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- Unreported Judgment
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
Roubaix Properties Pty Ltd v Somerset Regional Council  QPEC 34
ROUBAIX PROPERTIES PTY LTD ACN 164 742 741
SOMERSET REGIONAL COUNCIL
2327 of 2019
Planning and Environment Court, Brisbane
17 July 2020
8 June 2020 – 12 June 2020
PLANNING AND ENVIRONMENT – APPEAL – appeal against refusal of development application for a Relocatable Home Park
ASSESSMENT – compliance with State Planning Policy in respect of flood risk – compliance with the planning scheme – relevant matters
Planning Act 2016 (Qld) ss 8, 45, 60
Planning and Environment Court Act 2016 (Qld) ss 43, 45, 46
Planning Regulation 2017 (Qld) s 30
Arksmead Pty Ltd v Council of the City of Gold Coast (2000) 107 LGERA 60
Ashvan Investments Unit Trust v Brisbane City Council & Ors  QPELR 793
Bell v Brisbane City Council & Ors (2018) 230 LGERA 374
Murphy v Moreton Bay Regional Council & Anor  QPELR 328
Redlands City Council v King of Gifts (Qld) Pty Ltd & Anor  QCA 41
Richards & Ors v Brisbane City Council & Ors  QPEC 26
Zappala Family Co Pty Ltd v Brisbane City Council  QPELR 686
D O’Brien QC and H Stephanos for the appellant
B D Job QC and D Whitehouse for the respondent
Anderssen Lawyers Pty Ltd for the appellant
King & Company Solicitors for the respondent
- This is an appeal against the decision of the respondent to refuse a development application for a development permit for a material change of use for a Relocatable Home Park (“the proposed development”), in respect of land located at 11 Banks Creek Road, Fernvale (“the site”).
- The proposed development was originally for 100 individual sites, however as a consequence of a successful minor change application it is now for 99 individual sites. It incorporates tightly packed, visually unappealing built form. It is dense and lacks fundamental planning merit but nonetheless achieves a high degree of technical compliance with the respondent’s planning scheme (“the planning scheme”). The respondent opposes the proposed development on flooding, character and amenity grounds.
The site and the surrounding area
- The site has an area of 45,387m², or 4.5387 hectares. The south-eastern boundary has a frontage to Banks Creek Road of approximately 160 metres. It is situated within the General residential zone in the planning scheme. It lies between land in the General residential zone, Park residential precinct to the north-east and the Centre zone to the south-west. This adjoining land in the Centre zone has a frontage to the Brisbane Valley Highway. Most of this adjoining land is vacant, but has development approvals over it for commercial uses including a supermarket.
- The nearby town centre of Fernvale includes a variety of uses which serve residents, including a large Woolworths Supermarket, a church, post office, hairdresser, an optometrist, a hardware store and medical and community facilities. The Park residential precinct to the north-east contains a number of houses on large residential allotments. Most of the site is subject to a development approval for reconfiguration of a lot permitting 50 lots, originally granted on 26 February 2010 but the subject of a permissible change application and multiple extension applications such that this approval will remain in effect until 19 October 2020. An operational works approval to fill the site was granted on 7 November 2017 and these works have been substantially completed.
- Almost all of the site is subject to the Flood hazard overlay in the planning scheme.
The proposed development
- The proposed development comprises 99 relocatable homes on individual sites with areas ranging from 250m² to 328m², with almost all proposed to be 250m². A typical home site is indicated in the changed plan of development as being setback three metres from the internal roadway and 1.5 metres to the side and rear boundaries. As a consequence of amendments to achieve a minimum three metre setback to adjoining land to the north-west and south-west, the area available for home sites 12-19 and 80-89 will be further reduced. Three alternative relocatable home designs are proposed, which all incorporate very constrained living spaces with either two or three bedrooms and an accompanying garage slab on the ground. Each design has the appearance of a very small house. The only area of any significant open space is indicated along the north-eastern boundary of the proposed development. In reality, it is essentially a very steep bank leading down to a drain. There is virtually no useable open space and the small areas indicated in the changed plan of development coincide with the presence of a “quality treatment basin” which appears to be stormwater infrastructure. There is a small communal indoor facility with two tiny verandahs in the northern corner. This is the only recreation-type facility available within the proposed development.
- Very limited landscaping is contemplated. The home sites adjoining the proposed commercial development to the south-west would result in residences located 1.5 metres away from a 2.5 metre high acoustic barrier at a level of more than two metres below the adjoining commercial vehicle access area. I agree with the observations of Mr Ovenden, the town planner who gave evidence on behalf of the respondent, that the standard of amenity contemplated by the proposed development is “atrocious”.
The statutory assessment framework
“(2) The Planning Act, section 45 applies for the P&E Court’s decision on the appeal as if—
- (a)the P&E Court were the assessment manager for the development application; and
- (b)the reference in subsection (8) of that section to when the assessment manager decides the application were a reference to when the P&E Court makes the decision.”
- As the proposed development was impact assessable, s 45 of the Planning Act 2016 (“PA”) relevantly provides that the assessment must be carried out against the relevant assessment benchmarks in a categorising instrument for the development which, in the circumstances before me, are the State Planning Policy, dated July 2017 (“SPP”) and the relevant provisions of the planning scheme. I must also have regard to the existing reconfiguration approval and operational works approval for the site. Furthermore, the assessment may be carried out having regard to any other relevant matter, other than a person’s personal circumstances, financial or otherwise.
- In determining an appeal about a development application a wide discretion is conferred on the court pursuant to s 60 of the PA which relevantly states:
“(3) To the extent the application involves development that requires impact assessment… the assessment manager, after carrying out the assessment, must decide—
- (a)to approve all or part of the application; or
- (b)to approve all or part of the application, but impose development conditions on the approval; or
- (c)to refuse the application.”
- In undertaking this task it is important to have regard to the observations of McMurdo JA in Bell v Brisbane City Council & Ors that:
“…a planning scheme must be accepted as a comprehensive expression of what will constitute, in the public interest, the appropriate development of land.”
- However, as Williamson QC DCJ observed in Ashvan Investments Unit Trust v Brisbane City Council & Ors:
“An application must be assessed against the applicable assessment benchmarks, which will invariably include a planning scheme for appeals before this Court. That assessment will inform whether an approval would be consistent, or otherwise, with adopted statutory planning controls. The existence of a non-compliance with such a document will be a relevant ‘fact and circumstance’ in the exercise of the planning discretion under s 60(3) of the PA. Whether that fact and circumstance warrants refusal of an application, or is determinative one way or another, is a separate and distinct question… It will be a matter for the assessment manager (or this Court on appeal) to determine how, and in what way, non-compliance with an adopted statutory planning control informs the exercise of the discretion conferred by s 60(3) of the PA. It should not be assumed that non-compliance with an assessment benchmark automatically warrants refusal. This must be established, just as the non-compliance must itself be established.”
- The proper approach to non-compliance with the planning scheme in the decision-making process was recently explained by Kefford DCJ in Murphy v Moreton Bay Regional Council & Anor in the following terms:
“Under the Planning Act 2016, the discretion is to be exercised based on the assessment carried out under s 45. Its exercise is not a matter of mere caprice. The decision must withstand scrutiny against the background of the planning scheme and proper planning practice. Not every non-compliance will warrant refusal. It will be necessary to examine the verbiage of the planning scheme to ascertain the planning policy or purpose of relevant provisions and the degree of importance the planning scheme attaches to them. The extent to which a flexible approach will prevail in the face of any given non-compliance with a planning scheme (or other assessment benchmark) will turn on the facts and circumstances of each case.”
- Significantly in the context of this appeal, the SPP applies instead of the planning scheme to the extent of any inconsistency.
Relevant provisions of the SPP
- The SPP addresses planning for safety and resilience to hazards, which include flooding, in Part E. It is stated that “the consideration of climate change projections is integral when planning for natural hazards”. Thereafter, the SPP relevantly states:
“The risks associated with natural hazards, including the projected impacts of climate change, are avoided or mitigated to protect people and property and enhance the community’s resilience to natural hazards.
All of the following state interest policies must be appropriately integrated in planning and development outcomes, where relevant.
- (1)Natural hazard areas are identified, including:
- (b)flood hazard areas
Bushfire, flood, landslide, storm tide inundation, and erosion pone areas:
- (4)Development in bushfire, flood, landslide, storm tide inundation or erosion prone natural hazard areas:
- (a)avoids the natural hazard area; or
- (b)where it is not possible to avoid the natural hazard area, development mitigates the risk to people and property to an acceptable or tolerable level.”
- Thereafter, the SPP contains the following relevant assessment benchmarks:
“Assessment benchmarks – natural hazards, risk and resilience
These performance outcomes apply to the following development applications, to the extent the SPP has not been identified in a local planning instrument as being appropriately integrated.
Bushfire, flood, landslide, storm tide inundation, and erosion prone areas outside the coastal management district:
- (3)Development other than that assessed against (1) above, avoids natural hazard areas, or where it is not possible to avoid the natural hazard area, development mitigates the risks to people and property to an acceptable or tolerable level.
All natural hazard areas:
- (4)Development supports and does not hinder disaster management response or recovery capacity and capabilities.”
Relevant provisions of the planning scheme
- In the Strategic framework there are a number of provisions which are relevant to the issues in dispute in this appeal. The Settlement pattern’s strategic outcomes include that urban growth in Fernvale “minimise the risks to life and property from natural hazards”. Another strategic outcome seeks that the Settlement pattern “responds to adverse impacts of natural hazards, including flooding… and their forecast increase in frequency and severity as a result of climate change”. Subsequently, in the Urban growth management element, specific outcomes include limiting the physical extent of urban development in towns so as to “minimise the risks to life and property from natural hazards, including flood… and the forecast increase in frequency and severity of natural hazards arising from climate change”. In the Climate change element, specific outcomes include that the “design and location of development in urban areas protect against the anticipated impacts of climate change on quality of life and property”.
- There is a specific element in the Strategic framework dealing with flooding, and the specific outcomes referred to include:
“18.104.22.168 Specific outcomes
- (a)Areas prone to flooding in the defined flood event are identified in Part 8-Overlays;
- (b)The risk of loss of life and property due to flood hazards, including that associated with a greater frequency of extreme weather events and increased rainfall intensities as a result of climate change, is minimised;
- (d)Land subject to inundation during the defined flood event is protected from increased residential development and other sensitive land uses that require a high level of flood protection except in the following circumstances and only where the impacts of flooding on the development can be mitigated such that there is no foreseeable risk to life or property:
- (iv)an overriding community need in the public interest has been demonstrated that warrants approval of the development despite its occurrence within an area subject to flooding.”
- As to part of the assessment the court must undertake, section 5.3.3(4) relevantly states:
- “(4)Code assessable development:
- (c)that complies with
- (i)the purpose and overall outcomes of the code complies with the code;
- (ii)the performance or acceptable outcomes complies with the purpose and overall outcomes of the code;”
- As noted above the site is within the General residential zone. The General residential zone code relevantly states:
- “(1)The purpose of the General residential zone is to provide for:
- (a)Residential uses; and
- (b)Community uses, and small-scale services, facilities and infrastructure, to support local residents.
- (2)The local government purpose of the code is to provide for low density residential development, predominantly dwelling houses on a range of lot sizes serviced by appropriate urban infrastructure, in the towns of Esk, Fernvale, Kilcoy, Lowood and Toogoolawah.
A mix of other residential and non-residential activities may also be established where consistent with the predominant residential character, scale and amenity of the zone.
- (3)The purpose of the General residential zone code will be achieved through the following overall outcomes:
- (a)Dwelling houses and dual occupancies are the predominant accommodation activities provided in the General residential zone, on a variety of lot sizes;
- (b)the predominant low rise and low intensity scale of development provided by dwelling houses and dual occupancies in the zone is maintained;
- (c)Residential care facilities and retirement facilities may provide complementary accommodation activities where well-located in relation to the town centre;
- (d)Other accommodation activities such as multiple dwellings and short-term accommodation, home based business and community activities may be established where the use:
- (i)is of a limited scale and intensity that maintains the predominant low density residential scale of development and amenity in the zone;
- (ii)directly supports the day to day needs of the local community; and
- (iii)is not more appropriately located in the Somerset Region town centres network;
(l) Development responds to land constraints, including but not limited to topography, bushfire and flooding.”
- The following performance outcomes and acceptable outcomes are also relevant:
Site cover does not exceed 50 percent.
For development other than a dwelling house or dual occupancy:
Buildings and structures are setback a minimum 6 metres from the primary street frontage of the site.
Buildings and structures are setback a minimum 3 metres from each side boundary of the site.
Buildings and structures are setback a minimum 3 metres from the rear boundary of the site.
- The following purpose and overall outcomes of the Flood hazard overlay code are relevant:
- “(1)The purpose of the code is to manage development outcomes in flood hazard areas so that risk to life, property, community and the environment during flood events is minimised to an acceptable or tolerable level, including other property.
- (2)The purpose of the code will be achieved through the following overall outcomes:
- (e)Development in the Potential flood hazard area:
- (i)maintains the safety of people on the development site from flood events and minimises the potential damage from flooding to property;
- (ii)does not result in adverse impacts on people’s (sic) safety, the environment or the capacity to use land within the floodplain;
- (iii)locates habitable rooms for all accommodation activities above the defined flood level and freeboard; and
- (iv)locates the minimum floor level for all building work other than accommodation activities above the defined flood level and freeboard.
- (f)Development in all flood hazard areas:
- (i)supports, and does not unduly burden disaster management response or recovery capacity and capabilities;”
- The following performance outcome and acceptable solutions are also relevant:
Significant flood hazard area, Low flood hazard area or Potential flood hazard area
Development is located and designed to:
(b) not increase the number of people calculated to be at risk from flooding;
(g) provide road access to buildings above the level of the 1% AEP flood level.
Where for Material Change of Use or Building Work
Buildings, including extensions to existing buildings are:
(a) elevated above the defined flood level; and
(b) and the defined flood event does not exceed a depth of 600mm.
Where the defined flood level is known, new buildings are:
(a) located on the highest part of the site to minimise entrance of floodwaters; and
(b) provided with pedestrian and vehicle evacuation access between the building and a road that is above the 1% AEP flood level.
Where for accommodation activities, the design and layout of buildings minimises risk from flooding to an acceptable or tolerable level by providing parking and other non-habitable uses at ground level.
- The Tourist park and relocatable home park code assumed significance in the appeal, and relevant provisions of it are as follows:
- (1)The purpose of the tourist park and relocatable home park code is to ensure that these types of accommodation are developed in appropriate locations, and are designed and managed in a way that meets the accommodation needs of residents and visitors, while maintaining the character of the locality.
- (2)The purpose of the code will be achieved through the following overall outcomes:
- (c)tourist parks and relocatable home parks are compatible with the amenity and character of the area; and
- (d)tourist parks and relocatable home parks are established in locations that ensure high standards of protection from natural hazards.
The use provides suitable levels of buffering, amenity, privacy, and recreation areas commensurate with the reasonable expectations of visitors and residents having regard to the nature of the accommodation use, and the character of the locality.
Short term and long term accommodation densities are compatible with the character and amenity of the locality and does (sic) not result in overdevelopment of the site.
A tourist park includes a mix of accommodation types.
A park has a minimum site area of 2 hectares.
The site cover for permanent buildings, relocatable homes and covered structures does not exceed 40 percent.
Separate areas are provided for each form of accommodation in the same park, for example, caravans, relocatable homes, tents and holiday cabins.
The proposal complies with the provision in Table 22.214.171.124.B with respect to:
(a) minimum site area for each accommodation type;
(b) setbacks to internal road frontages;
(c) distances to amenities; and
(d) distance from refuse storage areas.
The relocatable home park provides communal recreation facilities for the exclusive use of residents.
Relocatable homes are designed to be able to be moved from one position to another within the premises or to another relocatable home park.
Relocatable homes are capable of being moved on and off the site.
Short term tourist park accommodation:
(a) has high degree of accessibility to town centre services and facilities; or
(b) is on a major tourist route in an Urban Area; or
(c) is consistent with the tourism and recreation strategy.
No acceptable outcome provided.
Long term relocatable home park accommodation is located in a position that has high degree of accessibility to town centre services and community facilities.
No acceptable outcome provided.
Table 126.96.36.199B – Site design and layout requirements
Minimum site area
250 with a minimum frontage of 15 metres square (sic)
Minimum setback from any internal road frontage of a site to the nearest point of any vehicle or structure
Minimum distance to any bulk storage refuse bin
Minimum recreation space
10 per cent of total site area”
- A number of provisions of the Landscaping code were also identified as relevant. These are:
- (1)The purpose of the landscaping code is to provide for landscaping that is functional, attractive, and complements the built form and natural environment of the locality.
- (2)The purpose of the code will be achieved through the following overall outcomes:
- (a)landscaping complements and enhances the amenity and character of the locality, street and public places;
- (b)suitable forms of buffering are established between potentially incompatible land uses and infrastructure;
- (d)landscape design softens built form and hardscape areas.
Landscaping contributes to a sense of place or specific character having regard to the zone in which the site is located.
No acceptable outcome provided.
Landscaping enhances the function, operation and appearance of development.
Landscaping contributes to the creation of legible spaces by:
(a) defining entry and exit points and assisting in way finding;
(b) distinguishing between private property and public areas; and
(c) incorporating street furniture and plantings to create a safe, comfortable, useable and attractive streetscape.
Landscape buffering effectively separates incompatible land uses, and appropriately mitigates the visual impact of development.
Vegetated buffer strips to common boundaries and street frontages include a combination of trees and shrubs and, where appropriate, earth mounds.”
- The overall effect of the above provisions of the planning scheme is that the broad statements of the Strategic framework are given effect through the assessment benchmarks identified in the codes. There are then three alternative ways of demonstrating compliance with them. Firstly, it can be done by demonstrating compliance with the purpose and overall outcomes of the code. Secondly, it can be done by demonstrating compliance with the performance outcomes of the code. Thirdly, it can be done by demonstrating compliance with the acceptable outcomes of the code.
The disputed issues
- The disputed issues for determination are:
- Whether the proposed development ought to be refused on flooding grounds having regard to the relevant provisions of the SPP and the planning scheme identified above;
- Whether the density and design of the proposed development are such that it ought to be refused on character and amenity grounds having regard to provisions of the planning scheme referred to above;
- Whether the proposed development ought to be approved having regard to relevant matters including the extent of the filling of the land, the economic and community need for the proposed development, that it will assist in achieving dwelling supply benchmarks for South-East Queensland, that there will be an improved outcome for the safety of residents compared to the current reconfiguration of lot approval, and that it can be conditioned such that “it will be delivered without any unacceptable impacts”; and
- Whether a number of relevant matters relied upon by the respondent support a refusal of the proposed development, including the extent of the flood hazard and its consequences leading to an unacceptable risk to people and property and unduly burdening disaster management response and recovery capacity, and that any need which exists for the proposed development can be met on land which is not subject to flooding, and that approval of the proposed development would not advance the purpose of the PA to achieve ecological sustainability by not providing development “that is safe”.
- The concept of need in a planning context was recently summarised in Richards & Ors v Brisbane City Council & Ors in the following terms:
“Essentially, planning need, or the term need in a planning context without qualification, refers to whether there is a latent unsatisfied demand in an area for the proposed development which is not being adequately met by the planning scheme in its present form. Other terms address the demand in question. Community need refers to an assessment of the extent to which the physical wellbeing of the community would be improved by the proposed development. Economic need refers to an assessment of whether the extent of the demand for the proposed development is sufficient to support it at a sustainable level.”
- In determining what weight should be given to a need for a proposed development, it may also be necessary to weigh the effect of it on the amenity of the area in question. It was observed by the Court of Appeal in Arksmead Pty Ltd v Council of the City of Gold Coast that:
“…if it is decided that the proposed development would have a detrimental effect on the amenity of the area in question, the judge must then decide whether, notwithstanding the detrimental effect on the amenity of the area, there has been shown to be a need for the proposed use which would render the effect on the amenity of the area justifiable.”
- Although made in the context of a materially different planning regime, the recent observations of McMurdo JA in Redlands City Council v King of Gifts (Qld) Pty Ltd & Anor are nonetheless relevant:
“What had to be established was not just that there was a need for such a development in the area, but that there was a need for development in a location where the planning scheme provided it should not occur. It had to be shown that, in the public interest, it was necessary to override the scheme as it applied to this land.”
- Two economists gave evidence at hearing of the appeal, Mr Duane, on behalf of the appellant and Mr Norling, on behalf of the respondent. In their joint report they firstly analysed the use contemplated by the proposed development. They observed that relocatable home parks offer a similar experience to retirement villages with a different financial arrangement, typically attracting “a slightly younger, less wealthy and more mobile clientele”. The typical owners of a relocatable home in Queensland are a couple with an average age over 70 and an annual gross of income of under $40,000. A survey in 2013 also confirmed that the average resident was approximately 72. The demand for the proposed development was analysed utilising the respondent’s Local Government Area. This approach appears to be somewhat illusory when it is considered that Fernvale is closer to the Ipswich CBD, and even the Brisbane CBD, than most of the respondent’s Local Government Area. In any event, the defined catchment comprises a growing area, with the proportion of older residents projected to increase. Notably, incomes for the catchment area population are significantly lower than the South-East Queensland metropolitan average on both a per capita and household basis, and the average age of residents is older. In Fernvale the average house size is three people, whereas on average, relocatable home parks accommodate 1.57 people for each dwelling unit. An analysis of the existing relocatable home parks in the catchment area indicated “an enormous deficiency” in the catchment area. It is significant that relocatable home parks are impact assessable in all zones in the respondent’s planning scheme.
- In terms of community need, the economists concluded:
“We agree that, absent flooding risk, the site is an excellent location for a Relocatable Home Park and that significant community benefits would be derived were it to locate on the subject site.”
- In terms of economic need, while Mr Duane concluded there was “significant demand” for the proposed development, I preferred the evidence of Mr Norling which took into account “that a proportion of older residents” would likely “move closer to Ipswich and Brisbane to take advantage of the broader range of healthcare services available to them”. He also took into account the fact that the demographic analysis of towns in the respondent’s Local Government Area showed an absence of old people in the vicinity of Fernvale, suggesting that:
“Fernvale is the youngest of the towns, and therefore, it will take some time to draw the old population to the youngest of the towns. All of the old people are living in Lowood and Esk and Toogoolawah.”
- In these circumstances, Mr Norling concluded that there was insufficient economic need for the proposed development “within the next 15 years or more”.
- Neither of the economists suggested there was a planning need for the proposed development of any consequence, given that this use is impact assessable in every zone pursuant to the planning scheme and there is no shortage of suitable land in the respondent’s Local Government Area.
- Accordingly, in circumstances where I also find that the proposed development will have significant impacts on amenity, I conclude that it has not been demonstrated that the identified need for the proposed use, would render the effect on the amenity of the area justifiable. Furthermore, it has not been shown that there is a planning need for the proposed development such that it was necessary to override constraints which apply to the site, particularly from a flooding perspective. I am satisfied that the demand for the proposed development could be adequately met by the planning scheme in its present form in an area which is not subject to flooding.
- It is unsurprising that almost all of the site is within the flood hazard overlay in the planning scheme, as it was inundated by both the 1974 and 2011 floods. It is mapped as a Potential Flood Hazard Area. The respondent contends that the proposed development firstly fails to avoid this natural hazard area, and secondly does not mitigate the risks to people and property to an acceptable or tolerable level in any event, contrary to the provisions of the SPP identified above. The respondent also contends that the proposed development fails to comply with the requirements of the SPP in that it hinders disaster management response or recovery capacity and capabilities. Conversely, the appellant contends that it complies with the requirements of the planning scheme and this is sufficient in the circumstances. It submits that this is demonstrated through compliance with AO13.1 of the Flood hazard overlay code.
- Given that compliance with the relevant code can be demonstrated by merely complying with the relevant acceptable outcomes, the position of the respondent is that it effectively challenges the adequacy of its own planning controls in this regard. This is a most unsatisfactory situation given that the planning scheme was last updated on 27 April 2018 and the respondent called evidence having regard to the 2017 Brisbane River Catchment Flood Studies (“BRCFS”) and the 2018 Brisbane River Strategic Flood Management Plan (“SFMP”).
- In the planning scheme, PO13.1 requires that buildings are elevated above the “defined flood level” and that the “defined flood event” (“DFE”) does not “exceed a depth of 600mm”. Relevantly, the DFE is a defined term meaning “the event, measured in terms of likelihood of occurrence, and associated inundation level adopted by the Council to manage development, being the 1% AEP Flood Event”. The term AEP refers to the “Annual exceedance probability” which is defined as “the likelihood of occurrence of a flood of a given size or larger in any one year, usually expressed as a percentage”. The definition of DFE goes on to state “the level associated with the DFE is predicted to change over time due to the effect of climate change so is specific to a particular point in time or planning period”. The term “defined flood level” is not expressly defined in the planning scheme. Applying the principles for interpreting planning documents set out in Zappala Family Co Pty Ltd v Brisbane City Council, I am of the view that, reading the planning scheme in a practical way and as a whole, it is clear that the inundation level associated with the 1% AEP flood event is what is intended by the term “defined flood level” in AO13.1. It does not currently factor in any allowance for climate change, in the manner discussed below.
- Two engineers gave evidence in respect of hydrological issues. Mr Bell was called by the appellant and Mr Collins was called by the respondent. It is uncontentious that the proposed development complies with AO13.1 as interpreted by me above. As Mr Collins conceded in his report:
“There is no dispute that the Site flooded in both the 1974 and 2011 floods, with a flood level of RL 42.60m AHD being reached in 2011. The Site has subsequently been filled to levels of between RL 42m in the north, and 43.8m in the south-east, which is above the 1% AEP (100 year ARI current) flood level of RL 41.58m.”
The issue for determination is whether this is sufficient. Although numerous provisions of the Strategic framework state that the impacts of climate change, particularly in the context of rainfall intensities, need to be minimised, the specific design standard adopted by the respondent in its planning scheme appears considerably at variance with the expert evidence it called.
- While Mr Bell was content to demonstrate that the proposed development complied with the nominated design standard in the planning scheme, Mr Collins demonstrated that this is insufficient to avoid significant inundation of the site when climate change is allowed for. The allowance made was in accordance with standard engineering practice. The methodology in this regard was not challenged by Mr Bell, nor was the expertise of Mr Collins in respect of climate modelling. I acknowledge the particular expertise of Mr Collins in this area and his contribution to the analysis of flood events in the Brisbane River catchment.
- Although the proposed development is not susceptible to flooding pursuant to the DFE in the planning scheme, namely the 1% AEP, when an allowance is made for climate change pursuant to recognised engineering guidelines, the same flood event results in over floor flood depths of 4.08m with a 35% probability of occurrence within the design life of the buildings. Accordingly, I find that the proposed development does not avoid the natural hazard area contrary to the SPP, and in particular assessment benchmark 3.
- Turning to whether or not the proposed development mitigates the risks to people and property to an acceptable or tolerable level as required for the balance of this assessment benchmark, it is important to firstly acknowledge the likely age of the residents which for such a use in 2013 approximated 72 years. Furthermore, it is intended that the individual dwellings will be purchased by the future residents at a cost of between $200,000 and $300,000 with each site being subject to a weekly rental fee of between $130.00 and $175.00 per week. The nature of the proposed dwellings means that the consequence of such a foreseeable flood event, is that the residents in all likelihood will find their homes, which cost them a significant amount of money, totally destroyed.
- So far as mitigating the risks to future residents are concerned, attempts at drafting a Flood Emergency Management Plan (“FEMP”) have not yet produced an entirely satisfactory result. I accept the evidence of Mr Collins that the level of likely inundation is such that sheltering on site is not an option. Given the lack of warning before an extreme flood event, and the difficulties in devising an effective FEMP, I conclude that there is a significant risk to people from such a flood event. However, because at the peak of such an event, the depth of the water between the south-western corner of the property and access to higher ground and community facilities in the Fernvale Town Centre will only require the traversing of a short stretch of flood water up to three quarters of a metre in depth, I accept that the proposed development will not hinder disaster management response or recovery capacity in such an event.
- In circumstances where the respondent’s Flood hazard overlay mapping makes no allowance for climate change, and the respondent has not updated its minimum design standard pursuant to AO13.1 of the Flood hazard overlay code there is a clear inconsistency between the SPP and the planning scheme as to what is necessary to avoid or mitigate the risk of flooding on the site. As noted above, the SPP applies in place of the planning scheme to the extent of any inconsistency. Given my findings of fact in this regard, the appeal should be refused on this basis.
Character and amenity
- When regard is had to character and amenity impacts of the proposed development, broader statements of desired planning outcomes are capable of being met in the relevant codes by acceptable outcomes which the respondent now argues are not reflective of its planning intent.
- In respect of visual amenity, Mr Curtis, an architect gave evidence on behalf of the appellant, and Mr Ovenden gave evidence on behalf of the respondent. Essentially, the approach of the appellant seems to be to hide the proposed development as much as possible behind a 1.8m high fence and a landscaped buffer. I agree with the following observations of Mr Ovenden with respect to the presentation of the proposed development:
“The narrow streets, limited building separation and lack of open space will create an environment dominated by built form and hard stand areas, with limited opportunity to soften this form through landscaping. During summer months in particular, this imbalance will be strongly felt, adversely impacting on the quality of life for residents.”
The design outcome is particularly poor and much worse than the approved relocatable home park nearby in Esk.
- The site cover for the proposed development complies with AO3 of the General residential zone code and the setbacks comply with AO4.1—AO4.3. As noted above, this is partly achieved through the utilisation of a steep bank leading to a drain along the north-eastern boundary of the site. Similarly, there is compliance with each of the identified acceptable outcomes of the Tourist park and relocatable home code quoted above, and the relevant acceptable outcomes of the Landscaping code are so vague as to be readily capable of being complied with. However, as Mr Curtis conceded, there is no development in the town that has setbacks as small as what are proposed. Furthermore, despite relying upon the proposed landscaping as a key plank in contending that the proposed development will not have unacceptable visual impacts, a sea of rooves will be readily visible at a density unlike anything else in Fernvale. Although I accept that the proposed development is appropriately co-located with facilities in the town centre of Fernvale, I agree with the observations of Mr Ovenden that, ignoring its compliance with the planning scheme, it represents an overdevelopment of the site.
- The respondent sets the assessment benchmarks in its planning scheme. Where there is demonstrated compliance in a manner expressly contemplated by s 5.3.3, I am not minded to refuse the development application on discretionary grounds simply because it is poorly designed from a character and amenity perspective in circumstances where it is compliant with the detailed design requirements which apply to the site.
- The first matter relied upon by the appellant as justifying approval of the proposed development is that the site has been filled to approximately 500mm above the 1% AEP flood level. I accept that this has occurred in conformity with the operational works approval issued by the respondent pursuant to the existing reconfiguration approval. However, in circumstances where it has been demonstrated to me that there is a real risk to future residents of the proposed development and their homes by merely adjusting the likely flood level to take into account climate change, this does not justify approval.
- The appellant also relies upon an improved outcome for the safety of residents compared with the current reconfiguration of a lot approval. This submission arises out of the fact that the economists estimated that the proposed use will accommodate 1.57 people per dwelling, whereas the average household size in Fernvale consists of three people. When these numbers are multiplied out, this results in a potential residential density of 156 people for the proposed development as opposed to 150 for the existing reconfiguration approval. It is submitted that a FEMP and an on-site manager who can take responsibility for its implementation represents a better outcome in terms of safety for future residents than an absence of either of these measures and this will occur with only six more prospective residents than if the site was developed pursuant to the existing reconfiguration of a lot approval. However, as Mr Collins observed, with the proposed residential reconfiguration, there is the opportunity to build potentially higher and more flood resistant dwellings. There is also the fact that the proposed development is likely to attract a much higher proportion of vulnerable residents given the elderly demographic which is being targeted. On balance, I am of the view that this is not a matter which justifies approval of the proposed development.
- The next relevant matter identified by the appellant is that there is an economic and community need for the proposed development. In this regard, I note from the observations above that the need is not site specific and when the risk of flooding and general amenity considerations are taken into account, this is not a matter which carries much weight. The other relevant matters identified by the appellant are that the proposed development will assist in achieving development supply benchmarks in South-East Queensland and that it can be conditioned such that it will be delivered without any unacceptable impacts. There are many better ways of achieving dwelling supply benchmarks than through the proposed development which, as I have noted, results in poor amenity outcomes for both prospective residents and the community as a whole. The significant risk to people and their homes by foreseeable flood events and the density of the built form which is proposed are such that it cannot be conditioned to address any unacceptable impacts. None of the relevant matters identified by the appellant either of themselves or together, justify approval of the proposed development.
- The relevant matters identified by the respondent predominantly relate to the unsuitability of the proposed development from the perspective of its susceptibility to flooding and these have already been addressed. The issue of need has also been addressed above. Other matters raised are either so vague so as to not warrant consideration, or are of themselves meaningless.
- It is unusual for a local government to call evidence which casts doubt on the adequacy of its own assessment benchmarks, which are in the planning scheme. The ineptitude with which the planning scheme has been drafted and the failure to update it to reflect the known dangers of the extent of likely flooding on the site are such that its own nominated design standards have been demonstrated to be out of date and inconsistent with the SPP. When the SPP is applied in light of the hydrological evidence which I accept, there is non-compliance with assessment benchmark 3 in the SPP as the proposed development does not avoid a natural hazard area in circumstances where the site is subject to significant flooding when allowance is made for climate change. Furthermore, the proposed development does not mitigate the risks to prospective residents and their homes to an acceptable or tolerable level.
- Although the proposed development is particularly unattractive and lacking in planning merit from the perspective of character and amenity outcomes, the shortcomings in the drafting of the planning scheme are such that it is nonetheless compliant with the acceptable outcomes called up by the relevant codes. Given the way the planning scheme is drafted, this is sufficient to justify approval in these respects. Nonetheless, the failure to comply with the SPP means that the appeal must be dismissed.
 Exhibit 2.057.
 Somerset Region Planning Scheme – Version 3, dated 27 April 2018 (“Planning scheme”).
 Exhibit 1.005.
 Exhibit 4.002, p 4-0069.
 Ibid, p 4-0078.
 Exhibit 4.002, p 4-0079 and figure 8.
 Exhibit 4.008, pp 4-0626 – 4-0627.
 Exhibit 4.002, p 4-0071.
 Ibid, p 4-0069 and figure 1.
 Ibid, p 4-0069 and 4-0070.
 Ibid, p 4-0070.
 Ibid p 4-0072.
 Exhibit 4.007, p 4-0585.
 Exhibit 5.018.
 Exhibit 4.002, p 4-0077 and Exhibit 2.057.
 Exhibit 2.057.
 Exhibit 4.002, p 4-0156 and attachment F.
 T4–34, ll 28.
 Exhibit 2.057.
 Exhibit 10.059.
 T4–49, ll 1–2.
Planning and Environment Court Act 2016 (Qld) s 43.
 Ibid s 45(1)(a).
Planning Regulation 2017 (Qld) s 30(2)(a)(ii) as it is not identified in the planning scheme as being appropriately integrated in the planning scheme.
 Ibid s 31(1)(f).
Planning Act 2016 (Qld) s 45(5)(b).
 (2018) 230 LGERA 374 at 391 .
  QPELR 793 at 806-807 .
  QPELR 328 at 337 .
Planning Act 2016 (Qld) s 8(4).
 Exhibit 7.005, p 7-0014.
 Exhibit 7.005, p 7-0016.
 Ibid, p 7-0017.
 Exhibit 7.006, p 7-0022 and Exhibit 5.018.
 Exhibit 7.009, p 7-0040.
 Planning scheme s 2.1; Exhibit 5.005, p 5-0021.
 Planning scheme s 5.3.3(5); Exhibit 5.008, p 5-0073.
 Ibid s 3.3.1(2)(d); Exhibit 5.006, p 5-0031.
 Ibid s 3.3.1(13); p 5-0031.
 Ibid s 188.8.131.52(c)(v); p 5-0032.
 Ibid s 184.108.40.206(b); p 5-0039.
 Planning scheme s 5.3.3(4)(c), Exhibit 5.008, p 5-0073.
 Planning scheme s 220.127.116.11; Exhibit 5.011, p 5-0146.
 Exhibit 5.011, pp 5-0147 and 5-0148.
 Ibid, p 5-0148.
 Planning scheme s 18.104.22.168; Exhibit 5.016, pp 5-0188 and 5-0189.
 Exhibit 5.016, pp 5-0189 – 5-0197.
 Exhibit 5.023, pp 5-0213 – 5-0215.
 Exhibit 5.024, pp 5-0216 and 5-0217.
 Exhibit 1.005, para 3(e).
  QPEC 26 at .
 (2000) 107 LGERA 60 at 65 .
  QCA 41 at .
 Exhibit 4.007, p 4-0573.
 Ibid, p 4-0578.
 Ibid, p 4-0579.
 Exhibit 4.007, p 4-0588 and map 2.
 Ibid, p 4-0589.
 Ibid, p 4-0592.
 Ibid, p 4-0612.
 Ibid, p 4-0600.
 Ibid, p 4-0607.
 Ibid, p 4-0612.
 Ibid, p 4-0614.
 Ibid, p 4-0613.
 T2–20, ll 34–37.
 Exhibit 4.007, p 4-0614.
 Exhibit 5.018.
 Exhibit 4.001, p 4-0009.
 Exhibit 5.001, p 5-0017.
 Exhibit 7.005, p 7-0017.
 Exhibit 4.001, p 4-0004.
 Exhibit 5.016, p 5-0196.
 Exhibit 5.027, p 5-0279.
 Exhibit 5.027, p 5-0277.
 Ibid, p 5-0279.
  QPELR 686 at 698-700.
 Exhibit 4.011, p 4-0819.
 Exhibit 5.006, pp 5-0031, 5-0032, 5-0038 and 5-0039.
 Exhibit 4.009, p 4-0697; T2–63, ll 10–13.
 Exhibit 4.011, p 4-0826.
 T2–58, ll 1–10.
 T2–70, ll 5–20.
 Exhibit 4.011, p 4-0845.
 Ibid, table 3-1, p 4-0819 and p 4-0851.
 Ibid, table 5-1, p 4-0822.
 Exhibit 7.005, p 7-0017.
 Exhibit 4.007, p 4-0579.
 Exhibit 4.006, p 4-0488.
 Exhibit 4.011, p 4-0822.
 T3–38, ll 1–20; Exhibit 4.011, p 4-0841.
 T3–37, ll 1–4; Ibid, p 4-0875.
 T3–28, ll 30–35.
Planning Act 2016 (Qld) s 8(4)(a).
 Exhibit 4.008, p 4-0646.
 Exhibit 4.002, p 4-0251.
 Exhibit 2.057; Exhibit 5.011, p 5-0148.
 T3–71, ll 27–29.
 T3–73, ll 40–45.
 T3–75, ll 1–2.
 T4–75, ll 10–15.
 Exhibit 5.008, p 5-0073.
 Exhibit 4.007, p 4-0612.
 Ibid, p 4-0593 and table 3.
- Published Case Name:
Roubaix Properties Pty Ltd v Somerset Regional Council
- Shortened Case Name:
Roubaix Properties Pty Ltd v Somerset Regional Council
 QPEC 34
17 Jul 2020