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Reibel Farms Pty Ltd v Whitsunday Regional Council[2016] QPEC 44

Reibel Farms Pty Ltd v Whitsunday Regional Council[2016] QPEC 44

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Reibel Farms Pty Ltd v Whitsunday Regional Council [2016] QPEC 44

PARTIES:

REIBEL FARMS PTY LTD
ACN 011 072 763
(Appellant)

and

WHITSUNDAY REGIONAL COUNCIL
(Respondent)

FILE NO/S:

D239 of 2013

DIVISION:

Planning and Environment Court

PROCEEDING:

Appeal

ORIGINATING COURT:

Planning and Environment Court, Townsville

DELIVERED ON:

08 September 2016

DELIVERED AT:

Townsville

HEARING DATES:

17 to 20 November 2014; Written submissions 03 December 2014; Listed for of Delivery of Judgment 19 June 2015; Request to re-open evidence 19 June 2015; Application to re-open evidence 04 September 2015; Review and directions hearing 16 November 2015; Final submissions 22 January 2016.

JUDGE:

Durward SC DCJ

ORDERS:

1. Appeal dismissed.

2. The Decision of the Whitsunday Regional Council refusing the Development Application is confirmed.

CATCHWORDS:

ENVIRONMENT & PLANNING – DEVELOPMENT APPLICATION FOR MATERIAL CHANGE OF USE (PRELIMINARY APPROVAL) – CONFLICT WITH PLANNING SCHEME – FLOODING – ECONOMIC NEED – CONFLICT - SUFFICIENT GROUNDS – development application for material change of use (preliminary approval overriding planning scheme) – proposed residential development - property partly in rural zone and partly in open space zone in planning scheme – where proposed development adjacent to a watercourse that has a flood mitigation purpose – whether residential development in hazard-prone area suitable – whether proposal creates risks of flooding of existing and /or proposed properties – where proposal contingent on upgrade by Council of existing adjacent road and watercourse culvert – whether proposed development complies with Residential Zone Code and Filling & Excavation Code - whether economic need to approve development – where planning scheme provides other future capacity for residential development - whether conflict with planning scheme or other relevant instrument, planning scheme DEOs or State Planning Policy 1/03 – whether compromise of DEO’s - whether sufficient grounds to warrant approval despite conflict with planning scheme or other relevant planning instrument.

ENVIRONMENT & PLANNING – HEARING – JUDGMENT RESERVED - RE-OPENING – FRESH EVIDENCE – where respondent post-hearing and prior to delivery of judgment resolved to upgrade adjacent road and watercourse culvert – where appellant’s application to re-open evidence granted – where further evidence and further submissions dealt with on the papers – whether upgrade satisfied the Q100 flood level and associated flood risk issue.

LEGISLATION:

Sections 3.1.1.6, 3.1.5 (1), 3.5.5A, 3.5.14, 4.1.52, 4.1.54 and Schedule 10 Integrated Planning Act 1997; Sections 241 (1), 242 (1) (b), 802 and 819 Sustainable Planning Act 2009.

PLANNING SCHEMES:

Bowen Shire Council Planning Scheme 2006; Whitsunday Regional Council Planning Scheme (Draft).

CASES:

Cut Price Stores Retailers Ltd v Caboolture Shire Council (1984) QPLR 126; All-A-Wah Car Park v Noosa Shire Council (1989) QPLR 155; Luke & Ors v Maroochy Shire Council & Anor [2003] QPELR 447; Intrafield Pty Ltd v Redland Shire Council (2001) 116 LGERA 350; Woolworths Ltd v Maryborough City Council & Anor [2005] QPEC 262; Delaview Pty Ltd v Redland Shire Council [1997] QPELR 250; Shardlow v Moreton Bay Regional Council [2012] QPEC 082; (2013) QPELR 246; Stockland v Sunshine Coast Regional Council & Ors [2013] QPEC 079; Koerner & Ors v Maroochy Shire Council & Ors [2004] QPELR 211; Handley v Brisbane City Council & Anor (2005) QPELR 80; Kotku Education & Welfare Society Inc v Brisbane City Council & Ors [2005] QPELR 267; Lewis v Townsville City Council & Ors [2012] QCA 99; Australand Holdings v Gold Coast City Council [2007] QPEC 29; Zanow v Ipswich City Council [2010] QPEC 050; [2010] QPELR 721; William McEwens Pty Ltd v Brisbane City Council (1982) 2 APA 165; Grosser v Council of Gold Coast (2001) 117 LGERA 153; Central Equity Limited v Gold Coast City Council (2007) QPELR 356; Aldi Stores v Redland City Council [2009] QPEC 27; Westfield Management Ltd v Pine River Shire Council & Anor. (2004) QPELR 337; Metroplex v Brisbane City Council [2010] QCA 333; [2011] QPELR 181; Weightman v Gold Coast City Council (2003) 2 Qd.R. 441; Woolworths Ltd v Maryborough City Council (2006) 1 Qd.R 273; SDW Projects Pty Ltd v Gold Coast City Council & Anor [2007] QPELR 24; Australian Retirement Homes Ltd v Pine Rivers Shire Council &Anor [2007] QPEC 85.

COUNSEL:

S N Ure of counsel for the Appellant

B D Job of counsel for the Respondent

SOLICITORS:

Connolly Suthers Lawyers for the Appellant

McCullough Robertson for the Respondent.

The development application

  1. [1]
    The Applicant lodged a Development Application for a Material Change of Use of Premises – Preliminary Approval overriding the Planning Scheme – section 3.1.1.6 of the Integrated Planning Act 1997 (“IPA”), for residential development consisting of 10.96 hectares of residential precinct R1 Zone land, 8,898m2 of residential precinct R2 Zone land and 3.2 hectares of Open Space (“the development application”) on or about 28 May 2009. 
  1. [2]
    The Appellant applied to amend the development application by way of “minor change” on or about 08 June 2009, to confine the residential development to the north-east (the proposed residential precinct R1 Zone) part of the land and the Open Space Zone. The proposed crossing of Bells Gully to access and develop the south-west part of the land (the proposed residential precinct R2 Zone with a commercial element) was removed. The Whitsunday Regional Council (“the Respondent”) did not take issue with the minor change application and it was approved by the Court on 18 September 2014. This meant that the Rural Zone was to apply to the balance of the land and reconfiguration of the land was to form no part of the development application. Nevertheless, the Respondent maintains its position that the balance of the land, that is the “R1 Zone” and the “Open Space”, whilst not Good Quality Agricultural Land (“GQAL”) per se, nevertheless can be used for rural purposes, including farming.

Onus of proof

  1. [3]
    The onus to establish that the appeal be allowed rests on the Appellant: s 4.1.50(1) IPA.

Determining the appeal

  1. [4]
    Foe the determination of the appeal IPA provides as follows:

“4.1.52 Appeal by way of hearing anew

(1)  An appeal is by way of hearing anew.”

“4.1.54 Appeal decision

(1)  In deciding an appeal the court may make the orders and directions it considers appropriate.

(2)  Without limiting subsection (1), the court may—

(a)  confirm the decision appealed against; or

(b)  change the decision appealed against; or

(c)  set aside the decision appealed against and make a decision replacing the decision set aside.”

Varying the effect of a planning scheme

  1. [5]
    Rackemann DCJ discussed the approach to be taken by the Court when dealing with an application involving a request to vary the effect of a local planning instrument on the land in question, in Australand Holdings v Gold Coast City Council [2007] QPEC 29 at [29] and [30].  His Honour wrote at [30]:

“The Court is however, obliged to conduct the appeal by way of a hearing anew and, in effect, stand in the shoes of the local government for the purposes of deciding the variations in response to Australand’s application.”

Decision Notice

  1. [6]
    The development application was refused by the Respondent on 28 June 2013 and notified by Decision Notice dated 12 July 2013. The reasons for the refusal were:

“(a) The application does not adequately address Desired Environmental Outcome (c) in that the application does not appear to demonstrate that, based on the current flooding characteristics, the development does not increase risks to existing and/or proposed properties from inundation during a flood event;

(b)  The application does not comply with Specific Outcome 014 of the Residential Zone Code as the applicant has not demonstrated that the land is above Q100 for the existing flood characteristics;

(c)  The application does not demonstrate that the proposed development can be made to comply with the Filling and Excavation Code; and

(d)  The application does [not] demonstrate that compliance with State Planning Policy 1/03 can be achieved for the current flood characteristics” (the insertion of the word “not” before the word “demonstrate” is necessary to give the statement its intended effect).”

Notice of Appeal

  1. [7]
    The Notice of Appeal was filed on 07 August 2013. The Applicant joined issue with the Reasons for Refusal: that is, that is that there would be no compromise or conflict in any respect as asserted and that in any event there were sufficient grounds to warrant approval of the development application despite any conflicts that may be found.

The land

  1. [8]
    The subject land is situated at 33 Argyle Park Road and Jilletts Road, Bowen and is described as Lot 1 on RP 712891, Lot 2 on RP 725646 and Lot 2 on RP 726165, County of Herbert, Parish of Pring, comprising an area of 16.04 hectares partly in the Rural Zone and partly in the Open Space Zone of the Bowen Shire Planning Scheme 2006 (“the land”).
  1. [9]
    Aerial view (taken in 2013) of the subject land [outlined in red] and the Queen's Beach and nearby residential localities. Argyle Park Road is to the East of the land, Jilletts Road is to the North of the land. Harrison Court is to the South of the land.
Reibel Farms Pty Ltd v Whitsunday Regional Council [2016] QPEC 44

To CBD

  1. [10]
    The local authority is the Respondent. The relevant planning scheme is the Bowen Shire Council Planning Scheme 2006 (“the planning scheme”).
  1. [11]
    The dominant feature in the land is Bells Gully, a defined depression or drainage channel running roughly north-west to south-east across it that accommodates flows from upstream catchments and runs to a floodway across Argyle Park Road. The latter feature is one of the issues for the court to consider in the determination of this appeal. The land is prone to flooding and filling is required to achieve a Q100 flood immunity within the land. Argyle Park Road is a primary point of access to the land and a preferred evacuation route for the existing beachside residential areas to the east of Bowen.
  1. [12]
    Bells Gully receives overflow floodwater from breakouts at the Don River and through a defined depression or drainage channel to an established outlet at King’s Beach. Argyle Park Road was one of four roads which were implicated in the overall work proposal. Each of those roads, whilst floodwater depth varied, involved depths of floodwaters that were not traversable by vehicles. Argyle Park Road had been identified as the best possible option to undertake an infrastructure upgrade project to create a safe access route by raising the road to a level above the Q100 flood height.
  1. [13]
    The Respondent applied to the government for funding for an upgrade where the floodway crosses Argyle Park Road to achieve a proposed ARI 100 or Q100 (as it may be referred to) flood event immunity level.
  1. [14]
    In June 2014 the Department of Local Government, Community Recovery and Resilience announced funding for the “Argyle Park Road Q100 Flood Immunity Cyclone Shelter Access” in the sum of $2,486,000.00, which was 100% of the eligible project costs.
  1. [15]
    The Argyle Park Road - Bells Gully Upgrade project was announced by the Respondent in September 2014 by way of public notice. The works were proposed to provide better access for Queen’s Beach area residents and emergency services in the event of flooding and for safe access to a cyclone shelter at the Bowen State High School.
  1. [16]
    However, prior to the conclusion of the appeal the Respondent had resolved on 20 November 2014 to place the Argyle Park Road ARI 100 Flood Immunity Project on hold subject to further review.
  1. [17]
    The further review and progress with the upgrade project primarily developed from the receipt by the Respondent of an engineering design report by Cardno Engineers in 2015 and the Don River Flood Risk and Mitigation Study – Flood Risk Management Report by AECOM in 2014 and 2015 and further advice provided by the consultants dealing with flood mitigation and flood risk assessment, AECOM.
  1. [18]
    AECOM, in a letter dated 05 May 2015 to the Respondent, addressed the upgrade project further and in an Engineering Report to the Respondent dated 13 May 2015 favoured the Cardno design upgrade, plus the future upgrades to Bells Gully between Argyle Park Road and Soldiers Road, on an assumption of a reduction of 200mm in flood level directly upstream of the crossing and the AECOM prediction of full immunity from flood for an ARI 100 event. The Respondent approved the project on that recommendation.
  1. [19]
    The conclusions of Mr Collins, read as recommendations in effect, formed the basis of the approval by the Respondent of the Cardno design upgrade at its meeting on 26 August 2015.
  1. [20]
    I first reserved judgment on 20 November 2014, subject to written submissions being provided by the parties.

Application to reopen and adduce “new” or “fresh” evidence

  1. [21]
    The reserved judgment was listed for delivery on 19 June 2015. However, an Application was filed on that day by the Appellant, prior to the judgment being delivered, seeking a reopening of the hearing to adduce fresh evidence about one of the primary issues in the Appeal, namely the risk of flooding from the Bells Gully watercourse making the land unsuitable for residential development.
  1. [22]
    The Appellant’s case was that an elevation of the Argyle Park Road culvert crossing of Bells Gully to an ARI 100 (or as sometimes referred to, a Q100) flood event immunity would provide an appropriate level of safety for evacuation from the land. The proposal to upgrade the crossing to achieve such flood immunity was put on hold on 20 November 2014 (the day after the appeal hearing concluded), the project having been a proposal only and not certain to proceed at that time.
  1. [23]
    The fresh evidence is about the Respondent having resolved to proceed with the project. It has since been completed. However, there is still a hydrology issue between the experts and the flood event immunity issue remains extant.
  1. [24]
    The fresh evidence was clearly not available at the hearing. It simply did not exist at that time. It was potentially relevant to a primary issue in the hearing. Judgment had not been delivered: see Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256. The lawyers for the Respondent, understandably, did not oppose the Application.
  1. [25]
    Accordingly, following the foreshadowing of the Application on 19 June 2015 an Application to reopen the hearing was heard on 04 September 2015 and the Application was granted. A number of reviews and directions hearings followed and further submissions on, what might be termed the hydrology issue and at my request further submissions on the economic need issue, were filed. Final submissions were filed on 22 January 2016.

Sustainable Planning Act 2009

[26] Pursuant to sections 802 and 819 of the Sustainable Planning Act 2009 (“SPA”), the repealed IPA continues to apply and the appeal is to be determined against the provisions of the IPA.

“802  Development applications under repealed IPA

(1)  This section applies to a development application made under repealed IPA, but not decided, before the commencement (an existing application).

(2)  For dealing with and deciding the application, repealed IPA continues to apply as if this Act had not commenced”;

and

“819  Appeals to court—generally

(1)  Subsection (2) applies if—

(a)  a person has appealed to the court under repealed IPA, or repealed IPA as applied under another Act, before the commencement; and

(b)  the appeal has not been decided before the commencement.

(2)  The court must hear, or continue to hear, and decide the appeal under repealed IPA, or repealed IPA as applied under the other Act, as if this Act had not commenced.”

Issues

  1. [27]
    The appeal requires consideration of a number of disciplines, upon which expert evidence was called, that reflect the relevant matters considered by the Respondent:               
  1. Town planning: Mr Motti (Appellant) and Mr Ovenden (Respondent);
  1. Hydrology: Mr Johnson (Appellant) and Mr Collins (Respondent);
  1. Economic need: Mr Duane (Appellant) and Mr Norling (Respondent).
  1. [28]
    Bells Gully has been considered both in respect of the land per se and the current state of the floodway crossing of Argyle Park Road. That issue involves matters of town planning, economic need and of hydrology and implicates a number of planning and policy documents.

Statutory provisions: Integrated Planning Act 1997

  1. [29]
    The principal statutory provisions of the IPA in regard to the assessment of the development application in this appeal relate to impact assessment, preliminary approvals that over-ride the planning scheme, compromise and conflict with the planning scheme desired environmental outcomes of the planning scheme.

“3.5.5  Impact Assessment

(1)  This section applies to any part of the application requiring impact assessment.

(2)  If the application is for development in a planning scheme area, the assessment manager must carry out the impact assessment having regard to the following —

(a)  the common material;

(b)  the planning scheme and any other relevant local planning instruments;

(c)  if they are not identified in the planning scheme as being appropriately reflected in the planning scheme —

(i)  State planning policies, or parts of State planning policies; and

(ii)  for the planning scheme of a local government in the relevant area for a State planning regulatory provision—the provision; and

(iii)  for the planning scheme of a local government in a designated region—the region’ regional plan; …”

“3.5.5A Assessment for s 3.1.6 preliminary approvals that override a local planning instrument

(1)  Subsection (2) applies to the part of an application for a preliminary approval mentioned in section 3.1.6 that states the way in which the applicant seeks the approval to vary the effect of any applicable local planning instrument for the land.

(2)  The assessment manager must assess the part of the application having regard to each of the following —

(a)  the common material;

(b)  the result of the assessment manager's assessment of the development under section 3.5.4 or 3.5.5, or both;

(c) …

(d)  the consistency of the proposed variations with aspects of the planning scheme, other than those sought to be varied;

(e)  if they are not identified in the planning scheme as being appropriately reflected in the planning scheme—

(i)  State planning policies, or parts of State planning policies; and

(ii)  for the planning scheme of a local government in the relevant area for a State planning regulatory provision—the provision; and

(iii)  for the planning scheme of a local government in a designated region—the region's regional plan; …”

“3.5.14 Decision if application requires impact assessment

(1)  This section applies to any part of the application requiring impact assessment.

(2)  If the application is for development in a planning scheme area, the assessment manager's decision must not—

(a)  compromise the achievement of the desired environmental outcomes for the planning scheme area; or

(b)  conflict with the planning scheme, unless there are sufficient grounds to justify the decision despite the conflict. …”

  1. [30]
    Paragraph 1.5 (2) of the planning scheme refers to “conflicts”, in the context of deciding applications for assessable development, in the following terms:

“(2) For the purposes of making a decision about an application requiring impact assessment in accordance with Section 3.5.14 of the Act, development that is identified in this planning scheme as inconsistent development conflicts with the planning scheme.”

“SCHEDULE 10

grounds, for section … 3.5.14—   

1.  Grounds means matters of public interest.

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

Bowen Shire Planning Scheme 2006

[31] The provisions of the planning scheme, relevant to the issues, are:

“Part 2 – Shire Wide Outcomes

Division 1 – Ecological sustainability

2.1 Achieving the Desired Environmental Outcomes

(1)  The desired environmental outcomes are based on the elements of ecological sustainability defined by the Act and are the basis for the measures of the planning scheme.

(2)  Ecological sustainability for the Shire will be advanced if each desired environmental outcome is realized to the extent practicable having regard to all other desired environmental outcomes.

2.2 Desired Environmental Outcomes 

(1)  The desired environmental outcomes for the Bowen Shire are:

(c) Risks to safety, property and the environment are not increased by the interaction of development and natural or other hazards, including flooding … storm surge, cyclonic weather events ……

(d) Development protects the economic values of natural resources including good quality agricultural land, extractive and mineral resources, vegetation and water.

(e) Development provides a benefit to and satisfies an economic demand of residents of the area in which it is located

(h) Bowen continues to function as the main business centre and administrative hub for the Shire.

(i) Growth and community development within the Shire focused on the existing Bowen and Collinsville urban areas to facilitate the efficient use, timely and orderly expansion and continued operation of infrastructure.

(l) Development occurs in an area:

(i) which is suitable and compatible with the nature of the development; and

(ii) in which services and facilities required in respect of the development are existing, planned or provided by the development.

(m) Development does not adversely affect:

(i) the community’s health and safety;  

(ii) the amenity enjoyed by people in different areas of the Shire; and

(iii) the safe and efficient operation of the transport, energy and other infrastructure supporting the Shire and surrounding region.

(n) Development reflects the community’s reasonable expectations and harmonisers with the natural environment and does not prejudice the Shire’s existing scenic amenity, particularly along the coastal plain.”

“3.3 Rural Zone Code

(1) Purpose

(a) The purpose of the Rural Zone Code is the achievement of the overall outcomes sought for the Rural zone.

(b)  The overall outcomes sought for the Rural Zone are:

(i)  Land used for rural activities such as grazing, agriculture and horticulture is protected from development, which in Council’s opinion would significantly infringe on the landscape setting and rural amenity of the Shire;

(iii)  Agriculture, including both extensive and intensive activities is protected from incompatible uses and land use conflicts resulting from the location of non-rural activities on rural land;

(iv) Uses and works are located and designed to maximise the efficient use and extension and safe operation of infrastructure;

(2) Elements

    (a) Land use and development

     (i) Consistent Uses

    Specific Outcomes

01 (e) Only uses consistent with the overall outcomes for, and preferred for development within the Rural zone, are established in the zone.

(f) The following uses and use classes are consistent with, and preferred, within the Rural zone:

       (i) All Rural Purposes

    02 Provided the following …

  • be compatible with surrounding Rural Purposes by being of similar scale, intensity and character; and
  • support preferred uses; and
  • not adversely affect the amenity of the locality; or
  • provide recreational or community facilities that are more appropriately located in the Rural zone;

    they are consistent uses within the Rural Zone:

(a) Residential Purposes comprising:

(iii) Dwelling house (where for the accommodation of the household involved with the dominant rural purpose undertaken on the premises);

     (ii) Inconsistent Uses

    Specific Outcomes 

   03 Uses other than:

  • preferred uses nominated in O1; or
  • consistent uses developed to comply with the provisos set out in O2;

do not establish in the Rural zone, do not comply with the overall outcomes sought for the Rural Zone and conflict with this code.

     (iv) Density

   Specific Outcomes

05 The density of residential development is compatible with local amenity expressed by the overall outcomes sought for the Rural Zone.

S5 No more than one (1) Dwelling house is constructed on a lot.

(v) Character and Amenity

    Specific Outcomes

06 Uses and works are located, designed and operated to minimise adverse impacts on:

  • The health and safety of people using the premises and adjacent premises; and
  • Existing community infrastructure.

(x) Flood immunity

    Specific Outcomes

014 Land on which buildings and structures associated with development nominated in Column 1 of Schedule 7 will be constructed, is immune from a flood event of at least the annual exceedance probability specified in Column 2 of Schedule 7 for the development.”

Brief commentary on the planning scheme

  1. [32]
    Schedule 7 (relevant to SO 014) provides for all residential purposes (Column 1) and for 15 probability of event (likely occurrence in any one year). This has since been replaced by TLP 1 and is no longer applicable. It remains a matter of weight for the Court.

Mackay, Isaac and Whitsunday Regional Plan 2012 and Whitsunday Regional Council Planning Scheme (draft).

  1. [33]
    The planning scheme is informed by the Strategic Framework, DEO’s and the Regional Plan.
  1. [34]
    The Regional Plan is a whole of region document. Bowen is historically developed as an urban centre servicing agricultural, commercial, fishing and port activities, subsequently supplemented by horticulture, tourism, light industry and the development of the Abbott Point port facility, although the latter has experienced diminished expectations in recent years.
  1. [35]
    The Regional Plan recognises the limitations to growth in Bowen of “the impacts of flooding and storm tide inundation” and “the need for protection of” GQAL as a planning and development constraint in the context of development of the town.
  1. [36]
    The draft Whitsunday Regional Council Planning Scheme is also relevant as a matter of weight. I will refer to that in the course of the discussion that follows.

State Planning Policies and Temporary Local Planning Instruments

  1. [37]
    State planning policies set out the State interests that must be addressed through local government planning schemes and regional plans.
  1. [38]
    In State Planning Policy 1/03 – September 2003 (Exhibit 16), there is specific reference to the mitigation of adverse impacts of flood and managing flood hazards to insure that they are adequately considered when making decisions about development.
  1. [39]
    The policy position is that, generally, the appropriate defined flood event (GFE), for determining a natural hazard management area (flood) is the 1% Annual Exceedance Probability (AEP) flood.

[40] State Planning Policy July 2014 provides, in simple terms, that “the risks associated with natural hazards are avoided or mitigated to protect people and property and enhance the community’s resilience to natural hazards”.

[41] Bowen’s “Temporary Local Planning Instrument 02/2013” has an updated Hazard Mapping and Associated Code Instrument (Exhibit 13) for Bowen flooding and storm time regulation. The Natural Hazards Trigger Map identifies likely high velocity of floodwaters of greater than 3m/s in Bells Gully over the land.

[42] It has an overall outcome that, inter alia, only development which is compatible with the nature of flood is located within the Natural Hazard Management Area (NHMA) and that the safety of people and property is protected from unacceptable risk from flooding.

[43] Bowen’s “Temporary Local Planning Instrument 01/2014” – in draft and not released or adopted at the time of the hearing – (Exhibit 14) provides further updates. There is a new “Flood Hazard Code” and Schedule for “Flood Immunity for Specific Purposes”. Suffice to say that it further develops the management of flood risk within Bowen.

The Regional Planning Scheme

  1. [44]
    Insofar as the draft Whitsunday Regional Council Planning Scheme is concerned, Bells Gully as it traverses the land is classified as “medium hazard”, although on the eastern side of Argyle Park Road it is classified as “high hazard” (Coastal Protection Overlay map CPI-10D, at p153). Bells Gully is classified as “Predicted 1% Flood Event” in the Flood Hazard Overlay map FH-10D, at p157 and the land as a “Flood Hazard Area”.
  1. [45]
    The land remains zoned as “Rural” in the Zoning Map (ZM-10D at p146).
  1. [46]
    The Regional Plan referred to investigation in the long term of the capacity for growth of the township to the south of Bowen (page 14 in Exhibit 15) and referred to the need to consider through planning the impacts of flooding in storm tide inundation in existing developed areas in the township. It also referred to “the need for protection of good quality agricultural land” limiting potential urban expansion.

The Argyle Park Road Crossing Upgrade

  1. [47]
    The Respondent commissioned a number of reports from engineers about the upgrade of the Argyle Park Road crossing.
  1. [48]
    AECOM in Revision 2 of their Report to the Respondent dated 02 December 2014, considered the flood risk assessment for the Don River in a study which assessed existing flood risk by the Don River and the Euri Creek catchment events. Flood impacts arising from local catchment events and storm surges were not part of the study.
  1. [49]
    The study demonstrated that “the behaviour of regional flooding across the study area is complex due to flow breakouts form the Don River and Euri Creek, hydraulic controls including road and rail crossings of the floodplain, and morphological changes.” The hydrologic model calibrations undertaken demonstrated a number of uncertainties in the data and other information that was studied, including calibration and validation of the modelling. It is apparent from the report that the complexity of the flood events in the catchment areas gives rise to numerous uncertainties in the validity of information contained and the consequences that might result from the various phases of modelling undertaken and in respect of which advice was given to the Respondent.
  1. [50]
    AECOM concluded that:  

“the Don River is deemed to pose a significant existing flood risk for the communities in Merinda, Bowen and Queen’s Beach due to the relatively short warning time, dynamic nature of the river system, high velocities and flood depths. Isolation of several communities can occur during flood events due to the limited availability for evacuation as a result of the low existing immunity of key transportation links.

There is a need to identify, assess, compare, make recommendations and report on options to improve risk management for the community. This will be undertaken in the Stage 2 Flood Mitigation Assessment Report.”

  1. [51]
    In the Don River Flood Risk and Mitigation Study – Flood Risk Management Report completed on 28 April 2015 and provided to the Respondent, AECOM made a number of assessments based on identified assumptions, drawing on the Cardno Engineering Report.
  1. [52]
    The Study concluded that in an ARI100 design event, peak outflow discharge from the Don River into Bells Gully of 90m3/s would predict an inundation of the upgraded crossing (in terms of that recommended in the Cardno Report) by one metre in such an event.
  1. [53]
    The Cardno design was based on a peak outflow of 10m3/s, 20m3/s and 30m3/s (or in each of those peak hour flows respectively, free board of 70mm, inundation of 450mm over the crossing and inundation of 700mm over the crossing).
  1. [54]
    AECOM developed a further scenario (on an assumption of Argyle Park Road being raised at the Bells Gully crossing to 4.3m AHD) involving a peak outflow of 90m3/s  at which a predicted inundation of 900mm was made. A reassessment of the study calculations produced inundations of 550mm at 30m3/s and 300mm at 20m3/s. If the Bells Gully crossing at Argyle Park Road was raised to 5.2m AHD and an increased culvert capacity was constructed, the Report predicted an immunity at 90m3/s, but with increased water surface levels impacting nearby locations, including at Harrison Court. Hence additional works in Bells Gully between Argyle Park Road and Soldiers Road were recommended to improve the outcome in that scenario.
  1. [55]
    On 21 August 2015 the Respondent’s hydrology consultant, Mr Collins, wrote to the Respondent and inter alia, based on his review of the AECOM Reports, the Cardno studies and construction drawings amongst other materials concluded as follows:

“(a)  the actual immunity level of the proposed Argyle Road upgrade crossing is dominated by the frequency of major Don River flood event breakouts into Bells Gully.

(b) the proposed crossing will provide ARI 100 year immunity for local Bells Gully catchment flood events when river breakout does not occur, albeit tested without debris blockage.

(c)  the proposed crossing will provide in the order of ARI 20 year trafficability against Don River breakout floods, without breakout blockage.

…  and

(e) the proposed crossing upgrade does provide considerable benefit and there will be a significant improvement over the current circumstances, raising the immunity of the crossing from approximately ARI 2 year (local flooding) to ARI 100 year on local flooding, and ARI 20 year on Don River flooding events. Council will need to implement a suitable maintenance regime to avoid excessive debris blockage build up.”

The other conclusion by Mr Collins related to further significant raising of the crossing over what was proposed in the Cardno design and the likely significant and unacceptable adverse flooding impacts adjacent and downstream from the Bells Gully crossing. Hence, he appears not to have been prepared to recommend a further raising of the crossing level in the upgrade design unless significant further works were carried out to alleviate the consequential flood impacts that would follow from the latter.

  1. [56]
    The first tranche of documents about the Argyle Park Road and Bells Gully Crossing upgrade (Exhibit 8) is informative when considered in context with the upgrade project that was subsequently completed. In the application by the Respondent council for state funding for what was described as a flood mitigation project, the project was at that time (in mid-2014) to comprise an “upgrading of the existing culvert structure and road formation at Argyle Park Road to increase flood immunity to 1 in 2 years to 1 in 100 years in order to provide a safe access route to the recently constructed Cyclone Shelter and alternative higher ground locations and emergency services”.  
  1. [57]
    In regard to the Respondent council’s Disaster Management protocol and the warning alert for residents, it was reported in the application that “the current rain gauge for the Bowen area only updates rainfall every 6-12 hours and in the instance of a recent weather event the road was already cut before the need to evacuate was declared”.
  1. [58]
    In the Cardno Project Plan (at page 27) for the Bells Gully Upgrade Project, the executive summary records as follows:

“Hydrological studies analysing the impacts of the Don River when in flood and subsequent overflow into Bells Gully have been undertaken with the most recent completed in November 2011. Recommendation from the most recent study outlined the need for significant work to be completed on the Bells Gully overflow to divert the flood water from the Don River, through a defined drainage channel, to an established outlet at King’s Beach. The alignment of the drainage channel crosses 4 significant road networks [Argyle Park Road being one of those]” and “at each of [the] road crossings, the floodwater depth varies, however each is to a depth that is not traversable with vehicles.

To give the residents within the study area a safe access route to the Cyclone Shelter and to higher ground during natural disasters, one of the affected roads requires the crown level to be reconstructed above the Q 100 flood height. Argyle Park Road [was] identified as the best possible option to undertake an infrastructure update to create a safe access route.

The current road height at Bells Gully Crossing on Argyle Park Road is approximately RL 3.00AHT. To bring the road height above the Q 100 flood level at the Bells Gully Crossing, Argyle Park Road will have to be raised to RL 4.90AHT.”

Harrison Court

  1. [59]
    The Harrison Court residential development is to the south boundary of the land and its construction was approved in about March 2010 by the Respondent subject to conditions, the development proposal was considered to be inconsistent with the planning scheme due to its rural zoning. The rationale of the recommendation for and approval of the development application was the provision of “infill residential development” (given the surrounding residential developments in the area); “… the efficient use, timely and orderly expansion and continued operation of infrastructure” in the existing Bowen urban area; and the provision of a “an alternative housing choice within walking distance to services and facilities” (for example, the Bowen High School and shops).
  1. [60]
    Whilst Harrison Court was approved despite conflict with the planning scheme, its location is on the township side of the land and no crossing of Bells Gully is required for access or egress.

The Evidence

  1. (1)
    Mr Reibel
  1. [61]
    The Appellant’s principal, Mr Reibel, is an experienced crop farmer. He farms in various locations in the Bowen area, including the land, the latter having been bought in 2006 and used for sorghum and other cropping. The land was then adjacent to Rural Zones to the south and west.
  1. [62]
    Harrison Court is now a residential development. The building of residences close to the boundaries of the land has resulted in complaints from residents about long grass and aesthetic matters, dust generated by use of machinery, noise from early morning operations and the unsuitability of using crop sprays because of their proximity to urban forms of development. Mr Reibel deposed that it was not possible to operate intensive farming operations on the land.
  1. [63]
    During September 2011 Mr Reibel carried out earthworks to the west side of Bells Gully with the result that the gully has a flat bottom and bevelled banks to facilitate better farming and farm management.
  1. [64]
    In cross-examination, Mr Reibel said that he had not known that the introduction of a new planning scheme was imminent in 2006. He knew the land was rural and knew of its soil and water characteristics. There were two houses associated with the land which were excised from it. He bought the land to farm it. He talked to developers in 2006 and took advice about a development on the land which he said was “favourable”. He decided to “take a punt”. He knew about the Harrison Court residential development at that time but did not think it would impact on his farming activities. He believed residential development on the land was likely to be favoured by the Council.
  1. [65]
    The work he carried out in 2011 to level the land took about six or eight weeks and some 30,000 cubic metres of fill was moved. He did not propose to grow grass in the gully itself once the proposal was approved and development had commenced.
  1. (2)
    Town Planning

Points of agreement

  1. [66]
    In their Joint Report, Mr Motti and Mr Ovenden agreed that the substantive issue was the effect of flooding and storm water. Those matters are within the field of other experts.

Points of disagreement

  1. [67]
    The points of disagreement, in the strict planning context, were the extent and significance of any conflict with the planning scheme, particularly the DEO’s and the Rural Zone Code. I will therefore deal with those matters with greater specificity.

Mr Motti

  1. [68]
    Mr Motti considered that the proposal acknowledged characteristics of the locality, provided an integration with existing urban community and provided a housing choice that was well connected by its location to employment and community services. He did not consider there was conflict with the DEO’s, on the basis of what he referred to as a “balanced” consideration. He considered that the proposal responded in an appropriate way to the Mackay, Isaac and Whitsunday Regional Plan. He considered that approval of the proposal would provide certainty for further investment infrastructure, citing Argyle Park Road as a specific instance.
  1. [69]
    With respect to the issue of sufficient grounds, Mr Motti considered there were sufficient grounds to warrant an approval, with emphasis on the development providing community benefit by way of assistance in the development of a regional stormwater and floodwater solution and the provision of housing choice.
  1. [70]
    In cross-examination, Mr Motti agreed that the initial “temporary approval” given by the Respondent to the Development Application, which was subsequently changed, was made against the Respondent’s Officers’ and Agency advice. The Development Application had since changed. He believed the conditions on the original Development Application could possibly have been met, as distinct from being “not achievable”, which was why the minor change in June 2009 was made.  He agreed that the Strategic Framework was “indicative” and not a basis for detailed planning and that it contained merely broad, illustrative mapping. He agreed that the upgrade to Argyle Park Road would be a reasonable condition to place on any Preliminary Approval. He also agreed that one should not impose a condition that was uncertain: that is, in the context of any Argyle Park Road upgrade. Of course, that uncertainty was subsequently resolved by the construction of the upgrade of the Argyle Park Road crossing, albeit subject to the competing views expressed by the hydrologists about the flood risk issue.
  1. [71]
    Mr Motti was referred to the draft new planning scheme (the “Whitsunday Regional Council Planning Scheme”) and said that he was aware that there was a new urban area indicated south of Bowen towards Whitsunday Shores. In the Shire outline map in the [current] planning scheme, Whitsunday Shores and Harrison Court were shown as “rural”.
  1. [72]
    In the course of the hearing, the proposed new planning scheme was acknowledged to be very early in its preparation. Of course, there is a “question” about what weight should be given to it. Mr Motti said that conflict with the planning scheme was not surprising and that a detailed investigation would follow any Preliminary Approval.

Mr Ovenden

  1. [73]
    Mr Ovenden referred to the DEO’s primarily in respect to DEO (c). This DEO focuses on the flooding and stormwater issues addressed by the hydrology experts. He considered that the proposal conflicted with the Regional Plan with respect to natural hazards. He highlighted the fact that the Respondent (or its predecessor, the Bowen Shire Council) had introduced a Temporary Local Planning Instrument dealing with the limitation of development on the floodplain and public safety and risk management.
  1. [74]
    Mr Ovenden considered that the proposal conflicted with “a raft of Planning Scheme provisions” and would compromise the achievement of a number of DEO’s. He considered there was no need for the land to be developed residential purposes, there being sufficient supply of land available for residential purposes. He did not consider there were sufficient grounds to approve the application in face of the conflicts with the planning scheme and other planning instruments.
  1. [75]
    Mr Ovenden said that the [current] planning scheme had not been overtaken by events. He referred to other farming activity upstream in Bells Gully and characterised the locality as being largely rural. There had been signs of the land itself being a working farm when he visited it. He said (whilst this is a matter for other experts and inferentially he defers to them) there was no planning need to convert this rural site to residential.

Conflict with the Rural Zone Code

  1. [76]
    Mr Motti accepted that the proposed development does conflict with the Rural Zone Code in that the proposed development introduces non-rural development to part of the land. Mr Ovenden agreed with Mr Motti but put weight upon specific outcomes O4, O5, and O14 of the Code which he said are also relevant to consider.

(3) Hydrology

Points of Agreement

  1. [77]
    In their Joint Report (which preceded the decision of the Respondent to complete the Upgrade project), Mr Johnson and Mr Collins agreed on three matters, predicated on resolving any differences arising out of flood level reports and modelling:
  1. The site and adjacent Bells Gully crossing of Argyle Park Road are subject to flash flooding in Bells Gully, break-out flooding from the Don River and from storm tide back-up inundation; 
  1. In a flash flooding event, vehicle and pedestrian access from the Queen’s Beach area to the centre of Bowen is compromised; and  
  1. The upgrade of Argyle Park Road floodway is a proposal that is currently qualified, in so far as the prospect of that project proceeding is concerned. 
  1. [78]
    Of course, Point 3 is no longer a relevant consideration.
  1. [79]
    In the more recent reports (post-completion of the project) of Mr Johnson and Mr Collins, no further Points of Agreement have emerged.

Points of disagreement

  1. [80]
    The Three points of disagreement were far broader as between Mr Johnson and Mr Collins:             
  1. Mr Collins considered that the development would further increase the burden on emergency services during flood events and even if Argyle Park Road was upgraded at the floodway it would not be trafficable in a 100 year flood event.  Mr Johnson considered that in the event of such a flood event there would be significant warning time to residents for the purposes of evacuation.               
  1. Mr Collins considered that the land is a Natural Hazards Trigger Zone and that placing additional people in the floodplain, on land that has been filled, where it is isolated with no current suitable means of evacuation, would adversely affect the safety of people. Mr Johnson maintained that the Cardno flood modelling had demonstrated flood levels less than those shown in previous analyses, which the planning scheme relied upon. He accepted that the land would still fall within the Natural Hazards Trigger Zone but that an upgrading of Argyle Park Road would significantly improve access and evacuation capability for the proposed development and existing residential areas. He considered that the flood risk was adequately managed by the proposed filling on the land and the upgrade of the road crossing.
  1. Mr Collins considered the development to be incompatible with the flood hazard and gave rise to unacceptable risks. Mr Johnson considered that the existing proposed works on the land and the upgrade of Argyle Park Road would deal with any hazards.

Mr Johnson   

  1. [81]
    Mr Johnson said that the originally proposed development would have resulted in unacceptable increases in flood level both upstream of Jilletts Road and upstream of the north-west corner of the land. However, after the minor change there would be only minor increases in flood levels “adjacent to the land”. He therefore considered the development as now proposed was acceptable.
  1. [82]
    He maintained that the Cardno flood modelling demonstrated that the proposed development would have no adverse impacts beyond the land. He considered that only minor regrading of the land would be required to achieve flood immunity. He did not think that flooding at the DFE level was likely to be caused by severe cyclonic activity (rainfall) but rather primarily through break-outs from the Don River or from storm tide. He therefore did not accept that the development would be unsafe in a flood protection context. He gave evidence that the land could be filled to the required level to protect it from flooding at the Q100 level, without unacceptable impact on flood levels external to the land.
  1. [83]
    Mr Johnson’s report was predicated upon the Argyle Park Road upgrade being undertaken and completed. He made a number of concession sin the course of cross-examination that arguably are relevant even though the upgrade project has now been completed.  
  1. [84]
    Mr Johnson considered that there were no flooding or drainage reasons why the development should not proceed and that there was nothing that, in effect, could not be met by appropriate conditions on an approval.
  1. [85]
    With respect to the Cardno flood modelling, Mr Johnson said that flooding within the land is almost entirely confined to the water course and that the proposed development would have no impact on flooding. However, the modelling was qualified, as I understand in the sense that applies to all modelling, by a number of [what Mr Johnson described as] minor instabilities. He referred to minor increases of 10 to 50 mm in areas that already experienced significant depth of flood inundation (more than 500 mm) external to the land, on the basis of the current development proposal being approved.
  1. [86]
    Mr Johnson in an affidavit filed on 12 October 2015 referred to the AECOM documents (but not the Cardno design report) and to Mr Collins’ affidavit and the Respondent’s resolution of 13 May 2015.
  1. [87]
    Mr Johnson referred to both parts of the AECOM Flood Risk and Mitigation Study the second part of which of course was completed after the hearing of the appeal had concluded in December 2014.
  1. [88]
    He noted that Mr Collins did not accept the AECOM modelling as being accurate in respect of flood behaviour implicating Bells Gully but rather accepted the Cardno figures.
  1. [89]
    Mr Johnson expressed the view that the ARI 100 year event would involve 0.45m overtopping of the upgrade crossing rather than one metre as Mr Collins had assessed. At his 0.45m assessment the crossing would be trafficable.
  1. [90]
    He considered that the breakout from the Don River did not all go down Bells Gully and he expressed the view that much of the flow would divert back to the river. Hence, on that prediction, AECOM’s modelling of 12m3/s relocation was more reliable. At that rate he considered that the upgraded crossing would not be overtopped at all. With respect to the 90m3/s assessment, he considered that to be an overestimate. The upgrade would provide in his view “an appropriate level of immunity”.

Mr Collins

  1. [91]
    Mr Collins in an affidavit filed 04 September 2015 addressed the AECOM further report and correspondence, the Don River Flood Mitigation Study, considered the Don River Flood Impact Assessments and Queen’s Beach Drainage Study and the Bureau of Meteorology “Flood Warning System for the Don River” publication.
  1. [92]
    He considered that a breakout from the Don River to Bells Gully could be as high as 350m3/s in an ARI 100 flood event and that a breakout would be “significant”. In the Bureau of Meteorology publication he noted reference to large floods having occurred in 1946, 1970 and 1980 in the Don River with major breakouts into Bells Gully. The average of major flood events was one every nine years (there being 16 in total since 1869) or every 20 years on an average for major river breakouts.
  1. [93]
    He referred to what he considered to be the key points in the AECOM Reports, namely that with an upgrade to the crossing flood immunity level was not able to be determined primarily because of uncertainty and the level of breakout to Bells Gully from the Don River through major flood events. Two scenarios were considered, 10m3/s and 90m3/s. In the former scenario it was predicted there would be no over topping of the crossing and in the latter scenario overtopping of one meter was predicted. No debris blockage was considered in either scenario.
  1. [94]
    Mr Collins had considered the Cardno design of March 2015 in two respects: firstly, the upgrade alone would involve offsite flooding of 20mm to 250mm, but generally at the lower level; and secondly, the upgrade with future major channelization works in Bells Gully between Argyle Park Road and Soldiers Road, there would be a reduction of flood levels on the second scenario of 90m3/s that would nevertheless produce a 0.8m overtopping in the ARI 100 year event, in which case Argyle Park Road would not be trafficable.
  1. [95]
    Mr Collins concluded his opinion, as it was then, as follows:

“(a) the actual immunity level of the proposed Argyle Road upgrade crossing is dominated by the frequency of major Don River flood breakouts into Bells Gully.

(b) the proposed crossing would provide ARI 100 year immunity for local bells Gully catchment flood events when river breakout does not occur, albeit tested without debris blockage.

(c) the proposed crossing will provide in the order of ARI 20 year trafficability against Don River breakout floods without debris blockage.

(d)  any further significant raising of the crossing, over what is currently proposed, is likely to result in a significant and unacceptable adverse flooding impact, unless properly investigated with consideration given to how adjacent and downstream landowners are appropriately managed and mitigated. There are likely to be substantial cost considerations that will need to be taken into account by council to further improve flood immunity from that which will be provided by the proposed crossing and, in my assessment, the achievement of a ARI 100 year immunity against Don River breakout floods is likely to be cost prohibitive and subject to a number of constraints.

(e) the proposed crossing upgrade does provide considerable benefit and there will be a significant improvement over the current circumstances, raising the immunity of the crossing from approximately ARI 2 year (local flooding) to ARI 100 year on local flooding, and ARI 20 year on Don River flooding events. Council will need to implement a suitable maintenance regime to avoid excessive debris blockage build up.”

  1. [96]
    He concluded that the upgrade would provide “greatly increased immunity road access” from beach areas to an area of safety (on higher ground or the cyclone shelter).
  1. [97]
    Mr Collins gave evidence that the subject land is susceptible to flash flooding within the local catchment and that filling of the site associated with the proposed development would not mitigate risks to property to an acceptable level for events up to Q100. Flash flooding would result in isolation of the proposed development along with existing development within the Queen’s Beach area.
  1. [98]
    He said that flood warning lead times are as short as three hours and up to nine hours (according to the Bureau of Meteorology figure, to which I have referred) due to rapid stream rises and very high velocities in the lower Don River. He said that the land is susceptible to flooding due to overflows from the Don River which occur when the river levee system is over-topped or if the levees are breached. In those circumstances a rapid increase in flood discharge through Bells Gully, with very little warning time to allow safe evacuation, would result. He said that despite the filling of the site to raise the level for the proposed residential development, there would nevertheless be a significance risk to life for that residential community as a consequence of isolation, which was not mitigated in the development proposal.
  1. [99]
    Mr Collins described the Don River as a “particularly dangerous and unpredictable river during floods” and referred to its major stream migration, changes in sandbanks, major bank erosion and formation of standing waves that had been evident in the past.  He said the levee banks were not fully engineered structures and were likely to breach under extreme flood conditions. In his view the proposed development relied on an assumption that the levee system would remain intact and that river flood break-out could be controlled. However, he considered that extreme flooding of the river was such that this assumption could not be relied upon. Hence residents of the proposed development would be placed at an unreasonable level of risk. 
  1. [100]
    He referred to Argyle Park Road as being one of the main evacuation access routes for existing Queen’s Beach community with all of the road crossings (the four of them) being of a similar low standard of immunity. Argyle Park Road at Bells Gully [had been] low lying and inundated approximately every two years on average.
  1. [101]
    In his view, in his report and in his evidence at the hearing, the proposed development would therefore add to the burden on emergency services because of the isolation of residents.
  1. [102]
    Mr Collins said that the existing flood risks were not appropriately managed given the degree of isolation of Queen’s Beach. He said that “In my professional opinion, responsible floodplain management avoids ad hoc development in areas at risk of flooding.  Ad hoc decisions now may significantly compromise the ability to manage risks to the existing community effectively in the future”. 
  1. [103]
    He gave evidence that the State Planning Policy (Natural Hazards Risks and Resilience) required development to support and not unduly burden disaster management response or recovery capacity and capabilities. He said that it was inappropriate for new development in Queen’s Beach to increase the number of people who are potentially isolated during flood events which then places additional burdens on emergency personnel for assisted evacuation and rescue. He said the development proposed was not in accordance with current flood risk management practice.
  1. [104]
    Mr Collins said the highly variable nature of the Don River morphology meant that floods were not consistent and past floods would not necessarily provide an indication of future flood behaviour. Although there was a relatively good warning system for rising flood levels in the Don River, he said warning times could be as short as three hours without levee failure and over-topping and it was much more difficult to predict such over-topping of the river levees into Bells Gully.
  1. [105]
    With respect to the upgrade of Argyle Park Road, he gave evidence that the Q100 flood depths over the floodway were, before the upgrade, about 1.7 metres. The proposed level in the preliminary upgrade designs were still considerably below the Q100 flood level.
  1. [106]
    It could not be raised higher at least, due to difficulties with traffic engineering at the entrance to Harrison Court. A higher level crossing on Argyle Park Road would have provided a better solution, but the completed upgrade did not reach that level.
  1. [107]
    With respect to the Cardno flood modelling, to which Mr Johnson referred, it had not been exhaustively reviewed and was therefore of questionable value.
  1. [108]
    Mr Collins concluded that the fundamental flooding issues associated with the development of the site were:
  1. It is flood effected in the DFE. Proper practise is design for risk and safety for events exceeding the DFE and filling is therefore required to provide acceptable flood immunity and level of risk.
  1. Access to and from the site was presently inundated in an ARI two year event. Even if access was improved, warning times to enable safe evacuation of the site may not be adequate.
  1. He considered there were risks which were unacceptable from a floodplain risk management perspective associated with the development on the land, implicating both future residents and emergency services personnel. The risks are related to attempts by residents and personnel to cross a flooded Argyle Park Road crossing and to residents who remained within the confines of the land where they may be inundated by severe flood events.
  1. [109]
    Mr Collins in his recent reports about the upgrade to Argyle Park Road (and more specifically to the Cardno flood modelling, which he quite clearly thought was unsatisfactory) said the upgrade, which was based on the Cardno flood modelling, was about 670 mm below the Q100 flood level.
  1. [110]
    He also expressed the view that the number of culverts, their dimension and the pedestrian handrail that would be required in the upgrade would act as an impediment to objects (flotsam) being carried in flood waters, which would potentially cause blockages. If that occurred then floodwater would be diverted around the handrails towards Harrison Court. Therefore he considered that there was a significant potential for an unacceptable flood impact upon adjacent properties. Mr Collins’ view is that the road would not be trafficable in a Q100 event.
  1. [111]
    However, Mr Collins’ final view at the hearing and after the completion of the upgrade, was not as optimistic as he had previously reported to the Respondent.
  1. [112]
    It seems to me, upon careful assessment both on the evidence available at the hearing and now on the additional evidence following the reopening, that those conclusions are still relevant.

(4) Economic Need

  1. [113]
    In their Joint Report for the hearing, Mr Duane and Mr Norling concluded in the following way:

Points of Agreement

  1. [114]
    Potential flooding of the land is a key issue (but both experts deferred to the opinion of other experts about that issue).
  1. [115]
    A planning scheme should identify sufficient residential lands to allow for future growth. Mr Duane considered a 20 year period appropriate whilst Mr Norling considered a five to 10 year period.
  1. [116]
    Bells Gully is a constraint affecting potential development of the area between Queen’s Beach and Bowen (an effect of creating a non-urban barrier between these two urban areas). The development application shows the creation of 35 residential lots, each averaging about 650m2. The land is well-connected to employment and community services and would make efficient use of infrastructure. 
  1. [117]
    Both experts reflected on the fact that Bowen was a town with potentially high residential growth prospects that were contingent on the expansion of coal mining, the expansion of the Abbott Point Coal Terminal and the development of the adjoining Abbott Point State Development Area.
  1. [118]
    Mr Duane considered that the Respondent should be planning for at least a 20 year availability of land – potentially more – given those potential major projects and the influence that they would assert on future supply and demand. Mr Norling considered that the introduction of new planning schemes within a relatively short to medium term period would be sufficient to provide the market with some certainty in planning terms which might reflect the actuality rather than the potentiality of the influence of major development projects.
  1. [119]
    Whilst all of those things would make, in the medium to long term, an impact on economic need in Bowen, none of those currently have a high prospect of becoming a reality in the near future.
  1. [120]
    State Planning Policy 1/03 has since been repealed and replaced by the State Planning Policy July 2014, which provided that development applications on land within a flood hazard area “avoids natural hazard areas or mitigates the risks of the natural hazard to an acceptable or tolerable level”. 

Points of disagreement    

  1. [121]
    Mr Duane considered that there was an economic need to approve the development on the basis of choice, competition, convenience and housing affordability. He saw that this would have net community benefit but expressed a caveat in the sense that the development needed to be safe, a matter which was the subject for other experts. He considered alternative residential development outside the Bowen urban area, such as Whitsunday Shores and Whitsunday Breeze, had significant disadvantages compared with the current site in terms of travel distance, access to infrastructure and the efficient use of the latter.
  1. [122]
    Mr Norling considered there was no planning need to approve the development at this time because there was sufficient capacity within the planning scheme area to accommodate demand for what he estimated to be some two decades. He also considered that there was no overriding need in the public interest to approve their residential development due to their being other suitable lands that were reasonably available.
  1. [123]
    Mr Duane considered that the need for residential housing in Bowen, whilst variable between a low and high estimate, which is not unusual, made the proposed development a viable option to insure diversity, housing choice and affordability. He considered that the land would make efficient use of infrastructure because it was part of the urban township which was preferred in the planning scenario. It was close to existing facilities to service the needs of residents. Whilst the land was small in its size, any land which could be used for urban purposes in Bowen would significantly add to competition, affordability and efficient use of infrastructure over time; and the proximity to facilities within the Bowen urban area, made the land a favourable option.
  1. [124]
    Mr Norling considered that the projections for population growth in Bowen which were dependent upon economic developments which were in his view somewhat optimistic in the medium term, did not dictate a need for this particular development. He said there was no planning need to approve this application at this time.
  1. [125]
    Another factor which influenced Mr Norling’s view was that the application really only had potential to deliver about 35 residential allotments which was about one half of a year’s demand for detached dwellings on his assessment. Hence its small scale he did not think would have any material effect on supply of detached dwellings within Bowen.
  1. [126]
    The areas in the vicinity of Whitsunday Breeze and Whitsunday Shores whilst on the limits of the Bowen urban area were nevertheless available for development and that the land being in a flood prone area did not readily promote itself as being land that was reasonably available for residential development. Mr Duane considered that the future residential supply in the Bowen area at or in the vicinity of Whitsunday Shores was concentrated in the hands of one developer which he did not favour.
  1. [127]
    Mr Norling considered that the significant capacity in the planning scheme, the small scale of the development proposed and the flood risks associated with the land’ lead to the view that the choice, affordability, competition and convenience referred to by Mr Duane were, in his view illusory.
  1. [128]
    Insofar as the potential flooding of the land was concerned, Mr Duane assumed that the land would be made safe or appropriate measures would be undertaken to make it safe. Mr Norling on the other hand considered that the Respondent’s refusal of the development application was made on the basis that safety could not be factored into the proposed development.
  1. [129]
    Whilst there are residential areas to the northeast and south of the land, Mr Norling considered the land itself is part of a distinct and contiguous band of rural zoned land extending from the west and through the subject land to the east, following Bells Gully. Hence he did not agree with Mr Duane’s view that the primarily residential uses surrounding the land were a factor influencing in a substantial way, the approval of the development application.
  1. [130]
    Mr Norling in his affidavit filed on 04 January 2016 referred to further information, form the Australian Bureau of Statistics that had become available since the joint report had been prepared and Mr Duane’s testimony at the hearing in 2014. That information in summary is as follows:
  1. The Whitsunday region (0.67% compared to 2.44% per annum 2011-2013) and Bowen (-0.06% compared to 2.69% per annum 2011-2013) resident population numbers had “much lower growth” in the year to June 2014 than in previous years.
  1. Whitsunday region resident population at June 2013 had been revised by the Australian Bureau of Statistics and had diminished by 0.1% (34,016 to 33,981): and the Bowen residential population at June 2013 had been revised by the Australian Bureau of Statistics and had diminished by 0.1% (9,595 to 9,583).
  1. New dwelling approvals had diminished in Bowen in the year ended June 2015 there were 10, compared with a per annum average of 58.6 in the previous decade.
  1. Residential sales activity volume in Bowen had reduced. Vacant residential land reduced to 20 in 2014 and to 18 in the period January-November 2015. These are lower than in previous years, since 2001. Median prices were similar to the previous years. Residential home sales fell to 59 in 2014 and 32 in the period January-November 2015. Median prices remain similar to those in previous years.
  1. [131]
    Mr Duane considered that a 1 year result was not relevant or indicative to or indicative in respect of long term projections because historically dwelling approvals had been inconsistent in Bowen, characterised by peaks and lows. Mr Norling attributed the statistical information to the significant slow in the coal sector. Coal prices had fallen by a further 20% since the date of the joint report. He predicted a continuation of this trend.
  1. [132]
    Mr Duane agreed with the reasons stated by Mr Norling for the decreases.
  1. [133]
    Mr Norling estimated that the December 2015 residential land supply capacity was about 1,430 dwellings (compared to 1,480 dwellings as at January 2014), based on adjusted comparative numbers, which he considered showed very little reduction due to very low growth in the intervening period and that it was lower than the future projections in the joint report. Further, there was very little diminution in supply. Hence he expressed the view that Bowen’s residential supply was materially greater than that predicated in the joint report.
  1. [134]
    Mr Duane referred to the Abbott Point port expansion and Carmichael Mine Projects as being, in effect, a positive indicator for growth in Bowen and in the Bowen region. He relied on media reports of proponent’s statements, government announcements and a Land Court decision for that opinion. However, I regard the reports as highly speculative indicators of development growth and not such to displace statistically sourced information. I expressed the same view in respect of the Land Court decision which, whilst it contained an approval of development, did not do more than that.

Submissions:

Appellant

  1. [135]
    The Appellant submitted the following:
  • No weight should be given to the draft new planning scheme;
  • The court should ignore conflict with the Rural Zone. The conflict is minor (the use of rural land for residential purposes);
  • Storm tide concerns are irrelevant for this land in its situation;
  • The Strategic Framework was indicative only and the proposed development did not conflict with it;
  • There was capacity for safe evacuation of residents from the land, upon completion of the Argyle Park Road upgrade;
  • Any conflict with State Planning Policy 2003 was nugatory, there being a new State Planning Policy in 2014;
  • The proposed development accords with the requirements of the Regional Plan;
  • The development is consistent with the Natural Hazards (Flooding and Storm Tide) Code in TLPI 2/13;
  • The land is GQAL and is in an urban environment;
  • There will be no burden on disaster management arrangements, because of the upgrade of the Argyle Park Road floodway;
  • Filling and excavation of the land is not an issue and the work carried out by Mr Reibel in levelling a bank of Bells Gully was not controversial, the filling will lift the flood immunity of the land to an acceptable level;
  • Continued rural use (farming) of the land is not now suitable because of the proximity of residential lots, the Harrison Court development being an example of the proximity of residential use which makes the farming of the land a difficulty proposition (inferentially, in terms of that described by Mr Reibel in his evidence);
  • There is a need for the development proposal which has been established on the evidence;
  • There are sufficient grounds to justify approval of the proposed development despite any conflict with the planning scheme or other statutory instruments;
  • A condition may be placed on the Preliminary Approval of the proposed development, namely the upgrade of Argyle Park Road as a precondition to any development commencing.
  1. [136]
    Mr Ure set out a number of grounds in respect of the justification of approval despite conflict issue, namely:
  • significant need for the proposal;
  • infill development;
  • efficient use of existing infrastructure;
  • certainty for specific infrastructure, such as the Argyle Park Road upgrade;
  • the removal of conflicts between the farming of the land and adjacent residential development;
  • the inappropriate rural zoning in the current environment on the land;
  • consistency with the Residential Zone provisions of the planning scheme;
  • consistency with the established character of the area;
  • integration with existing community;
  • support and advancement of the objectives of the Regional Plan in respect of residential density and housing choice, orderly expansion and connection with the CBD;
  • the absence of submitters objecting to the proposal; and
  • a consistency with the planning scheme (in an holistic sense) and other statutory instruments.
  1. [137]
    Mr Ure submitted that the upgrade as completed in effect resolved the hydrology issue and that flood risk was no longer an impediment to approval of the application.

Respondent

  1. [138]
    The Respondent submitted the following:
  • The appeal is not a flooding case;
  • There are major conflicts with the planning scheme: that is, the land is a rural area and is not intended for urban residential development;
  • Need is minor. Assumptions as to population growth in Bowen is optimistic at best. The planning scheme already meets the future needs with respect to growth;
  • There is a new planning scheme in draft form which identifies future urban development elsewhere in Bowen and has a built-in capacity to adapt to changing circumstances;
  • The Don River is a dangerous river system on any view of the river and the land is exposed to flooding risk;
  • The MIWRP states that planning should avoid development in hazard-prone areas;
  • The development proposal is ad hoc;
  • The need referred to by Mr Duane is at best long-term. Future need should be left to be determined under the new planning scheme and SPA;
  • The Harrison Court development does not act as a “precedent”, this application has to be judged on its own merits.
  1. [139]
    Mr Job submitted that local government planning schemes provide the detail that enhances the Regional Plan. The capacity of land for “infill development” within the urban footprint is determined through planning schemes and decision making by Council. In that sense, planning schemes are the implementation tool for the Regional Framework and the desired regional outcomes. A significant proportion of projected growth is expected to be accommodated on land already zoned for urban and residential purposes in planning schemes and the thrust of policies include the consolidation of growth within areas identified for residential purposes and for providing high density redevelopment and consolidation of existing urban areas, to accommodate growth. Inclusion of land within an urban footprint does not imply that all of the land so included is available for development for residential purposes.
  1. [140]
    He said that the impacts of flooding need to be considered. Inappropriate development in areas susceptible to natural hazard significantly increases risks and costs to the community and that the Court should give weight to State Planning Policy 1/13 even though the SPP 2014 has since commenced. The policy relevantly requires consideration of natural hazards in the assessment of development proposals.
  1. [141]
    He submitted that the draft planning scheme identifies land to the south of Bowen as being the new residential expansion areas. It maintained the subject land’s rural zoning. The conflicts with the planning scheme are significant: rural land is intended to be used for agriculture and not to satisfy expected urban growth, the latter to be accommodated in existing urban areas. The proposal does not identify any real benefit to or satisfy an economic demand of residents in the locality where the land is situated, and the proposal would increase the risk to safety by its location in an area that has a risk of flooding, it is inconsistent development in the rural zone and could not really be said to reflect the community’s reasonable expectation. Reasonable expectation is understood as being based upon a proper construction of the planning scheme. There is conflict with the Rural Zone Code, the proposal is not supported in the Overall Outcomes, and the proposal would compromise the achievement of the DEOs. Similarly, the Specific Outcomes are conflicted in various ways.
  1. [142]
    With respect to the flooding issue, he said there is conflict between the flood modelling and other materials relied upon in the appeal, and the Q100 level is a significant factor to take into account. The risks of isolation and the hazards of emergency evacuation are significant. Having people reside on filled land that becomes isolated with no current suitable means of evacuation creates a safety issue for residents and others. Warning times would be insufficient and are likely to be late in any flooding event. Residents would not have 12 hours warning time.
  1. [143]
    He submitted after the hearing that the evidence of Dr Johnson was impacted by an assumption that Argyle Park Road would be upgraded. Of course, this submission is no longer relevant, although Mr Job maintained that the Q100 issue remained unresolved. The engineers had agreed that it would have been difficult to make the intersection of Harrison Court and Argyle Park Road work at a Q100 flood immunity height and that would have involved additional costs beyond the funds approved with respect to that intersection and also the increased number of culverts over the floodway.
  1. [144]
    Finally, Mr Job submitted that:
  • The proposal would add to the burden upon emergency services during the flood;
  • In the State Planning Policy 1/03, it is provided that a proposal “… should result in a significant overall benefit to whole or a significant part of the community in social, economic or environmental terms that outweighs the adverse impacts arising from the development’s exposure to natural hazards. Also, the development application should demonstrate that a similar benefit could not be achieved by developing other suitable and reasonably available sites. Increased risk to people is a significant consideration when determining overriding need.” The SPP 2014 reflects similar considerations.
  • The number of years supply of residential land in Bowen is at a healthy figure and that significantly mitigates against there being any need for the proposal. Future growth is uncertain because of economic factors in the region and there is no certainty about significant major projects commencing. The planning scheme already meets the future need requirement in its own terms. Adding the projected number of residential lots on the land, which represents merely one-half of a year’s supply, would not add significantly to choice, diversity and competition;
  • The land, in terms of the assessment of planning need, is at the bottom of the “ranking” referred to by Mr Norling, namely that he would firstly look at land that was appropriately zoned and unconstrained, then at land that was appropriately zoned, but constrained, then land that was designated for residential development as future urban or emerging community zoned land, before finally considering land that was not appropriately zoned and unconstrained or constrained. The subject land is in the latter category; and
  • There are not sufficient grounds that would justify the approval of the Development Application despite conflict with the planning scheme. There are several grounds which militate against approval of the proposal, including the following:
  • lack of any positive public interest in the proposal;
  • public safety and hazard considerations, including the significant flooding risk;
  • the philosophy of SPP 1/03;
  • an increased burden upon emergency services which would follow from any approval;
  • the placing of residents in an “at risk” environment.

Discussion: town planning

  1. [145]
    It seems to me that there is general agreement that the land is not good quality agricultural land, although it is suitable for farming. That much seems to be the position adopted by the Council and is the view expressed by Mr Motti. However, it does seem that appropriate buffers do not exist to provide adequate separation of impacts from rural land use to surrounding residential properties. That much is evident from what was deposed by Mr Reibel. However, the Harrison Court development did not include a requirement for a buffer from the land and that issue appears to be the matter that concerned Mr Ovenden.
  1. [146]
    I will refer to the specific issue of conflict with the planning scheme further in this Judgment. Whilst the issue of conflict is an important matter, it is somewhat overshadowed by the issues involving flood (hydrology) and economic need.

Discussion: hydrology

  1. [147]
    In the Bureau of Meteorology Flood Warning System for the Don River publication (downloaded November 2014) in Exhibit 32, the flood risk associated with the Don River is described in the following terms:

“The Don River drains an area of about 1200km2… [it] falls about 250m in the 60kms from its source.”

“The river has a steep gradient until the Bowen Delta area is reached.Flood warning lead times are only about 3-9 hours due to the rapid stream rises and very high velocities in the low Don River. Serious flooding occurs in the Queen’s Beach and Bowen delta areas and dwellings are at risk.”

  1. [148]
    The publication refers to previous flooding in the following terms:

“Since settlement in 1861, historical records indicate that major floods occurred in 1869, 1870, 1884, 1910, 1916, 1911,1928, 1940, 1946 and 1955. The highest recorded flood was 1946 with rises to 9.70m on the flood gauge at Warden Bend. In recent years, major levels were reached in January 1970, February 1979, January 1980, March 1988, February 1991 and February 2008.”

  1. [149]
    There have been other flood events where heights at Bowen pump station (which is at the lower Don River delta closest to the mouth of the river and east of the Bells Gully breakout junction (Exhibit 29)) were in a range of a high of 7.25m in the January 1970 flood event to 4.15m in the March 2012 flood event. There were 10 other flood events at levels between those heights between 1970 and 2014 (Exhibit 30). There is an established alert system comprising a network of rainfall and river height stations that report river height levels for the purpose of flood warnings to the residents of Bowen.
  1. [150]
    The flood classification at the Bowen pump station, by way of example and taken at a bridge 2.8m in crossing height, refers to flood levels in 3 categories: minor 2.5m, moderate 4.0m and major 5.5m.
  1. [151]
    In the Royal Geographical Society of Queensland website information (exhibit 28, 18 November 2014 extract) the Don River is described in the following terms: it is “one of the most dangerous rivers in Queensland when it comes to floods because its short length and steep catchment allow warnings times as short as 3 hours and at best 9 hours before flood peaks are reached in Bowen.”
  1. [152]
    On the evidence I am not satisfied that evacuation time upon flood alerts is as generous as Mr Johnson predicted. Further, the upgrade is still not at the Q 100 level and I accept Mr Collins’ evidence that the Argyle Park Road Crossing would not be trafficable in such a flood event.
  1. [153]
    The proposed development is in the floodplain. Approval would be contrary to the plain statements of policy throughout the cascading sequence of planning documents and instruments, from the higher State level to the local level.
  1. [154]
    Even with the upgrade as it has been completed and accepting that it provides greater safety from flood events than the crossing did previously, the proposed development is incompatible with the flood hazard form breakouts into Bels Gully from the well documented, dangerous and unpredictable Don River.
  1. [155]
    Mr Johnson’s evidence about some of the breakout waters returning to the River was interesting but I do not see it substantiated when one looks at the evidence holistically. I do not accept his evidence in that regard.
  1. [156]
    The proposal to “fill” the site in order to elevate it for residential development above the Q 100 flood level on the land, is not acceptable in a floodplain, may impact downstream on other properties and upon the Argyle Park Road Crossing in a way which has been predicted in some of the modelling material but which is nevertheless still unpredictable.
  1. [157]
    The concessions made by Mr Johnson in cross-examination during the hearing (albeit prior to the upgrade and his subsequent report based on the completion of that work) did not satisfy me that his conclusions about floods and safety generally were valid or acceptable.
  1. [158]
    I do not accept Mr Johnson’s opinion that the upgrade as completed would provide an appropriate level of immunity. I accept Mr Collins’ conclusions about the continued flood, safety and evacuation risks that may still be an issue even upon the completion of the Argyle Park Road Crossing upgrade.
  1. [159]
    Finally, I find that a residential development as proposed on a floodplain such as the land, would potentially increase the burden upon emergency services in a significant flood event, even though there has been an upgrade of the crossing of Bells Gully.

Discussion: Need

  1. [160]
    The need in this case was the subject of detailed evidence from Mr Duane and Mr Norling.  My impression of the evidence of Mr Duane is that he strained to find a basis upon which he could reasonably demonstrate a need in the Bowen local government area for the proposed development to proceed, either in the context of enhancing choice of residential area or locality with connection to services and urban infrastructure.  With respect I preferred the evidence of Mr Norling.  There does not seem to me to be a demonstrated need for this development in the context in which “need” is construed in the context of planning schemes.  See William McEwens Pty Ltd v Brisbane City Council (1982) 2 APR 165.
  1. [161]
    There are other significant areas within the Bowen local government area that are in residential areas and provide the potential residential availability for the short and medium-term future. There is also development to the south of the city (for example, Whitsunday Shores) which has the potential for community infrastructure, has approval for a sewerage plant and has land available now for residential development. Indeed, the areas between Whitsunday Sands and the CBD in Bowen already have residential development which makes this area to the south of the city a resource for future residential development to meet the projected or perceived needs of the town.
  1. [162]
    The Appellant submitted that the Court should not place any weight on the draft planning scheme. The Respondent urged me to consider the draft scheme, whilst it is in its infancy, nevertheless looks to the future and provides a mechanism by which some flexibility within the planning context and enables the scheme to be reactive to changing circumstances in the future for infrastructure and community needs. Whilst I am satisfied in respect of the issue of need that the current planning scheme answers the question of need (that is, there is no demonstrated need for the proposed development) nevertheless that view is fortified by the proposed provisions in the draft planning scheme, and to that extent I am prepared to give it weight accordingly.
  1. [163]
    The Appellant submitted that Mr Duane’s further evidence that long term demand ought not be assessed on one year’s data should be accepted by the Court and that the reports regarding projects should satisfy the Court that if the projects he referred to proceed, “there will be rapid increases in population and dwelling demand in Bowen as well as delivering substantial economic benefits to the region”.
  1. [164]
    The Respondent submitted that there is no evidence of any expected improvement in the Bowen economy and there was an absence of identifiable need for the proposed development, further the recent information supported the medium series population predictions rather than the high series (matters referred to in the course of the earlier reports and the testimony at the hearing) and that on the medium series population predictions there had been calculated to be more than 25 years residential supply. It was submitted that there was now an even greater capacity.
  1. [165]
    Any need is at best, very long-term, in my view.
  1. [166]
    The Harrison Court development, which abuts the land and to which I have already referred, should not be regarded as a “precedent”. The application the subject of the appeal must be judged on its own merits and without reference to what might be said to have been considered appropriate in respect of other proved developments.
  1. [167]
    There are other residential development projects that have encountered deteriorating or “unforeseen market conditions”. So much is apparent at least from the Mt Nutt Road, Queen’s Beach residential subdivision project approved for Buildev Group, which sought an extension to the two year commencement date for the project in mid-2014 (Exhibit 37).
  1. [168]
    In the course of the hearing I accompanied counsel on a tour of Bowen to inspect a number of residential development sites, either approved but not yet commenced or partially or substantially completed. These sites were primarily either in the Queen’s Beach area or to the south of the township.
  1. [169]
    In Cut Price Stores Retailers Ltd v Caboolture Shire Council (1984) QPLR 126, the community or planning need was described as follows, at 131:

"Need in cases such as this, does not mean pressing need, critical need, widespread desire, or anything of that nature. A thing is needed if its provision taking all things into account, improves the physical well-being of the community."

  1. [170]
    See also Skoien DCJ in All-A-Wah Car Park v Noosa Shire Council (1989) QPLR 155 (at 157 to 158); and Luke & Ors v Maroochy Shire Council & Anor (supra).
  1. [171]
    Need is a "relative concept to be given greater or lesser weight depending on all of the circumstances which the planning authority was to take into account": Intrafield Pty Ltd v Redland Shire Council (2001) 116 LGERA 350 at 354. I do not consider need in the planning sense as being a matter of great weight, in the circumstances, as a factor in the determination of this appeal.
  1. [172]
    The evidence about economic need included various Tables and projections about population numbers and an assessment of land currently available for residential growth. Both Mr Duane and Mr Norling expressed views about those matters, although they were not in agreement with every aspect of one or other opinion that was expressed.

Further discussion:

Construction of planning schemes: planning intent

  1. [173]
    The construction of the planning scheme against the planning legislation is a matter for judicial determination. The Court must consider the merits of the Development Application against the relevant provisions of the planning scheme.
  1. [174]
    In Grosser v Council of Gold Coast (2001) 117 LGERA 153, White J referred to the proper approach of the Planning and Environment Court to matters of planning policy. It is a self-limiting approach, at least when considering town planning matters. The reference in Grosser to s 4.4(5A) is to the repealed legislation (Local Government (Planning & Environment) Act 1990). The section, so far as is relevant, is materially the same as s 3.5.14 of the Act.
  1. [175]
    Her Honour stated that it was not the Court’s function to substitute planning strategies those hat a planning authority has carefully and properly adopted. She continued:

"[44]  It is well recognised that a town planning appeal court may depart from the planning intent of the local government if the local government has itself departed from that intent or the subject land has been given a designation that was and remained invalid …";

and

"[49]  Section 4.4(5A) has a simple two-stage process which first requires the identification of conflict with the Strategic Plan then, if conflict is present, the application must be refused if there are not sufficient planning grounds to justify approving the application despite the conflict."

Compromise of the DEOs

  1. [176]
    In Koerner & Ors v Maroochy Shire Council & Ors [2004] QPELR 211, Wilson SC DCJ distinguished s 3.5.14(2)(a) with (2)(b) of the Act:

"[25]  [T]here is, then, a distinction between compromising the achievement of DEO’s and conflicts with the Planning Scheme. For a development to compromise the achievement of a DEO there would, it is clear, have to be an obvious and significant cutting across of that DEO in such a manner that its achievement on a Shire wide basis had plainly been compromised. The first part of the section, concerning DEOs, looks to the macrocosm of the entire planning area and the possibility that the "vision" for it is, as a whole, adversely affected. The other looks, comparatively speaking, to the microcosm of particular parts of the Strategic Plan and involves a much more pedantic exercise."

  1. [177]
    In Handley v Brisbane City Council & Anor (2005) QPELR 80, his Honour considered issues of amenity, community expectation in the broad context. In reference to the Brisbane City Council Planning Scheme, he said:

"[19]  These city-wide DEOs are expressed in very general terms and are to be considered with reference to the 'Planning Scheme Area' which, here, constitutes the whole of the city of Brisbane (RPA s 2.1.2). This wide scope means the occasions in which a development proposal compromises the achievement of a DEO will not be common, because it will be rare to see an individual development having a noticeable effect upon the achievement of a DEO for the entire Planning Scheme area."

  1. [178]
    In Kotku Education & Welfare Society Inc v Brisbane City Council & Ors [2005] QPELR 267, his Honour again dealt with the DEOs in the broad context:

"[26]  There is, then, inherent difficulty in the proposition that a small development proposal on a small parcel can yet compromise city-wide DEOs. That difficulty is compounded here by other 'city-wide strategies' which appear to promote social and cultural diversity, and non-discriminatory access to public and private development (3.2.8) only by taking an extreme view of particular, selected phrases in the DEOs could it be argued that there is a discernible conflict between this proposal, and the generalised in-principle "contents".

  1. [179]
    In my view the proposed development compromises the DEOs. I accept the submissions of Mr Job in that regard.
  1. [180]
    See Lewis v Townsville City Council & Ors [2012] QCA 99 per McMurdo P, in respect of “compromise” and “conflict”.  Her Honour wrote that s 3.5.14(2) contemplated that “an application which compromises the achievement of DEOs is more serious than one which conflicts with the planning scheme”.

Conflict with the planning scheme

  1. [181]
    There are, on the evidence in this case, major conflicts with the planning scheme. The land is patently a rural area. The planning scheme does not contemplate that land in a rural area be turned over to urban residential development. The development is proposed in an area where there is a significant risk of flooding, even if the land is filled and even if the Argyle Park Road upgrade were to proceed on its currently proposed planning. The Don River is a volatile watercourse and can be dangerous in flood times. Bells Gully is a route through which floodwaters and stormwater will flow at a significant level. The Regional Plan make it clear that development should be avoided in hazard-prone areas. The land is in such an area. The Appellant has submitted that the conflict with the planning scheme is minor. I disagree. It is patently significant, in my view.
  1. [182]
    “Conflict” was considered in Woolworths Ltd v Maryborough City Council & Anor [2005] QPEC 262.  Fryberg J at paragraph [23] described the expression as meaning “at variance or disagree with”.  His Honour said it implied no particular impact by a subject upon an object and required the identification of the part or parts of the planning scheme with which the decision of the assessment manager might be said to conflict and a decision whether the former conflicts with the latter.  His Honour wrote, “Only if such a determination has been made is it necessary to consider whether there are sufficient planning grounds to justify the decision.”
  1. [183]
    In Delaview Pty Ltd v Redland Shire Council [1997] QPELR 250 Skoien SJDC wrote that a conflict “must be more than a minor one and must go to the substance of the relevant planning instrument and not merely to one provision considered in isolation.”
  1. [184]
    See also Shardlow v Moreton Bay Regional Council [2012] QPEC 082; (2013) QPELR 246. Cf. Stockland v Sunshine Coast Regional Council & Ors [2013] QPEC 079.
  1. [185]
    “Conflict" is considered against the substance of the planning scheme, not against a provision in isolation from the whole, and the conflict must be plainly evident.

[186] In Central Equity Limited v Gold Coast City Council (2007) QPELR 356, Wilson SC DCJ referred to compliance with planning schemes in the following terms:

"[16]  Although Ch 2 of the planning scheme specifies that "All Performance Criteria are considered separate and distinct”, in light of the overlap between the matter addressed by the numerous PC in the Codes which are relevant here, it would be excessively mechanical to simply consider each discreetly and, in a case involving purported compliance in a way different from that proposed by the Acceptable Solution, give each a separate positive or negative response. Undertaking the process in that way would also be entirely discordant with ordinary, common modern principles of statutory construction: Project Blue Sky v ABA [1998] 194 CLR 355.

[17] For these reasons it is appropriate to consider compliance with PC concerning matters like site cover in concert with those which touch what are plainly, under the Codes, concerns of a similar type: here, those directed towards setbacks, plot ratios and, (because of the affect the visual elements inherent in amenity issues arising in regard to those topics), landscape."

  1. [187]
    See also Aldi Stores v Redland City Council [2009] QPEC 27, albeit in a different context of conflict with the planning scheme.
  1. [188]
    In Westfield Management Ltd v Pine River Shire Council & Anor. (2004) QPELR 337, Britton SC DCJ said with respect to the construction of planning schemes:

"[18]  I accept that the following principles apply to the construction of planning schemes:

(a) they should be construed broadly rather than pedantically or narrowly and with a sensible, practical approach;

(b) they should be construed as a whole;

(c) they should be construed in a way which best achieves the apparent purpose and objects;

(d) in the light of the proscription against prohibiting development contained in IPA (s. 6.1.2)(3);

(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;

(f) a Strategic Plan sets out broad desired objectives and not every objective needs to be met before a proposal can be approved;

(g) a Strategic Plan should be read broadly and not pedantically;

(h) although planning documents have the force of law they are not drawn with the precision of an Act of Parliament;

(i) a conflict alone may not have the effect of ruling out a particular proposal;

(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."

(Case references have been omitted from the cited passage).

  1. [189]
    See also Metroplex v Brisbane City Council [2010] QCA 333; [2011] QPELR 181

Sufficient grounds

  1. [190]
    In Weightman v Gold Coast City Council (2003) 2 Qd.R. 441, the Court of Appeal held that the requirement imposed by s 4.4(5A) of the repealed legislation was mandatory and not merely directory. Atkinson J applied the following test:

"In order to determine whether or not there are sufficient planning grounds to justify proving the application despite the conflict, as required by s. 4.4(5A)(b) of the P&E Act, the decision maker should:

1.  Examine the nature and extent of the conflict;

2.  Determine whether there are any planning grounds which are relevant to the part of the application which is in conflict with the planning scheme and if the conflict can be justified on those planning grounds;

3.  Determine whether the planning grounds in favour of the application as a whole are, on balance, sufficient to justify proving the application notwithstanding the conflict."

  1. [191]
    In Woolworths Ltd v Maryborough City Council (2006) 1 Qd.R 273, the Court of Appeal analysed the issue of conflict between the decision and the planning scheme and the test applied in Weightman:

"[23]  'Conflict' in this context means to be at variance or disagree with. It describes a quality of a relationship between the subject (the decision) and a part of the predicate (the scheme). Unlike 'compromise' in para. (a), it implies no particular impact by a subject upon an object. A determination that there has been a breach of the requirement that 'the assessment manager's decision must not … conflict with the planning scheme' requires the identification of the decision, the identification of some part or parts of the scheme with which the decision might be said to conflict and a decision whether the former conflicts with the latter. Only if such a determination has been made is it necessary to consider whether there are sufficient planning grounds to justify the decision.

[24]  Section 3.5.14(2)(b) differs in several respects from s. 4.4(5A) and s. 4.13(5A) of the Local Government (Planning & Environment) Act 1990,provisions which may be regarded as its predecessors. Under those sections the subject of the putative conflict was under the application; here it is the assessment manager's decision. Under those sections the object of the conflict was any relevant strategic plan or development control plan; under the present section it is the whole planning scheme. Under those sections (if they applied) the result was a refusal of the application in the absence of sufficient planning grounds; here the result in the same circumstances is simply a non-conflicting decision. Under those sections what required justification was approval of the application; under the present section what requires justification is the decision. Moreover, the grammatical structure of the two sections is significantly different. These differences mean that care must be used in applying the cases decided under those provisions to the present section."

  1. [192]
    Fryberg J (with whom Holmes J agreed) referred to the process approved in Weightman in respect to the repealed section. However, he said it would "[be] a mistake to treat the relevant passage in that judgment as if it were a mode for the determination of justification"; and [T]he purely mechanical application of the Weightman dictum should be avoided, particularly when dealing with the current statute rather than the one under consideration in that case" (at page 286 and 296 respectively).
  1. [193]
    In Luke & Ors v Maroochy Shire Council & Anor [2003] QPELR 447, Wilson SC DCJ referred to the sufficiency of planning grounds, notwithstanding conflict with the planning scheme:

"[103]  IPA s. 3.5.14(2)(b) provides that the assessment manager's decision (or, in this case, the decision of this Court) must not conflict with the planning scheme unless there are sufficient planning grounds to justify the decision. The existence of conflict is a question of law. Any conflict said to arise must be plainly identified but that is a process undertaken by looking at the scheme as a whole, rather than isolated provisions. The word 'sufficient' refers to the weight to be afforded on any particular ground which is advanced as a reason for approval, despite conflict; and the phrase 'sufficient planning grounds' refers to those planning grounds of sufficient weight to justify approval, despite the conflict, and includes any grounds which relate to the merits of the application."

[194] See also SDW Projects Pty Ltd v Gold Coast City Council & Anor [2007] QPELR 24 at [46] to [48]; and Australian Retirement Homes Ltd v Pine River Shire Council & Anor [2007] QPEC 85 at [19], [20] and [28].

  1. [195]
    One of the differences between the expression "sufficient grounds", used in lieu of the former expression "planning grounds", is that it is arguable that "sufficient grounds" implies a wider test under the Act. Nevertheless, "Grounds" is relevantly defined in the Act for the purposes of s 3.5.14 to mean "matters of public interest" and does not include the personal circumstances of an applicant, owner or interested party.

In a case such as this the correct approach requires the Court to consider the decision and to identify the nature and extent of the conflict and to assess, in the context of the planning scheme as a whole, whether there are planning grounds of sufficient weight to justify approval, despite conflict and bearing in mind the proscription in the Act against prohibiting development.

Conflict and grounds to justify.

  1. [196]
    I find that the proposed development conflicts with the planning scheme and that the conflicts are not minor but rather are substantial. I have considered whether there are grounds to justify a Preliminary Approval of the proposed development notwithstanding the conflict with the planning scheme. However, the Appellant has not satisfied me that there are sufficient grounds to justify approval of the development application, even at its preliminary approval stage, despite the conflict. The land is flood prone and in a Hazard Risk Area. Whilst it is not GQAL, it remains rural land and has a role in flood mitigation that will not change in the future without major and likely prohibitively costly re-modelling of Bells Gully. I accept the submissions of Mr Job in regard to conflict.

Resolution

  1. [197]
    The land is subject to a real risk of flooding which has the potential for placing residents at personal risk to their health and safety, increase the burden on emergency services and may adversely affect land outside the boundaries of the subject land. The construction of residential development on a floodplain such as Bells Gully, which by its very nature has a specific purpose of taking water flow in flood times and, indeed undoubtedly, stormwater to the ocean at the outfall at King’s Beach, is one that should be discouraged under the planning scheme. The land is rural land and I note that under the draft planning scheme continues to be rural land. A residential development on the land is incompatible with proper planning principles.
  1. [198]
    There is no need established on the evidence for this proposed development. It is not part of the residential area under the planning scheme and would not contribute other than modestly to the supply of land for residential purposes into the future. The planning scheme already adequately provides for any reasonable projection of growth in Bowen.
  1. [199]
    The conflict with the planning scheme is significant in a number of respects, and the proposed development is inconsistent with the planning scheme DEOs.
  1. [200]
    The Argyle Park Road upgrade has been completed to its current level, but not a Q100 flood immunity level. No doubt the Respondent took that into account in its approval of the upgrade, but the fact remains that it is now what it is in terms of flood immunity. Such an event must be taken into account in the planning context. It cannot simply be disregarded as being an unlikely occurrence, even though the Q100 designation might signify that it is expected to be a rare event.
  1. [201]
    A preliminary approval, if granted, would lead to further detailed planning of the development and does not give a developer the right to proceed immediately. A Preliminary Approval can be contingent upon many planning and design factors and indeed be subject to conditions that must be met before any development was to proceed. However, as I have written above, the obstacles to an approval cannot be overcome by the appellant now or in the future because of the factors to which I have referred that are beyond its control or influence.
  1. [202]
    In any event, the application of proper planning principles would not permit a Q100 flood level in the context of the land, its location and the historical behaviour of the Don River and its breakouts to be ignored. The Bells Gully crossing as it is presently constructed does not provide sufficient safety in the event of a Q100 event.

Conclusion

  1. [203]
    I have concluded that there is a potential for a flooding event that makes the proposed development untenable, primarily because of its location and its situation on the Bells Gully floodplain. None of the proposals including filling the land to a greater height overcome this issue. Further, the upgrade did not extend to alleviate flood inundation to adjacent or downstream areas. There is no economic need in Bowen for this development in this location. The development proposal conflicts with the planning scheme and I do not consider that there are sufficient grounds to justify the proposed development notwithstanding that conflict.

Orders

  1. Appeal dismissed.
  1. The Decision of the Whitsunday Regional Council refusing the development application is confirmed.
Close

Editorial Notes

  • Published Case Name:

    Reibel Farms Pty Ltd v Whitsunday Regional Council

  • Shortened Case Name:

    Reibel Farms Pty Ltd v Whitsunday Regional Council

  • MNC:

    [2016] QPEC 44

  • Court:

    QPEC

  • Judge(s):

    Durward DCJ

  • Date:

    08 Sep 2016

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
ALDI Stores (A Limited Partnership) v Redland City Council [2009] QPEC 27
2 citations
Jump To
Cite 1 - [2009] QPEC 27
Cite 2 - [2009] QPEC 27
All-A-Wah Carapark v Noosa Shire Council (1989) QPLR 155
2 citations
Jump To
Cite 1 - (1989) QPLR 155
Cite 2 - (1989) QPLR 155
Australand Holdings Ltd v Gold Coast City Council [2007] QPEC 29
2 citations
Jump To
Cite 1 - [2007] QPEC 29
Cite 2 - [2007] QPEC 29
Australian Retirement Homes Ltd v Pine Rivers Shire Council [2007] QPEC 85
1 citation
Jump To
Cite 1 - [2007] QPEC 85
Cut Price Stores Retailers Ltd v Caboolture Shire Council (1984) QPLR 126
2 citations
Jump To
Cite 1 - (1984) QPLR 126
Cite 2 - (1984) QPLR 126
Delaview Pty Ltd v Redland Shire Council [1997] QPELR 250
2 citations
Jump To
Cite 1 - [1997] QPELR 250
Cite 2 - [1997] QPELR 250
Equity Limited v Gold Coast City Council (2007) QPELR 356
2 citations
Jump To
Cite 1 - (2007) QPELR 356
Cite 2 - (2007) QPELR 356
Handley v Brisbane City Council (2005) QPELR 80
2 citations
Jump To
Cite 1 - (2005) QPELR 80
Cite 2 - (2005) QPELR 80
Intrafield Pty Ltd v Redland Shire Council (2001) 116 LGERA 350
2 citations
Jump To
Cite 1 - (2001) 116 LGERA 350
Cite 2 - (2001) 116 LGERA 350
Kotku Education and Welfare Society Inc v Brisbane City Council (2005) QPELR 267
2 citations
Jump To
Cite 1 - (2005) QPELR 267
Cite 2 - (2005) QPELR 267
Lewis v Townsville City Council [2012] QCA 99
2 citations
Jump To
Cite 1 - [2012] QCA 99
Cite 2 - [2012] QCA 99
Luke v Maroochy Shire Council & Anor (2003) QPELR 447
2 citations
Jump To
Cite 1 - (2003) QPELR 447
Cite 2 - (2003) QPELR 447
Metroplex Management Pty Ltd v Brisbane City Council [2010] QCA 333
2 citations
Jump To
Cite 1 - [2010] QCA 333
Cite 2 - [2010] QCA 333
Metroplex Management Pty Ltd v Brisbane City Council [2011] QPELR 181
2 citations
Jump To
Cite 1 - [2011] QPELR 181
Cite 2 - [2011] QPELR 181
SDW Projects Pty Ltd v Gold Coast City Council (2007) QPELR 24
1 citation
Jump To
Cite 1 - (2007) QPELR 24
Shardlow v Moreton Bay Regional Council [2012] QPEC 82
2 citations
Jump To
Cite 1 - [2012] QPEC 82
Cite 2 - [2012] QPEC 82
Shardlow v Moreton Bay Regional Council (2013) QPELR 246
2 citations
Jump To
Cite 1 - (2013) QPELR 246
Cite 2 - (2013) QPELR 246
Smith v New South Wales Bar Association (1992) 176 CLR 256
1 citation
Jump To
Cite 1 - (1992) 176 CLR 256
Stockland v Sunshine Coast Regional Council & Ors [2013] QPEC 79
2 citations
Jump To
Cite 1 - [2013] QPEC 79
Cite 2 - [2013] QPEC 79
Weightman v Gold Coast City Council[2003] 2 Qd R 441; [2002] QCA 234
2 citations
Jump To
Cite 1 - [2003] 2 Qd R 441
Cite 2 - [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
William McEwans Pty. Ltd. V. Brisbane City Council (1982) 2 APA 165
1 citation
Jump To
Cite 1 - (1982) 2 APA 165
William McEwens Pty Ltd v Brisbane City Council (1982) 2 APR 165
1 citation
Jump To
Cite 1 - (1982) 2 APR 165
Woolworths Ltd v Maryborough City Council & Anor (2005) QPEC 262
2 citations
Jump To
Cite 1 - (2005) QPEC 262
Cite 2 - (2005) QPEC 262
Woolworths Ltd v Maryborough City Council (No 2)[2006] 1 Qd R 273; [2005] QCA 262
2 citations
Jump To
Cite 1 - [2006] 1 Qd R 273
Cite 2 - [2006] 1 Qd R 273
Zanow v Ipswich City Council [2010] QPELR 721
1 citation
Jump To
Cite 1 - [2010] QPELR 721

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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