Cheep Stays Pty Ltd v Ipswich City Council
[2024] QPEC 34
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- Cheep Stays Pty Ltd v Ipswich City Council[2024] QPEC 34
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Cheep Stays Pty Ltd v Ipswich City Council[2024] QPEC 34
Cheep Stays Pty Ltd v Ipswich City Council[2024] QPEC 34
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
CITATION: | Cheep Stays Pty Ltd v Ipswich City Council [2024] QPEC 34 |
PARTIES: | CHEEP STAYS PTY LTD (ACN 654 893 133) (Appellant) v IPSWICH CITY COUNCIL (Respondent) |
FILE NO: | 2553 of 2022 |
DIVISION: | Planning and Environment |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Planning and Environment Court, Brisbane |
DELIVERED ON: | 21 August 2024 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 23 to 26 July 2024 |
JUDGE: | Kent KC DCJ |
ORDER: |
|
CATCHWORDS: | PLANNING AND ENVRIONMENT – APPEAL – Where the appellant appeals against Council’s refusal of a development application for a proposed use of land as a camping ground – Where the primary reason of refusal is flood risk – Where other reasons for refusal include inappropriate outcomes in terms of amenity, inconsistency with planning intent for the land and locality, and insufficient need – Where the court had permitted a change to the previous proposal – Where consistency with a draft planning Scheme is relevant – Where the proposed development is impact assessable – Where land is within the recreation zone – Where a flood emergency management plan is proposed as condition of approval – Whether the development should be approved in the exercise of the court’s discretion, having regard to amenity, land use, need and the draft Scheme |
CASES: | 427 Beckett Road Pty Ltd v Brisbane City Council (No 2) [2024] QPEC 24 Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16 Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253 Cleanaway Solid Waste Pty Ltd v Ipswich City Council & Ors [2023] QPEC 26 Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117 Indooroopilly Golf Club v Brisbane City Council (1982) QPLR 13 Intrafield Pty Ltd v Redland Shire Council [2001] QCA 116 Isgro v Gold Coast City Council [2003] QPELR 414 Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46 NL Varsity Nominees Pty Ltd v Gold Coast City Council [2022] QPEC 29 Pynhall Pty Ltd v Logan City Council (2024) QPEC 11 Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Ltd v Fabcot Pty Ltd & Ors (2022) QPELR 309 |
LEGISLATION: | Planning Act 2016 (Qld) ss 45, 60 Planning and Environment Court Act 2016 (Qld) ss 43, 45, 46 |
COUNSEL: | K Wylie with W Macintosh for the Appellant B Rix for the Respondent |
SOLICITORS: | Minter Ellison for the Appellant Ipswich City Council Legal Services for the Respondent |
Introduction
- [1]This is an appeal against the respondent’s refusal of a development application for a proposed use as a camping ground in respect of land located at 84 Chubb Street, One Mile. One Mile is a suburb of Ipswich which is relatively close to the Ipswich CBD, being approximately three kilometres therefrom in a south westerly direction. It is more particularly described as Lot 800 on SP207272.
- [2]The land overall is a relatively large parcel, occupying approximately 6.6 hectares; although, the development application seeks approval in respect of a relatively small portion thereof. The footprint of the proposed development is approximately 15,222 square metres comprising of 46 camping sites, 16 of which have power supplied to them. The restricted number of powered sites is partly intended to reduce the occupants’ use of air conditioners in their caravans, which in turn reduces the noise impacts on neighbours. There is an internal road network making use of existing road infrastructure, previously built for another proposed development which did not proceed. The proposal includes a detached building for a communal area and amenity facility, as well as a separate office building. There is an existing building already on the site nearby, which was previously in use as squash courts. The development is also to include outdoor communal recreation areas and a formalised playground. Landscaping is proposed, including an acoustic barrier at the northern and western boundaries of the site.
- [3]The previous proposal was changed pursuant to an order of 5 March 2024 to its present form. The application required impact assessment under s 45(5) of the Planning Act 2016 (“PA”) because the land is within the recreation zone of the Ipswich Planning Scheme 2006 (Exhibit 3.03) (“the Planning Scheme”). The appeal also involved discussion of the draft Planning Scheme, the Ipswich Planning Scheme 2024 (“the draft Scheme”).
- [4]During the impact assessment process, there were 57 properly made submissions in respect of the proposed development and these are in evidence. None of the submitters became a party to the appeal, and none of them gave evidence. As outlined above, the proposal has changed since public notification.
- [5]The appeal is resisted by the respondent which argues broadly that: the proposal does not satisfactorily address the flood risk inherent in the proposal and the land; it does not achieve an appropriate outcome in terms of amenity; it is contrary to the planning intent for the land and locality; and there is insufficient demonstrated need.
The Site and Surrounding Area
- [6]The site is briefly described above. The suburb of One Mile, and the subject land in particular, form something of a peninsula, in the sense that the land is enclosed by an arc of the Bremer River. Although it has been previously filled, the land, as well as the surrounding area, represents a flood risk, discussed in more detail below. The land contains limited significant vegetation. The northwestern corner, where the proposed development is to be sited, is generally flat, with a gentle slope from the Chubb Street frontage. The existing infrastructure is a sealed road with curb and channel, street lighting and underground services. It is connected to or capable of connection to essential services from the Chubb Street frontage.
- [7]The land is bordered by residential uses and vacant land to the north; parkland and the Bremer River to the east; and five detached houses on variously sized lots and open space to the south. Its western frontage to Chubb Street is approximately 100 metres. The land to the south (the southern part of the peninsula) includes softball fields and a greyhound track, consistent with the zoning,
- [8]The land is subject to flooding, becoming inundated at about the 2% AEP (Annual Exceedance Probability, a measure of likelihood); a one in 50 year event. The land and the entire One Mile suburb become isolated in more frequent events, namely the 10 % AEP, a one in 10 year event; see Exhibit 4.06, the second joint expert report on flooding (“flooding JER 2”) page 3, para 15.
Relevant Principles
- [9]The appeal is to be decided under the PA and the Planning and Environment Court Act 2016 (“PECA”). Section 43 of PECA provides that the appeal is a hearing anew and the appellant bears the onus of establishing that the appeal should be allowed (s 45(1)). In such an appeal, the Court effectively is in the shoes of the assessment manager (s 46(2)(a)).
- [10]As the proposed development was impact assessable, under ss 45(5) and 60 of the PA, assessment is to be carried out against the assessment benchmarks in the Planning Scheme in effect at the time of the making of the application; any matters prescribed by regulation; and regard may be had to other “relevant matters” other than a person’s circumstances, financial or otherwise (s 45(5)(b) PA).
- [11]The nature of the jurisdiction of this Court on appeal may be described as a broad and flexible discretion where any non-compliance with the Planning Scheme has to be balanced against factors in favour of approval of the development (see 427 Beckett Road Pty Ltd v Brisbane City Council (No 2) [2024] QPEC 24 at [16] and the cases there mentioned).
- [12]This was similarly summarised in Trinity Park Investments Pty Ltd v Cairns Regional Council & Ors; Dexus Funds Management Ltd v Fabcot Pty Ltd & Ors (2022) QPELR 309, by Brown J (as her Honour then was) at [180]:
“The process adopted by a decision-maker may now be one which involves balancing a number of factors to which consideration was permitted under s 45(5) of the Planning Act in making a decision under s 60(3) of the Planning Act where the factors in favour of approval have to be balanced with the factors in favour of refusal of the application. The weight that is given to each factor is a matter for the decision-maker.”
- [13]Further, flexibility, rather than blind adherence, to parts of planning schemes may sometimes be appropriate to better serve the public interests; Murphy v Moreton Bay Regional Council & Anor; Australian National Homes Pty Ltd v Moreton Bay Regional Council & Anor [2019] QPEC 46 at [18]. The decision has been described as a “broad, evaluative judgment”; Brisbane City Council v YQ Property Pty Ltd [2020] QCA 253 at [59].
Planning Designation of the Land
- [14]Under the Planning Scheme, the appellant’s land is partly within the recreation zone and the balance is within the large lot residential zone. However, the portion which is the site of the present application relates to land which is (presently) within the recreation zone. It is located in or subject to a number of overlays, including the adopted flood regulation line overlay. It is designated by the Local Government Infrastructure Plan (“LGIP”) as containing a “future park”, being a “sports ground”, in the southern part of the land (see Exhibit 1.01, the Book of Plans, at page 6).
- [15]Relevant assessment benchmarks are argued to include the desired environmental outcomes, the urban areas code, the development constraints overlays code and the residential code.
- [16]Also relevant is the State Planning Policy 2017, including assessment benchmarks relating to natural hazards, risk and resilience (Exhibit 3.01 at page 52).
- [17]The draft Scheme is at a relatively advanced stage of development and is thus relevant. This would change the recreation zone to the southern part of the site and the relevant area for the proposed development would then be in the environmental management zone (see Exhibit 1.01, The Book of Plans, at page 7). The land would also be subject to a number of overlays, including flood risk and over land flow and the regional infrastructure overlay. The land is to be designated by the draft LGIP as containing a “future city-wide sports park” in the southern part of the land and a small “future linear park” in the south-eastern corner.
- [18]The draft Scheme is argued by the respondent to be relevant in the sense that it continues and arguably strengthens some planning themes which are said to be relevant, particularly the importance of flood risk and hazards, which is said to be a serious concern, and that this locality is not suitable for the proposed development. The appellant argues otherwise, which gives rise to consideration of what is often referred to as the Coty principle (Coty (England) Pty Ltd v Sydney City Council (1957) 2 LGRA 117). The appellant argues that, in the application of this principle, the draft Scheme does not negatively impact on the merits of the proposal.
- [19]The principle is: that to ignore a draft plan may frustrate and tend to diminish public confidence in the planning process. Thus, the first public interest consideration is the avoidance, as far as possible, of a judgment which will render more difficult the ultimate decision as to the form the planning scheme should take. Secondly, the judgment should be arrived at, as far as possible, in consonance with town planning decisions which have been embodied in the new planning scheme in the course of preparation (see generally Brisbane City Council v YQ Property Pty Ltd, supra, at [21]-[24]). The appellant argues that neither of these considerations are transgressed by the proposal.
Issues: Flooding and Evacuation
Residential use?
- [20]The parties were sharply divided on the flooding issue and its various aspects. One aspect of the argument is that the appellant styles the respondent’s experts as unfairly characterising the proposal as involving a residential use, which is not suitable given that the land is subject to flooding. According to the appellant, the issues arising from the proposal are somewhat more nuanced in comparison to a residential house. In the case of this proposal, “residents” or occupants of the site – particularly those towing caravans – in the event of a flood emergency can simply attach their caravans to their vehicles and drive off to safety. The whole essence, indeed raison d’etre, of the caravanning lifestyle is mobility and lack of connection to any particular place. Even those in tents can simply pack up and leave. This is quite different, so the appellant argues, from the problems confronting occupants of residential houses, who can’t move all their possessions at short notice and have a greater connection – logistical and emotional – to their (immovable) home and thus its location. On this point, I conclude that the use is residential, but recognise the distinctions from a normal residential housing subdivision.
Time to respond to flooding events
- [21]The appellant, particularly its flood expert Mr Giles, contends that because of the relatively large catchment area of the Bremer River, it takes a considerable period to respond to rainfall and a considerable amount of rainfall for flooding to occur, with the result that there is significant warning time prior to elevated levels occurring in the Bremer River. Further, regular flood forecasts and warnings would realistically be expected in a relevant flood event (see Exhibit 4.07, the separate report of Mr Giles, particularly at page 11). Thus, there is time for occupants to respond to a potential flood.
Mitigation of risk
- [22]The proposal seeks to mitigate the flooding risk by, firstly, requiring the permanent buildings to be above the level of defined flood and to be otherwise flood resistant. Secondly, by requiring the occupants (who are to remain onsite for stays not exceeding 60 days) and their possessions to be movable at short notice. All caravans are to be road registered and kept in serviceable condition, and visitors must have a motor vehicle that can remove the caravan or tent during an emergency. Thirdly, by evacuating the site in a flood event in accordance with the provisions of the Flood Emergency Management Plan (“FEMP”) (Exhibit 5.02).
- [23]The FEMP provides for a number of measures, including a warning sign at the entrance to the site to warn occupants of the risk of flooding and the possibility of evacuation. There is also to be electrically operated signage to indicate the current status, including a flooding alert, flood warning and a site evacuation. The site is to be equipped with a loudspeaker system to allow the manager to communicate generally. There is also to be a notice handed out to occupants upon entry indicating the potential problem (the example provided states that flooding occurs at a one in 50 year event and the last time the site flooded was 1974), including the arrangements for the alert stage, the warning stage and the evacuation stage, and indicating that the site manager will keep occupants informed. The plan generally involves the site manager being on alert and keeping occupants informed, and preparing for site evacuation when necessary. At the warning stage, the site manager again warns all occupants of the need to pack up and be ready to evacuate if ordered to do so. At the withdrawal stage, the site manager will advise occupants of available evacuation centres and order the evacuation of the site which, when evacuated, will be closed. The plan sets out trigger levels for the varying stages based on the actual river levels. The plan anticipates that the Ipswich Showgrounds – which is flood immune – will be the primary evacuation centre.
- [24]Mr Prentice, the flood expert for the Council, agrees with the proposed trigger levels and accepted the approach set out in the FEMP. His opposition to the FEMP was not really as to its contents, but, rather, because of his concern that the trigger levels would be exceeded frequently (on average, once every two years), leading to complacency in the operators, which may reduce the effectiveness of the FEMP. The appellant argues the court should proceed on the assumption that its conditions of approval, including the FEMP, will be followed. Thus, overall, the risk is mitigated to an acceptable level.
Approach to examination of flood risk
- [25]The appellant’s case is that, while the development is to take place in a flood hazard area, the proposal as presently formulated mitigates the risks to people and property to an acceptable level, consistent with the relevant assessment benchmarks; further, that the uses and works are designed such that risk to property, health and safety is minimised (s 11.4.3(2)(b) of the Scheme); and, generally, the proposal is consistent with the State Planning Policy and the Planning Scheme Flood Benchmarks. The appellant refers to a formulation from Pynhall Pty Ltd v Logan City Council (2024) QPEC 11 at [51] as to the examination of flood risk:
“(a) caution, and a careful approach, is appropriate where matters of public safety are involved;
- (b)the presence of risk does not, in and of itself, call for a nervous approach or intolerance;
- (c)the attractions of avoiding responsibility for allowing a proposal which has an element of serious risk, while only too obvious, must be resisted because to adopt such an approach would be superficial and an abrogation of the judicial function;
- (d)the standard to which the Court must be satisfied that a development will not be a source of unacceptable risk is the civil standard, namely a degree of persuasion of the mind according to the balance of probabilities; and
- (e)the assessment of risk and its acceptability calls for an examination of:
- (i)the nature and extent of the risk; and
- (ii)the means by which the risk is proposed to be addressed.”
I respectfully adopt this as a sensible, measured and balanced approach which should be followed.
- [26]The appellant argues that the risk is not a frequent occurrence; the land is accessible, and the powered sites are immune from flooding up to a one in 50 year flood event. In larger flood events, Chubb Street is progressively inundated up to a point when it is no longer trafficable and eventually the site is inundated. The risk is mitigated by the measures set out at [22]-[23] above. These measures are said to reduce the risk to an acceptable level.
Respondent’s position
- [27]The respondent says that the risk of placing residents in a flood zone should be avoided rather than mitigated. It also relies on the above concern as to complacency, which is argued to potentially erode the effectiveness of the FEMP. Further, the respondent points out that the site can be classified as a “low flood island”; that is, an area that is first isolated by flooding and then fully inundated. This is said to produce the risky scenario that people are not forced off the land by floodwaters at a time when it was safe to leave, in that once the subject site becomes inundated, Chubb Street is no longer trafficable. This requires people to evacuate before the loss of access, at a time when the site itself is not inundated, and thus there is an absence of visual cues as to the urgency of the problem. This is of course a legitimate concern which is intended to be addressed by the vigilance of appropriately chosen and trained management staff adhering to the FEMP.
- [28]Further, in the worst type of flood event, the water would be very deep with a velocity of 1.2 metres per second, which is quite unsafe.
- [29]Thus, the respondent says that the planning intent is opposed to such development within flood affected areas, such as this, and the land should be put to less risky, non-residential uses, such as recreation.
The weight of the risk of complacency as a relevant factor
- [30]The respondent acknowledges that, generally, courts proceed on the basis that a FEMP, which is put in place by way of being a condition of the approval, will be complied with, although in a particular case there may be a basis to conclude otherwise. Indeed, were the system to assume otherwise, it is questionable what value such plans would have. The Court should proceed upon such a presumption (see e.g. Cleanaway Solid Waste Pty Ltd v Ipswich City Council & Ors [2023] QPEC 26 at [315]). There was no particular evidence led in this case to establish a proper basis to conclude otherwise. For example, there was no evidence that caravan park occupants, as a group, have a tendency to ignore evacuation warnings; nor that caravan or camping ground managers, as a group, have a particular susceptibility to complacency. Presumably, the operator would seek to employ a competent, responsible and sensible person when choosing a manager.
NL Varsity Nominees
- [31]The respondent, in contending that the risk is not acceptably mitigated, refers to NL Varsity Nominees Pty Ltd v Gold Coast City Council [2022] QPEC 29 including at [91](d). This is argued to be a similar case where I concluded that the risk was not mitigated to an acceptable level. There were, however, significant differences from the present case:
- Unlike the present case, it involved a 17-story high rise building intended for use as a retirement village. It was to be situated on the banks of, and indeed overhanging, the Robina Lake. Access to the building was cut off in a Q10 event;
- The plan for the use, as a retirement village, was to have a minimum entry age. However, as the judgment sets out, there was no maximum age for residents; they were not to be asked to leave when they became old and infirm. The cohort of the residents was thus older and aging. There is no evidence to similar effect as to the characteristics of likely occupants in this case;
- The life of that development (involving the construction of a 17 storey building at significant expense) was projected to be 70 to 80 years, a lengthy period during which a number of severe flooding events may occur and a severe flooding event was potentially catastrophic;
- The plan for evacuation (of presumably elderly and likely unwell residents) during a time when the building was isolated by floodwaters was for a helicopter to land on the roof, however the availability of a helicopter with medical staff was doubtful (at [86]), and;
- There was expert evidence in particular from an appropriately qualified and experienced emergency management disaster risk reduction expert who addressed the risks presented by the development and as attempted to be mitigated by the relevant plans. There is no evidence of that kind in this case.
- [32]The Council also embraces comments from that case to the effect that human response to serious emergencies is variable and to a degree unpredictable, and the residents and others may, over time, become desensitised to the plans. However, the present case does not deal with a retirement village with a specifically older and aging cohort; the residents would be constantly changing and would not have the repeated exposure to become desensitised to the plans. There is no proven reason to assume complacency by management staff, and evacuation, as outlined above, is altogether much simpler than in NL Varsity Nominees. It is much easier for (presumably) relatively able bodied caravanners or campers to put their vehicles to their intended use and leave, rather than organising a medically-supported helicopter rescue from the roof of a high rise building during a flood, when there may well be multiple demands for helicopter rescues across the flood affected area (see NL Varsity Nominees at [58]).
- [33]Overall, in my view, NL Varsity Nominees, whilst it has some commonalities is not – as the Council submits – “remarkably similar” to the present case, such that the same result should follow.
Conclusion Regarding Flood Risk
- [34]Overall, my conclusion is that the flood risks are mitigated to an acceptable level by the proposal. It is correct, as Mr Prentice (the flooding expert for the Council) observes, that the proposal represents an intensification of residential uses into a region of the flood plain. Further, the suburb of One Mile does have some evacuation constraints and becomes isolated from the remainder of the Ipswich area in significant flood events. It is important that the FEMP deals with these issues and can be implemented to effectively have occupants leave the site – whether they go to the evacuation centre or other high ground – to appropriately manage and minimise the associated risks.
- [35]However, I accept the evidence of Mr Giles, the flood expert for the appellant, that the time available for preparation and evacuation of the site is sufficient. The nominated requirements for management of the site are appropriate and represent an appropriate overall response to the risk. These include: induction and staff training; signage and handouts; definition of tasks to be undertaken at each nominated stage; monitoring and record keeping; and revision of the plan over time. Mr Giles sets out in his separate report the way in which the various assessment benchmarks are satisfied. I accept his expressed opinions that, overall, in the context of the risk mitigation steps, the proposed development presents a relatively low risk. As Mr Giles explains, evacuation of the site is relatively straight-forward due to its nature, and the characteristics of the occupants. The warning time available for evacuation is ample. The site has a relatively high level of immunity. The risk to property associated with a failed evacuation is low due to people not being permanent residents and being able to take possessions with them. Although there is a risk to life in the event of a failed evacuation, coinciding with a rare flood event, this can be appropriately managed by the operation of the proposed development in accordance with the FEMP implemented by full-time on-site staff. Due to the ability to evacuate the site, there is no expected additional burden placed upon disaster management/recovery effort resources.
- [36]Overall, I accept that the relevant risks are appropriately mitigated to an acceptable level, and I accept this proposition, consistently with the quoted guidelines from Pynhall Pty Ltd above, to the civil standard, namely to the balance of probabilities.
- [37]Accordingly, it follows that, in my conclusion, the relevant risk can be appropriately mitigated to an acceptable level and, therefore, flood risk does not amount to a reason to refuse the proposal.
Amenity
Noise
- [38]The parties each retained an expert on noise, as this is a feature of the proposal which could impact on amenity from the viewpoint of the neighbouring properties. Some of the features of the proposal include a 1.8 metre high acoustic barrier along part of the northern and western boundaries; a 2 metre acoustic barrier along the northern edge of sites 7 to 15; a 3.5 metre acoustic barrier along the northern, western and southern edges of the refuse area; and a floor to ceiling barrier on the northern edge of the proposed roofed communal area. As noted above, it is also proposed that the number of powered sites be limited in order to restrict the number and location of sites potentially using air conditioners. The experts agree that the development can operate without adversely impacting on the amenity of nearby sensitive uses. This depends on a number of requirements as conditions of the approval, including: adoption of the Assured Environmental Report; restricting the hours of refuse collection; and restricting the hours of guest check in, as well as the barriers mentioned above. The experts agree that acceptable acoustic amenity outcomes can be achieved pursuant to the various planning schemes and other assessment criteria.
Visual amenity
- [39]As to visual amenity, this is addressed by installing a new solid front fence with inbuilt acoustic qualities, together with a 6-metre wide landscape buffer at the frontage. This is consistent with the appearance of densely landscaped frontages to the north. Further, removing housing pads from the north-west corner of the development area and replacing them with open space is suggested to maintain a sense of “openness” at the frontage. These measures are said to promote and blend with the visual qualities of the existing streetscape and neighbourhood. Thus, the development is said to be compatible with other uses and works without detracting from the residential character and amenity of the area.
- [40]Dr McGowan, the visual amenity expert for the Council, does not differ from the above conclusions, although he does recommend some improvements to the existing building on the site to improve its compatibility with the housing of the area. He also expresses the belief that there should be a limit to the extent and scale of signage at the entrance of the development. I note this might be a potential tension with the FEMP, in the sense that, depending on the final form of any conditions of approval, it may be desirable to have the sign contemplated by the FEMP – warning as to flooding risk – to be relatively large and possibly illuminated. One possible solution might be that this should be somewhere immediately inside the entrance rather than being at the property alignment, such that it was publicly visible. This may be an area for negotiation between the parties as to conditions.
- [41]In the above context, the Council understandably does not point to noise or visual amenity as a reason for refusal. Rather it refers to previous authorities to the effect that the concept of amenity is a wide and flexible one and may be concerned with the look, feel and perception of the environment, considered in a cumulative fashion. Thus, people in the area will be able to hear the use, at least to some extent; will be able to see it; and, importantly, will know that the use is there.
- [42]The Council refers to some of the evidence of its town planning expert, Mr Gaskell, to the effect that the proposed use tends to contrast with the amenity and character of the area, saying that it represents high intensity 24/7 activity. He expresses doubt as to the restriction of power to only 16 specific sites and queries whether there would be use of generators. The appellant’s point in relation to this is that if there were any detrimental unacceptable impacts on amenity associated with the intensity of the development, this would manifest in adverse impacts upon the neighbouring uses, whereas, in this case, the evidence as outlined above is that there are no such impacts.
- [43]It is no doubt correct, as the Council advances, that in some circumstances merely knowing that the relevant use is there can amount to an impact on the amenity of the surrounding area. One can think of extreme examples, such as a nuclear power station or a correctional centre next door, which would be concerning (although they would of course be inconsistent uses). Whilst I accept that some local residents may be discomfited by the awareness that a camping ground is in their suburb, overall it appears to me that the appellant’s argument is well made; where noise amenity and visual amenity do not negatively impact surrounding properties, it is difficult to conclude that amenity (dread of a development which is neither excessively noisy nor ugly) rises to the level of a reason for refusal.
- [44]The appellant understandably refers to the conclusions of Mr Ovenden, its planning expert, to the effect that the proposal is of a responsive design that considers the existing residential amenity and streetscape character of the area. It is modest, small scale and complementary to the setting. It is internally orientated and includes generous landscaping and open space, and, overall, there is a pleasant environment internal to the site whilst maintaining a level of amenity afforded to external residents. Moreover, the proposed campground promotes residential activity and, in that sense, is consistent with the character of the nearby residential zone, albeit the use is somewhat more intense in terms of the number of occupants. In all of these circumstances, amenity does not amount to a reason for refusal.
Land Use
- [45]The proposed development is within the definition of “camping ground” according to the Scheme; see Schedule 1 to the Scheme which sets out the Dictionary and “camping ground” is defined in Division 2 – Administrative Terms. This is one of a number of provisionally consistent uses that may be accommodated within the zone of a type and scale appropriate for the prevailing nature of the area and the particular circumstances of the site and its surrounds; see s 4.17.5(2)(p).
- [46]The relevant assessment benchmarks require, for this kind of development, “a high standard of amenity in residential areas and uses and works in these areas are compatible”; s 4.3.2(2)(i). Further, residential uses and works “maintain, and where possible enhance, residential amenity both internal and external to the site”; s 12.6.3(2)(a)(ii).
- [47]In this context, it is relevant that the proposal appropriately addresses the flood risk as set out above. Further, visual and noise amenity do not represent reasons for refusal.
- [48]The respondent makes the point that, in terms of s 4.17.2 of the Scheme, which sets out overall outcomes for the recreation zone, it does list certain kinds of overall outcomes in sub-sections (2)(a), (b), and (c), and the proposal, for a camping ground, is not within the explicit list of overall outcomes for the zone. Nevertheless, it is, as outlined above, a provisionally consistent use. The appellant’s response to this point is that those provisions refer to overall outcomes for the entire recreation zone, rather than each particular site within the zone. Thus, the broader overall outcomes would only be of particular relevance if the proposal meant that those overall outcomes for the zone could not be achieved. This is not such a case.
- [49]The Council points to a number of concerns expressed by Mr Gaskell, its town planning expert. These include that the proposal removes the opportunity for recreation uses on the site, which is an important planning objective. The appellant’s response is that the Scheme does not require such a use on every parcel of land within the zone and the use is in fact consistent, as outlined above.
- [50]Mr Gaskell was concerned about the proposal’s higher intensity use compared to the surrounding residential area. The appellant’s response is that the Scheme simply requires development to be of a “type and scale appropriate for the prevailing nature of the area”, and this proposition is established by the evidence concerning noise and visual amenity. Mr Gaskell accepted that a question of compatibility with the northern adjoining residential uses was relevant, and the appellant argues that it is indeed compatible for the reasons outlined above.
- [51]The appellant argues that, in terms of the requirements of s 4.17.5(2)(p) of the Scheme, for the use to be consistent in the recreation zone, the proposal is appropriate:
- Where the site makes use of existing infrastructure; appropriately deals with flood risk; includes the establishment of landscaping and acoustic fences to appropriately maintain and enhance residential amenity; and there is no vegetation of ecological value requiring protection; and
- In the context of its surrounds, where it is a lower intensity use providing an appropriate buffer between the low density residential to the north and the existing and planned sporting facilities to the south. It complements the proposed sporting facilities while responding to a need for development of its type.
- [52]In my conclusion, applying the specific outcomes for consistent uses in s 4.17.5 of the Scheme and, in particular, (2)(p), the proposal is consistent with the outcomes sought for the recreation zone, in that it is of a type and scale appropriate for the prevailing nature of the area and the particular circumstances of the site and its surrounds, as outlined above. This is particularly so where the amenity concerns are appropriately addressed.
The Draft Scheme
- [53]As outlined above, the draft Scheme, which is in a relatively advanced state of development, is relevant to the appeal and in particular is relied upon by the Council as a reason for refusal. It includes the subject land in the environmental management zone where, Mr Gaskell says, open spaces and low intensity uses are likely to be compatible with the intent of the zone. Thus, it is said that the proposal is inconsistent with the land use and planning envisaged by the draft Scheme.
- [54]The appellant relies upon the Coty principle as outlined above. It argues that approval of the proposed development would not hinder the ability for the Council to implement the draft Scheme, and there is no evidence from any of the experts suggesting this. As to the northern part of the site, apart from the area of the proposed development, the balance of the eastern part of the land could well be put to ecological purposes consistent with the environmental management zone in the future. In relation to the southern part of the land, the proposed development does not inhibit the establishment of “a future city-wide sports park” thereon.
- [55]As to the second consideration in the Coty test, there is no new planning direction in respect of flooding identified by any of the provisions of the draft Scheme. The draft Scheme, similarly to the present scheme, acknowledges that the risk of flooding is significant and requires development to appropriately mitigate that risk. As set out above, my conclusion is that the development does so.
- [56]In my conclusion, the proposal is consistent with current land use, planning and the draft Scheme. The land use does not represent a reason for refusal of the proposed development.
Need
- [57]The question of need related to planning cases such as this has been examined in a number of authorities. Generally, a need, which is relevant to the application of the relevant principles, must be a genuine and not a contrived one, but does not necessarily amount to a pressing or critical need or even a widespread desire (Isgro v Gold Coast City Council [2003] QPELR 414 at [20]). Need describes a facility which will improve the ease, comfort, convenience and efficient lifestyle of the community (supra at [21]).
- [58]The economist for the appellant, Mr Duane, analysed the question in terms of the number of sites per capita of population as a benchmark. This shows that the number of sites per capita available in the Ipswich local government area is significantly less than the Queensland average, which is said to represent a need for this type of development. Mr Duane also identified that population, understandably, is growing within the Ipswich area and the caravanning and camping industry is growing within Australia, indicating a growing need for accommodation facilities, including campgrounds. He also noted that there are limited facilities available in close proximity to the Ipswich CBD, although I am not sure that this is a particularly relevant feature. He also opined that the land is well located to a range of tourist and recreation facilities including adjoining sporting fields and other features, as well as existing and proposed infrastructure. Thus, his opinion is that the proposal adds to the diversity and choice of campgrounds in the Ipswich area.
- [59]It seems to be common ground that the number of registered caravans and campervans in Queensland and Australia has grown in the last five years.
- [60]Mr Brown was the economist called by the Council. He notes that the Council has strategies to increase outdoor recreation and physical activity, as well as economic development and tourist attractions. The Open Space and Recreation Strategy 2014 identifies relevant areas for investigation as potential sites for nature-based recreation, and one of those, the Hidden Vale Resort, has seen development interest in an application and subsequent approval of temporary accommodation. There are several other sites identified by the strategy, other than the subject site.
- [61]Mr Brown points out that occupancy levels for unpowered campsites is low, and the majority of the sites for this proposal are unpowered. His view is that occupancy rates are anticipated to remain relatively low and the proposed development could have significant impacts on other facilities. However, he anticipates that the proposal would be more likely to underperform and potentially fail than have significant commercial impacts.
- [62]Mr Duane contests the assumptions made by Mr Brown and opines that in the context of growing population in Ipswich there is ongoing need for further camping and caravan facilities. Thus, Mr Duane opines that there is a community and economic need for the proposal whereas Mr Brown reaches the opposite conclusion, referring to caravanning and camping being largely regional rather than metropolitan areas of major cities. Further, the facility at Hidden Vale, which includes 99 sites, would result in a sharp reduction in occupancy rates. Thus, according to Mr Brown there is no real economic need for the proposal and the community need would be minor to moderate.
- [63]The appellant argues that Mr Duane’s analysis is more persuasive, being based on a qualitative as well as quantitative need analysis. The appellant commends the evidence of Mr Duane to establish that there is significant need for the development.
- [64]The Council refers to the principle that, in present context, the need identified must be a genuine rather than a contrived need (Indooroopilly Golf Club v Brisbane City Council (1982) QPLR 13 at 32-35). It is a relative concept and has a greater or lesser relevance depending on the circumstances (Intrafield Pty Ltd v Redland Shire Council [2001] QCA 116 at [20]). The Council commends the analysis of Mr Brown to support its argument that there is no identified need sufficient to warrant approval and indeed the lack of identified need tends to suggest the proposed use is of the wrong type and scale for the land and locality.
- [65]In my view, the competing bodies of evidence as to need are somewhat finely balanced and it is difficult to clearly resolve the differences between the experts. Overall, the evidence suggests that there is a need for the type of development represented by the proposal, although not a particularly pressing or critical need, nor even, as referred to in Isgro, a widespread desire. My conclusion is that the need which is established by the evidence is a factor which is slightly, not strongly, in favour of approval and certainly does not represent a reason to refuse approval.
Discretionary Matters
- [66]The appellant contends that the discretionary matters broadly favour approval if there is non-compliance with relevant planning controls. Reference is made to observations in Ashvan Investments Unit Trust v Brisbane City Council & Ors [2019] QPEC 16 at [67]. Thus, where a party contends that a non-compliance with an assessment benchmark warrants refusal, they must identify:
- The non-compliance alleged; and
- The planning basis relied upon to contend that the non-compliance warrants refusal in the exercise of the discretion under s 60(3) of the PA. His Honour continued “the second category of matters may be identified having regard to, inter alia, town planning principle and practice”.
- [67]The appellant argues that even if there are non-compliances with assessment benchmarks, these do not sound in any adverse town planning consequence, because:
- as to intensification of residential uses in a flood hazard area, this is acceptably managed by the FEMP and appropriate conditions ensuring its efficacy;
- there are no unacceptable amenity impacts, visual, acoustic or otherwise;
- the intent of the planning scheme with respect to the land is somewhat confused, in that the part of the land planned to contain a future sporting facility is not in recreation zone, but the site of the proposed development is. The proposal will not frustrate the future use of the land for the particular recreation purpose proposed; and
- the appellant argues that the discretionary matters set out in paragraphs 5(b) to (f) of the appellant’s list of issues have been made out on the evidence. These include: that the proposal will support tourism activity throughout the local government area; it will improve accessibility to the surrounding sporting and recreation facilities; the site is not identified in the scheme as being needed for specific future sport or recreation trunk infrastructure, and is not proposed to be in the recreation zone in the draft Scheme; it is an efficient use of privately owned flood constrained land; and it is complementary to and will support the use of surrounding sport and recreation facilities.
- [68]The appellant contends that there is a need for the proposal, as outlined above. Thus, overall, the proposal should be approved in the exercise of discretion even if there is a degree of non-compliance.
- [69]Conversely, the respondent argues that support for tourism activity is not an issue of substance to support approval where the development is otherwise non-compliant with the scheme. Future placement of the land in the environmental management zone, pursuant to the draft Scheme, does not contemplate the use of a caravan and camping park. The idea of complementing surrounding facilities is really just a restatement of need versus planning issues, which does not support approval. Overall, the significance of the flooding risk to both property and life is central and other matters do not overcome these risks.
- [70]Overall, the discretionary matters, in my conclusion, tend to favour approval of the proposal, particularly in light of the finding that, in relation to the major issue (that is, flooding risk), the risk is ameliorated to a sufficient extent by the measures proposed.
Conclusion
- [71]As outlined above, the major consideration in determination of the appeal is the analysis of the flood risk, considering that the land is susceptible to flooding and is being used for residential purposes. I accept that the relevant risks are appropriately mitigated to an acceptable level and thus flood risk is not a reason for refusal. Similarly, amenity, in the context of the expert evidence on the topic, does not amount to a reason for refusal. As to land use, the proposal is consistent with the outcomes sought for the recreation zone as it is of a type and scale appropriate for the prevailing nature of the area and the particular circumstances of the site and its surrounds.
- [72]The draft Scheme does not amount to a reason for refusal. In the application of the Coty principle, the proposal does not inhibit the ability of the Council to implement the draft Scheme and there is no new planning direction in respect of flooding identified by the draft Scheme. Similarly, the present scheme acknowledges that the risk of flooding is significant and requires development to appropriately mitigate the risk. As set out above, my conclusion is that the development does so. Thus, land use does not represent a reason for refusal.
- [73]As to need, the competing bodies of evidence on this topic mean that this issue is reasonably finely balanced. However, it does not represent a reason to refuse approval. Further, the balance of the discretionary issues, as set out above, tends to favour acceptance of the proposal.
- [74]In all the circumstances, my conclusion is that the appeal succeeds. The subject application is approved. I will hear the parties as to arrangements for negotiations and procedural steps as to concluding appropriate conditions of approval.