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Traspunt No. 14 Pty Ltd v Moreton Bay Regional Council[2021] QPEC 4

Traspunt No. 14 Pty Ltd v Moreton Bay Regional Council[2021] QPEC 4

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

Traspunt No. 14 Pty Ltd v Moreton Bay Regional Council [2021] QPEC 4

PARTIES:

TRASPUNT NO. 14 PTY LTD
(ACN 608 093 330)

(appellant)

v

MORETON BAY REGIONAL COUNCIL

(respondent)

FILE NO:

508, 672, 991, 992, 994 and 1183 of 2018

DIVISION:

Planning and Environment Court

PROCEEDING:

Hearing of appeals

ORIGINATING COURT:

Planning and Environment Court of Queensland, at Brisbane

DELIVERED ON:

2 March 2021

DELIVERED AT:

Maroochydore

HEARING DATE:

9 November to 4 December 2020

JUDGE:

R S Jones DCJ

ORDER:

  1. Appeal 508 of 2018 is dismissed.
  2. Appeal 672 of 2018 is dismissed.
  3. Appeal 991 of 2018 is dismissed.
  4. Appeal 992 of 2018 is dismissed.
  5. Appeal 994 of 2018 is dismissed.
  6. Appeal 1183 of 2018 is dismissed.
  7. I will hear from the parties, if necessary, as to any consequential orders.

CATCHWORDS:

PLANNING AND ENVIRONMENT – APPEAL AGAINST REFUSAL OF DEVELOPMENT APPLICATION – where proposed development involved largescale residential development

              WHERE PROPOSED DEVELOPMENT RAISED NUMEROUS ISSUES – where proposed development did not comply with provisions of the planning scheme concerning ecology – where proposed development raised issues in respect of koala habitat – removal of trees – transport – civil engineering – stormwater

              CONFLICT WITH PLANNING SCHEME – whether proposed development complied with provisions of relevant planning scheme – whether proposed development was out of step with strategic objectives of planning scheme – whether proposed development would result in out of sequence development

              TOWN PLANNING – whether proposed development would result in developable or developed lots

LEGISLATION:

Planning Act 2016 (Qld) s 45, 60

Planning and Environment Court Act 2016 (Qld) s 43, 45

Sustainable Planning Act 2009 (Qld) s 326

CASES:

Abeleda & Anor v Brisbane City Council (2020) QPELR 697; [2020] QCA 257

Ashvan Investments Unit Trust v Brisbane City Council [2019] QPELR 793; (2019) QPEC 16

 Australian Capital Holdings Pty Ltd & Ors v Mackay City Council & Ors (2008) QPELR 608; (2008) QCA 157

 Bell v Brisbane City Council [2018] 230 LGERA 374; [2018] QCA 84  

Brisbane City Council v Y Q Property Pty Ltd [2020] 48 QLR; (2020) QCA 253

Gold Coast City Council v K & K (GC) Pty Ltd [2019] 239 LGERA 409; (2019) QCA 132

Grosser v Council of the City of Gold Coast (2001) 117 LGERA 153; [2001] QCA 423

Elan Capital Corporation Pty Ltd & Anor v Brisbane City Council & Ors [1990] QPLR 209; [1990] LG 679

Murphy v Moreton Bay Regional Council & Anor (2020) QPELR 328; [2019] QPEC 46

COUNSEL:

R Litster QC, R Anderson QC, B Rix and W Macintosh for the appellant

D Gore QC, B Job QC, J Lyons and M Batty for the respondent

SOLICITORS:

Macpherson Kelley for the appellant

Colin Biggers and Paisley Lawyers for the respondent

  1. [1]
    This proceeding was concerned with six appeals brought by Traspunt No.14 Pty Ltd (the appellant) against a series of decisions made by the Moreton Bay Regional Council (the respondent) to refuse the subject development applications.  For the reasons set out below, the orders of the court are:
  1. Appeal 508 of 2018 is dismissed.
  1. Appeal 672 of 2018 is dismissed.
  2. Appeal 991 of 2018 is dismissed.
  3. Appeal 992 of 2018 is dismissed.
  4. Appeal 994 of 2018 is dismissed.
  5. Appeal 1183 of 2018 is dismissed.
  6. I will hear from the parties, if necessary, as to any consequential orders.

The site and surrounding locality

  1. [2]
    The subject land comprises of a number of lots located in Morayfield, having frontages to Oakey Flat Road, Nairn Road, J Dobson Road and Burbury Road.  The approximate dimensions of the land in total are in an east to west direction, about 1.4 km and in a north to south direction, about 765 m.
  2. [3]
    Of significance is the fact that the subject land is located within the Morayfield South Emerging Community Area and is situated in the western most extremity of the Morayfield South Emerging Community Zone.[1]  Generally speaking, the area surrounding the subject land is predominately of a rural residential character with a range of varying lot sizes.  A number of non-residential activities are also located in the broader vicinity including landscape supplies and, of a more commercial nature, a childcare centre and convenience store.  The closest urban development, approximately 300 to 350 m north-east of the northern edge of the subject land, is the Lakeview estate.[2] 
  3. [4]
    The Morayfield Shopping Centre, which lies approximately 3 km to the north-east of the subject land, includes a wide range of higher order retail, commercial and community uses which are surrounded by well-established urban residential development.  The Morayfield train station is approximately 3 kilometres to the north-east and a small convenience centre is located on the corner of Nairn Road and Oakey Flat Road which includes an IGA Express, bottle shop and bakery/café.  Further afield is a planned expanded local centre at the intersection of Clarks Road and Oakey Flat Road and a number of community uses including two childcare centres, a police station, community halls, centres, a library and a number of schools.[3] 
  4. [5]
    While there has been significant clearing of the land, it is uncontroversial that the land still retains some ecological value.  The impact that the proposed development would have on this ecological value was however, a matter of controversy between the experts retained by the parties to deal with ecology.  An unusual feature of the land is that the eastern and western areas intended to be developed are separated by a long narrow lot that remains heavily timbered.  That lot will be referred to hereafter as Lot 11.
  5. [6]
    Of relevance is that the north-western and parts of the eastern extremity of the subject land is adjacent to identified koala habitat areas.  Additionally, the northern part of Lot 11, which separates the eastern and western elements of the subject land, is also mapped as koala habitat.[4]

The proposed development

  1. [7]
    Broadly speaking, the proposed development falling within the six separate development applications would result in a total of 835 residential lots being development over 21 stages together with associated roadworks, parks, open space and other infrastructure including water supply, sewerage, drainage and local park infrastructure.[5]
  1. [8]
    Stages 1 and 2 of the proposed development are relevantly discrete and are located between Oakey Flat Road and Burbury Road. Stages 3 to 8 are to be located to the west of Stages 1 and 2 which extend from Burberry Road in a westerly direction and are accessed via Burberry Road and Nairn Road. Stages 9 to 21 are located on land to the west and extend to J Dobson Road. Overall, the development would comprise of:[6]
  • 833 residential lots varying in size from 205m2 to 892m2 together with two balance lots. The residential lots include the following lot types –
    • 140 Type A lots – lots with a frontage of less than 7.5m
    • 181 Type B lots – lots with a frontage between 7.5m and 10m
    • 98 Type C lots – lots with a frontage between 10m and 12.5m
    • 347 Type D lots – lots with a frontage between 12.5m and 18m
    • 67 Type E lots – lots with a frontage of 18m to 32m
  1. [9]
    It is also proposed that there would be three areas set aside for parks and/or open space with a total area of 5.3ha. Some of this open space/parkland area would be required to be within the proposed stormwater management area.  More will be said about these aspects of the development below.
  2. [10]
    Unsurprisingly, the proposed development would involve significant roadworks including the construction of new roads of varying widths depending on the road category type. These widths would vary between 7m, 10m, 17m and 19.5m. Some upgrading of the existing road network would also be required.

The Planning Scheme

  1. [11]
    At this stage, it is sufficient to identify that under the relevant version of the respondent’s planning scheme (the planning scheme), the subject land is included within the Emerging Community Zone (transition precinct). It is also included within the Morayfield South Emerging Community Area.  It does however sit outside of the identified Priority Infrastructure Area (PIA).
  2. [12]
    Under the strategic framework of the planning scheme, the land is included within an identified growth area and within the Next Generation Neighbourhood Place Type. Unsurprisingly, the totality of the land is affected by a number of overlays under the planning scheme and, while noting that not all of these overlays are applicable to all of the proposed lots or development applications, they include:
  • Asset Sulphate Soils overlay
  • Active Transport overlay
  • Bushfire hazard overlay
  • Environmental areas overlay
  • Flood hazard overlay
  • Overland flow path overlay
  • Road hierarchy overlay
  • Stormwater catchments overlay
  1. [13]
    The subject land is also located within the Urban Footprint in the South East Queensland Regional Plan 2009-2031 (SEQRP).

Issues in dispute

  1. [14]
    The issues in dispute were reduced to written form which included a table of abbreviations.[7]  Including the list of abbreviations, which will be adopted at length, but excluding most of the references to the planning scheme, the issues in dispute can be summarised as follows:

Table of Abbreviations

BOSEBundle of Planning Scheme Extracts

ECZCEmerging Community Zone Code

ECZTPEmerging Community Zone Code – Transition Precinct

FOHC Flood Hazard Overlay Code

FOHC Table Table 8.2.2.2

Land the land the subject of appeal nos 508, 672, 1183, 992, 991 & 994 of 2018

LGIP Local Government Infrastructure Plan

PA Planning Act 2016

PS Moreton Bay Regional Council Planning Scheme 2016 version 3

ROL Reconfiguring a Lot

ROLC Reconfiguring a Lot Code

ROLC Table Table 9.4.1.3.2.2

SEQRP17 South East Queensland Regional Plan 2017

SF Strategic Framework

SPP17 State Planning Policy 2017

The Issues

Part A

  1. Whether, as the Council contends, the proposed ROL developments are not creating developed lots (being lots that are provided with infrastructure and services, including reticulated water and sewer, stormwater, dedicated roads and electricity, of a standard and capacity required for the proposed development), and should be refused when assessed against the following PS assessment benchmarks:
  1. (a)
     ROLC s 9.4.1.3.2.1(2)(a), which contemplates that ROL development in the ECZTP, where not creating developed lots, does not further fragment land;
  1. (b)
    ROLC Table PO1, which contemplates that ROL development, where not on a developed lot or creating developed lots, does not result in additional lots.
  1. Whether, as the Council contends:
  1. (a)
     for the purposes of s 60(2)(d) of the PA, it is impossible to achieve compliance with the assessment benchmarks referred to in paragraph 1 by imposing development conditions;
  1. (b)
     given the strong terms of the assessment benchmarks referred to in paragraph 1, and the significant extent to which the proposed ROL developments do not comply with them, there is no scope for the exercise of the discretion order under s 60(2)(b) of the PA.

Part B

  1.  Whether, as the Council contends, the proposed ROL developments are premature, having regard to relevant assessment benchmarks under the Planning Scheme and SEQRP17.
  1.  Whether, as the Council contends, the proposed ROL developments are premature or otherwise unacceptable, having regard to matters relating to:
  1. (a)
     traffic;
  1. (b)
     flooding and stormwater;
  1. (c)
     civil engineering;
  1. (d)
     ecology;
  1. (e)
     social planning;
  1. (f)
     open space;
  1. (g)
     economic need;
  1. (h)
     acoustics;
  1. (i)
     town planning, particularly:
  1. (i)
     whether the proposed ROL developments are premature, because the required range of appropriate infrastructure is not available or planned and constraints to development have not been properly investigated and resolved;
  1. (ii)
     whether the proposed ROL developments would compromise the Council’s ability to undertake effective structure planning for the Morayfield South Emerging Community Area;
  1. (iii)
     whether the proposed ROL developments would not contribute to the establishment of a next generation neighbourhood in Morayfield South;
  1. (iv)
     whether there would be adverse planning consequences resulting from a premature approval of the proposed ROL developments.
  1.  Whether, as the Council contends, and having regard to the issues summarised in paragraph 4 above, the proposed ROL developments:
  1. (a)
     will have unacceptable impacts on:
  1. (i)
     the transport infrastructure network;
  1. (ii)
     the stormwater infrastructure network;
  1. (iii)
     the community facilities network;
  1. (iv)
     the environment;
  1. (v)
     acoustic amenity outcomes;
  1. (vi)
     structure planning for Morayfield South;
  1. (b)
     do not comply with relevant assessment benchmarks concerned with the transport infrastructure network, the stormwater infrastructure network, the open space and land for community facilities network, the environment, in particular water quality and acoustic amenity outcomes.

Part C

  1.  Whether compliance with assessment benchmarks identified in paras 3 and 5 above can be achieved by imposing the conditions of approval provided by the appellant.
  1.  Whether there is compliance or non-compliance with relevant provisions of SPP17 and the Planning Scheme, and whether any such compliance or non-compliance is relevant to the exercise of discretion under s 60(2) of the PA relating to whether the proposed ROL developments are not creating developed lots or are premature.
  1.  Whether there is compliance or non-compliance with the following provisions of SPP17 and the Planning Scheme, and whether any such compliance or non-compliance is relevant to the exercise of the discretion under s 60(2) of the PA. The ‘compliance’ matters were those concerned with the stormwater structure network, the stormwater infrastructure network, the open space land for community facilities network and for the environment, in particular biodiversity.
  1.  Whether matters addressed by the experts in the following fields, town planning, need, social planning, civil engineering and open space, if established, ‘work in favour of the evidence of the discretion under s 60)(2) of the PA.’
  1. [15]
    To a large extent, the real issues in this proceeding are summarised within the areas of disagreement between the town planners.  Mr Schomburgk for the appellant and Mr Perkins for the respondent in their first expert report said:[8]

“The disagreements between the experts to date arise principally with respect to:

  1. Whether the proposed development is premature;
  2. Whether approval of the proposed development would compromise effective structure planning for Morayfield South;
  3. Whether the proposed development fails to comply with many of the relevant assessment benchmarks;
  4. Whether non-compliance with assessment benchmarks can be addressed by conditions of approval;
  5. The town planning conclusions to be drawn from the opinions of the other experts;
  6. Whether changes to the subdivision layout to deal with the concerns of other experts can be addressed by conditions of approval;
  7. Whether, from a town planning perspective, the proposed development is creating ‘developed lots’ or ‘developable lots’;
  8. Whether there is a need sufficient to support exercise of the discretion under s 60(2) of the PA to approve the development; and
  9. Whether there are any other matters sufficient to support exercise of the discretion under s 60(2) of the PA to approve the development.” (emphasis added).
  1. [16]
    The terms “developed” lots and “developable” lots are defined under the planning scheme to mean “a lot that is provided with infrastructure and services…of a standard required for the proposed development” and “a lot which is not a developed lot” respectively.
  2. [17]
    One of the grounds for refusal of the development applications was that the development contemplated the creation of a number of “developable” lots and, as a consequence, was in serious conflict with the planning scheme.  Indeed it was suggested by Mr Gore QC, leading counsel for the respondent, to the effect that, prima facie, one might think that was the end of the appellant’s case.[9]  While this issue will be addressed below, it is convenient at this stage to act out the following views expressed by the town planners in their Joint Expert Report (JER):[10]

Mr Schomburgk notes that the determination of whether the proposal is creating developed or developable lots is a matter for legal debate in these appeals.  In my opinion, the proposal is creating ‘developed lots’, as all lots are intended to be fully serviced, at the applicant’s expense.  As such, the proposed development assists in the achievement of Overall Outcome (2)(a).  Given this, the proposal is consistent with this overall outcome

In terms of PO1, the proposed development is at odds with this Performance Outcome as it seeks to create additional lots, but there is, in my opinion, a tension between the purpose of the Reconfiguring of a Lot Code – Emerging Community – Transition Community – Transition Precinct which intends for developable lots to be converted to developed lots.  Specifically, Section 9.4.1.3.2.1 2(b) of the Emerging Community Transition Code Precinct states… (emphasis added).

Mr Perkins agrees that whether the proposal is creating developed or developable lots is a matter for legal debate and for the Court to determine.  However he also considers that it is necessary for the town planning experts to provide an opinion on this matter in order to assist the Court.

In Mr Perkins’ opinion, the proposed development involves creating additional lots which are not ‘developed lots’ because they would not be connected or provided with ‘infrastructure and services (including reticulated water and sewer, stormwater, dedicated roads and electricity) of a standard and capacity required for the proposed development’ (per the planning scheme definition of ‘Developed lot”).  My opinion on this matter is informed by the opinion of Mr Gould (Statement of Evidence on Civil Engineering Issues, Mike Gould, 29 July 20210, sections 6 and 7).

If this is correct, then by subdividing land into inadequately serviced lots, the proposed development would fragment the land and thereby hinder orderly future development for urban purposes, in conflict with overall outcome 9.4.1.3.2.1(2)(a).” (emphasis added).

  1. [18]
    In order to determine the outcome of this proceeding, it was necessary to have regard to the evidence of a number of witnesses covering a range of expertise:
  • Ecology – Mr Warren, Dr Daniel, Mr Agnew and Professor Carrick.
  • Open Space – Mr Natoli and Mr Alston.
  • Social Planning – Mr Natoli and Ms Ashford
  • Acoustics – Mr Brown and Mr Beyers
  • Traffic – Mr Holland and Mr Trevilyan
  • Stormwater- Mr Clark and Mr Collins
  • Need – Mr Duane and Mr Shimmin
  • Civil Engineering – Mr Holean and Mr Gould
  • Bushfire – Mr Hawkes and Mr Friend
  • Town Planning – Mr Schomburgk and Mr Perkins. 
  1. [19]
    While there are six separate appeals to be disposed of, this proceeding was run by both ends of the bar table as if, for all practical intents and purposes, there was one application intended to create 800 plus residential lots.
  2. [20]
    Belatedly, unfortunately, the prospect of approving some but refusing other appeals was raised by myself.  This issue was taken up in the written submissions on the part of the appellant.[11]  However, given the manner in which these appeals were conducted over the four weeks of the hearing, together with the lack of any forensic consideration of only approving one or a few of the appeals, I consider it would be inappropriate to proceed down that path. 

The Statutory Regime

  1. [21]
    Pursuant to s 43 of the Planning and Environment Court Act 2016 (Qld) (PECA), an appeal such as this is by way of a hearing anew and, pursuant to s 45(2), it is for the appellant to satisfy the Court that the appeals ought to be allowed.  In respect of proposed development requiring code assessment, as is the case here for all six of the development applications, s 45(3) of the Planning Act 2016 (Planning Act) requires that assessment must be carried out only:

“(a)(i) against the assessment benchmarks in a categorising instrument for the development; and

  1. (ii)
     having regard to any matters prescribed by regulation for this sub-paragraph.
  1. [22]
    Pursuant to s 45(4), the assessment manager is not required to perform this function in a way that advances the purpose of the Planning Act.[12]  Further, s 60(2) of the Planning Act makes clear that the assessment manager has the discretion to approve a development application “even if the development does not comply with some of the assessment benchmarks.”
  2. [23]
    Quite clearly, the current statutory regime provides for a more flexible and merits based assessment of development applications than that imposed under its predecessor, the Sustainable Planning Act 2009.  The effect of s 326(1)(b) of that Act was to mandate that the assessment managers decision must not conflict with a planning instrument unless there were significant grounds to justify approval despite the conflict.  As was observed by the Court of Appeal in Gold Coast City Council v K & K (GC) Pty Ltd,[13] the process under a 326(1)(b) did not involve a consideration of “competing merit and weight of the grounds relied upon to justify approval.”
  3. [24]
    That is no longer the situation under the Planning Act.  To adopt the terminology of Judge Williamson QC in Ashvan Investments Unit Trust v Brisbane City Council,[14] non-compliance with assessment benchmarks no longer has the presumed primacy it once had.
  4. [25]
    In Murphy v Moreton Bay Regional Council & Anor, Kefford DCJ observed:[15]

“… as was noted by Judge Williamson QC in Ashvan, it is not possible to forecast the will of the community, in land use terms, with scientific precision.  The needs of a community are not static and immutable.

The legislation requires the planning scheme to include measures to facilitate the achievement of the strategic outcomes…

When viewed in that context, one can appreciate that development that differs from that encouraged by the planning controls, or that fails to comply with benchmarks set out in a planning scheme, does not necessarily result in haphazard development.  Development may differ from the planning controls but be compatible with, ancillary to or designed to complement the planning outcome sought by the planning controls, or otherwise advance the needs of a community in a particular area without undue adverse town planning consequences, because of its own merits and the particular combination of facts and circumstances relevant to it.  This underscores the importance of flexibility in the decision-making process. 

… The (decision makers) decision must withstand scrutiny against the background of the planning scheme and proper practice.  Not every non-compliance will warrant refusal.  It will be necessary to examine the verbiage of the planning scheme to ascertain the planning policy or purpose of relevant provisions and the extent of importance the planning scheme attaches to them.  The extent to which a flexible approach will prevail in the face of any given non-compliance with a planning scheme (or other assessment benchmark) will turn on the facts and circumstances of each case.[16]

  1. [26]
    In Murphy, Her Honour was concerned with s 45(5) of the Planning Act which deals with development that is subject to impact assessment.  However, with respect, I consider these remarks to be equally applicable to the scope and operation of s 45(3) dealing with code assessment.  Of course, the more important the assessment benchmark, the more likely is it that non-compliance will be determinative against approval.  In this context, in Brisbane City Council v YQ Property Pty Ltd,[17] the Court of Appeal observed:

“[62] The Act’s approach in respect of code assessments is slightly different in that s 45(3) does not include reference to ‘any other relevant matter’ but s 60(2) expressly confers the assessment manager with the discretion to approve the application ‘even if the development does not comply with some of the assessment benchmarks’.  The inter-play of ss 45 and 60 thus gives an assessment manager the discretion to approve an application notwithstanding inconsistency with a planning instrument.

[63] None of this is to suggest the nature and extent of an application’s inconsistency with a planning instrument might not end up being a determinative consideration against approval in an individual case, depending upon the circumstances of that case.  However, a case like the present, in which an inconsistency with the Biodiversity Areas Overlay Code was outweighed by the overall ecological benefits of the development, well illustrates the utility of the discretion which the Planning Act reserves to the assessment manager.”

Acoustics

  1. [27]
    Two engineers were called to address the impacts on the amenity caused by traffic noise to those hypothetical residents occupying lots proximate to Nairn and Oakey Flat Roads.  It is unnecessary to say anything more on this topic other than that traffic noise is not an issue that would warrant refusal.  The engineers agreed that “any adverse impact on acoustic amenity can be adequately ameliorated” by adopting conditions of the type identified in their second JER.[18]

Risk of Bushfire

  1. [28]
    Two scientists were relied on initially to address four specific matters.  First, the risk of bushfires as a consequence of adjoining hazardous vegetation.  Second, the need to adopt a subdivision layout “providing suitable access and separation from any adjoining hazard.[19] Third, the need for a suitable supply of water to and throughout the proposed development.  Finally, the need or capacity to comply with relevant provisions of the planning scheme.[20]
  2. [29]
    As was the case in respect of traffic noise, both of the experts in this field agreed in their first JER that, with appropriate conditions being imposed, there was no warrant for refusing the proposed development on the basis of risks associated with bushfires. 
  3. [30]
    Following their first JER and after this proceeding had commenced, Mr Friend, relied on by the respondent, and Mr Hawkes, relied on by the appellant, were asked to confer again and prepare a second JER.  In that report, they were asked to have specific regard to the risk of bushfires that might arise as a consequence of the revegetation proposed for Lot 9000 (central open space), Lot 9001 (eastern open space) and Lot 9002 (western open space).  Consideration was also given to the potential for the same risk arising from the existing vegetation on Lot 11 which separates the eastern and western components of the proposed development.  An additional issue concerning vegetation on Lot 5 on RP804516 was raised.  However, it requires no further consideration.
  4. [31]
    In their second JER, the areas of agreement and disagreement were identified:[21]

Areas of Agreement

  1. Based on our opinions expressed above, RF and LH agree;

a. That the normal management of bioretention basins render them as low threat vegetation for bushfire and assessments.  However, without normal management, that is a form of regular maintenance of the areas around the proposed rehabilitation areas within these detention basins, there is a potential for additional hazardous vegetation, native and/or weeds, to colonise these areas and increase the bushfire hazards which in turn may threaten adjacent property should those areas become involved in a vegetation fire.

b. The areas of Lots 9000, 9001 and 9002 are of the same configuration as prior to Mr Warrant’s Ecological Report.

Areas of Disagreement

  1. Based on our opinions above, RF and LH disagree on the following issues;

a. There is a disagreement on the potential bushfire impacts on Lots 9000, 9001 and 9002 because of the proposed rehabilitation plantings proposed in Mr Warren’s Ecological Report of July 2020.”

  1. [32]
    Mr Hawkes saw no reason to depart from the views he expressed in the first JER and his individual report.  Namely, that the risk of bushfire would not warrant refusal subject to the imposition of appropriate management and conditions.  In his evidence in chief, Mr Hawkes added that further consideration might have to be given to the use of certain species intended for the regeneration.  However, subject only to that matter, his position did not change. 
  2. [33]
    On the other hand, Mr Friend in the second JER raised a number of concerns about the risk of bushfire associated with a number of lots adjacent to proposed Lots 9000, 9001 and 9002 and Lot 11 on RP91719.[22]  At first blush, the opinions Mr Friend expressed in the second JER might have lead one to conclude that a material number of the proposed lots might have had to have been sacrificed to alleviate his concerns.  However, as it turned out Mr Friend, like Mr Hawkes, agreed that there was no warrant for refusing the proposed development on the basis of bushfire risk, subject of course to appropriate conditions being imposed.[23]

Civil Engineering and Stormwater

  1. [34]
    Leaving aside the controversy surrounding the “developed” v “developable” lot debate and the prematurity issue, I am satisfied that if approved, the development would result in residential lots that would enjoy all of the usual services including roads, water, electricity, sewerage etc.  As to the provision of adequate suitable open space and parks, as will become apparent, it is not necessary to resolve the disputes about those matters.
  2. [35]
    In his court report Mr Gould, the civil engineer relied on by the respondent, expressed a number of concerns about aspects of the proposed development.  They included water, sewerage and roadworks.[24]  Insofar as actual roadwork construction is concerned, it can be accepted that all internal roadworks would be carried out to an acceptable standard. 
  3. [36]
    Insofar as the supply of water is concerned, again putting to one side the prematurity issue, the evidence of Mr Hoban, the civil engineer relied on by the appellant, leaves me satisfied that that is not a matter of concern.  Indeed, Mr Gould conceded as much in his oral evidence,[25] in my opinion.
  4. [37]
    Insofar as the issue of sewerage is concerned, the evidence establishes sufficiently clearly the following; first, what is proposed will not only provide an acceptable standard to the potential residents, it is also acceptable, subject to conditions, to the service provider Unitywater.  Second, the sewerage network proposed will in all likelihood result in excess capacity which has the potential to service other lots created within the relevant catchment area.  Third, in the event that approval is acceptable to private land owners, the respondent and Unitywater were not able to be secured, alternate design solutions exist. 
  5. [38]
    Turning then to the issue of prematurity or leapfrogging, as is the situation concerning water, the subject land lies outside of the PIA.  In this context, it can be accepted that the fact that land owners consent has not already been secured is, of itself, at least indicative of the fact that the proposed development is premature.  However, as I have already observed, workable alternatives exist. 
  6. [39]
    After referring to passages of the evidence given by Mr Gould, it was then submitted on behalf of the respondent:[26]

“Having regard to the above, it is submitted that approval of the proposed development is premature by reference to the relevant civil engineering issues in dispute.  This is confirmed by the non-compliance with the assessment benchmarks set out in paragraph 3 of the list of disputed issues concerned with prematurity (ex.01.03) particularly the provisions in paragraph 4(a)(i), and 3(b).” 

  1. [40]
    Save for the issue of prematurity, that submission is rather unhelpful.  The exhibit referred to is the revised list of disputed issues.  The reference to paragraph 3(a) of that exhibit goes to the prematurity issue.  Paragraph 3(b) on the other hand, refers to a number of the planning scheme’s assessment benchmarks without any attempt to identify how the engineering evidence reveals non-compliance with those benchmarks.  The references to dwelling types, next generation neighbourhood planning, housing forms and access to centres and community facilities have nothing whatsoever to do with the issue of civil engineering.  And, insofar as it is relevant, I am satisfied that the proposed development would provide for the range of lot sizes, dwelling types and density contemplated within the planning scheme’s Next Generation Neighbourhood philosophy. 
  2. [41]
    While I accept that all of the usual infrastructure (roads, water, sewerage, electricity, etc) can be supplied, I am left with the clear impression that the final outcome reveals a number of indications that, because of its location, the proposed development is premature.  Another matter relevant to this discussion is that the creation of the two bio-detention basis will, in all likelihood, bring forward unplanned maintenance costs for the respondent to bear.[27]
  3. [42]
    In this regard, I accept the evidence of Mr Gould:[28]

“It’s clearly not a preferred solution, and from an engineering point of view there are ongoing operational and maintenance costs that are the result of having a sewer pump station, and sewer pump stations are not lightly accepted… generally because of their operating and maintenance costs, but more particularly the more of those that are in the system, the more maintenance you’ve got to have.  And there’s a series of operational issues….  And certainly from that email that was read out to Mr Hoban the – the reference in there to a pump solution is clearly not the preferred one and it wasn’t put into the planning outcome.”

  1. [43]
    The email referred to was correspondence from Unitywater to a consultant acting for or on behalf of the appellant.  That correspondence provided:[29]

I don’t think the areas needs a pump station, at least not as part of the ultimate, fully developed servicing strategy.  The preferred solution should follow the gully across but below developable area of those properties of Burbury Lane.  I appreciate this alignment might have route acquisition issues, however I would think that if those properties do develop they would require, and we would condition, the construction of this sewer. 

If that does not suit the staging of development then a pump station may be necessary, but that is an interim facility.  Given that this drawing will eventually be circulated to land owners, I think we should show only the intended ultimate servicing strategy.

I have no problem if your client wants to raise the issue of an interim strategy to allow their proposed development to proceed, but I don’t think we should show this on the ultimate plan that will be incorporated in the Structure Plan for this area.” (emphasis added)

  1. [44]
    The references to the need to adopt an “interim facility”, “route acquisition issues” and the reference to the ultimate “structure plan” for the catchment area are indicative of the alternate sewer strategy being premature in the sense of not being able to fit comfortably within the ultimate structure plan for the catchment. 
  1. [45]
    According to Mr Schomburgk:[30]

“The locality can be, and is proposed to be, serviced in an efficient manner at no cost to the Council while the respondent has not yet undertaken its own forward planning, the proposed development is such that it can be developed without prejudice to any future planning by the respondent or other surrounding land owners, as demand dictates.”  (Emphasis added)

  1. [46]
    The opinion expressed by Mr Schomburgk, while no doubt genuinely held, cannot be maintained in the face of the evidence.  Insofar as open space and park infrastructure was concerned, the proposed development would result in a financial impost on the appellant.  His evidence was to the effect that that impost might largely be covered by the rates receivable from the 833 allotments, but that is not the point.  Clearly the 833 allotments are going to be created over a significant period of time but, in any event, even if largely offset by rates in due course, that does not get around the fact that it is an unplanned financial impost that would be avoided if the proposed development did not proceed at this time. 
  2. [47]
    Turning then to the evidence of the engineers called to deal with issues arising out of stormwater management, the appellant relied on Mr Clark and the respondent, Mr Collins. At a purely technical level, described by Mr Collins as “the nuts and bolts” aspect of what was proposed, there was little dispute. There were however, three significant areas in particular where Mr Collins and Mr Clark expressed different opinions. Those issues were first, the accumulative impacts on downstream landowners. Second, the water logging of the open space areas associated with the detention basins on Lots 9000 and 9001. Third, those elements of Mr Clark’s stormwater design described by Mr Collins as being “ad hoc”.
  3. [48]
    Mr Collins also raised concerns about the risk the detention basins would pose, particularly to children, at those times the detention basins were inundated. However, for the reasons set out below it is unnecessary to consider that matter, nor is it necessary to consider Mr Collins’ concerns about cumulative impacts on downstream landowners (which of themselves would not warrant refusal), nor his concerns about water logging.
  4. [49]
    The third matter raises the issue of whether or not the proposed stormwater arrangements are out of sequence and contrary to a number of provisions of the planning scheme.   It is unnecessary to set out the relevant provisions of the planning scheme as they are set out and dealt with in detail in the JER and the individual court report of Mr Collins.[31]
  5. [50]
    Insofar as the prematurity issue is concerned, the relevant provisions of the planning scheme have, as their desired outcomes, the safe, efficient, coordinated and sequenced delivery of stormwater infrastructure. In dealing with those provisions of the planning scheme, Mr Collins, in his individual report, on numerous occasions stated why he considered what was intended to be constructed did not provide for the efficient, coordinated and sequential provision of stormwater infrastructure. Essentially though, his real concerns were; first, the location of detention basins within the water course. Second, the potential ongoing maintenance and cost ramifications for the respondent. Third, the treatment of stormwater runoff from Stages 1 and 2 which is to be piped under Burbury Road to the detention basin on Lot 9001.
  6. [51]
    Mr Collins accepted that at a technical level, what was proposed would, in all likelihood, adequately deal with any stormwater issues.  However, in his opinion, that was really not to the point as what was proposed resulted in a poor strategic planning outcome.  While I can accept that on stream detention basins and the piping under Burbury Road are not ideal engineering outcomes and are the consequence of out of sequence delivery of stormwater infrastructure, at the end of the day these concerns, on their own, would not warrant refusal.
  7. [52]
    In respect of the on stream detention basins, while Mr Collins maintained his position that it was not an ideal engineering outcome, he did accept that at an engineering level it would work and that the planning scheme did not,[32] to adopt the terminology of Mr Litster QC lead counsel for the appellant, “turn its face” against such operational works.[33] At the end of the day, Mr Collins accepted that this issue was not overly important in the scheme of things.[34]
  1. [53]
    Turning then to the piping under Burbury Road, the first thing to observe is that this engineering outcome only arises in the event that Stages 1 and 2 are developed. That is, it has no bearing on the balance of the stages west of Burbury Road and, in this regard, Mr Collins expressed the opinion that if the court was minded to approve the whole of the development, this issue could be adequately dealt with by the imposition of a condition acceptable to the respondent.[35]
  2. [54]
    Leaving aside for the moment consideration of the prematurity issue, I am satisfied that there are no civil engineering or stormwater issues that would warrant refusal of the development applications.

Ecology

  1. [55]
    After the development applications were lodged, but prior to this proceeding commencing, some 500 plus trees were cleared from the western part of the land.  Even so, a number of trees remain providing scattered food and shelter sources for koalas.  While there was debate about the exact number of trees that provide food and shelter, that debate does not have to be resolved.  That is so because regardless of the exact number of trees, they will, for all intents and purposes, be cleared during the development phase.[36]  This clearing also includes significant areas of melaleuca which while of little use for shelter, save for larger trees, nevertheless provide a secondary food source for koalas.  In respect of shelter, a suitable tree would typically be occupied by one individual animal.  Shelter is particularly important to this animal as it can spend up to 18 hours a day in one tree.
  2. [56]
    Recognising this, Mr Warren, reported in his individual report:[37]

“It is unlikely that preferred koala food tree species will be retained within the development envelope and it is not considered desirable that koalas be able to access or move through residential areas of the site due to associated risks.  Mitigation measures to improve koala habitat and movement corridor values will include:

  • Existing preferred koala food trees to be incorporated into open space areas where practicable;
  • The proposed removal of scattered trees from within disturbed/generally cleared areas of the site (including koala food tree species) will be offset through the revegetation of open space/drainage reserve areas within the proposed development. In total, 1.81ha of land is available for revegetation (i.e. 3,621 trees and 6,037 shrubs) (new plans provided as ANNEXURE 8 and ANNEXURE 9) as detailed in TABLE 1 below.  This represents a >50:1 offset ration of the total number of trees to be removed that were observed to have evidence of koala activity, and almost 10:1 offset ratio of total trees to be removed.” (Original emphasis)
  1. [57]
    Other steps proposed to address the protection of the koalas included exclusion fencing, signage, traffic speed and calming controls, and koala and bushfire management plans.
  2. [58]
    Before descending into the evidence in more detail, it can be said immediately that even at its highest, with all the proposed rehabilitative steps in place, the proposed development will still have a not insignificant negative impact on the existing koala population.  In this regard Mr Warren reported:[38]

“The proposed development will impact on a small number of home ranges for local koalas.  It is most likely that koalas affected by impacts on their home range will attempt to establish modified home ranges.  It is possible that in attempting to establish modified home ranges that this will either bring the koalas into conflict with other koalas or force them to leave the immediate locality altogether.  This may result in the short-term reduction in koala numbers in the locality.  This situation will be remedied when the proposed offset plantings become established (5-10 year).  It is considered highly likely that juvenile koalas occurring in local core koala habitat areas (including J Dobson Park, Peterson Road Park and Sheep Station Creek Conservation Park) will provide emigrants the offset habitat shortly after these trees become established.”

  1. [59]
    The matter I find most concerning is that the evidence establishes that Mr Warren’s timeframe of 5-10 years is overly optimistic.  However, before going on to deal with this issue in more detail, there is one matter that can be readily disposed of.  During the cross-examination of Professor Carrick, it was suggested that by restricting clearing to the eastern part of the land until Stages 1 to 8 were completed, or thereabouts, the impact on the koala population could be meaningfully reduced.  I am unable to accept that proposition.  It was not one advocated for in any meaningful way, if at all, by Mr Warren and was rejected by Professor Carrick whose evidence I found to be particularly persuasive on this topic.  Another problem faced by the appellant is that it did not call any probative evidence about the intended clearing regime to be adopted.  That is, I am left in the situation where I do not know whether clearing is to be staged or, whether the whole area is to be cleared in one exercise. 
  2. [60]
    In respect of Professor Carrick, I should note that he unashamedly accepted that he was a strong advocate for the protection of the koala species.  Accepting that, I nonetheless found, as I have already observed, his evidence to be particularly persuasive.  I would add in this context that I did not at any stage consider his objectivity and professionalism to be blurred by his views on this topic.
  3. [61]
    The evidence concerning the exact number of koalas that might be associated with the subject land was imprecise.  However, it would seem that while the land would be capable of supporting no more than four or five koalas and possibly less, the scattered trees could, from time to time, be used as a “stepping stone” or “linkage” backwards and forwards through the land for a dozen or more koalas.[39]
  4. [62]
    The scattered corridor the existing trees provide was decided by Professor Carrick as being “very important.[40]  Mr Warren accepted that, while not being important, they were nonetheless “effective”.  I do not consider anything turns on this difference in description.
  5. [63]
    Returning then to the proposed rehabilitation, it is primarily located on areas of land above the bio-detention areas situated within Lots 9001 (Stage 3) and 9002 (Stage 10).  Lesser planting is to take place on Lot 9000 in the north-western corner of Stage 5.[41]
  6. [64]
    While there was considerable debate about how many trees might be realistically located in Lots 9001 and 9002, it is once again unnecessary to resolve that dispute.  That is so because, even accepting the appellant’s case at its highest, the inescapable conclusion is that the proposed development will have a negative impact on the existing koala population significantly greater than that advanced on behalf of the appellant.
  7. [65]
    While it can be readily accepted that within four to five years the rehabilitative planting will provide a food source, I am not satisfied that an acceptable level of shelter would be available in anything like that timeframe.
  8. [66]
    According to Mr Warren, the proposed planting is “… not the best thing for the koalas there at the time but down the track it’s … a better result for the population as a whole.”[42]  The difficulty with this evidence is that “down the track” could involve up to 20 years.  While Mr Warren rejected the proposal that it could take up to 25 years before the planted trees were to mature enough to provide adequate shelter, his evidence strongly suggested that it could take up to in the order of 15 years.[43]  According to Professor Carrick, whose evidence I accept, it could take up to 20 years before “proper movement opportunities” were available.[44] 
  9. [67]
    On balance, there can be little room for doubt that the proposed development is not sensitive to and nor would it protect wildlife corridors and connectivity.  The negative impacts on the koala habitat is significant and likely to be long-term. 
  10. [68]
    While the other protective steps referred to above could be incorporated into a more sympathetic lot layout,[45]  as Mr Warren observed, it would result in a form of development that bore little, if any resemblance, not only to what is proposed but also the existing development to the north and north-east.[46]  Indeed, under the planning scheme the Next Generation Neighbourhood framework envisages not only housing choice and infrastructure, but also a net residential density of between 15-25 dwellings per hectare.[47]
  11. [69]
    During the cross-examination of Mr Schomburgk, the town planner relied on by the appellant, he accepted that as presently formulated, the proposed development would not result in a positive environmental outcome.  He also said that by reference to the area proposed to be developed, some of the more significant vegetation should be maintained.  In particular, vegetation having “significant environmental values, whether for koalas or for anything else.[48]
  12. [70]
    In re-examination, Mr Schomburgk gave evidence to the effect that if there were “clumps of trees that are worthy of preservation”, they could be protected or preserved by the imposition of a condition of development or by dedication as park land.[49]  In this regard, two observations can be made immediately.  First, the development as proposed makes no meaningful attempt to preserve the existing koala habitat vegetation.  Second, the submission that vegetation of environmental significance could be protected by either conditions or dedication did not arise until the second last day of evidence.
  13. [71]
    Insofar as protecting koala habitat is concerned, the preservation of stands of trees per se is not to the point.  As Professor Carrick pointed out, the existing relevant eucalyptus trees, as scattered as they are, provide a corridor or stepping stone for koalas moving across the land.  A tree or even several trees surrounded by housing would not serve that purpose.  In circumstances where no probative evidence has been led as to just how the proposed development could be satisfactorily conditioned, I am unable to accept that it could be achieved.  Indeed, in this regard, I found the evidence of Mr Warren to be quite persuasive on this topic.  When being asked a series of questions about how, if at all, habitat trees could be preserved within any proposed residential development, his evidence was:[50] 

“… when you look at the site, which has been zoned as a transition zone in transition to development – residential development I would assume, at some stage, whether it’s now or 10 years in the future, it’s been zoned for that.  And when you look at the distribution of trees on the site, scattered, it would be almost impossible, I would suggest to have a residential development and the conservation of the trees on the site; you can’t have both.  It just shouldn’t (sic) be done you couldn’t develop anything on the site.”

  1. [72]
    What Mr Warren was highlighting was the inability to accommodate both the type of residential development contemplated by the planning scheme and the protection of the existing koala habitat.
  2. [73]
    To put it bluntly, the respondent has made its election. Residential development at the expense of koala habitat. While subsequent areas of land to the east, north and most recently the northern part of Lot 11 have been mapped as areas of state and local environmental significance (MSES and MLES), the subject land has been clearly ear-marked for dense residential development.
  3. [74]
    Accordingly, in my view, the conflict with those provisions of the planning scheme intended to protect koala habitat is not a basis for refusal. That conclusion is not weakened by either the prematurity point or the earlier clearing of some 500 trees raised by the respondent.
  4. [75]
    That however, is not the end of the matter. As Mr Schomburgk observed, the proposed revegetation does not mean that trees of significance that remain ought to be ignored.  While I consider that observation to be correct, in the overall scheme of things I consider that the evidence establishes it is not only the large mature trees that warrant consideration, but that the planning scheme also envisages that consideration needs to be given to the preservation and maintenance of wider native species including the melaleucas.  In this context, it needs to be borne in mind that existing fauna is limited to koalas.
  5. [76]
    That fact that trees of significance exist is clear from the evidence of Dr Daniels. His evidence, which I accept, is that “large trees of significance” remain on site. According to him, “as far as habitat is concerned…these are big, important trees and… they are notable and they are required to be retained where practicable.”[51]  The reference to “habitat” in this context is not limited to koala habitat.
  6. [77]
    In respect of those trees near J Dobson Park, Dr Daniel’s evidence, which I again accept, was:[52]

The loss of these trees represents a gap in ecological time that you can’t replace immediately, … You can’t replace the values of these trees by whacking up a few nest boxes on hardwood poles and planting some trees.  They’re big old trees.  Some of these trees are 800 DBH.  The evidence is equivocal about the age of trees in South East Queensland, but they could quite possibly be hundreds of years old.  That’s a big gap.  So, okay, it might just be, ‘Oh, look’ … ‘Let’s keep these few trees’, and you know, that’s kind of not really relevant.  It is.  They’re big trees.  They’re old trees.  And … the planning scheme does say ‘where practicable,’ they should be retained.

  1. [78]
    No meaningful attempt has been made to retain native vegetation, nor to incorporate the existing native vegetation into the overall subdivision design. Accordingly, the proposed development does not comply with important provisions of the planning scheme and the level of non-compliance is significant.[53]  It is no answer to this level of non-compliance to say that more intensive planting is intended in and around the two detention areas.  
  2. [79]
    The inescapable conclusion is that large stands of melaleucas and a number of large and significant native trees will be cleared if this development, in its present form, proceeds.  And, while that outcome may well be a desirable outcome for the appellant, I am left unpersuaded that such extensive clearing is an “unavoidable” outcome.
  3. [80]
    Mr Warren accepted, the proposed development did not comply with a number of significant provisions of the planning scheme intended to ensure that development was sympathetic to the retention of native vegetation and, in particular, habitat trees.[54]  And, for the reasons expressed above, I am left unpersuaded that the proposed development could be conditioned in such a way as to avoid or militate against the significant non-compliance with the planning scheme. 
  4. [81]
    I do not intend to identify every area of non-compliance with the planning scheme on the topic.  Reference to only a number of examples is necessary to establish that the level of non-compliance is significant. 
  5. [82]
    Such non-compliance includes the failure to facilitate the retention of native vegetation, including riparian vegetation,[55] as well as the failure to incorporate native vegetation, including habitat trees into the overall subdivision.[56]  Finally, the proposed development expresses no sensitivity towards the native vegetation and, accordingly, does not comply with a number of the important, express purposes or intended outcomes identified in the planning scheme.[57]
  6. [83]
    Notwithstanding Mr Warren’s reservations, it may be that some trees of sufficient importance could be preserved by the imposition of conditions as Mr Schomburgk suggested. However, none of the relevant witnesses were provided the opportunity to express an opinion about what such condition might look like.  Dr Daniels was prepared to concede that a solution might exist, but that it was not an issue that could be dealt with on the run.
  7. [84]
    Before concluding on this topic, I should deal with the submission made attacking the reliability of each of the respondent’s witnesses concerned with flora and/or fauna.  It was said that their evidence was affected by irrelevancies, error and generalities.  Whereas, the evidence of Mr Warren in contrast was rigorous in its attention to detail.
  8. [85]
    I reject these submissions concerning the independence and objectivity of Professor Carrick, Dr Daniels and Ms Agnew.  I found the evidence of each of those witnesses to be in accordance with their obligations to the court.  To suggest that the evidence pales in comparison to the rigorous approach of Mr Warren also fails, in my respectful opinion, to have sufficient regard to a number of concessions he was required to make during cross-examination.[58]

Traffic

  1. [86]
    As the written submissions of both parties identify, the traffic engineers addressed a wide number of issues.  For the purposes of disposing of these appeals, I will proceed on the basis that save for the “prematurity” issue, there are no other traffic issues that would warrant refusal.  This approach should not be seen as an acceptance of the appellant’s evidence in respect of those other issues.  Rather, for reasons which will become apparent, it is simply unnecessary to determine the remaining issues. 
  2. [87]
    It is clear that both the SEQRP17 and the planning scheme envisage that the residents of developments such as the type proposed here, have convenient access to public transport.  By way of example, strategies of the SEQRP17 include the provision of “active transport connections to existing and planned high-frequency public transport stops and stations…,”[59]  and to ensure “communities have suitable access to frequent and reliable public transport, as well as walking and biking options, to allow access to employment, education and services locally and more broadly.[60]  To a similar effect is s 6.2.3.2(2)(b)(ii) of the planning scheme which envisages residents of developments such as this having convenient access to higher frequency public transport.[61] 
  3. [88]
    It is uncontroversial that the subject land is not serviced by public transport and, in particular by a bus service.[62]  Mr Holland, the traffic engineer relied on by the appellant, agreed that the subject land was “a reasonable distance to the nearest bus stop.  Not many people are going to do it if there is no extension of the existing network.”  Mr Holland further agreed that as matters presently stood, the subject land was relatively “isolated” from public transport.[63]  Mr Schomburgk described the development as being remote but not so remote as to warrant refusal.
  4. [89]
    It can be readily accepted, as was pointed out in the written submissions on behalf of the appellant, that the proposed development would create a need for public transport and that it was not unusual that development occurred prior to the availability of public transport.  Also, as Mr Schomburgk pointed out, it would be unreasonable to expect a service provider to put in place a bus route that would service the subject land prior to there being a sufficient level of patronage.  He said in this context:[64]

“They’re not going to provide a bus service out to this area while there’s no patronage, but if this area is developed 800 – odd lots as proposed here, that may well be sufficient if it is for a bus service to start to come out to this area in conjunction with other developments that are going on in the immediate area.”

  1. [90]
    According to Mr Schomburgk, this proposal would act, or be likely to act, as a catalyst for public transport to service the area and that “there is a real potential that public transport could be provided to this land, so the development we’re talking about, the subject development, will support public transport and active transport infrastructure because it creates a ready-made catchment if you like, for that public transport.[65]
  2. [91]
    Turning to the evidence of the traffic engineers, whose opinions I prefer on this topic to that of the town planners, Mr Holland was of the opinion that it was likely that public transport would be implemented within the life of the development.  I do not find that evidence particularly persuasive in circumstances where the life of the development could extend to 2041 or beyond.  According to Mr Trevilyan, the traffic engineer relied on by the respondent, the appellant’s approach seemed to be a “build it and they will come” approach.  I consider that to be an accurate description. 
  3. [92]
    In the absence of any direct evidence on the matter, for example by the actual service provider, I am left with the competing opinions of the traffic engineers.  It was Mr Trevilyan’s evidence that:[66]

“There is almost no likelihood of bus services being provided in the local area in the foreseeable future.  I do not consider it likely that bus services would be instituted in response to the subject development alone; it would take a greater level of densification than could be achieved merely through the subject site being implemented for bus services to be delivered on Oakey Flat Road or Nairn Road for example.  There is presently no plan for buses to be implemented in the Morayfield South area….”

  1. [93]
    In the face of the planning provisions to which I have referred, it is no answer to say that public transport would be expected sometime during the lifetime of the proposed development and, when pressed, Mr Holland had to concede that he could not predict what Translink was going to do insofar as bus service was concerned.[67] 
  2. [94]
    On the evidence before me, I am not satisfied that compliance can be achieved with the relevant planning provisions concerned with the provision of convenient public transport.  And, as was the case concerning ecology, the level of non-compliance is significant.

Planning need

  1. [95]
    Insofar as the question of need is concerned, the relevant grounds of refusal was stated by the respondent to be:[68]

“(a) The council has included in its priority infrastructure area (PIA) sufficient land to accommodate growth and there is no need for the Proposed Development.

(b) The land is situated in the semi-rural area which is not serviced by infrastructure (including reticulated water and sewer, stormwater and dedicated roads and electricity) of a standard capacity required for the Proposed Development.

(c) The land is not included in the council’s priority infrastructure area and the council has no plans to provide infrastructure to service the land.

(d) The timing and fronting of infrastructure to service growth in the local government area should be determined by the Council.

(e) The development of the land prior to land use and infrastructure planning being undertaken to determine whether it is suitable for urban development but will make more difficult the orderly planning and servicing of other land in the Council’s government area.

2.1 The Proposed Development will compromise the further structure planning of the Morayfield South area and result in ad hoc settlement patterns which makes more difficult the efficient, cost effective and coordinated delivery of infrastructure.”

  1. [96]
    It is for those reasons that the respondent considered that the proposed development was unplanned, premature, and not needed to accommodate the planned demand for future urban growth within the respondent’s local government area.
  2. [97]
    Mr Duane and Mr Schimmin, the economists relied on by the appellant and respondent respectively, identified the key issues as far as their areas of expertise were concerned:[69]
  • “Whether council has enough land to accommodate population and dwelling growth in an appropriate economic manner
  • Whether the proposed developments will make the orderly planning and servicing of other land in the Local Government Area more difficult
  • Whether the proposed developments will result in ad hoc settlement patterns and are premature
  • Whether the proposed developments will compromise future structure planning of the Morayfield South area and make the efficient, cost effective and coordinated delivery of infrastructure more difficult …”
  1. [98]
    Mr Schimmin did not prepare an individual court report, however Mr Duane did.  His key findings in relation to the issue of need were as follows:[70]
  • “There is ongoing population growth in Moreton Bay LGA.
  • There is less than 15 years supply of land, with and without Caboolture West.
  • The proposed estates in Caboolture West have no (sic) firm timeline of development, however with likely supply of land over the period to 2041 reducing.
  • There is a recent proposal for a full-line supermarket centre in close proximity to the subject site, evidence of planning occurring in this area.
  • The subject development respond to a community need for residential lots in an attractive area, well serviced by existing and proposed infrastructure. Substantial residential development as and continues to occur to the immediate north of these sites.
  • Since completion of the JER, I am not aware of any detailed planning for the Morayfield South Emerging Community being prepared by council.

For all these reasons, the subject site would add a benefit to the community in terms of choice of housing, insuring an adequate supply of land and consequently housing affordability, within convenient distance of existing and planned infrastructure.”

  1. [99]
    Leaving aside for the moment the issue of whether or not the proposed development is premature, or to use the words of the economists ad hoc, a number of the matters identified above can be readily dealt with.  It can be accepted that the proposed development is outside the respondent’s PIA.  That, however, is not of itself fatal in my view as a number of developments have and will continue to occur outside of that area.  Insofar as the lack of infrastructure, either existing or planned is concerned, because the land lies outside of the PIA, that again is not fatal as the appellant, as has already been addressed, intends to provide the necessary infrastructure at its own cost.  The reference to infrastructure in this context is limited to that usually associated with the creation of a residential subdivision and does not include infrastructure such as public transport or, save for parks and open space, social and community infrastructure. 
  2. [100]
    That said, I do not find Mr Duane’s evidence about the proposed development’s ability to provide for community choice of housing persuasive.  The evidence is that market forces would require any developer of land, be it the appellant or otherwise, to meet the market’s desire for variation in lot sizes and housing style.[71]  That can already be identified by reference to what has and is continuing to occur in the area.  I also accept Mr Schimmin’s evidence to the effect that, if this development did not proceed, it would be unlikely to have any meaningful impact on land prices.[72]    Further, while it can be accepted that, as identified above, a number of community facilities exist and, as Mr Duane pointed out, a substantial commercial development is proposed at the corner of Clarkes Road and Oakey Flat Road, those facilities would not be readily accessible, other than by private transport, until such time as public transport was made available.  As addressed above, that issue of itself involves a high level of uncertainty. 
  3. [101]
    Turning then to the question of whether or not there is a planning need, I am again left unpersuaded that that issue falls in favour of the appellant.  Mr Duane readily accepted in cross-examination that at least in theory, there was enough land already available to accommodate population growth. During cross-examination the following exchange occurred between Mr Duane and Mr Job QC:[73]

Q:Thank you. Now, returning back to … by indicating or by your agreement that there’s theoretically enough land to accommodate growth, that is your agreement that the planning scheme has allocated enough to house the projected population to 2041?

A: Correct.  In terms of the planning scheme there’s allocated land that could theoretically accommodate that growth, but whether that growth is actually going to be developed is what I’m saying is an issue which appears to be my main concern in relation to the need for land, that they got land designated for growth but that doesn’t look like that will be developed in that – in a timeframe to meet demand.

Q: What timeframe?

A: Well, we look at the period over to 2041 in terms of our assessment going forward.

  1. [102]
    When considering the issue of planning need, it needs to be kept firmly in mind that with the expected rates of scale, the best case scenario would be that the project would be completed as or about 2031, but it could be as long as 2041 or beyond. 
  2. [103]
    According to Mr Duane, appropriate planning ought to ensure that there will be an adequate supply of housing, so as to avoid pressure on housing affordability, for at least 15 years into the future.[74]  It seemed tolerably clear that Mr Duane’s main concerns about the respondent not being able to ensure an appropriate level of supply of lots at the 15-year horizon were about what was going to occur in the planning area identified as Caboolture West.  While prepared to acknowledge that if Caboolture West was taken into account supply would be at or around the 12 to 13 year level,[75] his concern was that there was a lack of certainty that that development would proceed at a level that would be required to meet demand.
  3. [104]
    It is therefore necessary to address Mr Duane’s concerns about the likelihood of Caboolture West proceeding as intended.  The evidence of both Mr Schimmin and Mr Duane makes it tolerably clear that up until at least 2019, the respondent had been relatively inactive insofar as planning for Caboolture West was concerned.  However, in 2019 the state government produced its Land Supply and Development Monitoring Report (2019).[76]  In that report under the heading “Summary,” it was relevantly said:[77]

“Shaping SEQ establishes that Moreton Bay’s population growth will require an additional 88,300 dwellings between 2016 and 2041 through its dwelling supply benchmark.

The capacity and realistic availability of planning, dwelling supply in the Moreton Bay consolidation and expansion areas provide more than the minimum 15 years of supply sought by Shaping SEQ”.

  1. [105]
    That report, when dealing more specifically with the issue of planned dwelling supply went on to say:[78]

“The capacity and realistic availability of planned dwelling supply in the Moreton Bay consolidation and expansion areas provide more than the minimum 15 years of supply sought…

In the Moreton Bay expansion area, the capacity of planned dwelling supply is about 86,000 dwellings which is significantly above the expansion 2041 dwelling supply benchmark of 40,100.  The realistic availability of this supply is about 37,000 dwellings, which equates to about 16 years of supply…

Much of the planned dwelling supply in the Moreton Bay expansion area is located within the proposed master-planned community of Caboolture West.  This supply has been included in the capacity figure but excluded from the realistic availability scenario in accordance with the realistic availability method.  Realisation of this planned dwelling supply needs to be supported over time by transport, water and sewerage infrastructure.  The provision of that infrastructure is subject to future arrangements.

Moreton Bay Regional Council is preparing a planning scheme amendment which may affect planned dwelling supply.  Council is currently undertaking a Regional Growth Management Strategy 2041 … Council has also resolved to commence detailed land use and infrastructure planning for Caboolture West and this work will also inform a future planning scheme amendment…”

  1. [106]
    In or about October 2019, the respondent produced what is described as a Strategy Summary Document.[79]  Under the heading “Executive Summary,” it is reported that progressing development within the Caboolture West was now a clear priority strategy.  Indeed, under the heading “Caboolture West Activation,” it is said:

“Shaping SEQ identifies Caboolture West as a Major Expansion Area and High Priority Growth Area which is located within the Urban Footprint.  The MBRC Planning Scheme 2016 recognises that the Caboolture West growth area requires further investigation and planning.

Therefore, Council has also resolved to start land use and infrastructure planning for Caboolture West.  This planning for Caboolture West will run in parallel and independent of the RGMS 2041.[80]  This decision reflects the level of planning undertaken to date in Caboolture West and in significance of the area as reflected in Shaping SEQ and the MBRC Planning Scheme 2016.”

  1. [107]
    On more than one occasion, it was pointed out that this document also identified that notwithstanding this strategy, development applications will continue to be made and assessed against the respondent’s planning scheme at the time of the making of the application.  However, that part of the document goes onto say that there is an intention to “maintain credibility in the Council’s established policy position.”  It is uncontroversial and unsurprising that applications outside of the PIA and indeed any other planning areas will continue to be made and assessed.  That however, does not advance the case for the appellant in the circumstances of this proceeding in my view.
  2. [108]
    In the appellant’s written submissions it is said:[81]

“In short:

  1. (a)
     there is a need for the proposed development on the land particularly given the absence of real activity on Caboolture West;
  1. (b)
     the proposed development should be undertaken now, having regard to the current/existing state of planning for the Morayfield South Emerging Community Area
  1. (c)
     the proposed development would not represent out of sequence development and would not create an ad hoc settlement pattern
  1. (d)
     the proposed development would no compromise future structure planning for Morayfield South Emerging Community Area.

Issues of Economic Need Support approval of the proposed development and should be considered by the Court in that context.”

  1. [109]
    According to Mr Schimmin, if Caboolture West was brought into account there should be at least 13.9 years supply of broad acre and other development opportunities.  However, Mr Duane expressed the view that estimate “may be lower”, even if Caboolture West is taken into account.[82]
  2. [110]
    On balance, I have reached the conclusion that there is no basis for excluding Caboolture West when considering the question of planning need.  And, even accepting that there might still be some shortfall, it is likely to be no more than in the order of 2-3 years, or even less. 
  3. [111]
    A short fall in supply, if there is in fact one at all, of the order identified would not warrant approval in the face of the lack of conformity with the Planning Scheme identified herein.  To put it another way, I am not satisfied that there is a planning need for the proposed development.  That there is a planning need was one of the two central pillars for Mr Schomburgk’s support.  The other being the ability to provide all the necessary infrastructure and services.
  4. [112]
    Nothing I have said should be read to suggest that if development proceeded, the proposed lots would not have a market.  Quite the contrary, the evidence is that they would, but that is not to the point.
  5. [113]
    Finally on this topic, the impact on demand the COVID-19 virus might have was raised.  The impact, if any, the virus might have was far from certain and, in any event, neither including nor excluding its potential impact would affect the outcome on this topic. 

The town and social planning evidence

  1. [114]
    The first matter to be addressed under this heading is the debate centred around the definitions of “developed” and “developable” lots.  While it is uncontroversial that the subject land, as it presently stands, comprises of developable lots, dispute exists about whether or not the proposed development would result in a sub-division of developed lots for the purposes of the planning scheme.  On behalf of the respondent it was submitted:[83]

“It is the Council’s contention that, considered in the context of other key provisions, the definition of ‘developed lot’ does not contemplate that an individual and isolated site in Morayfield South is capable of bringing itself within the scope of the term by supplying its own infrastructure.  Rather, what is intended is that such a site does not become a developed lot, or become capable of being sub-divided  into developed lots, until the framework for providing that infrastructure has been established by the Council following ‘further integrated land use and infrastructure planning’ which establishes how ‘infrastructure capacity can be provided efficiently and cost-effectively’.”

  1. [115]
    I am unable to accept that approach.  There is nothing in the definition of a “developed lot” which, either expressly or by necessary implication, requires the appropriate infrastructure to be provided in the manner contended for on behalf of the respondent.  Leaving aside for the moment the issue of public transport, I am able to comfortably conclude that once development is completed, the sub-division would result in the order of 800 developed lots.  Mr Schomburgk’s evidence on this topic, which I accept, is that “the proposal is creating developed lots, as all lots are intended to be fully serviced at the applicant’s expense.”[84] 
  2. [116]
    That said, Table 9.4.1.3.2.2 of the Planning Scheme concerned with assessable development for the Emerging Community – Transition precinct, pursuant to PO 1, requires that any reconfiguration does not result in additional lots.  Both town planners were of the opinion that the proposed development did not comply with that performance outcome.[85]
  3. [117]
    At first blush the views expressed by the town planners, insofar as they might be relevant, might seem to be correct.  However, Mr Schomburgk pointed out that PO1 seemed to be at odds with s 9.4.1.3.2.1(2)(b) which is directly concerned with the reconfiguration of what must be developable land to create developed lots.[86]  That is the situation here.
  4. [118]
    Further, as was pointed out on behalf of the appellant, to construe PO1 in the manner contemplated by the respondent would mean that any proposed subdivision of developable land within the emerging community transition precinct would result in non-compliance of the planning scheme.  That could not be the intended planning outcome.
  5. [119]
    That then brings me to what the town planners considered to be, insofar as they were concerned, the key issue.  Namely, whether the proposed development is premature. 
  6. [120]
    There are numerous provisions of the planning scheme that make it clear that a key element of the planning strategy of the respondent is to, as far as is practicable, have residential development occur in sequence with the availability of infrastructure.  Examples of this include:
  • Strategic Outcome- Growth areas:[87]

New master planned walkable neighbourhoods, activity centres and enterprise and employment areas served by public transport have a role to play in helping to accommodate regional dwelling and employment targets and require comprehensive planning to coordinate future development with infrastructure delivery.

  1. New urban development will be supported in greenfield locations with available infrastructure capacity or where infrastructure capacity can be provided efficiently and cost effectively and without creating disadvantage to current and planned priority infrastructure areas;
  • 3.13.2.1 contains “Specific Outcomes – Settlement Pattern” and, relevantly to Morayfield South, provides:[88]

“8. The rural residential area at Morayfield South has been identified as a potential future urban growth front.  The key strength of this area lies in its location proximate to the higher order activity centres at Caboolture and Morayfield and regional transport connections including the Bruce Highway and North Coast Rail Line.  Despite this, the lack of urban infrastructure, presence of potentially significant environmental values and fragmented land pattern will constrain the ability to provide serviced urban land, other than for a small area, in the northern portion of the area.  Given the existing constraints, other development fronts in the Region and the large size of the growth area, all of the area is not anticipated to be required for urban development prior to 2031.  The majority of the area is likely to remain largely rural residential in nature until the area can be developed in an efficient and cohesive manner. 

  • 3.13.2.4.5 Land use strategy:[89]
  1. (a)
     The emerging community of Morayfield South will provide for land to be available for urban development during the life of the planning scheme.  Limited infrastructure network planning has been done for the identified area and it will not be included within the priority infrastructure area.  It is not serviced by all local government networks including water and sewerage.
  1. (b)
     Development of the identified area will be subject to bring forward costs and will not be subject to any infrastructure offsets. 
  1. (c)
     Interim development in this area does not fragment, pre-empt or compromise the potential development of rural residential areas for urban purposes beyond the life of the planning scheme. 
  1. (d)
     Further integrated land use and infrastructure planning will be undertaken in the Morayfield South area.  This further planning work will determine how the area can be developed efficiently to create a cohesive and sustainable urban community.
  • S.6.2.3.2 provides[90]:

“2. The Emerging community zone has 2 precincts which have the following purpose;

  1. The Interim precinct is to identify and conserve land that may be suitable for urban development in the future, allowing interim uses that will not compromise the best longer term use of the land pending further investigation.
  1. The transition precinct is to:
  1. Identify and conserve land that may be suitable for urban development in the future, allowing interim uses that will not compromise the best longer term use of the land;
  2. Provide mechanisms to promote and implement an appropriate mix of dwelling types, consistent with a next generation neighbourhood across the transition precinct once this land is developed and serviced with all local government networks including water and sewer and is suitable for urban development.  …These areas will have convenient access to centres, community facilities and higher frequency public transport.” (emphasis added)
  1. [121]
    As has already been identified, the proposed development does not tap into the essential infrastructure of water and sewerage which is proximate to the subject land.  Instead, that infrastructure is being brought to the land, no doubt at significant cost to the appellant.  Mr Perkins was clearly of the view that, in a planning sense, the proposed development was premature and out of step with the respondent’s strategic planning. 
  2. [122]
    Having regard to a number of the comments made by Mr Schomburgk in the JER, the following exchange took place between him and the bench.[91]

Q: When I read that part of the report, it struck me that you weren’t saying that this is not premature.  As I read it, it seemed to be a recognition that it was premature, but the reason it was premature is because the Council had been – I think one of the other witnesses said something to the effect of “had dropped the ball on planning”?

A: Yes.

Q: Is that a fair assessment?

A: I – I’m not – I’m not sure that it is, your Honour.

Q: Yes.  Because I – when I’ve read it, that’s the way it appeared to me but I just wasn’t sure whether…?

A: It’s premature in the extent that it’s outside the PIA and that generally means it’s premature, but in my – in my experience, the way it’s been dealt with in other matters is that it’s not premature, (1) if there is a demand, and (2) if you’re able to bring forward the relevant infrastructure, and so the proponent here is seeking to do both of those; there is a demand and he’s seeking to provide the infrastructure, therefore, in my opinion, while it’s out of sequence – I accept that – that doesn’t mean that it’s premature.  It comes back to the other provisions of the scheme, which talk about developing the land for residential purposes in a timely manner.  So timely, in my opinion comes back to the issue of supply versus demand. (emphasis added). 

  1. [123]
    It is unnecessary to say anything further about the supply and demand issue than what has already been said.  There is little room for doubt that Mr Schomburgk, in reality, does recognise that in a planning sense the proposed development is premature.  In my respectful opinion, that is an unavoidable conclusion having regard to the language he used in the JER.  After identifying that the prematurity point lies at the heart of these appeals, Mr Schomburgk went on to say, “while future residents of the development may not have the full range of community and social facilitates within easy walking distance for the short-term, this development would act as a catalyst to those services and facilities – e.g public transport does not currently exist because there is no demand – once the development achieves a certain threshold that demand will exist and the service can be provided.” 
  2. [124]
    Also, according to Mr Schomburgk, the proposed development is “simply a case of the appellant doing the forward planning rather than wait for the local government to ‘catch up’ to that demand.”  Further, after identifying it was the appellant who would be providing the necessary infrastructure he went on to say; “… and, while I agree that normal sequencing would involve developing the PIA, that does not properly respond to demand for urban development in this instance … the issue of ‘leap frogging’ over other undeveloped land is a common issue in emerging urban areas, and it is the provision of appropriate infrastructure and an IA that are common tools in dealing with that aspect.” 
  3. [125]
    To a similar effect are his opinions that the respondent’s planning was lagging behind demand and that this development would provide a “leg up” for the respondent’s planning for the whole of the Morayfield South area.  According to Mr Schomburgk, the works underpinning the proposed development, including the delivery of infrastructure, would “in practical effect, replace the structure planning work that would ordinarily be undertaken by the local government, but which has not yet been done by them.[92]
  4. [126]
    In respect of the opinions expressed by Mr Schomburgk, a number of observations can be made.  First, they proceed on the misconceived basis that there is a planning need for the proposed development to meet demand.  The evidence does not support that position.  Accordingly, it follows that I do not accept that the present planning, apart from that concerned with Caboolture West, was lagging behind demand.  Third, there is little if any evidence to support Mr Schomgurgk’s assertion that the residents of the proposed development will only be denied convenient access to an acceptable range of community and social facilities for only the “short-term”. 
  5. [127]
    As Mr Schomburgk himself accepts, the proposed development would “leap-frog” over other undeveloped land.  Indeed, the proposed development lies at the western most end of the Morayfield South emerging community area.  Mr Perkins is quite right to say that this development would create a de facto planning strategy.  The inescapable conclusion is that Mr Schomburgk also recognises as much when he refers to the proposed development acting as a catalyst to provide community and social facilities and that the works underpinning the proposed development, in a practical sense had “replaced the structure planning work that would ordinarily be undertaken by the local government, but which has not yet been done by them.” 
  6. [128]
    While a number of social planning matters have already been rolled into the discussion so far, I would note that I found the evidence of Ms Ashford and Mr Perkins convincing.  Their evidence was that the location of the proposed development would leave its residents remote from existing and planned social and community services or infrastructure.  This was a consequence accepted by Mr Schomburgk, although he thought it not so remote as to warrant refusal.[93]
  7. [129]
    By way of conclusion in respect of infrastructure, I would note the evidence which I accept is that, were the proposed development to proceed, it would be likely to bring forward unplanned maintenance costs in respect of the proposed parks/detention basins.  And, as both Mr Perkins and Ms Ashford said, it would be likely to result in pressure being placed on the respondent to bring forward unplanned social and community infrastructure such as community centres and sport and/or recreation facilities. 
  8. [130]
    Mr Natoli, relied on by the appellant, seemed to accept that the proposed development would be remote from planned community facilities, excluding perhaps parks and open space.  However, he considered that those areas of con-compliance with the planning scheme and/or SEQRP 2017 would be capable of being addressed by the payment of infrastructure charges, or the respondent bringing forward unplanned community and social facilities.[94] Neither of those solutions are an answer to the failure of the proposed development to comply with a number of the planning objectives of SEQRP17,[95] and the respondent’s planning scheme.  Given its physical location, the proposed development, at least for the foreseeable future, will not provide for “convenient access to centres, community facilities and higher frequency public transport.[96]
  9. [131]
    While the strategic outcome for growth areas set out above contemplates out of sequence development, it does so in circumstances where the necessary infrastructure can be provided in an efficient and cost effective manner which would not create disadvantage to current and planned PIA’s.
  10. [132]
    As has been identified, I am not satisfied that the proposed development will deliver convenient access to public transport nor to social and community infrastructure. Further, it would create the real risk of causing disadvantage to current and planned PIA’s. In particular, the unplanned and ongoing operational and maintenance issues Mr Gould referred to in respect of the sewerage pump station, the bringing forward of unplanned maintenance costs associated with the proposed parks and the risk of pressure being applied on the respondent to bring forward unplanned social and community infrastructure.
  11. [133]
    In Elan Capital Corporation Pty Ltd & Anor v Brisbane City Council & Ors,[97] Quirk DCJ said:

“It should not be necessary to repeat it but this Court is not the Planning Authority…it is not this Court’s function to substitute planning strategies (which on evidence given at a particular appeal might seem more appealing) for those which a Planning Authority in a careful and proper way has chosen to adopt… Adopting the phraseology of those cases which deal with the non-derogation principle, I feel that to allow this appeal would be to ‘cut across’ in quite an unacceptable manner, a planning strategy which has been adopted by the Planning Authority and publicly exhibited for community comment.”

  1. [134]
    Those observations have been endorsed by the Court of Appeal in Grosser v Council of the City of Gold Coast,[98] and again in the later decision of the Court of Appeal; Australian Capital Holdings Pty Ltd & Ors v Mackay City Council & Ors.[99]  The fact that this is not a “centre’s” case does not diminish the relevance and force of those observations in my view.
  2. [135]
    To allow these appeals would result in the leap-frogging over other undeveloped land to create a remote pocket of intensive residential development which is out of sequence with planned infrastructure, and is otherwise remote from community services and facilities. To adopt the words used in Elan Capital, to permit this proposed development to proceed would seem to unacceptably cut across a clear planning strategy.  In this context, it is also important to bear in mind that prima facie the planning scheme ought to be taken to reflect the public interest.[100] Based primarily on the evidence concerning need and town and social planning, I am not persuaded that this is a case where poor planning strategy has been identified or that matters have been overtaken by events.
  1. [136]
    Further, for the reasons given, the proposed development does not comply with a number of important strategic objectives intended under the planning scheme and there is a significant level of non-compliance with those provisions of the planning scheme concerned with ecology, access to public transport and access to social and community infrastructure. 
  2. [137]
    At the risk of repeating myself, the two central pillars to Mr Schomburgk’s support in this proposal were a material lack of supply of land (i.e. a material land of planning need) and the ability to provide the necessary infrastructure.[101]
  3. [138]
    As has already been identified, I am unpersuaded that a sufficient level of planning need has been established. 

Other Matters and Conclusions

  1. [139]
    As was pointed out on behalf of the appellant, the proposed development is code assessable.  Pursuant to s 45 of the Planning Act 2016, a code assessment is an assessment that must be carried out only —
    1. (a)
      against the assessment benchmarks in a categorizing instrument for the development; and
    2. (b)
      having regard to any matters prescribed by regulation for this paragraph.
  2. [140]
    There are no matters proscribed by regulation relevant to this proceeding that were drawn to my attention.  Unlike the situation concerning impact assessment, it is not specified that any assessment of a proposed development may be carried out against or having regard to any other relevant matter other than a person’s personal circumstances.  However, in Brisbane City Council v YQ Property Pty Ltd:[102]

“The Act’s approach in respect of code assessments is slightly different in that s 45(3) does not include reference to ‘any other relevant matter’ but s 60(2) expressly confers the assessment manager with the discretion to approve the application ‘even if the development does not comply with some of the assessment benchmarks.’  The interplay of ss 45 and 60 thus gives an assessment manager the discretion to approve an application notwithstanding inconsistency with the planning instrument.” (Footnotes deleted).

  1. [141]
    In the appellant’s written submissions, it is said in this context:[103]

“(a) For the reasons expressed above, there is a need for the proposed development and that need speaks in favour of approval – an approval that will deliver, in a timely way, the appropriate longer term land use;

  1. (b)
     As identified by Mr Schomburgk, there are many planning matters that support approval of the proposed development regardless of compliance (or otherwise) with the planning scheme.  Mr Perkins, in the joint report, did not indicate that he disagreed with any of those matters, only asserting that they were insufficient to justify approval having regard to his views as to non-compliance with the planning scheme.  The court would be inclined to accept the views of Mr Schomburgk as these matters generally, particularly in the light of other matters addressed in these submissions with respect to compliance with the planning scheme generally.” (Footnotes deleted).
  1. [142]
    In paragraph 151 of the JER of the town planners, Mr Schomburgk identified 13 discretionary matters which, in his opinion, were sufficiently in the public interest to justify approving the development.  They are as follows:
    1. (i)
      There is a town planning, community and economic need for the proposed development, particularly to serve the growing local community;
    2. (ii)
      The proposed development, when complete, would account for only about 4 months of single dwelling lot demand for the Moreton Bay LGA;[104]
    3. (iii)
      The subject land is an appropriate site in the locality for the proposed development in terms of its convenient location and access for Morayfield, the Bruce Highway and the North coast rail line, and is therefore ideally located for residential development;
    4. (iv)
      The subject land is proximate to an existing local centre (Nairn Rd and Oakey Flat Rd);
    5. (v)
      The agency responsible for water supply and sewerage has agreed to the provision of those services to the subject land;
    6. (vi)
      The development as proposed is consistent with the objectives of SEG Regional Plan, which shows the land within the Urban Footprint designation;
    7. (vii)
      The subject land is within an identified “growth area” in the planning scheme, wherein future growth is targeted;[105]
    8. (viii)
      The development can occur in this identified growth area without creating disadvantage to current and planned priority infrastructure areas[106];
    9. (ix)
      The proposed development complies with the purpose of the prevailing zone and precinct by providing a mix of allotment sizes and shapes, and hence “a mix of dwelling types” at an overall density “moderately higher than traditional suburban areas;[107]
    10. (x)
      The relevant infrastructure exists or is able to be provided (or upgraded where necessary) to an appropriate standard, and relevant site-specific constraints have been resolved as part of the overall planning and design process;[108]
    11. (xi)
      The development can proceed without unacceptable adverse impacts to the subject land or the surrounding land;
    12. (xii)
      The development will act as a catalyst for development of nearby land similarly designated, as demand dictates; and
    13. (xiii)
      The development has been designed to provide connectivity with, and integration with, other adjoining land, as when that land is considered for urban development.
  1. [143]
    I am of the view that while a number of those matters can be readily accepted, they would also be met or achieved by other compliant residential development within the identified urban growth area.[109]  In respect of item (iv), I would only add that if not conveniently proximate to the Oakey Flat Road Centre, any alternate residential development would likely be as close to some other centre.
  2. [144]
    Turning then to the balance of the matters relied on, for the reasons given when dealing with ecology, I do not accept that there would be no unacceptable impacts to the subject land.  As to the surrounding land, any comparable development within this growth area would be expected to not cause unacceptable impacts to neighbouring lands.[110]
  3. [145]
    As to the ability to provide infrastructure, the need for the appellant to bring infrastructure to the site has already been dealt with.  And in any event, as is the case with most of the maters raised, any comparable development would be required to ensure all relevant infrastructure was available.[111]
  4. [146]
    Turning then to the matter of planning need.  Insofar as there is or might be a shortfall in the supply side of the equation, as I have already found, that need either of itself or together with the other matters which I have just dealt with, would warrant approval. 
  5. [147]
    Nothing I have said thus far is intended to mean that the matters raised are not relevant.  Clearly they are.  However, I am left unpersuaded that any of the matters, either of themselves or in combination, overcome the non-conformity with the planning scheme identified above. 
  6. [148]
    I have not dealt with and do not intend to deal with a number of the other complaints made about the proposed development by the respondent.  These include a number of remaining traffic, ecology and stormwater related matters and attacks on the proposed open space/parks and other social and town planning issues.  The reason for not considering those matters any further, or at all, is because even if each of those matters were to be found in favour of the appellant, that would still not warrant approval. 
  7. [149]
    For the reasons given, the appellant has failed to satisfy me that the proposed development would comply with a number of important elements of the planning scheme concerned with ecology and convenient access to public transport and social/community infrastructure.  The level of non-compliance is significant.  And, insofar as the prematurity issue is concerned (the key issue for the planners) the proposed development would result in an unwarranted leapfrogging ahead of planned development and infrastructure.  It would impermissibly, to adopt Mr Schomburgk’s terminology, “replace” the respondent’s strategic planning. Finally, there are no other matters that would justify approval.  Accordingly each of the appeals must be dismissed.
  1. [150]
    The orders of the court are:
  1. Appeal 508 of 2018 is dismissed.
  1. Appeal 672 of 2018 is dismissed.
  2. Appeal 991 of 2018 is dismissed.
  3. Appeal 992 of 2018 is dismissed.
  4. Appeal 994 of 2018 is dismissed.
  5. Appeal 1183 of 2018 is dismissed.
  6. I will hear from the parties, if necessary, as to any consequential orders.

Footnotes

[1] Exhibit 4.05 at pp 7 – 8.

[2] See generally Exhibit 2.01 at pp 1 – 3.

[3] A more detailed analysis of community based infrastructure is set out in the JER of the social planners in Exhibit 5.08 at pp 14 – 17.

[4] Exhibit 7.11.

[5] The details of each of the 6 DA’s are set out in Ex 5.08 at p 10 and Ex 5.16 at pp 12 – 13.

[6]See for example Exhibit 2.02.

[7] Exhibit 1.03.

[8] Exhibit 5.16 at p 56, para 176.

[9] T1-32 at lines 13-22.

[10] Exhibit 5.16 at pp 43-44, paras 122 to129.

[11] Written Submissions on behalf of the Appellant at pp 18 – 19, [54] and [57].

[12] Section 5(1) of the Planning Act 2016 (Qld).

[13] [2019] 239 LGERA 409 at [60].

[14] [2019] QPELR 793 at [51].

[15] (2020) QPELR 328 at [19]-[22].

[16] Footnotes omitted, emphasis added.

[17] [2020] 48 QLR at [62]-[63].

[18] Ex 5.14 at p 4.

[19] Ex 5.15 at pp 6 – 7.

[20] Ibid.

[21] Ex 5.18 at p 10.

[22] Ex 5.18 at pp 1 – 6.

[23] T15-49.

[24] Exhibit 6.08 at p 8.

[25] T14-57.

[26] Witten Submission on behalf of the Council at p 188, [508].

[27] T16-44 at lines 23-46.

[28] T14-61 at lines 31-45 and T14-64 at lines 10-12.

[29] Exhibit 5.05 at p 65.

[30] Exhibit 5.16 at p 117.

[31]Exhibits 5.04 and 6.06 respectively.

[32] T11-35 at lines 1-5.

[33] T13-44 at lines 1-5 and T14-2 at line 35 to T14-3 at line 4. See also Exhibit 4.9.

[34] T14-21 at lines 16-23.

[35] T 14-15.

[36] T2-29, see also development plans per Exhibit 2.01 at pp 1 and 10-25.

[37] Exhibit 6.13 at pp 10 – 11.

[38] Exhibit 6.13 at p 16; see also T2-106 at lines 1-27.

[39] T4-6 at line 30 per Professor Carrick.

[40] T2-40 at lines 10-19.

[41] Exhibit 6.13 at pp 14-15; see also Exhibit 7.04.

[42] T2-106 at line 25.

[43] T2-54 at lines 5-23.

[44] T4-24 at lines 31-35.

[45]For example, with the inclusion of fencing, signage, traffic speed control and calming etc. 

[46] See Exhibit 2.01 at p 3.

[47] Exhibit 4.01 at p 149, section 3.14.9.4. Under the emerging community zone transition precinct, residential density of up to 45 dwelling per ha is contemplated; see Exhibit 4.01 at p 406.

[48] T16-39 and T16-40 at lines 1-30.

[49] T16-60 at lines 7-17.

[50] T2-97 at lines 40-46.

[51] T3-48 at lines 35-40.

[52] T3-29 at line 38 to T3-30 at line 2. 

[53] T3-66 at line 43 to T3-67 at line 9.

[54] T2-96 to T2-97.

[55] Exhibit 4.01 at p 427, PO 47 and p 429, PO 57(a).

[56] Ibid at p 432, PO 64.

[57] Ibid at p 406, ss 9.4.1.2(2)(e) and (h) and at p 299, s 6.2.3.2.2(1)(r).

[58] T2-35 at lines 1-40, T2-36 to T2-37 and T2-27.

[59] Exhibit 4.04 at p 156.

[60] Ibid at p 171.

[61] Exhibit 4.01 at p 236.

[62]Refer to Exhibit 8.14.

[63] T9-18 at line 40 and T9-20 at lines 30-35.

[64] T16-20 at lines 21 to 25.

[65] T16-57 at lines 38-42.

[66] Exhibit 6.03 at p 11, para 29.

[67] T9-19 at lines 1-3 and T9-20.

[68] Exhibit 5.01 at pp 8 and 9.

[69] Ibid at p 9.

[70] Exhibit 6.01 at p 12.

[71] T12-43 at lines 1-7 per Mr Duane and T13-5 at lines 18-38.

[72] T13-6 at lines 12-22.

[73] T12-8 at lines 41-47 to T12-9 at lines 1-5.

[74] T12-43 at lines 18-20. See also Exhibit 8.30 at p 69.

[75] T12-37 at lines 12-17.

[76] See Exhibit 8.30.

[77] Ibid at p 64.

[78] Ibid at p 69.

[79] Exhibit 8.3.1.

[80] Regional Growth Management Strategy 2041.

[81] Written Submissions on behalf of the Appellant at p 161, [359] and [360].

[82] Exhibit 6.01 at p 5.

[83] Written Submissions on behalf of the Council at p 23, [65].

[84] Exhibit 5.16 at p 43.

[85] Written Submissions on behalf of the Council at p 29, [81].

[86] Exhibit 4.01 at p 406.

[87] Ibid at p 60.

[88] Exhibit 4.01 at p 93.

[89] Ibid at p 95.

[90] Ibid at pp 235-236. (Note: To a similar effect are a number of the goals of the SEQ Plan (2017) at Exhibit 4.0 including Goal 1 at p 128, Goal 4 at p 170, Goal 4 at p 171 and Goal 5 at p 182).

[91] T16-61 at lines 20-37.

[92] Exhibit 5.16 at pp 41 – 42.

[93] T16-21 at lines 1-7.

[94] See Exhibit 5.10 at p 16 and T5-53 at lines 27-30. In this context, I do not take Mr Natoli’s evidence to be limited to parks and open space.

[95] SEQRP goal 4, Element Strategies (1) and (2).

[96] Exhibit 4.01 at pp 235-236, section 6.2.3.2(2)(b).

[97][1990] QPLR 209, 211.

[98] (2001) 117 LGERA 153 at [59].

[99] (2008) QPELR 608 at [55].

[100] Bell v Brisbane City Council [2018] 230 LGERA 374 at 391; Gold Coast City Council v K & K (GC) Pty Ltd [2019] 239 LGERA 409; Abeleda & Anor v Brisbane City Council (2020) QPELR 697.

[101] T16-14 at lines 1-4, T16-52 at lines 3-5 and T16-61 at lines 20-37.

[102] [2020] 48 QLR at [62].

[103] Written Submissions on behalf of the Appellant at pp 183 – 184, [434].

[104] From Mr Duane’s Individual Statement of Evidence.

[105] See MBRC planning scheme sec 3.6.1(3).

[106] See MBRC planning scheme sec 3.6.6(1).

[107] See MBRC planning scheme sec 6.2.3.2(2)(b).

[108] See MBRC planning scheme sec 6.2.3.2.1(1)(b).

[109] Items (iii), (iv), (vi), (vii), (viii), (is), (xii) and (xiii).

[110] Item (xi).

[111] Items (v) and (x).

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Editorial Notes

  • Published Case Name:

    Traspunt No. 14 Pty Ltd v Moreton Bay Regional Council

  • Shortened Case Name:

    Traspunt No. 14 Pty Ltd v Moreton Bay Regional Council

  • MNC:

    [2021] QPEC 4

  • Court:

    QPEC

  • Judge(s):

    R S Jones DCJ

  • Date:

    02 Mar 2021

Appeal Status

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