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PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
Black Ink Architecture Pty Ltd v Ipswich City Council  QPEC 13
BLACK INK ARCHITECTURE PTY LTD
IPSWICH CITY COUNCIL
945 of 2018
Planning and Environment Court
Appeal against refusal
Planning and Environment Court of Queensland, Brisbane
7 April 2020
16, 18, 19 & 20 March 2020
Williamson QC DCJ
PLANNING AND ENVIRONMENT – APPEAL – where appeal against decision to refuse a development application for a material change of use (Community use - child care centre) – where proposed in a flood plain – whether the proposed development is compatible with the flooding constraint – whether the application complies with the respondent’s planning scheme – whether the application complies with State Planning Policy July 2017 – the weight to be given to the State Planning Policy - whether the planning discretion should be exercised in favour of approval.
Acts Interpretation Act 1954, s 14B
Planning Act 2016, ss 45 and 60.
Planning & Environment Court Act 2016, s 43.
Statutory Instruments Act 1992, s 14(1) and Sch 1.
Ashvan Investments Unit Trust v Brisbane City Council & Anor  QPEC 016;  QPELR 793
Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor  QPEC 46
Mr K Wylie for the appellant
Ms D Whitehouse for the respondent
Mullins lawyers for the appellant
AJ & Co for the respondent
- On 15 February 2018, Council decided to refuse the appellant’s (Black Ink) impact assessable development application seeking approval to start a new use of land situated at Barclay Street, Bundamba (the land). The new use proposed is a Community use - child care centre, with capacity to accommodate ninety-six children (including infants) and seventeen full time equivalent staff.
- Council contends the appeal should be dismissed. This position is underpinned by one reason for refusal; Council alleges the proposed development is incompatible with a flooding constraint that affects the land. It is contended the incompatibility manifests itself in a number of non-compliances with adopted planning controls, namely Council’s 2006 planning scheme, and the State Planning Policy dated July 2017 (the SPP). The alleged non-compliances can be grouped into one of three categories: (1) the proposed development does not avoid flood prone land; (2) the risk of flooding to people and property will not be appropriately mitigated; and (3) the development will not function effectively during, and immediately after, a flood.
- The land is constrained. It is affected by, inter alia, back-up flooding from the Bremer River and Bundamba Creek. This constraint is reflected in the planning scheme mapping. Map OV5 is an Overlay map. It shows the western half of the land, which has a total area of 9,574 m2, as being affected by an adopted flood regulation line. This ‘line’ vividly confirms that half of the land is low-lying, and forms part of a flood plain. In this part of the flood plain, the depth of inundation during a flood is of concern. This factor causes the land to be a high hazard flood risk.
- The extent to which the land, and surrounding area¸ is constrained by flooding is demonstrated by reference to historical data about the 1974 and 2011 floods. This data, compared to the contours of the land, reveals the impact of flooding was significant in these events. During the 1974 flood, the level of inundation on the land reached RL 20.5 metres. This level is the adopted flood regulation line. In 2011, the flood waters reached RL 18.5 metres. The two flood levels can be compared with the contours of the land. It slopes from east to west. Ground levels range from RL 24.4 metres in the east, to RL 16.3 metres along a creek to the west.
- Whilst Black Ink readily accepts the land is constrained by flooding, it relies upon two points to discharge the onus. It contends the risk, and incidence, of flooding can be appropriately addressed through conditions of approval requiring the following: (1) the development be constructed generally in accordance with the proposed plans, which provide for the finished floor level at RL21.2 metres, which is above the adopted flood regulation line (RL 20.5) and the level of the 1 in 200 year flood (RL 20.8); and (2) the implementation of, and compliance with, a flood hazard emergency management plan (FEMP). The FEMP, which was prepared by a flooding engineer, Ms Clements, requires the child care centre to be closed, and parents contacted to collect their children, when flood waters reach RL 17.5 metres. This level is 3 metres below the adopted flood regulation line, and 3.7 metres below the finished floor level of the child care centre. There was no dispute that the FEMP, if complied with, will ensure there is sufficient time to safely evacuate the facility during all flood events. Occupants will be evacuated to a nominated assembly point. The evacuation will be assisted through the provision of two twelve (12) seater buses. The FEMP requires the buses to be provided by the operator of the child care centre. They are to be parked on the land in an area elevated above the adopted flood regulation line.
- Black Ink contends the above matters, in combination, establish the development complies with the adopted planning controls and, as a consequence, should be approved subject to conditions.
- The opposing positions adopted by each party call for the following questions to be determined:
- (a)whether the proposed development complies with the 2006 planning scheme?
- (b)whether the proposed development complies with the SPP, and the weight, if any, that should be given to this planning document? and
- (c)whether, in the exercise of the planning discretion, the appellant has demonstrated the application should be approved, subject to conditions.
The 2006 planning scheme
- The development application is impact assessable.
- The statutory assessment regime prescribed by the PA requires the application to be assessed against the ‘Ipswich Planning Scheme’, which is an applicable assessment benchmark. This planning scheme took effect on 23 January 2006. It was prepared under the Integrated Planning Act 1997 as a framework for managing development in a way that advances the purpose of that Act. At the date the application was properly made, the planning scheme included amendments made up to, and including, those taking effect from 8 May 2017.
- The planning scheme divides Council’s local government area into nine Localities. The Localities are, in turn, divided into Zones and, in some instances, further divided into Sub Areas and Precincts. The land is included in the Urban Areas Locality. This locality is divided into eighteen zones. The land is included in the Special Opportunity Zone. This zone applies to all of the land, save for a small portion in its south-eastern corner, which is included in the Residential Low Density Zone. The Special Opportunity Zone has forty-six Sub Areas. The land is included in Sub Area SA41 – Naomi and Emma Streets, Blackstone/Bundamba.
- The planning scheme recognises, by way of a ‘Note’, that Sub Area SA41 ‘is significantly affected by undermining, flooding and drainage constraints’. The same Note also refers the reader to ‘Overlay Maps and Part 11’ of the planning scheme. Map OV5, which I have already referred to, is an Overlay map. Part 11 of the planning scheme is titled ‘Overlays’. Division 4 of this part of the planning scheme is titled ‘Development Constraints Overlays (the Overlay).
- The Overlay applies to the proposed development because the land is identified on Map OV5 as partly: (1) within an urban catchment flow path; and (2) below the adopted flood regulation line. The former, for all intents and purposes, traverses the southern end of the land coincident with an easement for overland flow. The latter covers the western half of the land up to RL 20.5 metres.
- Whilst the planning scheme recognises the land forms part of an area significantly affected by flooding, that should not be viewed as suggesting development is discouraged on the land. To the contrary, Specific outcome (41)(b)(iii) for SA41 provides that a child care centre ‘may’ be considered a suitable use in that area.
- In this context, Mr Wylie invited the court to contrast Specific outcome (41)(b)(iii) with two examples where the planning scheme reflects a deliberate decision to discourage child care centres on flood affected land. He referred to provisions dealing with Sub Areas SA45 and SA46 of the Special Opportunity Zone. In these Sub Areas, the planning scheme discourages child care centres in clear terms. It states the use is one of a number that would be ‘heavily impacted by flooding’, ‘inappropriate,’ and ‘not likely to be approved’. The planning scheme does not attribute the same planning policy to SA41. Planning scheme maps demonstrate why this is so; in contrast to SA41, very little of the land included in Sub Areas SA45 and SA46 is unaffected by a flooding constraint.
- That the planning scheme does not immediately turn its cheek against child care centres in SA41 serves only to advance this appeal in a small, but favourable, way to Black Ink. This is because the encouragement provided by Specific outcome (41)(b)(iii) is qualified. Whether the proposed development satisfies the applicable qualification/s in the planning scheme is central to the exercise of the planning discretion in this appeal.
- Council’s case is advanced on the footing the relevant qualification/s are contained in a number of parts of the planning scheme with which the development application does not comply. It contends the proposed development does not comply with eleven provisions of the planning scheme. Two particular provisions are at the forefront of Council’s case, namely Specific outcome (15) of the Community Use Code and Specific outcome (1)(h) of the Overlay. I will deal with each of these provisions in turn.
- Specific outcome (15) of the Community Use Code states:
(15) Specific Outcomes
Key elements of community infrastructure, including emergency services, hospitals, nursing homes, child care facilities and stores of valuable records or items of historic and cultural significance (e.g. galleries, museums, libraries and archives) –
- avoid areas prone to flooding, bushfires and landslip (see Part 11); and
- are able to function effectively during and immediately after natural hazard events.”(emphasis added)
- The proposed development is a Community Use as defined in the planning scheme, and is to be assessed against, inter alia, the Community Use Code. Specific outcome (15) of this code applies to the proposed development because it is a ‘child care facility’.
- Specific outcome (15), by its terms, requires consideration to be given to whether the proposed development: (1) avoids areas prone to flooding; and (2) is able to function effectively during, and immediately after, a flood event.
- Does the proposed development avoid areas prone to flooding?
- Black Ink submits this question is resolved in the affirmative. Compliance is said to be achieved because: (1) the flood prone area to be examined is that depicted by the adopted flood regulation line; (2) the flooding constraint depicted by the adopted flood regulation line is three dimensional; and (3) the development has been designed, and sited, to accommodate the finished floor level (RL 21.2), patron car parking (RL 20.8) and two points of access to the road network (RL 21.6 and RL 21.78) above the three dimensional flooding constraint represented by the adopted flood regulation line.
- I have serious misgivings about a submission advancing the proposition that the ‘flood prone area’ for the purpose of Specific outcome (15)(a) is limited to land within the adopted flood regulation line. This provision does not, in terms, limit itself to the adopted flood regulation line. Nor does it limit itself to a particular flood event. It would have been easy for the drafters of the planning scheme to express the provision in this limited way, assuming that was intended. Rather, the provision identifies a flood prone area. That area is not defined. There is good reason for this; a flooding constraint does not necessarily cease at a ‘line’ on a map. Here, that is clearly the case. The evidence comfortably satisfies me the flooding constraint affecting the land does not cease at RL 20.5 metres.
- As the evidence of the flooding engineers demonstrates, the land is significantly affected in all flood events ranging from a 1 in 100 year flood event, up to and including a Probable Maximum Flood. It is only the former that is within the adopted flood regulation line at RL 18.8 metres.
- The analysis of the flood engineers also reveals that the depth of inundation across the land materially increases as the severity of each flood event increases. The increase in depth is measured in metres, not millimetres. This significant increase in the depth of inundation across the land in flood events greater than the adopted flood regulation should not, in my view, be readily ignored. The depth of inundation is, after all, the reason the land is identified as a high hazard flood risk.
- It is, however, unnecessary to reach a concluded view about this point. Even adopting the narrow approach urged upon the court by Black Ink, I am not satisfied the proposed development avoids an area prone to flooding. This is so for the following reasons.
- The plain and ordinary meaning of the phrase ‘avoid areas prone to flooding’, in context, requires development to ‘keep away from’, ‘keep clear of’ or ‘evade’ an area prone to flooding. This may be achieved, in my view, in a number of ways, including the following: (1) development does not occur on any land which is flood prone, be it in whole, or part; or (2) development is designed to remove the flooding constraint – i.e. land is filled to the point where flood immunity is improved, and the constraint is effectively removed; or (3) development occurs on land partly flood affected, but sited to laterally avoid the constraint; or (4) development occurs on land that is flood affected, be it in whole or part, but is vertically elevated above the constraint, thereby allowing flood waters to rise above, and pass beneath, it. Here, it is said the proposal has been designed, and sited, to achieve avoidance in a manner consistent with item (4).
- It is clear from the plans of development that the Project Architect, with the assistance of flood engineering advice, has designed, and sited, the finished floor level, patron car parking and site access above the adopted flood regulation line of RL 20.5 metres. The finished floor level where children will be accommodated is at RL21.2 metres. When considered in this general and high level way, one might be forgiven for thinking the development avoids the three dimensional flooding constraint represented by the adopted flood regulation line. I am not, however, satisfied the matter is to be considered in this general way. The detail of the proposal needs to be considered to determine whether the design has, in fact, achieved ‘avoidance’. Here, I am not satisfied this is the case. Two particular aspects of the design, taken in combination, suggest there are parts of the development squarely within, and impacted by, the three dimensional flooding constraint depicted by the adopted flood regulation line.
- The finished floor area will be constructed above the adopted flood regulation line. However, to achieve this, as Figure C to the town planning joint expert report reveals, the vast majority of the footprint of the development, and supporting structure, needs to be founded on that part of the land within the adopted flood regulation line. Whilst the structure will be designed to utilise flood resilient materials, the architectural elevations and sections for the development do not illustrate how this structure will touch the ground lightly, or is placed to avoid the constraint. Rather, the base of the building appears as a significant structure founded within the adopted flood regulation line. That structure appears to be unenclosed, but the evidence provides little by way of detail about this aspect of the design. The evidence was in this respect deficient.
- Despite the best intentions of the designer, that part of the building located below the adopted flood regulation line will be exposed to the risk of damage, be it structural or cosmetic. The risk applies for all significant flood events on the land, even including those events up to the adopted flood regulation line. The evidence of the flooding engineers confirms this risk is material given the combination of: (1) the anticipated depth of inundation during flood events up to the adopted flood regulation line; and (2) the time it will take flood waters to recede to a safe level, presumably less than RL 17.50 metres.
- The second aspect of the design affected by flooding below the adopted flood regulation line is an area provided for staff car parking.
- The proposed plans of development depict an area described as the lower carpark. It provides fourteen staff car parks and is sited on a low-lying part of the land, having a minimum level of RL 19.34 metres. This is 1.16 metres below the adopted flood regulation line. As the evidence established, a flood resulting in this level of inundation can fairly be expected to leave mud and debris. In some cases, this depth of inundation may be sufficient to adversely impact on the usability of the carpark surface, even after flood waters have receded. That the lower carpark may be damaged, and require repair, in a flood up to the adopted flood regulation line is acknowledged at Table 4-1 of the FEMP.
- Counsel for Black Ink submitted the requirement in Specific outcome (15)(a) to avoid flood prone areas applies only to, in essence, the floor area of the child care centre. On this approach, the impact of any flood on the supporting structure and lower carpark would be ignored. This submission cannot be accepted. It ignores that the Specific outcome speaks of ‘child care facilities’ and the need for those facilities to avoid areas prone to flooding. This phrase is not limited to a use area only. The plain and ordinary meaning includes the component parts of the child care centre. That includes a staff carpark. It also includes, in my view, the supporting structure necessary to provide the floor area for children to play.
- Given the above, I am not satisfied Black Ink has demonstrated the proposed child care centre complies with Specific outcome (15)(a) of the Community Use Code.
- I would also observe that Black Ink’s position is not improved if it is accepted that Specific outcome (15)(a), in this case, calls for an examination of a flood prone area extending beyond the adopted flood regulation line. So much is clear from the analysis undertaken by the flood engineers, Mr Collins and Ms Clements. As I said above, their evidence establishes that the development will be affected by flooding events greater than the adopted flood regulation line. The impacts range in severity, including a risk that flood waters, in an extreme event, may overtop the finished floor level of the child care centre.
- Exhibits 13 and 15 demonstrate that over floor flooding is anticipated inside the child care centre in a 1 in 500 year flood event. The flood level is anticipated to reach RL 23 metres, assuming the impacts of climate change are ignored. The level of inundation would be 1.8 metres above the finished floor of the child care centre. If the effects of climate change are taken into account to the year 2100, it is anticipated that the depth of flooding in the same flood event would reach RL 25.92 metres. This would result in 4.72 metres of water above the finished floor level of the child care centre. Disruption to the operation of the child care centre in these extreme events would be inevitable. Any depth of over floor flooding is, in my view, at odds with the requirement for child care facilities to avoid areas prone to flooding.
- To cure the anticipated impacts of climate change, and any associated increase to flood levels, Black Ink indicated it would accept a condition limiting the life of the use to 50 years.
- Whilst a condition of this kind, if imposed, has the effect of reducing the potential impacts of climate change, and the risk of flooding to people and property, it does not satisfy me the development avoids a flood prone area. The flooding issues facing the building structure, and the lower carpark, remain unaltered irrespective of the duration of the use. These issues arise upon the commencement of the use, and subsist until it is abandoned.
- As I have already said, Specific outcome (15)(b) requires this question to be examined: Will the proposed child care centre function effectively during, and immediately after, a flood?
- Mr Wylie submitted this question should be resolved in the affirmative because the development, due to the height of the finished floor level, is capable of operating during, and immediately after, a flood event up to the adopted flood regulation line. This submission cannot be accepted having regard to the contents of the FEMP.
- The FEMP requires the proposed development to close during a flood event that exceeds RL 17.50 metres. This level is below the 1 in 100 year flood level (RL 18.4 metres). It is also 3.0 metres below the adopted flood regulation line.
- Section 5.4.3 of the FEMP sets out the procedure for an evacuation during a flood event. The need to follow the stated procedure is triggered when a Bureau of Meteorology alert station (located 1 kilometre downstream of the land) provides a major flood warning. When this warning is received by the nominated warden for the development, the FEMP envisages that one of two procedures will be followed:
“When warnings are issued outside of the centres (sic) hours of operation, the emergency procedure is as follows:
- The elected flood warden to call of (sic) all staff to notify them that the centre will remain closed until further notice.
- A message will be sent to all a (sic) parents notifying them that the centre will remain closed until further notice.”
When warnings are issued during the centres (sic) hours of operations, the emergency procedure is as follows:
- The parents and carers of the children will be contacted and instructed to collect their children from the centre.
- After all the children are collected, the essential staff to be evacuated before the access is flooded and the centre is to be closed. Staff may secure unfixed goods as required before evacuation if time permits…”.
- Each of the above scenarios require the use to effectively cease when flood levels are 3.0 metres below the adopted flood regulation line.
- To cease the use, as is required by the FEMP, is inconsistent with a competing requirement for the proposed development to function effectively during a flood event. As a consequence, the proposed development does not comply with Specific outcome (15)(b) of the Community Use Code.
- It was submitted by Mr Wylie that this point is not a reason to refuse the application because a child care centre need not be designed, or required, to operate during a flood. It was pointed out (by reference to the evidence of Ms Rayment and Ms Morrissy) that it is prudent, and appropriate, for child care centres to close prior to a flood event. As a general proposition this can be accepted. The general proposition is, however, incongruous with the requirement stated in Specific outcome (15)(b) of the Community Use Code.
- In simple terms, the submission made by Mr Wylie invites the court to adopt a different strategy to that which is clearly articulated in the planning scheme. Such a submission is problematic. As has been the position for many years, it is recognised that it is inappropriate for a planning court exercising an appellate function to substitute its own planning strategy for one that has been adopted by a planning authority and reflected in its planning scheme. There are of course exceptions to this. The invitation to depart from such a strategy can be taken up where it is, inter alia, unsoundly based, overtaken by events, or out of step with contemporary planning practice or principle. There is no submission made to that effect here. I would not, in any event, have accepted that the strategy articulated in Specific outcome (15)(b) is susceptible to challenge in this way given it is reflected in contemporary planning documents promulgated by the Queensland Government (namely the SPP) as recently as July 2017.
- The submission advanced by Mr Wylie to address the identified non-compliance with Specific outcome (15)(b) of the Community Use Code is not, in any event, persuasive. The submission does not confront a risk that is created by the non-compliance with Specific Outcome (15)(b). That risk applies to people beyond the occupants of the development.
- A child care centre is a vulnerable use during a flood. This is because of the age of its occupants, and their inability to evacuate without assistance. The inability to evacuate without assistance creates a risk not only for the children and staff in the facility, it also creates a risk for those members of the community who seek to assist in the evacuation. This can include parents, or carers, who attend the facility to collect children during the flood event. It can also include emergency services, who may be required to assist with an evacuation. By attracting parents, carers and workers engaged in disaster relief to the land during an evacuation, the number of people exposed to a known flooding constraint is increased. It is increased at a time when the risk is material enough to warrant evacuation of the facility.
- That the evacuation process for a child care centre creates a flooding risk in this way is recognised in contemporary planning documents promulgated by the Queensland Government. For example, Guidance material relevant to the SPP states:
“Community infrastructure such as retirement facilities, residential care facilities and childcare centres are highly sensitive to flood risk because of the vulnerability of their occupants. These people are more vulnerable than the general population because of their age, their need for assistance, or their health or disability. Locating these facilities in flood hazard areas can create a safety risk for occupants and the people seeking to reach them during a flood event. This places extra undue burden on disaster management capacity.” (emphasis added)
- The proposed development accommodates ninety-six children and seventeen staff on land impacted by a known flooding constraint. To minimise the risk associated with this constraint, the FEMP requires the use to cease, and the facility be evacuated, at a defined point. That the use ceases, and no longer operates effectively, is inconsistent with Specific outcome (15)(b) of the Community Use code. The evacuation, as I have said above, create a further flooding risk at a material time. This, in turn, gives rise to a further non-compliance with the planning scheme.
- Calling for parents and carers to aid in the evacuation of children serves to increase the number of people impacted by the flooding risk at a time when that risk is elevated. To increase the number of people exposed to the flooding constraint on the land at such a time is at odds with Overall outcome (2)(e) of the Overlay, which states “…the number of people exposed to a development constraint is minimised…”
- Minimising the number of people exposed to a known flooding constraint underpins, in part, Specific outcome (15)(b) of the Community Use Code. It is also bound up in an overarching intention expressed in the planning scheme to reduce the risk posed by flooding constraints to people and property. By not minimising the number of people exposed to the flooding constraint on the land, the proposed development is, in my view, unable to demonstrate: (1) the risk to people is minimised; (2) safety is ‘maximised’; or alternatively (3) people are appropriately ‘protected’ from risk. These are requirements of a number provisions of the planning scheme, namely ss 3.1(3)(j), 4.5.2(2)(e)(v), 4.21.2(2)(c)(iv), 11.4.3(2)(a), 11.4.3(2)(b).
- The evidence also demonstrates that the underlying rationale for Specific outcome (15)(b) of the Community Use Code is not limited to safety considerations. As Ms Morrissy’s evidence demonstrated, it is also intended to reflect a practical consideration. Ms Morrissy made the point that a decision to close a child care centre during a flood event causes inconvenience. It also possibly creates extra expense for the parents of children attending the centre. More importantly, as was pointed out, the decision may inconvenience parents who form part of the disaster management workforce, and are reliant upon child care services. To cease providing child care services during a natural hazard to community members who fall into this category is undesirable. Such an outcome, in my view, is intended to be avoided by a provision such as Specific outcome (15)(b) of the Community Use Code.
- Given the above, I am not satisfied the proposed development can operate effectively during a flood event up to, and including, a flood consistent with the adopted flood regulation line.
- Specific outcome (15)(b) also requires child care facilities to function effectively after a flood. The reason for this is clear enough. The purpose of the provision is to ensure critical community infrastructure, such as a child care centre, is available to assist in the response to, and recovery from, a natural disaster. As Ms Morrrissy put it, a child care centre is one of a number of uses that enable the community to ‘get back to work’ and recover from a flood event.
- Will the child care centre function effectively immediately after a flood?
- The evidence relied upon by Black Ink in relation to this issue was underwhelming. It comprises the evidence of Ms Rayment (town planning) and Ms Clements (flood engineering). Both witnesses were called by Black Ink.
- Ms Rayment said the proposed development can function effectively immediately after all flood events through the implementation of the FEMP. She did not identify the parts of the FEMP relied upon to support this opinion. Nor did she disclose how the document will, if implemented, enable the proposed development to function immediately after a flood. In such circumstances, Ms Rayment’s evidence was no more than an assertion. It is of no assistance.
- Ms Clements expressed the same opinion as Ms Rayment. In the first joint report of the flooding experts, Ms Clements said the ‘FEMP has demonstrated that the centre can function during and immediately after all flood events up to the 0.2% AEP (1 in 500 year) event’. Like Ms Rayment, she did not identify the parts of the FEMP, if any, relied upon to support this opinion. Nor did she disclose how the document will, if implemented, enable the proposed development to function immediately after a flood. Again, the evidence was no more than an assertion. It is of no assistance.
- Quite apart from the above, I am not persuaded the FEMP does, as asserted, establish the proposed development can function immediately after all flood events, including an event up to the adopted flood regulation line.
- The central ‘aim’ of the FEMP was a matter of agreement between Mr Collins and Ms Clements. Their first joint report records the following point of agreement:
“The Flood hazard emergency management plan by EC aims to ensure that effective measures are in place to ensure the centre can function effectively during and immediately after all flood events.”
- Mr Collins did not agree the FEMP achieved this aim. I accept his evidence in this regard. It is supported by an examination of ss 5.6, 5.7 and Table 5-1 of the FEMP.
- Section 5.6 of the FEMP deals with ‘Flood recovery’. This section of the document does not establish the use can function immediately after all flood events. It states:
“The length of flood recovery is dependent on the severity of flooding inundation and the time it takes for flood waters to recede.
Minor flood events may have minimal impact on proceeding operation of the service centre as the understorey will not be built in.
Extreme flood events may have a higher impact on the recovery time if equipment or stored goods are damaged. Flood recovery planning is recommended to be discussed prior to the commencement of operation.
After extreme rainfall events, waterways can experience increased levels of bacteria that could pose potential health risks to those who come in contact with it. Limited contact to waterways after flooding events is recommended….” (emphasis added)
- The language of section 5.6 of the FEMP is, understandably, cautious. It recognises there is a nexus between the length of the recovery process, and the severity of the flood event. The nexus is clear enough; the more severe the flood event, the more likely the recovery process will be protracted. The cautious language adopted by s 5.6 of the FEMP does not sit comfortably with the proposition the proposed development can operate effectively, and immediately, after a flood event.
- Section 5.7 of the FEMP includes a table that identifies, in point form, flood emergency procedures. Point 9 is in the following form:
“Once warnings have been retracted and flood waters have receded, the flood warden may advise staff and visitors that it is safe to return to the facility.”
- The above procedure contemplates the proposed development may return to normal operation once ‘warnings have been retracted’ and ‘flood waters have receded’. That this has an element of immediacy about it has some superficial appeal, but as Ms Whitehouse exposed in cross-examination, it represents an optimistic position. During cross-examination, the following exchange occurred between Ms Whitehouse and Ms Clements:
“For any flood event that is above 17.5 metres for which there is a BOM warning, the centre will be closed. It will be in evacuation mode?‑‑‑Uh-huh.
So in exhibit 15, in all those scenarios that you put forward for the one per cent AEP and all of the different climate change scenarios, the centre will be closed. It will be required to be closed because evacuation would have commenced under every single scenario that you’ve identified in exhibit 15?‑‑‑Yes. Everyone will be safe.
But the centre will not be functioning during that event?‑‑‑During that event, no.
…And at what point do the children return to the centre? A soon as it returns below 17.5 metres. Is that right?‑‑‑Yeah. Once it resides, they could go back.
… And that’s straightaway, …you don’t take into consideration any debris or mud or any damage to the car park?‑‑‑Yeah, well, you’d have to take that on a case-by-case scenario of what the level’s got to.” (emphasis added)
- Ms Clements’ evidence does not give me confidence that it is safe to assume the proposed development will be able to function immediately after a flood event. As she said, this is a matter that will require consideration on a case-by-case scenario. Each scenario will need to take into account a range of factors, including the extent of damage, if any, to the structure. It will also need to take into account the safety and wellbeing of the occupants.
- It can be accepted that minor flood events would be unlikely to materially impede the operation of the proposed development after a flood event. That is not, however, the concern. Where flood levels exceed RL 17.5 metres, and the proposed child care centre is closed, the time required for it to re-open will be a product of: (1) the period of time flood waters take to recede; and (2) the time taken, on a case by case basis, to ensure the facility is safe for occupants. Neither step can occur immediately after flood levels have peaked. The depth of flooding across the land is such that flood waters can take considerable time to recede. Time taken to assess the development after a flood event will also impede the proposed development from opening immediately after a flood. These matters, in my view, are strong indicators the development has not been designed and located in a way that appropriately ‘avoids’ the impact of the flooding constraint. It also causes me to conclude that the development does not comply with Specific outcome (15)(b) of the Community Use Code.
- Turning to Specific outcome (1)(h) of the Overlay, this provision states:
“(h) Community Safety
- Uses that accommodate or otherwise cater for the aged, infirm or other at risk or mobility impaired people such as hospitals and nursing homes are not located below the adopted flood regulation line or within an urban catchment flow path.”
- The Specific outcome contemplates that particular ‘uses’ are not located below the adopted flood regulation line, or within an urban catchment flow path. The use to which the provision applies ‘accommodate(s) or otherwise cater(s) for’ the aged, the infirm and other at risk or mobility impaired people. The provision gives two particular examples of such a use. It says ‘such as’ hospitals and nursing homes.
- Council’s contends Specific outcome (1)(h) is a strong statement of planning intent with which the development does not comply. It is said that a non-compliance arises with the provision because: (1) the use, namely the lower staff carpark, will be located below the adopted flood regulation line; and (2) the use ‘otherwise caters for…other at risk…people’.
- Black Ink contends Specific outcome (1)(h) does not apply to child care centres. Four reasons are advanced in support of this position: (1) the phrase ‘accommodate or otherwise cater for’ is inapt to describe a child care centre because children are not accommodated, or catered to, by the use; (2) the phrase ‘aged, infirm or otherwise at risk or mobility impaired’ is not sufficiently broad to encompass healthy and active children cared for at a child care centre; (3) Note 11.4.7V of the planning scheme confirms the Specific outcome is not engaged by a child care centre; and (4) the ‘use is not located below the adopted flood regulation’ because the finished floor level is designed to be located 0.7 metres above the adopted flood regulation line.
- I reject the contention summarised in item (4) above. To limit the ‘use’ to the floor area where children will play is not sustainable. The ‘use’ comprises all of its parts, including carparking. The planning scheme, after all, requires, carparking to be provided for the use - it is an integral part of the use. The proposed plans reveal that the lower carpark is located below the adopted flood regulation line.
- As to whether Specific outcome (1)(h) of the Overlay Code applies to a child care centre, the provision, read in conjunction with extrinsic material, favours the construction advanced on behalf of Black Ink.
- The language of the Specific outcome is expressed in broad terms. The plain and ordinary meaning of the provision may, on one view, be thought to extend to include child care centres. Such facilities ‘cater for a group’, namely children, that are at risk during a natural disaster. Alternatively, the phrase ‘accommodates or otherwise caters’, read in conjunction with the examples of hospital and nursing home, suggests the provision is intended to capture uses that provide a form of residential accommodation, or care, for the sick, elderly, or mobility impaired. This does not include a child care centre, and, in my view, is the preferred construction. It is the meaning confirmed by extrinsic material, namely Note 11.4.7V.
- Note 11.4.7V of the planning scheme states:
“Careful consideration should also be given to the suitability and need to locate uses that cater predominantly for children such as child care centres and schools in areas situated below the adopted flood regulation line or within an urban catchment flow path whilst having regard to flood warning times and the availability of suitable vehicular emergency evacuation routes.”
- The above Note is declared by s 2.3 of the planning scheme to be extrinsic material under s 15 of the Statutory Instruments Act 1992. It can be called in aid to confirm the plain and ordinary meaning of Specific outcome (1)(h).
- There are two aspects of the Note that confirm a child care centre is not intended to be captured by the Specific outcome. First, as Mr Wylie correctly pointed out, the Note speaks of consideration ‘also being given’ to child care centres. Second, the Note expressly contemplates that child care centres may, contrary to the intent of the Specific outcome, be located below the adopted flood regulation line, or within an urban catchment flow path.
- Accordingly, I am not persuaded the planning discretion should be exercised in this appeal on the footing Specific outcome (1)(h) of the Overlay applies to the proposed development. Whether the land is, or is not, a suitable location for a child care centre, in my view, is guided in this appeal by, inter alia, Specific outcome (15) of the Community Use Code. It is also guided by provisions of the planning scheme particular to Sub Area SA41.
- As I have already said, a Specific outcome particular to Sub Area SA41 recognises that a child care centre ‘may’ be a suitable use in that area. The acceptability, in planning terms, of such a ‘use’, and associated ‘works’, is guided by Specific outcome (41)(a)(i). This provision is also particular to SA41 and states:
“(a) New uses and works are designed, constructed and located to –
- be compatible with the site’s mining, flooding and drainage constraints and nearby residential uses;…” (emphasis added)
- Specific outcome (41)(a)(i) requires the compatibility of the proposed development and the flooding constraint to be considered. Compatibility, in context, conveys that the proposed use, and works, must be designed, constructed and located to subsist harmoniously with the flood constraint. Whether this is achieved in any given case turns on matters of fact and degree.
- The first question to be examined in assessing compliance with the above Specific outcome is as follows: What is the flooding constraint?
- Mr Wylie urged the court to adopt the adopted flood regulation line as representing the flooding constraint. As I understood the submission, this was for two reasons: (1) there is no obligation under the planning scheme for development to be designed to consider flood impacts in excess of the adopted flood regulation line; and (2) the relevant ‘flooding constraint’ is identified by reference to Part 11 of the planning scheme, in particular the Overlay and Map OV5. The flooding constraint applicable to the land is identified in these parts of the planning scheme by reference to the adopted flood regulation line.
- As I have already said, I have serious misgivings about limiting an assessment of the acceptability of the development in flooding terms to the adopted flood regulation line. It is, however, unnecessary for me to express a concluded view about this point because I am not satisfied it has been demonstrated the proposed use, and works, are compatible with the constraint represented by the adopted flood regulation line. This is so for the following reasons.
- It was submitted on behalf of Black Ink:
“Having regard to the fact that development will be undertaken in a building above the AFRL level and, were a severe or extreme flood event to occur, the flood experts agree that the routes and alert and evacuation times contained with the proposed FHEMP are appropriate, the Court would find these provisions complied with.”
- I accept Black Ink has gone to considerable lengths to minimise the risk, and incidence, of flooding to the occupants of the proposed development. A number of measures have been incorporated into the development for this purpose. They are embodied in the design, and in the contents, of the FEMP. It does not, however, follow that the measures adopted to minimise the risk, and incidence, of flooding yield a development that co-exists harmoniously with the known flood constraint.
- The development, if approved, would be subject to a condition requiring the FEMP to be implemented and complied with. The failure to do so would constitute a development offence under the PA. This document, which is critical to Black Ink’s case, recognises that the proposed use is incompatible with the constraint once flood waters reach RL 17.5 metres. This level, as I have already said, is 3.0 metres below the adopted flood regulation line. In recognition of the incompatibility, the FEMP requires the use to cease, and the facility be, if required, evacuated. That the use is to cease because of the height of flood waters does not suggest the development and constraint co-exist harmoniously. The use gives way to the flooding constraint to preserve the safety of its occupants.
- The same can also be said for works. The staff carpark would be inundated to a level of 1.16 metres during a flood that reaches the adopted flood regulation line. It would be unusable. That this carpark would be unfit for use in a flood up to the adopted flood regulation line is evidence of incompatibility. Like the use, the physical works comprising the carpark area gives way to the flooding constraint.
- The extent of incompatibility between the development and the flooding constraint is exacerbated when consideration is given to flood events that exceed the adopted flood regulation line. The analysis undertaken by the flood engineers reveals the depth of flooding across the land increases by increments of metres, and not millimetres, during major flood events. This is demonstrated by comparing three flood events: (1) the difference in level between the 1 in 100 year and 1 in 200 year flood event is 2.0 metres; (2) the difference in level between the 1 in 200 year and 1 in 500 year flood event is 2.2 metres; and (3) the difference in level between the 1 in 100 year and 1 in 500 year flood event is 4.2 metres. The depth of flooding in the 1 in 500 year event would result in over floor flooding in the child care centre to a depth of 1.8 metres. The staff carpark, in this same flood, would be inundated to a depth of 3.66 metres. The constraint, and development, do not harmoniously co-exist in circumstances such as these.
- That the development is incompatible with the flooding constraint is not assisted by climate change considerations. It was accepted by all experts that the impacts of climate change on flood water levels should be considered.
- In the context of climate change considerations and its impact on flood levels, Black Ink urged the court to assume: (1) conservatively, the impacts of climate change produce a linear increase in flood levels over time; and (2) the increase in flood levels should be assessed relative to the design life of the proposed development, which is 50 years. Even if these assumptions are adopted, the evidence demonstrates that climate change is likely to increase flood levels across the site in all events above the 1 in 100 year flood event. For example, the 1 in 100 year flood event, excluding the impacts of climate change, results in flooding up to RL 18.80 metres. Climate change could result in that level increasing somewhere between 1.30 (RL 20.10) to 2.30 (RL 21.10) metres by the year 2070. This increase in flood level by reason of climate change does not assist Black Ink demonstrate the use, and works, can co-exist harmoniously with the flooding constraint.
- For the reasons given above, I am not satisfied Black Ink has demonstrated the proposed development complies with the planning scheme. The non-compliance with the planning scheme is material. I will return to this point later in these reasons.
State Planning Policy (July 2017)
- The SPP took effect on 3 July 2017. This occurred after the development application was properly made, but before it was decided. As a consequence, the extent to which the SPP informs the exercise of the planning discretion is a matter of weight.
- Part E of the SPP sets out State interest policies and assessment benchmarks. One area of state interest relates to ‘Natural hazards, risk and resilience’. An explanation given in the text of the SPP for the state’s interest in natural hazards, risk and resilience includes the following:
“The state’s interest in natural hazards, risk and resilience seeks to ensure natural hazards are properly considered in all levels of the planning system. This includes avoiding or mitigating the risks associated with natural hazards to an acceptable or tolerable level, increasing community resilience, and decreasing the burden for emergency management.”
- The SPP identifies the following objective with respect to natural hazards, risk and resilience:
“The risks associated with natural hazards, including the projected impacts of climate change, are avoided or mitigated to protect people and property and enhance the community’s resilience to natural hazards.”
- This objective is supported by a number of State interest policies. The SPP provides that such policies ‘must be appropriately integrated in planning and development outcomes, where relevant’. Council raised two State interest policies, (4) and (6), as warranting refusal of Black Ink’s development application.
- State interest policy (4) states:
“Development in the…flood…natural hazard area(s):
- avoids the natural hazard area; or
- where it is not possible to avoid the natural hazard area, development mitigates the risks to people and property to an acceptable or tolerable level.”
- For the reasons given above, in particular paragraphs  to ,  to  and  to , I am not satisfied it has been demonstrated the development ‘avoids’ the natural hazard area (defined by the adopted flood regulation line), or, mitigates the risks to people and property to an acceptable, or tolerable, level.
- State interest policy (6) states:
“Community infrastructure is located and designed to maintain the required level of functionality during and immediately after a natural hazard event.”
- For the reasons given in paragraphs  to , I am not satisfied it has been demonstrated the development complies with State interest policy (6).
- Mr Wylie submitted the provisions of the SPP relied upon by Council do not advance matters beyond what is already required by the planning scheme. I accept that submission. State interest policy (4) raises matters that are directly relevant to an assessment against: (1) Specific outcome (15)(a) of the Community Use Code; (2) Overall outcomes (2)(a), (b), (d) and (e) of the Overlay; and (3) Specific outcome (41)(a)(i) for the Special Opportunity Zone, Sub Area SA41. State interest policy (6) is, for all intents and purposes, identical to Specific outcome (15)(b) of the Community Use Code. Each of these provisions have been dealt with above.
- Whilst the SPP does not raise any new planning matter for consideration, it should be given weight in the exercise of the planning discretion. This is because the SPP serves to confirm that the 2006 planning scheme, despite its age, is consistent with contemporary planning practice for natural hazards in Queensland.
- I pause to observe that Council, and its witnesses, placed reliance upon the ‘Guidance material’ for the SPP to support a refusal. Reliance was placed upon Table 18 of that material to suggest child care centres should achieve a particular level of flood immunity. The Table states that this use, when located in a larger urban centre and high hazard context, should locate outside the Probable Maximum Flood, or other available extreme event such as the 0.2% AEP.
- I was not directed to any provision of the planning scheme that reflects a decision by Council to adopt the contents of Table 18 of the Guidance material, be it in form, or substance. Nor was I directed to any provision of the Guidance material suggesting Table 18 had a role to play in a development assessment context.
- Table 18 of the Guidance material, in my view, provides no assistance to the exercise of the planning discretion in this case.
- The table is contained in Part E of the Guidance material. This part appears to have no application to development assessment. It contains example planning scheme provisions. The provisions do not purport to prescribe fixed planning requirements. So much is clear from the following statement in the Guidance material:
“The example planning scheme provisions should not be seen as the only way to appropriately reflect the Natural hazards, risk and resilience state interest. It is not intended that a local government would use these example provisions verbatim, as responding to the local context is an essential part of adopting the SPP.
Where a local government seeks to adopt the example planning scheme provisions, variations will be required to reflect the local circumstances, opportunities and aspirations of each LGA.”
- In circumstances where: (1) Part E of the Guidance material has no obvious application in a development assessment context; (2) the requirements of Table 18 have not been adopted by Council, nor incorporated into the planning scheme; and (3) Table 18 is an example planning scheme provision, which is not intended to be used ‘verbatim’, and may be varied to respond to local circumstances; I decline to give Table 18 weight. I also decline to ascribe weight to an assessment against the table. To do otherwise, in my view, would be unfair to Black Ink. It would have the effect of ascribing a level of planning importance to the table it does not possess in a development assessment context.
Exercise of the planning discretion
- The statutory assessment and decision making framework for this appeal is prescribed by the PA. I have approached this framework consistent with my decision in Ashvan Investments Unit Trust v Brisbane City Council & Ors, and the decision of her Honour Judge Kefford in Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor. As both of these decisions confirm, the discretion to decide the development application under the PA is expressed in broad terms, and is more flexible than its statutory predecessor. The discretion is not constrained by a conflict and grounds test.
- The case advanced on behalf of Black Ink in support of approval can be reduced to seven propositions. They are as follows:
- (a)the proposed child care centre is anticipated on the land by the most particular level of planning, namely the planning scheme provisions with respect to Sub Area SA41;
- (b)whilst the proposed use is anticipated on the land, consideration must be given to whether the known flooding constraint will be avoided, displaced or mitigated through the development design, and the imposition of conditions;
- (c)the proposed child care centre has been designed to ensure the risk to property is mitigated to an appropriate level by siting the finished floor level 2.4 metres above the 1 in 100 year flood event level (RL 18.8);
- (d)the proposed child care centre has been designed, and can be conditioned, to appropriately mitigate the risk of flooding to people because of sub-paragraph (c), and through the implementation of the FEMP;
- (e)the elevation of the proposed development will ensure it can operate effectively before, and after, a 1 in 200 year flood event;
- (f)to the extent the proposed development would not operate during a 1 in 200 year flood event, this is not the type of community use that is designed, or required, to fulfil that requirement; and
- (g)to the extent there is any non-compliance with the adopted planning controls, the non-compliance is not decisive in the exercise of the discretion because the proposed development appropriately responds to the known flood hazard constraint.
- I accept proposition (a) and (b).
- With respect to proposition (c), (d), (e), (f) and (g), I accept the proposed development has been carefully designed, and sited, to balance a number of competing constraints (flooding, undermining and amenity considerations). The design, in combination with the FEMP, is intended to mitigate the risk, and incidence, of flooding. The risk to people and property will be mitigated, in part, by: (1) providing a finished floor level at RL21.2 metres, which is above the 1 in 200 year flood event; and (2) by evacuating children, and staff, once flood levels reach RL 17.50 metres.
- The difficulty here is that the planning scheme not only requires the risk, and incidence, of flooding to be minimised, it gives particular guidance on how this is to be achieved. For child care centres, the planning scheme requires new development to: (1) avoid flood prone areas; and (2) operate effectively during, and immediately after, a flood event. For land affected by flooding constraints, the planning scheme also requires new development to be compatible with that constraint, and minimise the number of people exposed to it. I am not satisfied the proposed development complies with these requirements of the planning scheme.
- Here, the non-compliance with the planning scheme is material. It involves departure from express planning land use strategies directed at safely managing the risk, and incidence, of flooding to people and property. As is confirmed by State interest policies in the SPP, those strategies remain relevant, and are consistent with contemporary planning practice. These matters loom large in the exercise of the planning discretion.
- Should non-compliance with the adopted planning controls be decisive in this case?
- It can be readily accepted that the extent to which the risk, and incidence, of flooding is mitigated by new development will be a matter about which reasonable minds may differ. In a planning context, this is not, however, to be examined by reference to some general notion of risk management. It is to be considered in the context of the adopted planning controls.
- The adopted planning controls relevant to this application call for the risk, and incidence, of flooding to be managed in a particular way. The proposed development does not comply with these controls. This is not remedied, or rendered acceptable, from a planning perspective, even if proposition (g) above was accepted. This is because, for the purposes of the planning scheme, the development strikes at the heart of what is to be avoided. The planning scheme seeks to discourage new development, such as that proposed, which is incompatible with a known flooding constraint.
- In my view, it would be inappropriate to approve the development in the face of the non-compliance identified with the planning scheme. The non-compliance is decisive. The application should be refused.
- The appellant has not discharged the onus.
- In the circumstances, it is ordered:
- The appeal is dismissed.
- The respondent’s decision to refuse the appellant’s development application, communicated by way of decision notice dated 15 February 2018, is confirmed.
s 311(4), PA.
s 45(1)(a), Planning & Environment Court Act 2016).
Ex.1, p.10 and Ex.8, p.4, paragraph 8.
As is recognised by Note 4.21.4BB(1) of the planning scheme (Ex.3, p.144).
Ex.5, p.6, paragraph 2.
Ex.5, p.6, paragraph 1.
Ex.5, p.4, s 2.3; Ex.12, p.8, Lines 155-159.
Ex.28, paragraph 10.
Ex.5, p.4, s 2.3; Ex.12, p.8, Lines 155-159.
Ex.8, p.4, paragraph 10.
Ex.6, pp.7 to 41.
s 45(5)(a), PA.
s 1.1 (Ex.3, p.75).
s 1.11 (Ex.3, p.83).
s 1.12(1)(a) (Ex.3, pp.83 to 84).
Also described in the planning scheme as the Special Opportunity Areas Zone (Ex.3, p.84, (xviii)).
s 1.13(m) (Ex.3, pp.89 to 91).
Also described in the planning scheme as ‘Naomai’ Street (Ex.3, p.144).
Note 4.21.4BB (Ex.3, p.144).
Part 11, Division 4 (Ex.3, p.172).
Ex.8, paragraph 11 and Figure 2, p.50.
Ex.3, pp.148 and 150.
See Ex. 2A: ss 3.1(3)(j), 4.5.2(2)(e)(v), 4.21.2(2)(c)(iv), 4.21.4(41)(a)(i), 11.4.3(2)(b), 11.4.3(2)(d), 11.4.3(2)(e), 11.4.7(1)(d)(ii), 11.4.7(1)(h), 12.12.3(2)(a)(iv) and 12.12.4(15).
Ex.27, paragraph 26.
Ex.27, paragraph 18(c).
Ex.27, paragraph 26(a).
Ex.5, p.5, Table 2-1 and p.6, paragraphs 1 and 2.
See definition of ‘avoid’, Macquarie Dictionary.
Ex.8, p.23, paragraph 96 and p.24, Figure C.
Ex.27, paragraph 7.
Ex.27, paragraph 26(b).
Ex.27, paragraph 11(d).
T3-37, Line 40 to 42 and T3-38, Line 27 to 34.
T3-44, Line 5 to 7.
T3-27, Line 12 to 15.
Ex.8, paragraphs 67 and 74.
Ex.5, p.9, paragraph 7.b.
Ex.5, p.7, paragraph 10.
Ex.5, p.9, paragraph 7.a iv.
Ex.5, p.51, which is in the same terms in Ex.6, p.33.
Ex.5, p.52, which is in the same terms as Ex.6, p.34.
T2-28, Line 13 to 28.
Ex.27, p.9, paragraph 23(a).
Statutory Instruments Act 1992, s 14(1) & Schedule 1; Acts Interpretation Act 1954, s 14B.
Specific outcome (41)(b)(iii) (Ex.3, p.144).
Ex.27, paragraph 31(a).
Ex.27, paragraph 28.
As is required by Overall outcome (2)(b) of the Overlay code.
As is required by Overall outcome (2)(d) of the Overlay code.
Ex.13, RL 18.8m.
Ex.13, RL 20.8m.
Ex.13, RL 20.8m.
Ex.13, RL 23.0m.
Ex.13, RL 18.8m.
Ex.13, RL 23.0m.
Ex.13, 0.2% AEP, 0.05% AEP and PMF.
Ex.14, 1% AEP 2070 CC5.
Ex.14, 1% AEP 2070 CC4.
s 45(8)(b), PA.
Ex.3, Tab 1.
 QPEC 16;  QPELR 793.
 QPEC 46.
Specific outcome (41)(b)(ii).
Ex.27, paragraph 11(a).
Ex.27, paragraph 11(b).
Ex.27, paragraph 11(c).
Ex.27, paragraph 11(d).
Ex.27, paragraph 11(d).
Ex.27, paragraphs 11(e) and 69.
Ex.4, p.51, state interest polices (4) and (6)
- Published Case Name:
Black Ink Architecture Pty Ltd v Ipswich City Council
- Shortened Case Name:
Black Ink Architecture Pty Ltd v Ipswich City Council
 QPEC 13
Williamson QC DCJ
07 Apr 2020