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Duffy v Sunshine Coast Regional Council[2015] QPEC 58

Duffy v Sunshine Coast Regional Council[2015] QPEC 58

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Duffy v Sunshine Coast Regional Council & Anor [2015] QPEC 58

PARTIES:

PETER ALAN DUFFY & YVONNE LYNETTE DUFFY
(appellants)

v

SUNSHINE COAST REGIONAL COUNCIL
(respondent)

and

NORTHERN SEQ DISTRIBUTOR-RETAILER AUTHORITY (trading as UNITYWATER)
(co-respondent)

FILE NO/S:

D 143 of 2012

PROCEEDING:

Appeal

DELIVERED ON:

4 December 2015

DELIVERED AT:

Maroochydore

HEARING DATE:

10 and 13 November 2014

JUDGE:

Long SC DCJ

ORDER:

Appeal dismissed and the respondent’s decision of 2 July 2012, is confirmed

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL – Refusal of development application for a reconfiguration of a lot – Application for sub-division of land involving steep slopes and landslide hazard – Whether conflict with Maroochy Plan 2000 – Whether conflict with Sunshine Coast Planning Scheme 2014 – Whether sufficient grounds to warrant approval despite conflict

Legislation

Sustainable Planning Act 2009 (Qld) ss 314, 324, 326, 345, 461, 495, sch 3

Cases

Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117

Drivetype Pty Ltd v Caboolture Shire Council [1995] QPLR 141

Lewiac Pty Ltd v Gold Coast City Council (1996) 2 Qd R 266

Luke & Ors v Maroochy Shire Council and Watpac Developments Pty Ltd [2003] QPELR 447

Vynotas Pty Ltd v BCC [2001] QPELR 14

Westfield Management Ltd v Pine Rivers Shire Council [2004] QPELR 337

Yu Feng Pty Ltd v Maroochy Shire Council (1996) 92 LGERA 41

COUNSEL:

D O'Brien QC and P Beehre for the Appellant

CL Hughes QC and N Kefford for the Respondent

SOLICITORS:

Andrew Morris Legal for the Appellant.

Sunshine Coast Regional Council for the Respondent.

Introduction

  1. [1]
    This matter concerns an appeal brought pursuant to s 461 of the Sustainable Planning Act 2009 (“SPA”) and in respect of the decision of the respondent Council, made on 2 July 2012 (and notified by letter dated 5 July 2012), to refuse a development application for a reconfiguration of Lot 10 on RP 803697 and located at 137 Jones Road, Buderim (“the Land”). The Notice of Appeal was filed on 7 August 2012. The development application had been lodged on 7 September 2011. 
  1. [2]
    The Land has an area of 8,471m2 and is located on the corner of Jones Road and Lindsay Road.[1]  The Land is situated within the North Buderim area, which is primarily comprised of single detached housing.  There is a small convenience shopping centre located approximately 150 metres to the north, on the corner of Pittards Road and Jones Road, and a McDonald’s fast food outlet is located further north on the corner of Maroochydore Road and Main Road.[2]  There are traffic signals at the intersections of Jones Road with both Pittards Road and Maroochydore Road. 
  1. [3]
    To the east of the Land, across Jones Road, there is predominantly single detached housing on conventional residential sized lots. To the north of the Land, across Lindsay Road, is an electricity substation. To the west, also across Lindsay Road, is generally vacant land leading to Martins Creek. To the south, there is a scattering of residential properties on larger lots, and a recent subdivision (Birdwing Forest Place) with lots in the order of 800m2.  Adjacent to the south-east corner of the Land (on Lot 9), there is an existing Unitywater pump station.  This is accessed off Jones Road and an existing water main traverses the Land from the pump station, in a south-east direction.  This infrastructure is within an established easement over the Land, in favour of the Council. 
  1. [4]
    The Land contains an existing dwelling, located in the north-eastern aspect of the site, with access off Jones Road and into a part of it which is more gently sloped than much of the remainder of it. Otherwise, the lot contains steeply sloping land in a downwards direction generally from east to west, with some flattening on the western side adjacent to Lindsay Road. The Land has been the subject of terracing and installation of boulder and timber retaining walls. The Land also contains vegetation, including some quite mature, tall trees which, as the respondent points out, the geotechnical engineers agree are presently important in stabilising the steep slopes. Otherwise, it may be noted that there are also some unsupported excavations of between 1 and 1.5 metres in vertical height on the land and some large stockpiles of uncontrolled fill of up to 2 metres in thickness.[3]
  1. [5]
    The development application was lodged on or about 7 September 2011 and required impact assessment.[4]  There were three properly made submissions, and in those submissions reference was made to land instability.[5]
  1. [6]
    The purpose of that application was to seek a development permit for the reconfiguration of one lot into four lots, with an access easement. That application was made under SPA and accordingly and pursuant to s 495(1) of SPA, this appeal is conducted by way of hearing anew and therefore to be decided according to the facts as they now exist.[6]  The appellants bear the onus of proof.[7] 
  1. [7]
    The application is now to be assessed by the Court, standing in the shoes of the assessment manager and by reference to s 314 of SPA, which provides:

“314  Impact assessment—generally

  1. (1)
    This section applies to any part of the application requiring impact assessment.
  1. (2)
    The assessment manager must assess the part of the application against each of the following matters or things to the extent the matter or thing is relevant to the development—
  1. (a)
    The State planning regulatory provisions;
  1. (b)
    The regional plan for a designated region, to the extent it is not identified in the planning scheme as being appropriately reflected in the planning scheme;
  1. (c)
    If the assessment manager is not a local government—the laws that are administered by, and the policies that are reasonably identifiable as policies applied by, the assessment manager and that are relevant to the application;

Note—

However, if the chief executive is the assessment manager for the application, see section 255B.

  1. (d)
    State planning policies, to the extent the policies are not identified in—
  1. (i)
    Any relevant regional plan as being appropriately reflected in the regional plan; or
  1. (ii)
    The planning scheme as being appropriately reflected in the planning scheme;
  1. (e)
    A temporary local planning instrument;
  1. (f)
    A preliminary approval to which section 242 applies;
  1. (g)
    A planning scheme;
  1. (h)
    for development not in a planning scheme area—any planning scheme or temporary local planning instrument for a planning scheme area that may be materially affected by the development;
  1. (i)
    If the assessment manager is an infrastructure provider—the provider’s LGIP, if any.

Note—

See chapters 2 and 3 for particular provisions about the relationship between the matters or things mentioned in subsection (2).

  1. (3)
    In addition to the matters or things against which the assessment manager must assess the application under subsection (2), the assessment manager must assess the part of the application having regard to the following—
  1. (a)
    The common material;
  1. (b)
    Any development approval for, and any lawful use of, premises the subject of the application or adjacent premises;
  1. (c)
    Any referral agency’s response for the application.”
  1. [8]
    The matter is to be decided in accordance with ss 324 and 326 of SPA and the relevant provisions of the latter section should be specifically noted, as they are of some importance to the outcome of this matter:

“326  Other decision rules

  1. (1)
    The assessment manager’s decision must not conflict with a relevant instrument unless—

…...

  1. (b)
    there are sufficient grounds to justify the decision, despite the conflict; ….
  1. (2)
    In this section—

relevant instrument means a matter or thing mentioned in section 313(2) or 314(2), other than a State planning regulatory provision, against which code assessment or impact assessment is carried out.”

  1. [9]
    It is also of significance to note that for the purposes of application of s 326(1) (b), the meaning of “grounds” is provided in Schedule 3 of SPA, as follows:

“1  Grounds means matters of public interest.

2  Grounds does not include the personal circumstances of an applicant, owner or interested party.”

  1. [10]
    Section 495(2) of SPA prescribes the applicable law to be applied. Relevantly, it is provided that:

“(2)  However, if the appellant is the applicant … for a development application, the court—

  1. (a)
    must decide the appeal based on the laws and policies applying when the application was made, but may give weight to any new laws and policies the court considers appropriate; ...”

The issues

  1. [11]
    Although the respondent refused the application on numerous grounds, including in relation to visual amenity, character, environmental, stability, traffic and town planning, subsequently to the initiation of the appeal, the respondent indicated that it no longer contended that there were issues concerning visual amenity, character or environmental matters which warranted refusal of the application. Further and at the hearing of the appeal, it was indicated that traffic issues had also been resolved by the appellants’ agreement to conditions, which the respective retained traffic engineers had identified would, if imposed, resolve any such safety concerns.[8] 
  1. [12]
    Accordingly, the outstanding issues to be determined in this appeal involve geotechnical and town planning issues and particularly as to such issues turning on the question of whether, from a geotechnical perspective, the proposed development, as it involves obviously steep land, can be undertaken so as to be safe to persons and property.
  1. [13]
    For the appellants, reliance is placed upon the joint expert report of the geotechnical experts, in which agreement is expressed to the effect that by employing specified mitigation measures, to all of which the appellants have expressed agreement, the proposed development can be undertaken so that the level of risk is reduced to low or very low.
  1. [14]
    The appellants have also indicated their preparedness to consent to conditions required by the co-respondent, except for a requirement for a 10 metre wide easement for the water main that traverses the land.[9]  Accordingly the dispute between the appellants and co-respondent is so limited.  The appellants’ contention is that the relevant applicable codes only support the imposition of a 3 metre easement and that they have offered 6 metres as being more than sufficient to provide access for equipment and vehicles.  As is pointed out by the appellants, s 345 of SPA provides as follows in respect of the imposition of conditions, as part of any approval:

“345  Conditions must be relevant or reasonable

  1. (1)
    A condition must—
  1. (a)
    be relevant to, but not an unreasonable imposition on, the development or use of premises as a consequence of the development; or
  1. (b)
    be reasonably required in relation to the development or use of premises as a consequence of the development.
  1. (2)
    Subsection (1) applies despite the laws that are administered by, and the policies that are reasonably identifiable as policies applied by, an assessment manager or concurrence agency.”

The appellants’ contention is that a condition for a 10 metre easement is an unreasonable imposition. 

  1. [15]
    It is the respondent’s position that in the event that this application is approved, there are additional conditions that would be required. The appellants made clear in opening their case to the Court, that they would consent to the specific conditions which had been identified prior to the hearing by the respondent, as being necessary in the event that the application was approved.[10]  Those conditions generally related to the traffic and geotechnical requirements that had been identified by the retained experts in each discipline. 
  1. [16]
    It is nevertheless the respondent’s position that, having regard to town planning issues, the application should be refused. In particular, it is the respondent’s position that the application is in substantial conflict with the Maroochy Plan 2000 and also the Sunshine Coast Planning Scheme 2014, and that having regard to the inherent characteristics of the land, including:
  1. (a)
    The likelihood of “failure” or landslide occurring during the design life of the proposed development; and
  1. (b)
    The need for additional works in the nature of removal of landslide debris following each such event, in order to maintain a consistent risk profile during the life of the development;

there are insufficient grounds to justify an approval despite such conflict. 

The construction of planning schemes

  1. [17]
    In the first instance it should be noted that the proper construction of a planning scheme is a question of law and a matter for the court, rather than any particular evidence that may be given in respect of such schemes.[11]  It is particularly recognised that planning schemes should be construed broadly, rather than pedantically or narrowly and with a sensible, practical approach.[12]
  1. [18]
    A useful summary of the by then established principles to be applied in this context, is to be found in Westfield Management Ltd v Pine Rivers Shire Council:[13]
  1. “(a)
    they should be construed broadly rather than pedantically or narrowly and with a sensible, practical approach (ZW Pty Ltd v Peter R Hughes & Partners Pty Ltd [1992] 1 Qd R 352 at 360; Yu Feng Pty Ltd v Maroochy Shire Council (1996) 92 LGERA 41, at 73,75, 78; Harburg Investments Pty Ltd v Brisbane City Council [2000] QPELR 313 at 318.
  1. (b)
    they should be construed as a whole (Luke v Maroochy Shire Council & Anor [2003] QPELR 447);
  1. (c)
    they should be construed in a way which best achieves their apparent purpose and objects (Luke v Maroochy Shire Council & Anor (supra); Nordale Management Pty Ltd v Maroochy Shire Council [1995] QPELR 368 at 370; Acts Interpretation Act 1954 s. 14A);
  1. (d)
    in the light of the proscription against prohibiting development contained in IPA (s. 6.1.2(3));
  1. (e)
    Statements of Intents or Aims or Objectives are intended to provide guidance for the task of balancing the relevant facts, circumstances and competing interests in order to decide whether a particular use should be rejected as inappropriate (Degee v Brisbane City Council [1998] QPELR 287);
  1. (f)
    a Strategic Plan sets out broad desired objectives and not every objective needs to be met before a proposal can be approved (Lewiac Pty Ltd v Gold Coast City Council (1994) 83 LGERA 224 at 230);
  1. (g)
    a Strategic Plan should be read broadly and not pedantically (Yu Feng Pty Ltd v Maroochy Shire Council (supra));
  1. (h)
    although planning documents have the force of law they are not drawn with the precision of an Act of Parliament;
  1. (i)
    a conflict alone may not have the effect of ruling out a particular proposal (Fitzgibbons Hotels Pty Ltd v Logan City Council [1997] QPELR 208 at 212);
  1. (j)
    implementation objectives must be read sensibly and in context.  They are but a function of the principle objective.  The purpose of the objective is better understood by reading all of the implementation objectives and understanding the strategy that is inherent (Jenkinson Pty Ltd v Caloundra City Council [2002] QPELR 527 at 528).”
  1. [19]
    Some more practical guidance to the task of construing the planning schemes are to be found in:
  1. (a)
    the observations of Robin QC DCJ in Vynotas Pty Ltd v BCC:[14]

“In a complex appeal such as this, the court should read the planning scheme as a whole.  I have set out extensively passages which I accept are relevant, and have taken into account.  The scheme is bulky, often repetitive, and not devoid of conflicting messages.  Provisions are there which come close to providing ‘support for almost any argument’, to quote Senior Judge Skoien in Drivetype Pty Ltd v Council of the Shire of Caboolture …”;

  1. (b)
    the observations of Skoien SJ DC in Drivetype Pty Ltd v Caboolture Shire Council:[15]

“I am attracted to the planning approach of the Shire’s planning officer… which is to emphasise the necessity of reading the strategic plan as a whole.  That is not to say that one goes in search of an isolated statement anywhere in the document which, when taken out of context, might support an argument.  Such a search, in most planning schemes, could unearth support for almost any argument.  If however a statement can be found which clearly sets out a fundamental principle of the Planning Scheme which argues for or against a proposal, then it is proper to give weight to it even though the proposal relates to land which is specifically dealt with in another part of the document.”; and

  1. (c)
    in the observations of Wilson SC DCJ in Luke & Ors v Maroochy Shire Council and Watpac Developments Pty Ltd:[16]

“the plan is a dramatic example of the growth in the size and complexity of planning schemes in recent times.  Inevitably, the expansion of these planning documents will generate internal tensions or inconsistencies and, occasionally, different passages in them will appear to express a desire for what seemed to be competing objectives.  That prospect compounds the necessity for a careful and balanced, but not unduly pedantic, approach to the interpretation of their provisions.

….

The undeniable purpose of a town planning scheme is to regulate, within reasonable limits consonant with the personal liberties of landowners, the provision and distribution of appropriate community facilities, both private and public, with a view to promoting the general wellbeing of the occupants of the relevant local government area.  The approach to construction of Maroochy Plan 2000 advanced by the respondent seems to me to accord with that discussed in the authorities I have reviewed and, in this instance, with the approach taken by Robin QC, DCJ and very similar circumstances in Tallenbrook, which places weight upon the purposive elements of the scheme, with its emphasis on community need as an important aspect of town planning, and gives no special weight to what might be called, here, the “microcosmic” aspects of the plan touching, at its lowest levels, individual communities.

This does not mean that the structure of this plan with, as the Appellants correctly point out, its apparent descent from the general to the particular is inappropriate but, rather (to use the Appellant’s own metaphor) that what is found at its most detailed levels is not, necessarily, gold – but neither, of course, is it dross.  If, as here, the Planning Scheme at it most particular level suggests the proposed development might not be in harmony with what appears to be generally intended for a precinct, that cannot and does not mean that the proposal automatically fails.  Rather, the planning authority and if necessary the Court, considers all the relevant elements of the plan, including those matters to which the scheme itself pays significant obeisance: community need, and demand; the desirability of, and possible benefits from, the proposal; the impact it would have; and, of course, the prevailing realities – whether development in the area has advanced, or will advance, in accordance with the plan.”

  1. [20]
    Further and in the implementation of such a holistic approach and in determining pursuant to s. 326 of SPA whether there is conflict, any such conflict must be plainly identified.[17] However and should conflict be plainly identified, the legislative requirement is that the application be refused unless, grounds are identified which justifies a decision to approve it.[18]  The sufficiency of justifying grounds must be determined by having regard to both the nature and extent of the identified conflict.[19]

Significant aspects of the evidence

  1. [21]
    It was common ground that for the application of the Maroochy Plan 2000, the land is situated in “Precinct 4 – the Buderim Scarp Landscape Conservation Precinct”.
  1. [22]
    The proposed subdivision of the land is visually depicted on the aerial photograph at p 156 of Exhibit 1 and schematically, in the plan at p 464A of Exhibit 1. Four lots, to be numbered 10 through 13, are proposed. Lot 10 is to encompass 246m² of the land and upon which the existing residence is situated. This is to comprise the generally higher elevated portion of the land, which adjoins Jones Road and which abuts Lot 9 (the site of the Unitywater Pump Station) in the southerly aspect and extends up to the intersection with Lindsay Road, in the northerly aspect. The proposed Lots 11 to 13, will comprise both the lowest parts of the land and also the steepest slopes and will provide for three new building envelopes, generally on the lower part of the land. This will be in separate lots, respectively sized 2005m², 2005m² and 2001m².
  1. [23]
    Although and in the “Regulatory Map – Landslip Hazard”,[20]the land is included in the “Moderate Landslip Hazard” category,  in the “Regulatory Map – Steep Land”,[21] the land is designated in the category of slopes of 20% and over. In the Golder and Associates report on slope stability assessment, dated June 2014, the following description of the topography of the Land, is provided:

The site is located on the lower slopes in the north western section of the Buderim escarpment. The ground surface generally falls to the west, with distinct terraces aligned in a north-south orientation across the site. Grounds slopes in the upper portion (eastern) of the site were typically in the range of 23° to 32°. The slope flattens in the lower portion (western) of the site typically in the range of 5° to 18°. Slope angles were measured in the field using a hand held inclinometer and are noted in Figure 1. Ground surface contours are shown in Figure 2 attached. The contour survey was undertaken in 2011 and some earthworks have been carried out and retaining walls constructed since then. However, the contour survey information is considered generally representative of the existing site conditions across proposed Lots 12 and 13.[22]>

By reference to Exhibit 2 and in order to correlate the references to degrees of slope, to the expression of grade or gradient, in percentage terms (as in the Planning Scheme), it should be understood that a slope of 14° correlates to a grade of 25%, a slope of 22° to a grade of 40%, a slope of 26° to a grade of 50% and a slope of 30° to a grade of 57%. Accordingly, it may be seen that the land includes, to a significant extent, slopes that substantially exceed the 20 % and 25% yardsticks, which assume significance in consideration of the planning scheme.

  1. [24]
    For the appellant, particular emphasis was placed upon the agreement reached in the joint reports of the geotechnical experts (“GTJER”) as to mitigation measures or risk mitigation strategies that should be implemented to appropriately alleviate unacceptable risk to person and property, having regard to the potential for landslip on the site in general, the consequences of failure, the potential for instability to affect Jones Road, the potential for instability to affect the existing Unitywater Pump Station, the potential for construction of sewerage infrastructure to affect land stability and risk management strategies generally.[23]  In particular, emphasis is placed upon the following agreed position, as stated in the GTJER:[24]

“3.7 Risk management strategies

3.7.1 General

The experts are agreed that:

  • The risk associated with the developments of Lots 12 and 13 is ‘Moderate’.  Phillip Shaw is of the opinion that this could increase to ‘High’ depending on the cost involved in remedial work.  Any risk mitigation strategy needs to take into account the potential for instability of the southern slopes of Lot 10 and their effect on Lot 12.
  • Slope instability issues on Lot 11 relate largely to the potential instability of man-made features primarily the terracing and boulder walls which have been constructed up-slope of the proposed building envelope.
  • The risk of development on Lots 11, 12 and 13 needs to be reduced to ‘Very Low’ to ‘Low’.

The recommendations in sections 8.0 and 9.0 of the Golder Associates report should be implemented so that an acceptable risk rating is achieved for each of the proposed building envelopes.  The following sections highlight some of the specific discussions between Geoff Hurley and Phillip Shaw. 

3.7.2 Lots 12 and 13

The experts are agreed that it is not possible to economically stabilise the steep slopes and the potential for instability of the slopes remains. 

Risk mitigation strategies on Lots 12 and 13 are aimed at protecting any houses on the building envelopes from consequences of failures on the slopes above. 

The experts agree that the risk of development can be reduced to ‘Low’ by implementing the following measures:-

  • The construction of a catch berm or catch barrier as shown schematically in Section 8.2 of the Golder Associates report.  The protective measures should be designed by a suitably qualified and experienced Geotechnical Engineer.  The catch berm is only suitable where the proposed houses are constructed on an elevated fill platform.  This mitigation strategy will address consequences of slope instability on Lot 12, Lot 13 and from Lot 10. 
  • Any existing uncontrolled fill including the stockpile on Lot 12 should be removed or stabilised.
  • The existing unsupported cuts on Lot 12 should be stabilised.  Any existing unsupported cuts above 1m in height should be retained by engineer designed retaining structures. 
  • A retaining wall should be constructed on the upper slopes of Lot 12 and Lot 13 to protect the pump station site from the potential up-slope migration of instability.  The retaining wall should be founded within weathered rock to provide an effective cut off against instability. 

3.7.3 Lots 10 and 11

With the exception of the natural slopes to the south of the existing house on Lot 10, the potential for instability on Lots 10 and 11 related primarily to man-made structures.  Lot 10 is included due to the potential for instability originating on this allotment to affect Lots 11 and 12.  On the basis of observations to date it appears likely that further earthworks will be carried out on Lot 11. 

The experts agree that the following process be implemented for the development of Lots 10 and 11:-

  • Flatten all slopes to no steeper than 1V:2H (27 degrees).
  • All earthworks to be constructed in accordance with the recommendations of the Golder Associates report. 
  • Assess the stability of all cut and fill batters and remediate where required. 
  • Check the local and global stability of all existing terraces and boulder walls (above 1m in height) and obtain certification from a suitably qualified and experienced Registered Professional Geotechnical Engineer (RPEQ). 
  • Investigate the foundation conditions within the building envelope and provide site specific footings design recommendations to address the presence of uncontrolled fill.  This is standard practise and can be undertaken once earthworks and the house design are complete.”
  1. [25]
    As the respondent correctly points out, the particular focus as to the reduction of risk level, in this geotechnical sense, is clearly directed at the building envelopes for the proposed building development on the lower aspect of the land. Otherwise, and as the following extract of the summary of the GTJER exemplifies, the risk of landslide, and therefore in respect of the Land more generally, was to remain unmitigated:

“3.9 Summary

In summary the experts agree:

  • The proposed building envelopes can be developed with a suitably low risk of instability to property, subject to the recommendations provided in this report. 
  • The potential for instability of the steeper slopes outside the building envelopes on Lots 10, 12 and 13 remains unmitigated. 
  • The risk of instability on Lot 10 affecting the road pavement (i.e. extending beyond the kerb and channel) on Jones Road is ‘Very Low’.
  • The Unity pump station site can be protected from the effects of instability on Lots 12 and 13 by the construction of a retaining wall founded within weathered rock on the upper slopes of Lots 12 and 13.”[25]

The planning documents

  1. [26]
    Pursuant to s 314 and s 495(2) of SPA and in the context of this case, the relevant planning documents are:
  1. (a)
    The South East Queensland Regional Plan 2009-2031;
  1. (b)
    The State Planning Policy 1/03 – Mitigating the Adverse Impacts of Flood, Bushfire and Landslide (Bushfire and Landslide);
  1. (c)
    The Maroochy Plan 2000; and
  1. (d)
    The Sunshine Coast Plan 2014.
  1. [27]
    The South East Queensland Regional Plan was introduced on 28 July 2009 and in it, the subject land is located in the “Urban Footprint”. There is no suggestion that the proposal is inconsistent with the regional land use intent or regional policies or the desired regional outcomes for this land use designation.
  1. [28]
    The State Planning Policy 1/03 was in force at the time the application was made. However it is acknowledged[26] that this State Planning Policy has been appropriately reflected in the Maroochy Plan 2000 and as much was conceded by the respondent.[27]  Subsequently to the institution of this appeal, the State Planning Policy 2014 was introduced.  However, the Sunshine Coast Plan 2014 expressly acknowledges that the State Planning Policy 2014 is appropriately reflected within it[28] and there is no suggestion raised otherwise.
  1. [29]
    Accordingly and as was the focus of the submissions of the parties, it is necessary to examine any conflict with the Maroochy Plan 2000 and to the extent that weight may be given to it, the Sunshine Coast Plan 2014.

Is there conflict with the provisions of the Maroochy Plan 2000?

  1. [30]
    The approach for the appellant is to point particularly to the geotechnical evidence and the agreement of the experts expressed at 3.8 of the GTJER that the identified risk mitigation measures, if adopted, would reduce the risk to persons and property from the potentiality of landslides to very low to low, with the further comment that “such a risk rating is normally acceptable to regulators”. It may be observed that that comment is of little assistance. First and as correctly identified by the town planning experts, in the town planning joint expert report (“TPJER”) at 6.4.2, there are, in addition, town planning implications to be considered, which may be informed (but not necessarily determined) by the opinions, best expressed by the geotechnical experts and relating to the stability of the site and the potential for landslide hazard.
  1. [31]
    As the respondent emphasises, the first critical question for the court is to determine whether there is conflict with the Maroochy Plan 2000. The emphasis that the appellant seeks to place on the geotechnical evidence in this regard, is summarised in the following submission:

“91. In light of the state of the geotechnical evidence, it is apparent that the development as proposed can maintain the safety of people and property from the risk of landslide.  As a result it is difficult to see how the Council can maintain that the proposed development is in conflict with the provisions of the Maroochy Plan.”[29]

  1. [32]
    However, that contention should not be accepted and upon a holistic assessment of this planning scheme, it is clear that there is substantial conflict. As contended by the respondent,[30] it may be accepted that a broad consideration of the plan reveals a three limbed planning approach, or strategy, with respect to the development of steep and potentially unstable land, as the subject land is:
  1. (a)
    First and while accommodating the residential use of existing lots, by actively discouraging the creation of additional lots in the precincts or zones in which the subject land is found in the scheme;
  1. (b)
    Secondly and in any event, discouraging any development on land with slopes greater than 25%; and
  1. (c)
    Thirdly, ensuring that any form of development, which could include other forms of development, [31] is compatible with the hazard presented by the steep and unstable land and does increase the risk of harm to people or property. 
  1. [33]
    Further and as the respondent also correctly contends, whilst the evidence of the technical engineers is directed at the third limb of this planning strategy, it does not directly address the other limbs.
  1. [34]
    The conflict with the Maroochy Plan 2000 is to be particularly discerned by reference to the following provisions:
  1. (a)
    In “Volume 2 Strategic Plan”:
  1. (i)
    Under the heading “3 Urban Development” and the subheading “3.5 Objectives and Implementation Measures”, the following statements appears:

“3.5.4 To Ensure that the Physical Environment can Sustain Urban and Rural Residential Development

Because the shire’s urban areas comprise significant areas of steep or slip-prone land, potential exists for inadequate drainage, slope retention and site planning to compromise the conditions of development below and to scar visually prominent features of the landscape.  Substantial amounts of land are also flood-prone.  Implementation criteria are intended to ensure sound planning prevents or minimises potential problems.

…

Implementation

…

…”[32]

“18.1 Explanation

‘Slope’ refers to the inclination of topography or altered made grade (refer to the Administrative definitions in Volume 1 of the planning Scheme).  ‘Geological stability’ refers to the particular interaction of soil, underlying rock, ground water and slope on the stability of any site. 

18.2 Key Issues

The key issues dictating the planning strategy for steep and geologically unstable land include:

  1. All applications are to address the possibility of impacts relating to steep or slip-prone land in accordance with the provisions of s 18.0 of the Strategic Plan and relevant planning scheme codes. 
    1. (ii)
      Under the heading “18. Slope and Geological Stability”:
  • the impact of clearing and grazing on steep or unstable land leading to sheet or gully erosion, hillside creep, slumping or debris flows;
  • in urban areas, conventional residential development on steep or unstable lands requiring overly steep batters, retaining walls and fill which may result in structural failure, soil erosion and drainage issues with adjoining land owners;

…

18.3 Slope and Geological Stability Strategy

The following outlines the elements of the planning strategy to be employed for the development of steep and geologically unstable land. 

…

18.3.1

…

The Slope and Geological Stability Strategy requires matching the range of land uses to the difficulties imposed by the topography of the land, by requiring, where there is an area of known geological instability, such information as is necessary to determine the suitability of the site for the proposed development and by imposing such conditions as are necessary to minimise the potential for soil erosion and land slip.

…

18.4 Objectives and Implementation Measures

18.4.1 To Encourage Activities Appropriate to the Slope of the Land

…

In urban areas, recognition is given to the limitations of slope, particularly in multi-unit density, lot size and dimensions.  This has important implications for the standards and Performance Criteria adopted for the reconfiguration of land and forms a design of urban development in such areas.

…

Implementation

  1. When assessing development applications, council will give preference to proposals which recognise the natural characteristics of a site. 

…

  1. In assessing a proposal on land classified on regulatory map 1.1 (1 of 2) Landslip Hazard as being of moderate, high or very high hazard, or classified as low or very low but with slopes of 15% or greater in areas A to H or classified as low or very low but with slopes of 20% or greater in other areas, due regard shall be given to:
  • the probability of soil erosion and landslip;
  • the potential for structural failure;
  • the likely impact of drainage on adjoining properties;
  • the extent of earthworks;
  • the likely impact of vegetation removal on stability;
  • the impact on permanent and intermittent water courses; and
  • the potential for visual scarring.

…

  1. Council has prepared a code for the assessment and management of land on steep and unstable land to ensure the key issues outlined in 18.2 are adequately addressed.
  2. If after assessing any proposal on steep land, council is not satisfied that the development can be appropriately managed, it may not support the application.

…

18.4.2 To Ensure That Due Regard is Given to the Constraints of Likely Geological Instability

There are areas of known geological instability within the shire. 

Implementation

  1. Geotechnical report will be requested for development applications where land is affected by land prone to slippage, as determined by the regulatory maps included in this Planning Scheme.

…

  1. If after assessing any proposal on land prone to slippage, council is not satisfied the land can be appropriately managed, it may not support the application.”[33]
  1. (b)
    It is common ground that the subject land is situated in “precinct 4 Buderim Scarp Landscape Conservation Precinct”, which is a “Hillslope Residential Precinct”. For such a precinct and in “Volume 3, Planning Areas, Precincts and Precincts Classes” and which is stated to “contain the statements of intent and desired character” for each such area, precinct or class:
  1. (i)
    The following appears under the heading “2.2 General Intent for Residential Precincts”:

“(1) Hillslope Residential

These precincts provide for mainly detached houses in urban areas with land generally having slopes greater than 15% (about 1 in 6).  However, the development of land with slopes greater than 25% (1 in 4) is generally considered inconsistent with council’s planning intent for the shire.”;[34]

  1. (ii)
    Under the subheading “3. Statements of Desired Character for Planning Areas and Precincts” and the further subheading “3.6 Planning Area No 6 – Buderim” and “3.6.4 Statements of Desired Character”, the following appears:

“(4) Buderim Scarp Landscape Conservation 
(Precinct Class = Hillslope Residential)

Intent

This Precinct comprises predominantly steep and sloping land that supports extensive remnant vegetation and wildlife habitats. These intensely green, vegetated slopes are of very high conservation, habitat and amenity value. Their character and prominence in the district’s landscape are fundamental to the character and identity of Buderim as well as the Shire and this part of the Sunshine Coast. The landscape of the Precinct provides a dramatic contrast to the urban development that has occurred on the Buderim Mountain plateau, on other parts of the Scarp and along the coastal urban strip.

It is intended that future development in this Precinct conserve and enhance the significant environmental and landscape values and character of the remnant bushland on the Buderim Scarp.

Much land in this Precinct is not considered suitable for urban development due to its environmental and landscape values, and constraints associated with the difficulties of providing safe, convenient and economical access to services.

…

Preferred and Acceptable Uses

Preferred uses within this Precinct are those referred to in the Table of Development Assessment (refer Vol 1) for the Hillslope Residential Precinct, mainly detached houses on existing lots and where the landscape and environmental values of the area can be protected.

Landscape and Built Form

Any development should be located and designed such that it has minimal impact on the landscape. Development should be sited and designed to avoid destruction of mature vegetation and habitats, erosion and extensive earthworks. … Clearing of native vegetation should be minimised other than for previously approved sites for dwellings and ancillary buildings, access and necessary infrastructure.

…

Preferred Maximum Density

  • One dwelling per lot as existing on the commencement day….”[35]
  1. [35]
    Further and as to the development codes that are provided in this scheme, the following may be noted:
  1. (a)
    “2. GENERAL LAND USE AND DEVELOPMENT CODES”:

“2.1.4 Code for Development on Steep or Unstable Land

PURPOSE

The purpose of this code is to achieve the following outcomes:

  1. (a)
    Development on steep or unstable land is compatible with the nature of the hazard and with the environmental and visual characteristics of the site and surrounding land;
  1. (b)
    Development maintains the safety of people and property from the risk of landslide;
  1. (c)
    Development on slopes of more than 25% occurs only where the scenic and environmental quality of the locality is maintained.

(1)  Element: Unstable Land

PERFORMANCE CRITERIA / ACCEPTABLE MEASURES

P1 Development does not increase the risk of harm to people or property or reduce the safety of hazardous materials manufactured or stored in bulk as a result of landslide. Mitigation works are provided in a manner which minimises whole of life cycle costs.

A1.1

The development does not:

  • involve new building work which exceeds 20m2 gross floor area that involves additional footings or structural slab on ground; or
  • involve vegetation clearing; or
  • alter ground levels to an extent that involves the excavation or filling of more than 50m3 of material (other than the placement
  • of topsoil not exceeding 100mm in depth); or
  • create cuttings or fillings with a vertical depth greater than 1.5 metres relative to ground level; or
  • re-direct or impede water flows in existing water courses, ground water or storm water drains (whether natural or manmade); or
  • require the construction of new stormwater drainage to service new impermeable surface areas (including roofed areas) exceeding 50m2; or
  • involve the construction of an on-site sewerage facility.

Or

An appropriately qualified professional carries out sufficient investigation work and certifies that the stability of the site will be maintained during the course of, and following the development, and that the site is not subject to risk of landslide activity originating from other land. This is in accordance with Planning Scheme Policy No. 4 –Preparation of Geotechnical Reports.

”

  1. (b)
    “8. CODE FOR CONFIGURING LOTS:

The purpose of this code is to achieve the following outcomes:

  1. (a)
    Lot reconfiguration facilitates the creation of safe, convenient, functionally efficient and attractive environments, which are consistent with the desired character of the precinct in which the development site is situated;

…..

  1. (c)
    Lot reconfiguration is responsive to the local environment, including its topography, natural drainage systems, vegetation and habitat, cultural heritage features, streetscape character, landmarks, views and vistas;
  1. (d)
    Development on steep or unstable land is compatible with the nature of the hazard and with the environmental and visual characteristics of the site and surrounding land, and maintains the safety of people and property from the risk of landslide;
  1. (e)
    Development on slopes of more than 25% occurs only where the scenic and environmental quality of the locality is maintained.”[36]

…..

2.  Lot Size and Dimensions:

PERFORMANCE CRITERIA

ACCEPTABLE MEASURES

P1 Lot size and dimensions:

(a) are consistent with the desired

character of the precinct in

which the lot is situated;

(b) respond to the environmental

qualities of the site, including

scenic topographic, natural

or cultural features;

(c) are consistent with the

physical capabilities of the

land, having particular regard

to its slope and stability;

(d) minimise the need for earthworks

(e) minimise the need for

vegetation loss;

(f) enable the provision of:

(i) buildings and set backs;

(ii) private open space

and buffering;

(iii) convenient vehicle access

and on site parking; and

(iv) necessary on-site services;

that are appropriate to

the proposed or expected

use of the land;

(g) facilitate climate responsive

design which conserves the use of

non renewable energy sources;

(h) ensure, in rural precincts:

(i) good quality agricultural

land is conserved and the

productive capacity of this

and other rural land resources

is maintained; and

(ii) the spacing of home sites

as far apart as practicable

along road frontages.

A1.1

(a) Lot size and dimensions are consistent with Table 8.2; or

(b) In a Rural Precinct (other than within a Water Resource

Catchment area as shown on Regulatory Map 1.614), lots with

an area and dimensions less than that nominated in Table 8.2 are

only created where:

(1) (i) there exists a development permit for a material change of

use for a rural service industry or intensive animal husbandry

which will be fully contained within the proposed lot; and

(ii) the lot is used only for the purpose of a rural service industry

or intensive animal husbandry and no residential premises

(apart from a Caretakers residence) is established; and

(iii) the lot area and dimensions enable the approved use of the

land to comply with the requirements (including buffers)

outlined in the relevant codes applicable to the particular use.

OR

(2) (i) the lots result from a realignment of lot boundaries to reduce

the area of one or more lots in order to create a larger lot

over the balance area; and

(ii) there is no increase in lot yield or potential to increase lot

yield as a result of the farm restructuring; and

(iii) each of the smaller lots created contains a habitable detached

house; and

(iv) each of the smaller lots has an area of not less than 4000m2;

and

(v) it does not fetter the existing or potential productivity of the

site, surrounding rural land or adjoining rural industries;

AND

A1.2 No additional lot is created with a slope of 25% or greater.

AND

A1.3 No additional lot is created within a Rural Precinct in a Water

Resource Catchment Area as shown on Regulatory Map 1.6.

Is there conflict with the 2014 scheme?

  1. [36]
    As has been noted, s495(2)(a) of SPA allows for appropriate weight to be given to the Sunshine Coast Plan 2014, which came into effect on 21 May 2015 and therefore subsequently to lodgement of both the development application and therefore this appeal. 
  1. [37]
    Before considering what, if any, weight might be appropriately given to this present scheme, it is necessary to consider whether or not the proposed scheme is in conflict with it. In this instance, the appellant concedes that there is conflict.
  1. [38]
    First, this is because of an overall outcome seeking that development does not result in the creation of additional lots. As stated in the “Limited development (landscape residential) zone code”, at 6.2.18.2(2)(d) and which appears in some immediate context, as follows:

“6.2.18.2 Purpose and overall outcomes

  1. (3)
    The purpose of the Limited development (landscape residential) zone code is to ensure land which is located in an urban or rural residential setting but which has been determined to be unsuitable for urban purposes due to the presence of one or more of the following constraints:-
  1. (a)
    flooding;
  1. (b)
    ecologically important areas;
  1. (c)
    steep land or landslide hazard;
  1. (d)
    access limitations; and
  1. (e)
    an amenity deficiency caused by proximity to a major transport corridor or facility;

is appropriately developed having regard to the constraints of the site. Such constraints pose severe restrictions on the ability of the land to be developed for urban or rural residential purposes.

  1. (3)
    The purpose of the Limited development (landscape residential) zone will be achieved through the following overall outcomes:-

…

  1. (b)
    dwelling houses may be established in the zone only where a suitable building site can be identified which maintains the safety of people, buildings and works, having regard to the physical constraints of the land;

…

  1. (d)
    development does not result in the creation of any additional lots to those existing at the commencement of the planning scheme;
  1. (e)
    development is designed and sited to sensitively respond to the physical characteristics and constraints of land, including flooding, steep land, landslide hazard and bushfire hazard, where applicable;

…”[37]

  1. [39]
    Secondly and because the land lies immediately outside the immediate urban growth boundary, as marked by the blue line depicted on the 2014 planning scheme Buderim local plan, at p 9 of Exhibit 1 and referred to in Exhibit 4, the report of Mr Schomburgk, at [22] and the attached zone map, and due to the overall outcome stated in relation to the “Buderim local plan code”, at 7.2.5.3(2)(b), in terms that:

“7.2.5.3 Purpose and overall outcomes

  1. (3)
    The purpose of the Buderim local plan code is to provide locally relevant planning provisions for the assessment of development within the Buderim local plan area.
  1. (3)
    The purpose of the Buderim local plan code will be achieved through the following overall outcomes:-

…

  1. (b)
    Urban and rural residential development within the Buderim local plan area is limited to land within the urban and rural residential growth management boundaries respectively so as to protect the undeveloped parts of the Buderim escarpment, avoid land otherwise substantially constrained to development and provide for the efficient provision of infrastructure and services.

…”

  1. [40]
    However and whilst those provisions may evince conflict with the 2014 scheme, the extent of the conflict does not rest there. As contended by the respondent, it may be discerned that the same threefold planning strategy adopted in the 2000 scheme has been maintained, if not in some respects strengthened.
  1. [41]
    Any assessment of the Sunshine Coast Planning Scheme 2014 must necessarily have regard to the following stated hierarchical structure:

“1.5  Hierarchy of assessment criteria

  1. (3)
     Where there is inconsistency between provisions within the planning scheme, the following rules apply:-
  1. (a)
    the strategic framework prevails over all other elements to the extent of the inconsistency;
  1. (b)
    statewide codes prevail over all other elements (other than the strategic framework) to the extent of the inconsistency;

 

  1. (c)
    overlays prevail over all other elements (other than the strategic framework and statewide codes) to the extent of the inconsistency;
  1. (d)
    local plan codes prevail over zone codes, use codes and other development codes to the extent of the inconsistency;
  1. (e)
    zone codes prevail over use codes and other development codes to the extent of the inconsistency;
  1. (f)
     provisions of Part 10 (Other plans) may override any of the above.”[38]
  1. [42]
    Part 3 of the 2014 scheme contains the strategic framework and, therefore, the highest order provisions. These relevantly include:
  1. (a)
    As a “Key concept” under the heading “3.3 Settlement Pattern”:

“(2)  Urban and rural residential development that is contained within defined local growth management boundaries.”;[39]

  1. (b)
    The following, under the heading “3.3.1 Strategic Outcomes”:

“The strategic outcomes for the settlement pattern theme are the following:-

…

  1. (b)
    Growth is contained within defined local growth management boundaries that apply and refine the land use categories in the SEQ Regional Plan. These local growth management boundaries reflect the outcomes of detailed local investigations.
  1. (c)
    Urban development and rural residential development is contained within local growth management boundaries so as to protect biophysical and landscape values and natural resources, avoid natural hazards, maintain the individuality of communities and provide for the efficient delivery of infrastructure and services.”[40]
  1. (c)
    Under the heading “3.3.3 Element 2 – Growth management boundaries and land use categories”:

“3.3.3.1  Specific outcomes

  1. (a)
    Local growth management boundaries and land use categories are identified for the region.

 

  1. (b)
     Urban development is limited to land within the urban growth management boundary identified conceptually on Strategic Framework Map SFM 1 (Land use elements) and in further detail on the zoning maps.

…

  1. (d)
    The physical extent of urban development and rural residential development is contained within defined local growth management boundaries so as to:-

…

  1. (iii)
    avoid natural hazards, including an allowance for the predicted impacts of climate change that may worsen these hazards;

…

  1. (e)
    The pattern, form and structure of settlement are consistent with the land use categories identified conceptually on Strategic Framework Map SFM 1 (Land use elements). These land use categories comprise urban areas, rural residential areas, rural enterprise and landscape areas, major sport and recreation open space and major conservation areas.”;[41] and
  1. (d)
    As “Key concepts” under the heading “3.10 Natural hazards”:

“(3)  Achievement of an increased level of resilience to natural hazards such that natural hazards do not pose a serious risk to people, property, community health and wellbeing, economic activity and the region’s biophysical values.

  1. (3)
    Adoption of a precautionary and conservative approach to planning for natural hazards.
  1. (3)
    Adoption of mitigation measures that are compatible with the nature of each natural hazard taking account of its predicted frequency and severity.
  1. (3)
    Reshaping the pattern of settlement to avoid development in areas subject to the critical natural hazards of bushfire, coastal erosion, flooding and landslide.

…

3.10.1  Strategic outcomes

The strategic outcomes for the natural hazards theme are the following:-

…

  1. (c)
    Hazard avoidance and management strategies reflect a precautionary and conservative approach that recognises the high risk profile of the Sunshine Coast as an area where a significant proportion of development is located adjacent to the coast and in river plains.
  1. (d)
    The pattern of settlement is shaped such that new urban areas are not affected by critical natural hazards and in particular, are not potentially at risk from bushfire, coastal erosion, flooding and landslide.
  1. (e)
     Where natural hazards cannot practically be avoided, appropriate adaptation responses are adopted to reduce the risk and severity of the impact of the hazard.”;[42] and 

“3.10.6  Element 5 – Landslide and steep land

3.10.6.1 Specific outcomes

  1. (a)
    The risk of harm to people, property, economic activity and the environment due to landslide is minimised.
  1. (b)
    The use of areas and the design, construction and operation of development on land subject to landslide hazard are compatible with the nature of the hazard and appropriately respond to the constraints imposed by the hazard.
  1. (c)
    The potential for erosion and land slippage associated with land use and development is minimised.

...”[43]

  1. [43]
    Further, and in “8.2.10 Landslide hazard and steep land overlay code”[44]:

“…

8.2.10.2 Purpose and overall outcomes

  1. (3)
    The purpose of the Landslide hazard and steep land overlay code is to ensure:-
  1. (a)
    development avoids or mitigates the potential adverse impacts of landslide hazard on people, property, economic activity and the environment; and
  1. (b)
    development on steep land is avoided or otherwise limited in scale and intensity, and is sensitively located and designed to minimise adverse impacts on scenic amenity, the environment and public safety.
  1. (3)
    The overall outcomes sought for the Landslide hazard and steep land overlay code are the following:-
  1. (a)
    development in areas at risk from landslide hazard is compatible with the nature of the hazard;
  1. (b)
    the risk to people, property and the natural environment from landslide hazard is minimised;
  1. (c)
    development does not result in a material increase in the extent or severity of landslide hazard; and

 

  1. (d)
     development on steep land occurs only where the scenic and environmental quality and integrity of the landscape is maintained and safe and efficient access can be provided.”
  1. [44]
    Following that and in “8.2.10.3”, the following assessment criteria is provided in Table 8.2.10.3.1 as the performance outcome in respect of “risk of harm to people and property”, in respect of both “landslide hazard areas” and “steep land”:

“PO1 Development does not increase the risk of harm to people and property as a result of landslide by either:-

  1. (a)
     avoiding development in a landslide hazard area; or
  1. (b)
     undertaking development in a landslide hazard area only where strictly in accordance with best practice geotechnical principles.”

and:

“PO2 Development, including associated access, does not increase the risk of harm to people and property by:-

  1. (a)
    avoiding development on steep land; or
  1. (b)
    undertaking development on steep land only where strictly in accordance with best practice geotechnical principles.”
  1. [45]
    Specifically as far as the discouragement of additional lots on the land is concerned, it is pointed out that the land has been deliberately excluded from the urban growth area and zoned so to be in the category where there is specific restriction on the creation of additional lots and that this occurred despite the submission made by the appellants to contrary effect, in the process of the making of the 2014 scheme.[45]  It can be noted that in “9.4.4 Reconfiguring a lot code” and apart from more generally stated purposes and overall outcomes, one particular overall outcome stated in 9.4.4.2(2) is:

“(c)  development provides for subdivisions that result in the creation of safe and healthy communities by:-

…

  1. (iv)
    avoiding or mitigating the risk to people and property from natural hazards;

…”

  1. [46]
    Otherwise and as far as the performance and acceptable outcomes stated in “9.4.4.3 Assessment criteria”, it suffices to note that “Table 9.4.4.3.2 Minimum lot size and dimensions”, simply notes that in respect of the “Limited development (landscape residential) zone”:

“No new lots to be created.”

The nature and extent of relevant conflict

  1. [47]
    As has been noted, the relevant decision rule to be applied, pursuant to s 326 of SPA, is that unless there are sufficient grounds to nevertheless justify the decision, it must not conflict with a relevant instrument, such as a planning scheme.  Because s 495(2) of SPA also applies, to require that the decision in this appeal must be based on the laws and policies applying when the application was made, but allowing a discretion to also “give weight to any new laws and policies the court considers appropriate”, it is necessary, in the first instance, to ascertain the nature and extent of conflict with the Maroochy Scheme 2000, being the existing planning scheme at the time when the application was made.  Further and in this case and as such conflict is to be found, it then falls to the appellant to establish that there are sufficient grounds to justify approval of the application, despite the conflict and in the context of any appropriate weight that is to be given to the conflict also with the now existing 2014 scheme. 
  1. [48]
    It can be noted that as a planning scheme implemented under the Integrated Planning Act 1997 and consistently with s 2.1.23 of that Act, the planning policy in respect of steep and unstable land in the Maroochy Plan 2000 is not articulated so as to prohibit development on such land.  In particular, reconfiguration of such land[46] is not prohibited but and as has been noted above, there are clear implications and express statements of an expectation and policy that, as is the case here, the development of land, including the creation of lots with slopes exceeding 25%, is generally to be considered inconsistent with the planning intent of the scheme. 
  1. [49]
    Further and given the emphasis upon the risk of landslide in specifically identified areas and upon the preservation of the safety of persons and property, having regard to such risk, it is clear that the scheme allows for a conclusion, at a broad level, of a policy of avoidance of such risk, rather than merely minimising it. As has already been noted, the appellants’ emphasis has been upon the risk minimisation measures identified by the geotechnical experts, particularly as that may be seen as consistent with the premises of the risk minimisation aspects of the more detailed requirements of the scheme. However, those provisions are calculated to operate over a broad spectrum of situations, including in respect of land with slopes of 25% or less but where there remains a risk of landslide and must be seen in the broader context of operating upon an assumption that the risks of the particular development to which they are to be applied fall into a category where it is appropriate to seek to minimise, rather than avoid the risks involved.
  1. [50]
    Accordingly, the appellants’ alternative submission, that any conflict with the Maroochy Plan 2000 that might be found is only minor, should not be accepted. The conflict is, for the reasons given, plainly extensive and significant.

 

The application of the “Coty Principle”?

  1. [51]
    In the written submissions made for the appellants[47] and in dealing with the question as to what weight should be given to the conflict with the 2014 Plan, particular reference is made to a number of cases decided in this court and which make reference to or consider the application of the so-called “Coty Principle”, which it is also pointed out, was recognised as having application in Queensland.[48] The reference is to the following extract from the judgment of Hardy J[49]:

“It is important, in the public interest, that whilst the Respondent Council’s local scheme is under consideration this court should, in the exercise of its appellate jurisdiction under Cl. 35 of the County Ordinance, avoid, as far as possible, giving a judgment or establishing any principle which would render more difficult the ultimate decision as to the form the scheme should take. It is also important, in the public interest, that during that period this court should, in the exercise of the jurisdiction referred to, arrive at its judgment, as far as possible, in consonance with the town planning decisions which have been embodied in the local scheme in the course of preparation.”[50]

  1. [52]
    Two observations may be made as to why it is not necessary to dwell on or examine the references to these cases, in any particular detail. First and foremost, the “Coty Principle” or as Thomas J described the situation in Lewiac Pty Ltd v Gold Coast City Council[51]the considerations upon which Hardy J was persuaded to act, related to the attribution of weight to a local scheme that was under consideration, rather than effected, by the time the matter was before the court. As Fitzgerald P observed in Yu Feng Pty Ltd v Maroochy Shire Council[52]:

“Coty establishes no more than that, when determining whether to approve or refuse a planning application, it is permissible, in appropriate cases, to take account of any provisions affecting the site which are included in a general planning scheme which is in the course of preparation; the weight to be accorded to either consistency or inconsistency between the draft planning scheme and the application will depend on the circumstances, including the stage to which the draft planning scheme has progressed, and usually will only be one of the factors to be considered, although in a particular case it might be decisive.”

It can be observed that unlike that position, the position here is concerned with the attribution of appropriate weight to conflict with the 2014 Plan, as is expressly allowed by s 495(2) of SPA and as may be appropriate to the circumstances under consideration.

  1. [53]
    Secondly, and in any event and in consequence of the findings made in respect of the conflict with the 2000 Plan, there is no question of any conflict with the 2014 Scheme being given any decisive or determinative weight[53] and the appellant’s submissions in relation to such considerations, proceed upon an assumption that there is no conflict with the 2000 Plan and that the application meets the requirements of that earlier Plan.[54]

Are there sufficient grounds to justify an approval of the development, despite the conflict?

  1. [54]
    In that context, it is next appropriate to consider whether there are sufficient grounds established to justify an approval of the development, despite the conflict. The first point to note in this regard is that it is in this context that it appears to be appropriate to give weight to the conflict with the 2014 scheme. This is particularly because it can be seen that this conflict may be regarded as even more marked or stark, than the conflict with the Maroochy Plan 2000. The 2014 plan may be seen as a strengthened reiteration of an adopted policy which was against allowing the development of land with slopes exceeding 25% and particularly development by way of subdivision of such land.
  1. [55]
    The conflict with the latter but presently operative scheme is therefore relevant to and may be given weight in assessment of the nature and extent of conflict with the 2000 scheme and more particularly in assessing whether there are nevertheless sufficient grounds to justify approval of the application which is the subject of this appeal.
  1. [56]
    As contended by the respondent, such an attribution of weight to the conflict with the 2014 scheme is not inappropriate having regard to the further considerations that:
  1. (a)
    whilst that scheme has come into effect, substantially after the dates of the lodgement of the development application (on 7 September 2011) and this appeal (on 7 August 2012), there has been an absence of earlier pursuit of the appeal and ultimately it has been pursued after the 2014 scheme has been effected, despite and so as to effectively reject, the appellants’ submission for different treatment in that plan;[55] and
  1. (b)
    there is no suggestion that the common planning strategy in each plan and as to which the approval which is sought would be in conflict, and particularly in the avoidance of creation of additional lots within the relevant precinct and in discouragement of development of land with a slope of more than 25%, is not soundly based.  The evidently precautionary approach which is adopted in these plans, is, as observed by Mr Brown (the town planning expert engaged by the respondent), “not surprising, given the unfortunate history of failure of slopes (including within subdivisional estates) which have taken place in the Buderim locality with consequential adverse impacts upon public assets and private property”.[56]
  1. [57]
    Further and as observed by Mr Brown:[57]

“The provisions of both planning schemes which discourage further development on land in the respective zone in which the land is included, i.e. Hillslope Residential Precinct Class (Buderim Scarpe Landscape Conservation Planning Area) in MP 2000, and Limited Development (Landscape Residential) Zone in the 2014 scheme, have been soundly based having regard to:

  1. (a)
    available geological mapping within the town planning documents; and
  1. (b)
    the results of the site investigations reflected in the geotechnical reports available to the Court, including the joint reports of the geotechnical experts, and the recommendations contained therein.”
  1. [58]
    An essential distinction between that approach and the approach of Mr Schonburgk, the town planner engaged by the appellants, may be seen in Mr Schonburgk’s reliance on the risk minimisation strategies identified by the geotechnical experts, as potentially being directed at compliance with the planning scheme and, therefore, the removal of any conflict with the scheme. So much is evident in the following conclusion stated by Mr Schonburgk:

“If the court is not satisfied that the geotechnical issues are satisfactorily resolved, or capable of resolution, my comments in the JER that ‘many of the alleged conflicts would remain, and there would not, in my opinion, be any grounds that would be sufficient to justify this approval despite those conflicts’ stand as my opinion.”              

  1. [59]
    However, and as has been noted, and notwithstanding the necessary steps that have been identified by the geotechnical experts, as reflected in the agreed conditions necessary to reduce the risks to any subdivided lots in the proposed development, the essential conflict with the overall intent of the planning scheme, is not removed by any such minimisation of risk. Therefore the approach of Mr Brown, is the more acceptable and particularly because of his recognition that the geotechnical evidence and the identified conditions arising therefrom, particularly serve to underscore the essential planning imperative of avoidance of such development of such steeply sloped land, in this location.
  1. [60]
    Further and as correctly pointed out by the respondent, the measures that were identified by the geotechnical assessment and which would be necessary conditions of any approval, were essentially directed at protection of and minimisation of the risks of landslide in relation to the proposed building envelopes and the identified risks of landslide to the enjoyment of the land, otherwise remained effectively unabated. Also, there would remain the prospect of necessity of ongoing maintenance, in the sense of a need to remove any consequences of any slippage in the catch berms, so as to maintain the effectiveness of such a measure, after any such event.
  1. [61]
    Accordingly, sufficient grounds to nevertheless justify the decision, pursuant to s 326(1)(b) of SPA, may not be simply found in these risk minimization measures, as they particularly serve to identify rather than remove, the conflict at issue. As has been noted earlier in these reasons,[58] such grounds must be found in matters of public interest, rather than the personal circumstances of the appellant. 
  1. [62]
    When pressed with that requirement, counsel for the appellant identified only the consideration that the proposed conditions included a requirement that the public utility, in the form of the Unity Water Pump station, would benefit by the inclusion of a retaining wall, to protect it from the instability of the slope below.
  1. [63]
    It can be noted that the protection of that pump station would be a public benefit, particularly given the obvious importance of it, as part of the infrastructure supplying water to the Buderim escarpment. However, in circumstances where there is no evidence suggesting that the pump station is in any particular danger due to any potential land slide on the slope below, as it exists. Accordingly and where the proposed measure is otherwise a step to be taken as a protective measure, in the event of the proposed redevelopment, including earthworks on that slope, if the proposed development were allowed to proceed, it should be concluded that any such public benefit does not provide sufficient grounds to justify such an approval, despite the nature and extent of conflict with the planning scheme.

Conclusion

  1. [64]
    Accordingly, this appeal will be dismissed and the decision of the respondent made on 2 July 2012, confirmed. Therefore, it is unnecessary to determine the remaining dispute between the appellants and the co-respondent. Further, it is undesirable to do so, even in any indicative sense as to what the view of this court would have been, had it been necessary to consider the question.
  1. [65]
    This is particularly because:
  1. (a)
    The only issue was as to the width of the easement over the land, for the purposes of the water mains which traverses the land to the pump station;
  1. (b)
    This issue only related to the question of the imposition of a condition upon, rather than any contended impediment of, the proposed development;
  1. (c)
    Although it was produced both late and outside the parameters of the pre-trial directions as to the production of evidence, the co-respondents applied for leave to read and file an affidavit,[59] directed towards some practical consideration in respect of its contention for a 10 metre wide easement and that application was adjourned, pending the outcome of the issues joined between the appellants and the respondents, particularly due to the circumstances where the appellants had not had an appropriate opportunity to respond to that material;[60] and
  1. (d)
    It is now neither necessary nor desirable that further cost or effort be expended in that regard. 
  1. [66]
    However, the co-respondents did seek to pursue its contention as far as it was based upon the statutory considerations and in that regard, it may be noted that:
  1. (a)
    The existing easement in respect of the water mains is just over 5 metres in width and has existed for over 40 years;[61]
  1. (b)
    At the time of the subject application being properly made, on 7 September 2011, the Maroochy Plan 2000, set out the desired standards of service for the water supply, trunk infrastructure, by specific reference to established codes and standards, including the “Water Services Association of Australia Code for Water Supply”.[62]  However and by Table 5.4, the 2000 Plan made the Operational Works Code applicable to the assessment[63] and the Operational Works Code adopted “Planning Scheme Policy 5 Operation Works”[64] (“PSP5”), as an acceptable measure and the PSP5, in turn, modified the then Water Services Association of Australia Code for Water Supply, WSA03-2002 V2.3 (3.1.2.1), to provide that:[65]

“In general, water mains are not to be constructed on private property, however, in instances where this is unavoidable it will be necessary to provide an easement of minimum 3.0  metres width registered for the benefit of the Council on the title of the land.  The main is to be constructed centrally within the easement.  A wider easement may be necessary in some instances, as determined by the Water Agency, to ensure adequate access for maintenance purposes.”;

  1. (c)
    Otherwise, the Water Services Association of Australia Code for Water Supply Version 3.1 (WSA03-2002 V2.3) provided in 4.3.3:[66]

“… specific requirements for the use of an easement shall be obtained in writing from the water agency, and shall at least include:

  1. (a)
    the zone – of – influence of the trench for the water main.
  1. (b)
    sufficient width and drainage capacity to minimise the risk of consequential damage in the event of a main’s failure.
  1. (c)
    sufficient width for access for construction/maintenance.
  1. (d)
    additional access to allow for future upsizing, if appropriate.”
  1. (d)
    From April 2011, the Water Services Association of Australia Code for Supply WSA03-2011 V3.1, repeated (in 5.4.4) those specific requirements and additionally provided for “default easement guidelines” (in Table 5.2) and for a minimum 6.0 metre easement in respect of temporary mains in private property, but in the context of a guideline that no permanent mains are to be located within private property;
  1. (e)
    Further and as from 1 July 2013, WSA03-2011 V3.1 was modified to become the “SEQ Design and Construction Code” (“ SEQ Code”) and was gazetted pursuant to the South-East Queensland Water (Distribution and Retail Restructuring) Act 2009, so as to become the Uniform Code applicable to all development in South East Queensland.[67]  The co-respondent notes that the current SEQ Code modifies the 2011 Code and relevantly provides for amendments to Table 5.2, to “amend the easement width to 6m for reticulation mains (up to and including 300mm NB) and 10m for trunk mains” and to insert at the end of the clause that “the developer shall arrange for the provision of any easements over private property and registration of such easements”.
  1. [67]
    The co-respondent then notes the provisions of s 755D of SPA, as having the effect, after the SEQ Code came into effect, of inserting the SEQ Code as one of the matters or things, against which assessment is to be made pursuant to s 314(2) of SPA and, pursuant to s 755D(2)(b), having the effect of prevailing to the extent of any inconsistency with a planning scheme. Although and in reference to those provisions, a contention was noted as to the potential overriding of s 495(2)(a) of SPA, that was not pressed and the co-respondent’s argument therefore depended upon the weight to be applied to the SEQ Code pursuant to s 495(2)(a). However, it must be noted that the particular reference to s 755D of SPA is to a provision which was omitted from SPA pursuant to the Water Supply Services Legislation Amendment Act 2014,[68] as from 1 July 2014 and that situation remains presently unelaborated in submissions. 
  1. [68]
    Notwithstanding that it was an important part of the co-respondent’s contention that the particular requirements of the planning scheme and adopted codes, was applicable to a single pipeline, whereas it is common ground that there is a double pipeline traversing the land, there is the difficulty that has been noted in relation to the legislative provisions referred to as adopting the SEQ Code and in any event:
  1. (a)
    The ultimate issue is as to whether an easement of 10 metre width, as contended by the co-respondent, is (pursuant to s 345(1)(a) of SPA) both “relevant to but not an unreasonable imposition on the development or use of the premises as a consequence of the development”; and
  1. (b)
    As was noted in the written submissions for the co-respondent,[69] a conclusion on that issue would depend on how much weight is to be given to the SEQ Code and it can be further noted, as was the “appellant’s position” this may ultimately require consideration of the material relating to the practical considerations or identified requirements as to the easement, in order to assess the reasonableness of the co-respondent’s contentions.

Footnotes

[1]  See Ex. 1.

[2]  Main Road is an extension of Jones Road. 

[3]  Ex. 1, vol. 1, pp 121 and 152.

[4]  Ex. 1, vol. 1, pp 42 and 67.

[5]  Ex. 1, vol. 1, p 110.

[6]  Section 495(1) of SPA, and see R v Lukin ex parte Sunshine Pty Ltd [1967] Qd R 49, at 53.

[7]  Section 493(2) of SPA.

[8]  Ex. 1, vol. 1, p 6.

[9]  Ex. 1, vol. 1, pp 37-9.

[10]  Ex. 1, vol. 1, pp 31-2 (as they were corrected during the hearing).

[11]  See HA Bachrach Pty Ltd v Caboolture Shire Council (1992) 80 LGERA 230, as applied in Yu Feng Pty Ltd v Maroochy Shire Council (1996) 92 LGERA 41, at 59 per Fitzgerald P.

[12]  Degee & Anor v Brisbane City Council & Anor [1998] QPELR 287, ZW Pty Ltd v Peter R Hughes & Partners Pty Ltd [1992] 1 Qd R 352 at 360, Yu Feng Pty Ltd v Maroochy Shire Council (1996) 92 LGERA 41, at 73,75 and 78 and Harburg Investments Pty Ltd v Brisbane City Council [2000] QPELR 313, at 318.

[13]  [2004] QPELR 337, at 342.

[14]  [2001] QPELR 14 at 40.

[15]  [1995] QPLR 141 at 143.

[16]  [2003] QPELR 447.

[17]  Fitzgibbons Hotel Pty Ltd and Ors v Logan City Council & Anor [1997] QPELR 208

[18]  s. 326(1)(b)

[19]Weightman v Gold Coast City Council [2003] 2 Qd R 441, at 453 and Woolworths Ltd v Maryborough City Council & Anor [2006] 1 Qd R 273, at [23] and [25].

[20]  Ex 1, vol. 2, at p 453.

[21]  Ex 1, vol. 2, at p 454.

[22]  Ex 1, at p 138 and see Figure 1, at p 152 and Figure 2, at p 153.

[23]  Such risk was assessed by reference to the Australia Geomechanic Society (AGS) Guidelines for Landslide Risk Management (March 2007). 

[24]  Ex. 1, vol. 1, at pp 124-125.

[25]  Ex. 1, vol. 1, at p 126.

[26]  Town planning joint expert report (“TPJER”), at 6.3.2: Ex. 1 Vol. 1, at p 235.

[27]  Ex. 1, vol. 1, at p 18.

[28]  Ex. 1, vol. 2, at p 385.

[29]  See appellant’s written submissions at p 24 [91].

[30]  Respondents written submissions, at [38].

[31]  See the definition of “development” in ss 1 and 10 of SPA.

[32]  Ex. 1, vol. 2, at pp 267-8.

[33]  Ex. 1, vol. 2, at pp 273-4.

[34]  Ex. 1, vol. 2, at p 281.

[35]  Ex. 1, vol. 2, at pp 298-9.

[36]  Ex. 1, vol. 2, at p 330.

[37]  Ex. 1, vol. 2, at p 398.

[38]  Ex. 1, vol. 2, at p 382.

[39]  Ex. 1, vol. 2, at p 386.

[40]  Ibid.

[41]  Ex. 1, vol. 2, at p 388.

[42]  Ex. 1, vol. 2, at p 394.

[43]  Ex. 1, vol. 2, at p 396.

[44]  Steep land is identified as involving “slopes of 15% or greater” and “identified on the “Landslide Hazard and Steep Land Overlay Maps in schedule 2” to the scheme.  See Exhibit 1, p 457 for the “Landslide Hazard and Steep Land Overlay Map (i) (Landslide)” , where the land is designated as in the “Moderate Hazard Area” category, and also Exhibit 1, volume 2, p 458 for the “Landslide Hazard and Steep Land Overlay Map (ii) (Steep Land)”, where the land is mostly designated in the category of “Slope greater than 25%” and otherwise in the category of “slope 20-25%”.

[45]  See Exhibit 7. 

[46]  As one only of the types of development within the purview of SPA: see s 7.

[47]  At [102]-[117].

[48]  Lewiac Pty Ltd v Gold Coast City Council (1996) 2 Qd R 266 at 270-1.

[49]  Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117.

[50]  See the appellant’s written submissions at [104] and [107].

[51]  (1996) 2 Qd R 266 at p                       .

[52]  (1996) 92 LGERA 41.

[53]  Cf  Lewiac Pty Ltd v Gold Coast City Council (1996) 2 Qd R 266 at 270.

[54]  See in particular, appellant’s written submissions at [116].

[55]  See Ex. 7

[56]  See Ex. 1, vol. 1 at p 241: JTPER at 6.6.1 and cf: the observations of the appellants’ town planner, Mr Schomburgk, to similar effect and as stated in his individual report: Exhibit 4, at p 5 para 26

[57]  In his individual report: Ex. 6, at p 8 para 20

[58]  See para [9], above

[59]  Further affidavit of N W Killip, sworn 12/11/14 – see T 2-63.40.

[60]  See T 2-68.5-11.

[61]  See co-respondent’s written submissions at [13] and Ex. 1, vol. 2, at p 661

[62]  Ex. 1, vol. 2 at pp 352 and 370.

[63]  Ex. 1, vol. 1 at p 75.

[64]  See Ex YYL10, to the Affidavit of Yee Yang Lim, filed by leave on 13/11/14, at Item A1.2.

[65]  See Ex YYL11 to the Affidavit of Yee Yang Lim, at p 30.

[66]  See Ex YYL12 to the Affidavit of Yee Yang Lim, at p 74.

[67]  Ex. 1, vol. 2, at p 704.

[68]  Although there is presently a s 755D in SPA, that is a different provision inserted by the State Development, Infrastructure and Planning (Red Tape Reduction) and Other Legislation Amendment Act 2014 No. 40, as from 1/10/14.

[69]  At [6].

Close

Editorial Notes

  • Published Case Name:

    Duffy v Sunshine Coast Regional Council & Anor

  • Shortened Case Name:

    Duffy v Sunshine Coast Regional Council

  • MNC:

    [2015] QPEC 58

  • Court:

    QPEC

  • Judge(s):

    Long DCJ

  • Date:

    04 Dec 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117
2 citations
Jump To
Cite 1 - (1957) 2 LGRA 117
Cite 2 - (1957) 2 LGRA 117
Degee v Brisbane City Council (1998) QPELR 287
2 citations
Jump To
Cite 1 - (1998) QPELR 287
Cite 2 - (1998) QPELR 287
Drivetype Pty Ltd v Caboolture Shire Council (1995) QPLR 141
2 citations
Jump To
Cite 1 - (1995) QPLR 141
Cite 2 - (1995) QPLR 141
Fitzgibbons Pty Ltd v Logan City Council (1997) QPELR 208
2 citations
Jump To
Cite 1 - (1997) QPELR 208
Cite 2 - (1997) QPELR 208
H A Bachrach P/L v Caboolture SC (1992) 80 LGERA 230
1 citation
Jump To
Cite 1 - (1992) 80 LGERA 230
Harburg Investments Pty Ltd v Brisbane City Council (2000) QPELR 313
2 citations
Jump To
Cite 1 - (2000) QPELR 313
Cite 2 - (2000) QPELR 313
Jenkinson Pty Ltd v Caloundra City Council (2002) QPELR 527
1 citation
Jump To
Cite 1 - (2002) QPELR 527
Lewiac Pty Ltd v Council of the City of Gold Coast[1996] 2 Qd R 266; [1994] QCA 2
4 citations
Jump To
Cite 1 - [1996] 2 Qd R 266
Cite 2 - [1996] 2 Qd R 266
Cite 3 - [1996] 2 Qd R 266
Cite 4 - [1996] 2 Qd R 266
Lewiac Pty Ltd v Gold Coast City (1994) 83 LGERA 224
1 citation
Jump To
Cite 1 - (1994) 83 LGERA 224
Luke v Maroochy Shire Council & Anor (2003) QPELR 447
3 citations
Jump To
Cite 1 - (2003) QPELR 447
Cite 2 - (2003) QPELR 447
Cite 3 - (2003) QPELR 447
Nordale Management Pty Ltd v Maroochy Shire Council [1995] QPELR 368
1 citation
Jump To
Cite 1 - [1995] QPELR 368
R v Lukin; ex parte Sunshine Pty Ltd [1967] Qd R 49
1 citation
Jump To
Cite 1 - [1967] Qd R 49
Vynotas Pty Ltd v Brisbane City Council (2001) QPELR 14
2 citations
Jump To
Cite 1 - (2001) QPELR 14
Cite 2 - (2001) QPELR 14
Weightman v Gold Coast City Council[2003] 2 Qd R 441; [2002] QCA 234
1 citation
Jump To
Cite 1 - [2003] 2 Qd R 441
Westfield Management Ltd v Pine Rivers Shire Council (2004) QPELR 337
2 citations
Jump To
Cite 1 - (2004) QPELR 337
Cite 2 - (2004) QPELR 337
Woolworths Ltd v Maryborough City Council (No 2)[2006] 1 Qd R 273; [2005] QCA 262
1 citation
Jump To
Cite 1 - [2006] 1 Qd R 273
Yu Feng Pty Ltd v Maroochy Shire Council (1996) 92 LGERA 41
5 citations
Jump To
Cite 1 - (1996) 92 LGERA 41
Cite 2 - (1996) 92 LGERA 41
Cite 3 - (1996) 92 LGERA 41
Cite 4 - (1996) 92 LGERA 41
Cite 5 - (1996) 92 LGERA 41
ZW Pty Ltd v Peter R Hughes & Partners Pty Ltd[1992] 1 Qd R 352; [1991] QSCFC 123
2 citations
Jump To
Cite 1 - [1992] 1 Qd R 352
Cite 2 - [1992] 1 Qd R 352

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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