objectives of the Strategic Plan. On all of the evidence and accepting the evidence of Mr. Buckley in particular which I prefer on strategic planning issues, I am satisfied that the proposed development is not in conflict with the provisions of the Strategic Plan, but to the contrary, subject to the imposition of conditions as proposed by the respondent, it is in conformity therewith. Mr. Humphreys, in considering the application, gave considerable weight to the fact that the subject land is within the Wet Tropics World Heritage area. Whilst reciting many of the matters relevant thereto, he did not give sufficient weight to the approval by the Ministerial Committee of July, 1989 or the more recent approval of September, 1991 in his report. In his evidence, he accepted such matters but expressed the view that nevertheless in his opinion the proposal was in conflict with the aims and objectives inherent in the listing of the area. In giving weight in his report to proposals to amend the Planning -- 28 of 33 -- 29 Scheme and Strategic Plan, he gave weight to matters which ought not to have been considered having regard to the fact that none of the proposals have been adopted by the respondent as policy or in any way have been resolved to become part of a proposed Planning Scheme and/or Strategic Plan. At best, they are presently proposals put forth by consultants to the respondent upon which no final consideration or decision has been made. The proposal, subject to the conditions, will not tend to disrupt the continuity of the experience of the natural environment by members of the public travelling along the Cook Highway in this vicinity. The 100 metre reserve will remain and the buffer area within the site will be landscaped. The permitted signage and traffic movements associated with the proposed development I am satisfied would not, to any significant extent, interfere with the natural environment that travellers would experience. Many such instances of signage and development presently exist within the Scenic Corridor. The development itself would not be visually obtrusive even from high elevation points along the Cook Highway, for example Rex Lookout. The use of land within the Wet Tropics World Heritage area is not prohibited by such listing. Whilst the views of the Wet Tropics Management Authority and/or Wet Tropics Management Agency, if properly founded, would be of some significance, the current views as expressed by Dr. Hitchcock I find to be of little weight. In addition, the Wet Tropics Management Authority and/or Wet Tropics Management Agency appears purely to have an advisory role with the decision making powers being conferred upon the Ministerial Council. -- 29 of 33 -- 30 The evidence of Mr. Robinson, whilst to some extent it was contrary to the view taken by Mr. Humphreys in relation to the Strategic Plan Map, placed considerable weight on what Mr. Robinson saw as the availability of other land within not only the respondent local authority area but other local authority areas in the vicinity. Whilst he was unable to point to any specific land, he had little hesitation that there was considerable land available, particularly land used for agricultural purposes, namely sugar cane growing, which would be suitable for the particular purpose and which could, in such circumstances, be utilised for the proposed development. The test before the Court is not one of the "best site" test but one which relates to an examination of the adequacy and suitability of the proposed development on the subject land and whether there is adequately zoned land in the vicinity which would not require the provision of additional land to be so zoned. In view of the integrated nature of the development which, although having two components, ought to be regarded as being independent but, in some sense dependent upon the other activity, the appropriately zoned land should relate to both components. Land zoned Rural (Agriculture) would require to be rezoned before it could be used for the tourist activity component of the development. Having regard to the objectives of the Strategic Plan in relation to the protection of agricultural land especially sugar land, the utilisation by Mr. Robinson of the availability of land which is utilised for sugar-cane growing is of little weight. Whilst Mr. Robinson saw the physical suitability of sugar cane farm land for the proposed development, I prefer the evidence of the Managing -- 30 of 33 -- 31 Director of the respondent by election as to unsuitability, generally of sugar cane farm land. His evidence as to the suitability of the subject land, having regard to its soil types, topography, proximity to the main north/south tourist route and proximity to supply areas, I accept as being significant issues as well as the physical suitability of the subject land. The evidence of Mr. Dalton, wherein he assessed the subject application on the basis that, contrary to his opinion, the subject land was included within the Major Public Open Space designation, to a significant extent conforms to the approach and evidence of Mr. Buckley . The proposed development, I am satisfied, cannot be seen as commercial ribbon development nor as scattered development within the context of those terms as utilised within the Strategic Plan. On all the evidence, I am satisfied that the proposal does not conflict with the various aims, objectives and implementation provisions as set out in the Strategic Plan. It may then be seen to be in conformity with the general principles as. therein stated. As there is no conflict, it can be inferred that the proposal accords with the various objectives of the Strategic Plan. The conditions proposed by the respondent further enhance the circumstances whereby the proposal is in conformity with various aspects of the Strategic Plan. Need in the town planning sense was raised as an issue by the appellant. The onus, however, is on the respondent by election to establish public or community need in relation to both the rezoning and the development application. In addition to the Hartleys Creek zoo and "Wild World" which was referred to -- 31 of 33 -- 32 earlier herein, reference was made to a development known as "The Habitat". In "The Habitat"· it was said that there were crocodiles available for viewing by the public. The evidence establishes that "The Habitat" is not a crocodile theme development but one which is developed on mainly a rain forest habitat and theme. The evidence establishes that the number of crocodiles at "The Habitat" is extremely limited and is not to be· compared with the Hartleys Creek zoo, "Wild World" or the proposal, each of which is developed significantly with a crocodile theme. The existence of a number of activities along the major road north from Cairns in itself is not a sufficient reason whereby an application for rezoning or for use should be refused. I accept the evidence of the Managing Director and Director of the respondent by election which is indicative that there is a public need for land to be rezoned for the purposes of the proposed development and that there is a public and community need for a development such as proposed in relation to the form of development as envisaged by the respondent by election. The concept of consolidation of similar forms of development within an area is well accepted on town planning considerations. The grouping of a number of tourist activities within relative proximity to one another is in conformity with town planning considerations as applies to the clustering and grouping of similar and related activities within a relatively confined area. On all the evidence I am satisfied that the respondent by election has established need in the relevant town planning sense -- 32 of 33 -- 33 in relation to the proposed rezoning and the development of the subject land for·the purposes proposed. For the reasons above· the respondent by election has established that the combined application should be approved subject to the conditions as set out in Exhibit 15 as amended by ,. the Order of the.Court made in Planning and Environment Appeal No. 22 of 1991. I disaiss the appeal. ,. -- 33 of 33 --