editorial board - Queensland Environmental Law Association

Transcription

ISSN 1323-7349
VOLUME 20
ISSUE 87
2014 / 2015
QUEENSLAND UNIVERSITY
OF TECHNOLOGY
EDITORIAL BOARD
Editor
Professor D E Fisher
Faculty of Law
Queensland University of Technology
Editorial Manager
Anne Overell
Casual Research Assistant
Faculty of Law
MEMBERS
Representing QELA
James Ireland
Shari Burke
Representing QUT
Douglas Fisher
Anne Overell
This publication should be cited as:
(2014/2015) 20 (87) QEPR 1
DISCLAIMER
Opinions published in The Queensland Environmental Practice Reporter do not necessarily reflect
those of the Queensland Environmental Law Association (QELA) or the Queensland University of
Technology (QUT) or the Editorial Board. No responsibility is accepted by QELA, QUT or the
Editorial Board for the accuracy or omission of any statement, opinion, advice or information.
SUBSCRIPTION CONTRIBUTIONS
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Please address all correspondence
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Please address all correspondence
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QEPR
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BRISBANE QLD 4001
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CONTENTS
CONTRIBUTORS…………….……………………………………. iii
EDITORIAL………………………………………………………. iv
DECISIONS OF COURTS AND TRIBUNALS
1.
The Planning and Environment Court …………………
2.
The Court of Appeal …………………….
PROFESSIONAL COMMENTARY AND CRITIQUE
1.
Environmental Extension in Queensland
2.
Reforming the Queensland Heritage Act 1992: Local Heritage Registers
– should decisions to list be appealable?
CONTRIBUTORS
Ben Job LLB, MURP
Barrister–at–Law
Hugh Lavery AM, MSc, PhD, MEc, FEIANZ
Adjunct Professor of Environmental Systems
Institute for Future Environments
David Nicholls, BA, LLM
Partner,
Hopgood Ganim
Michael Walton BCom, LLB
Partner
Norton Rose Australia
Editorial
Welcome to Issue 86 of the Queensland Environmental Practice Reporter. We are
privileged to commence with an article from His Honour Judge Rackemann of the
Planning and Environment Court. This article examines the legal protections for heritage
places in Queensland and shines a light on the story behind the destruction of Hesketh
House in Brisbane, which was able to be demolished, despite the apparent protection of
heritage listing.
Robert Quirk gives a detailed analysis of the cases of Stevenson Group, BM Alliance
Coal and Barro Group, which went to the Court of Appeal. He examines the decisions, in
particular considering the issue of jurisdictional error.
Matthew Dunlop makes a case that the Environmental Protection Act 1994 (Qld) is
insufficient to protect the Great Barrier Reef from the effects of diffuse pollution from
land-based sources. Considering the multiple threats to the Reef, one of the most
valuable environmental and economic resources in Australia, it is a timely reminder of
the importance of identifying the source of threats, having enforceable environmental
protections and getting cooperation of landholders.
Anne Overell
Managing editor
1.
The Planning and Environment Court
By Michael Walton and Ben Job
Scott and Ors v Brisbane City Council [2014] QPEC 11 (Searles DCJ – 3 April 2014)
Planning and environment – Planning – submitter appeal by local residents against the
Council’s approval of a development application by the co-respondent for the development
of a 33 unit Multi Unit Dwelling development, being a 33 townhouse development spread
over 10 buildings
Facts: This was a submitter appeal against Council’s approval of a development
application for the development of a 33 unit townhouse development spread over 10
buildings at 5 Darien Street, Bridgeman Downs. The proposal included the construction of
a roundabout on Darien Road to service future development in lots to its north.
The issues in dispute were:
(1)
(2)
(3)
whether the proposed development was in conflict with the Brisbane City Plan
2000 (City Plan);
whether the proposed development would create a traffic hazard or parking
problems in Darien Street; and
if any conflict with City Plan was found, whether there were sufficient grounds to
warrant approval despite that conflict.
Decision: The Court held, in dismissing the submitter appeal:
1.
1.
2.
3.
4.
5.
6.
7.
8.
The applicant had demonstrated that the proposal did not conflict with the City
Plan.
Whilst different in style from most other housing in the area south of Darien Street,
the proposal presented as a housing type contemplated by City Plan and was
sympathetic to and harmonious with the area.
There was no doubt that City Plan contemplated appropriate multi-unit
development and there were existing residences in the locality which were larger
than the four unit modules in the subject proposal.
The proposal did not represent unreasonable exploitation of City Plan’s provisions
for high density development or lack sensitivity in layout or built form.
City Plan’s reference to a mix of lot sizes did not entitle one to look beyond the
boundaries of the proposed site. It was clear that the mix of lot sizes must be
included in the proposal. The requirement for a mix of large lots was met by the
subdivision of the subject land to the two lots proposed.
The proposed development satisfied the requirements for clusters of development
in the Local Plan. The 10 buildings the subject of the proposal constituted a cluster
of development as foreshadowed by the Local Plan.
The proposal would have no adverse visual amenity or character impact on the
area.
None of the traffic or parking issues identified warranted refusal of the application.
On balance, the proposal would improve the services and facilities available in the
area by the provision of a more diverse, affordable style of housing. Need had been
established.
1
9.
If a conflict with City Plan existed, it was a very minor one. There were sufficient
grounds to justify approval.
Transpac Capital Pty Ltd v Central Highlands Regional Council and Anor [2014]
QPEC 12 (Searles DCJ – 3 April 2014)
Planning and environment – planning – appeal against the decision of Council of 6
February 2012 refusing a development application seeking development approval for the
construction and operation of a workers accommodation village on land situated at 147
Yackam Road, Blackwater
Facts: This was an appeal against Council’s decision to refuse a development application
for a development permit for a workers accommodation village at Blackwater. The site
was 50 hectares and was occupied by a single dwelling and cattle yards and had been
selectively cleared for grazing operations. The surrounding land was used for cattle grazing
on medium to large acreage lots.
The site was located in the Rural Zone under the Duaringa Shire Planning Scheme. The
proposal was for an accommodation village of approximately 24 hectares. It was intended
to accommodate workers in the resources industry around Blackwater, mostly mine
employees. The proposal was for long term “take or pay” arrangements, meaning that the
village would provide accommodation for workers from a handful of mines on long term
contracts with up to three mine operators. The village would be comprised of 800
accommodation units, with an additional 96 accommodation units for a construction camp.
Also proposed were 430 car parking spaces, bus parking and drop-off area, kitchen, dining
hall and recreation area, a swimming pool, sports facilities, laundry units, sewerage
treatment plant and landscaping.
The application was impact assessable and was publicly notified. Nine adverse
submissions were received, seven being from owners of nearby properties. The issues in
dispute were:
(1)
(2)
(3)
(4)
impacts on the character and amenity of the surrounding area resulting from an
increases in residential density, traffic, noise, light and interference with domestic
water supply for neighbouring properties;
conflict with the planning scheme;
need; and
in the event of conflict with the planning scheme being established, whether there
were sufficient grounds to justify approval notwithstanding the conflict.
Decision: The Court held, in dismissing the applicant’s appeal:
1.
In relation to the character and amenity issues:
An unacceptable risk of anti-social or illegal behaviour resulting from
increased residential density would not be a necessary concomitant of the
proposal.
(2) Whatever traffic figures were accepted, the volume of traffic would
dramatically escalate upon approval of the proposal.
(1)
Given the sheer scale of the proposal it was appropriate to err on the side of
the more conservative approach to noise impacts.
(4) Lighting would have an impact on the amenity of the area although it would
not be a large impact.
(5) Any issues with respect to domestic water supply could be addressed in
conditions.
(6) Any potential detrimental impact in the visual amenity of the area could be
satisfactorily addressed by the proposed landscaping plan.
The proposal was in conflict with the planning scheme as to the purpose of the
Rural Zone Code, Specific Outcome S3, the purpose of the Caravan Park and
Workers’ Accommodation Code and Site Characteristics S6 of that code.
The conflict with the purpose of the Rural Zone Code emanated from the proposal
not being an agricultural or animal husbandry use and not being of an intensity and
scale appropriate to the character and amenity of the surrounding area.
On any view, the proposal had the potential to involve up to 896 workers in a high
density rural development amidst a quiet rural area. Even with reduced occupancy
rates, it would forever change the amenity and character of the area in terms of
traffic volumes, noise and light. For that reason it was clearly in conflict with
Specific Outcome S3 of the Rural Zone Code. It was not always necessary for
lighting and acoustic codes to be breached for the amenity of an area to be
adversely affected by light and noise.
Need had not been established.
The conflict with the planning scheme was a serious one. The grounds relied upon
by Transpac were not individually or collectively sufficient to justify approval
given the conflict.
(3)
2
3
4
5
6
Rockhampton Regional Council v Dubois [2014] QPEC 13 (Searles DCJ – 3 April
2014)
Planning and Environment – Contempt of Court – Application for orders that the
respondent be punished for ongoing contempt of court of an order made on 11 June 1999 –
penalty
Facts: This was an application filed on 19 September 2013 (the application) by Council
seeking orders that the respondent be punished for contempt of Court for the contravention
of orders made by Britton SC DCJ on 11 June 1999 (1999 Order). The application related
to land located at 395 Rhodes Street, Koongal (the Land). The Land was located in a
predominately residential area and had always been zoned for residential purposes.
However, since the 1930’s, the Land had been used by the respondent and his family as a
motor garage business to service trucks, buses, cars and other vehicles (Business).
Accordingly, existing use rights permitted the ongoing operation of the Business over part
of the Land.
The 1999 Order delineated the boundaries of the existing lawful non-conforming use of the
Land by the respondent and relevantly set out:
(1)
Under Order 2, “…the respondent remove the hoist and associated equipment
located outside the south-western corner of the existing workshop…”.
(2)
Under Order 3, “That the respondent do forthwith cease using the land for any
purpose other than:
(a) the existing lawful non-conforming use as declared by the Court in this order;
and
(b) a use permitted in the Residential zone A pursuant to the transitional Planning
Scheme for the City of Rockhampton; and
(c) in Area C on Annexure 1 for gaining access to the existing workshop as
described herein”.
The respondent had been previously convicted for contempt of Court for breaching the
1999 Order and other earlier Court Orders. On 19 September 2013, the Council filed an
application, particularising the breach of the 1999 Order as the following:
(1)
(2)
the respondent had failed to remove the Hoist over various dates from 22 October
2010 to 9 May 2013; and
the respondent had carried out mechanical repairs to vehicles in areas not permitted
by the 1999 Order.
The issues for determination at trial were:
(1)
(2)
(3)
(4)
(5)
whether contempt should be considered a summary offence under the Sustainable
Planning Act 2009 (SPA), which would have the effect of limiting the Council’s
particulars to offences against the SPA that had occurred within one year prior to
the filing of the Application, pursuant to section 610 of the SPA;
whether the respondent was guilty of contempt as alleged;
if so what was the appropriate penalty;
whether the Court had power to award costs in the proceedings; and
if costs were payable, whether the successful party should be awarded all of its
costs and whether those costs should be payable on an indemnity or standard basis.
Decision: The Court held, in allowing the application:
1.
2.
3.
4.
Section 610 of the SPA was not relevant, given that contempt of Court was not an
offence against the SPA. More relevantly, section 439 of the SPA vested in the
Court the usual power vested in the District Court to deal with contempt and the
District Court of Queensland Act 1967 did not place any time limitation on
initiating contempt proceedings. Therefore, the Council was entitled to rely upon all
of its particulars.
The Court was satisfied, beyond a reasonable doubt, that the respondent was guilty
of contempt of the 1999 Order. It was clear from the evidence presented to the
Court that the respondent knowingly, without lawful excuse, failed to comply with
the 1999 Order on numerous occasions.
The respondent’s continued offending in the face of his previous convictions
supported the reasonable inference that any monitory penalty would not deter him
from any future similar conduct, therefore, imprisonment was the appropriate
penalty.
The Court had a statutory basis to award costs under section 457 of the SPA and it
was appropriate that a costs order be made against the respondent.
5.
It was appropriate to depart from the usual course and to award indemnity costs,
given that the Application would not have been filed, nor the hearing required, if
not for the respondent’s repeated contempt of Court.
Altitude Corporation Pty Ltd v Isaac Regional Council [2014] QPEC 15 (Rackemann
DCJ – 1 April 2014)
Planning and environment – appeal against Council’s decision to refuse a development
application for a material change of use to permit a development of multiple dwellings –
whether conflict with planning scheme arising from overdevelopment – whether
insufficient area for landscaping – whether garage and parking areas dominated street
frontage in conflict with planning scheme – whether increased traffic volume would result
in adverse amenity impacts – whether sufficient grounds to approve
Facts: This was an applicant appeal against Council’s refusal of a development application
for a development permit for a material change of use for multiple dwellings on land at
Moranbah. The subject site was approximately 3.7 hectares, was located about two
kilometres east of the town centre and was within the Urban Zone under the relevant
planning scheme. An electricity easement was located to the immediate east of the site.
Development in the surrounding area was generally for residential purposes. The proposal
was for 28 buildings of attached houses yielding a total of 103 dwelling units, accessed
from a new public road ending in a cul-de-sac. Habitable rooms were to be set back 20
metres from the easement. The development application was code assessable.
The issues in the appeal were:
(1)
(2)
conflict with the planning scheme arising from alleged overdevelopment of the site,
insufficient area to provide for planting and the generation of traffic volumes in
Nonette Street (which intersected the site), which would adversely affect amenity;
and
insufficiency of grounds of justify approval notwithstanding conflict.
Residential development, including by way of multiple dwellings, was generally
anticipated and encouraged within the urban area of Moranbah under the planning scheme
and the Mackay, Isaac and Whitsunday Regional Plan. However, Council alleged that the
proposal conflicted with Performance Criteria 5, 16, 18 and 30 of the Urban Zone Code.
PC30 required the provision of vegetated buffers to electricity transmission line easements.
The appellant proposed various measures to replace trees which would be lost in
implementing the development and to provide other new plantings. PC18 related to the
siting and design of garages and parking structures. It was common ground that the
proposal did not adopt the relevant acceptable solution, in that the garages were located in
front of the main building line instead of behind it. It was Council’s argument that the
garages dominated the street frontage. PC 5 required that transport movements “…protect
the residential amenity of the locality and do not exceed those normally associated with
‘residential activities’…”. There was no acceptable solution. Council was concerned that
existing residents of Nonette Street would not necessarily expect a multiple dwelling
development on the site, which would generate more traffic movements than detached
housing. PC16 required that street, building and landscape design achieve consistency with
the character of the surrounding area, visual interest and differentiation between dwellings
when viewed from the street.
Decision: The Court held, in allowing the appeal:
1
2
3
The greater than usual setbacks, the fact that the proposed buildings were all two
storeys, the fact that only a single garage was provided for each unit and the
proposed landscaping between the proposed buildings meant that the garage and
parking areas were sited and designed in a way that they did not dominate the street
frontage. There was no conflict with PC18.
The reasonable expectations of existing residents was that traffic volumes in their
street would be substantially increased over time as a result of residential
development of the urban zone. The contribution of the subject development was
low and would not have any significant undue impact.
Even had it been concluded that there was a relevant inconsistency by reason of the
failure to provide for a mix within the development, it would have been concluded
that there were sufficient grounds to warrant approval notwithstanding conflict.
Harris v Scenic Rim Regional Council and Ors [2014] QPEC 16 (Preston, A DCJ – 11
April 2014)
Planning and Environment – applicant appeal against refusal of development application
for development permit – material change of use – use for outdoor sports, recreation and
entertainment and use for camping ground – traffic generated by uses – proposed limits on
customer vehicle numbers – access by single lane rural road with creek crossings –
proposed works to upgrade road at crossings and improve signage – whether adverse
impacts by traffic on road safety and amenity of neighbours – intersection of access road
and State controlled highway – whether adverse impacts on road safety by right run from
highway to access road – finality, certainty and enforceability of conditions of approval –
whether decision to approve would conflict with planning scheme – whether sufficient
grounds to justify a decision to approve despite the conflict
Facts: This was an appeal against the respondent’s (Council) refusal of a development
application to establish an outdoor sports, recreation and entertainment facility, comprising
an adventure four wheel drive park and camping ground in relation to land at Innisplain,
near Beaudesert.
On 12 June 2012, the appellant purchased the land and commenced using the land as an
adventure park. The Council contended that the appellant’s use of the land was unlawful
given that it was situated in the Rural Zone, Countryside Precinct under the Beaudesert
Shire Planning Scheme 2007 (Planning Scheme). Under the Planning Scheme, a use
involving outdoor sports, recreation and entertainment or camping was assessable
development and therefore required a development permit under the Sustainable Planning
Act 2009 (SPA).
On 26 July 2012, the Council issued a show cause notice under s 588 of SPA. The
appellant accepted that a development permit would be required for a material change of
use. It was the appellant’s position that the development application would only involve a
material increase in the intensity or scale of the use from that of the existing use. The
appellant relied upon the previous owners’ lawful use of part of the land for a camping,
education and recreational facility which had operated since 1974, and did not amount to a
new use of the land.
On 30 August 2012, the appellant lodged a development application for material change of
use over the land. The proposed uses included, amongst other things, short term camping
accommodation, four wheel drive activities and competitions, and other recreational
activities. The development application was impact-assessable and attracted 132
submissions during public notification.
On 28 May 2013, Council refused the appellant’s development application. All of the
concurrence agencies to the application had recommended that the development be
approved subject to conditions.
On 26 June 2013, the appellant appealed the decision of the Council to refuse the
development application. Two of the submitters, who owned land near to the development
site, elected to become co-respondents to the appeal (Mr Halpin and Mr Barbagallo).
During the course of the appeal, the issues in the appeal were narrowed by election of the
Council and the co-respondents. The primary issues that remained in dispute at the hearing
of the appeal concerned whether the development was in conflict with Planning Scheme on
traffic engineering and town planning grounds. In particular, it was contended that the
increased traffic by the proposed development would increase risks and cause nuisance to
people in the locality, would have unacceptable impacts on the rural character and amenity
of the locality, and was not be consistent with reasonable expectations of residents in the
locality
During the course of the hearing, the appellant amended the original application by way of
a minor change application to reduce the scope and intensity of the development by
limiting the number of vehicles that could access the land. The Council in response to
amended application changed its position and advised that it could support the granting of
the development permit subject to conditions. Mr Barbagallo, in turn, agreed with the
changes and did not object to the approval of the development application with the
additional conditions. Mr Halpin maintained the position that the development remained in
conflict with the Planning Scheme and that the traffic generated would still have
unacceptable impacts on the road system, in particular the Mt Lindsay Highway and
Tamrookum Creek Road, and impact on the amenity of the local area.
1.
4.
5.
The proposed development, with the number of vehicles per day capped at 20,
would not lead to unacceptable impacts on the performance or safety of the
intersection or on right turns off the Mt Lindesay Highway.
The proposed conditions of approval on the issues of bushfire, flooding, water
quality, as well as acoustic and air quality were sufficient to ameliorate the adverse
impacts of the development.
The proposed development:
(a) was of a scale, form and intensity appropriate for the locality;
(b) was consistent with the reasonable expectations of residents in the rural zone;
(c) was compatible with existing and adjoining rural uses;
would not have any unacceptable adverse impacts;
would minimise risk, nuisance and impacts to people and property in the
surrounding area; and
(f)
would not have any unacceptable adverse impacts on the existing rural
character, sense of place, or amenity of the surrounding area.
The proposed development would not cause unacceptable impacts on the
performance or safety of Tamrookum Creek Road.
It was appropriate for the court to set aside the Council’s decision refusing the
application and approve all of the application subject to conditions.
The appellant had discharged the onus of establishing that the appeal should be
upheld and that the court should set aside the Council’s decision appealed against
and replace it with a decision to approve subject to the conditions.
(d)
(e)
6.
7.
8.
Palmgrove Holdings Pty Ltd v Sunshine Coast Regional Council [2014] QDC 77
(Long SC DCJ – 11 April 2014)
Planning and Environment – appeal against conviction – where at first instance the
Magistrate convicted the appellant of an offence pursuant to s440ZG of the Environmental
Protection Act 1994 – where at first instance the Magistrate did not address specific
requirements as to proof of the element of unlawfulness – rehearing on the record – appeal
against sentence – sentence manifestly excessive or inadequate – whether in the first
instance the Magistrate erred by placing “great importance” on deterrence – deterrence
of the offending conduct, rather than any proven environmental harm – appeal against
costs order – where the appellant contends that the award of a higher amount of costs was
not justified – whether the Magistrate erred in deciding to allow the recovery of the higher
amount of costs
Palmgrove Holdings Pty Ltd (Palmgrove) appealed under s 222 of the Justices Act 1886
against its conviction for unlawfully depositing a prescribed contaminant in a storm water
drain pursuant to s 440ZG of the Environment Protection Act 1994 (EPA) by the
Magistrates Court at Maroochydore. Palmgrove also appealed against the fine of $15,000
imposed by way of sentence and a costs order in the sum of $14,766.62. The Magistrate
Court proceedings were commenced by a complaint against Palmgrove. The complaint
alleged that Palmgrove, in the course of carrying out operational works in accordance with
a development approval over land at Peregian Springs (Land), unlawfully deposited a
prescribed water contaminant in storm water drainage.
The particulars stated on the complaint included that Palmgrove was engaged by the
registered owner of the Land to carry out works such as the implementation of erosion and
sediment control measures on the Land. It was further specified that on 11 August 2010,
water was released from the Land which contained a concentration of suspended solids
measuring 600 milligrams per litre (a prescribed water contaminant under the EPA) and
entered storm water drainage outside of the Land.
It was common ground that the release was triggered by a significant rain event on 10
August 2011 of 90mm in a 24 hour period which caused erosion on the Land. A sediment
basin with a storage capacity adequate for a 48mm rain event had been constructed on the
Land which drained through 2 PVC pipes into a channel. The channel flowed through
retained vegetation and into stormwater drainage. The rainfall water was intended to be
contained in this sediment basin, however, Palmgrove had failed to block off the PVC
pipes before the rain event, which caused the sediment basin to empty out into the channel
through the PVC pipes.
On 11 August 2010, the site was inspected by two Council officers who observed a
channel of flowing and turbid water originating from the Land. A water sample was taken
in the channel adjacent to the PVC pipes, which was tested to confirm 600 milligrams per
litre. Mr Rowlands (a civil engineer employed by the Council who took the sample)
believed that the taking of one sample was appropriate to get a representation of the flow
as it was a well-mixed strongly flowing stream, particularly by reference to the available
guidelines issued in that regard. Palmgrove contended that the offence was not proven
beyond reasonable doubt on the evidence adduced because:
(1)
(2)
(3)
no sample was taken at or sufficiently near the boundary line of the Land to prove
it;
no sample was taken sufficiently close to the source of the movement of water from
the sediment basin and into the channel and before it became mixed with the water
coming from the side culvert, also emptying into that channel; and
the possibility of an overflow event, given the overnight rainfall in a quantity that
exceeded the capacity of the sediment basin, was not excluded as potentially
contributing to the state of the water in the channel from which the sample was
taken.
Palmgrove also contended that the imposition of a fine of $15,000 was a manifestly
excessive sentence. It pointed to mitigating factors such as the fact that it had no previous
findings against it in 30 years of business and that the event was a one-off in that there was
a significant amount of rain as well as that there was no resultant evidence of environment
harm. Palmgrove also identified that the Magistrate placed “great importance” on
deterrence and argued that this was not a good vehicle for reflection of general deterrence
given the intervening rain event and that the Council issued it with an infringement notice
for $2000. It submitted that this was a relevant consideration pursuant to s9(2)(r) of the
Penalties and Sentences Act 1992 and was a “starting point for the consideration of an
appropriate sentence”.
In addition, Palmgrove appealed against an award of costs in excess of the scale amounts
pursuant to section 158B of the Justices Act 1886 (JA), in the form of Counsel’s fees. It
contended that the case was not one of special difficulty or complexity because there were
four prosecution witnesses, the evidence was heard over 2 days and there were essentially
no disputes as to questions of law before the Magistrate.
Decision: The Court held, in dismissing the appeal:
1.
2.
In order to prove that the release of turbid water was unlawful, the prosecution
needed only to prove that the concentration of solids, at the point of release of the
water from the Land exceeded 50mg/l. No attention was paid or drawn to this in the
Magistrate’s reasons, and therefore, little or no weight can be given to the
Magistrate’s decision.
The evidence adduced at trial proved beyond reasonable doubt that the
concentration of suspended solids in the water released at the boundary of the Land
9.
10.
11.
12.
13.
14.
exceeded 50mg/l. That is the only rational inference that could be drawn from the
circumstances.
Palmgrove was generally responsible for compliance with the requirements of the
EPA and the conditions of the development approval for that work as reinforced by
contractual arrangements under which Palmgrove performed the work. Therefore,
Plamgrove was liable for the result of causing or allowing the water emanating
from the sediment basin to mix with water from the culvert, irrespective of the
respective contributions of the combined result, given the end result was that the
water flowing through the channel and at the boundary of the Land had a
concentration of solids exceeding 50mg/l.
There was no rational possibility of a potential contribution of other sources of
water (for which Palmgrove did not bear responsibility) to the turbidity at the point
of release of the boundary of the Land.
The contention relating to the possible contributing factor of an overflow event
engaged the concept of the general environmental duty under section 319 of the
EPA, and in particular, the defence in section 493A(3) EPA which acts to place the
onus of proof upon the Palmgrove to prove this contention. No attempt was made
by Palmgrove to discharge that onus.
The charge against Palmgrove was proven beyond reasonable doubt, and
accordingly, the appeal against the conviction is dismissed.
No error was demonstrated in the exercise of the Magistrate’s sentencing discretion
and it was not established that the sentence imposed was manifestly excessive.
There was no demonstrated error in the Magistrate’s decision as to costs such as to
warrant interference with it.
Hydrox Nominees Pty Ltd v Noosa Shire Council [2014] QPEC 18 (Rackemann DCJ –
30 April 2014)
Planning and environment – appeal against refusal of development application for
establishment of a Masters Home Improvement Centre and a showroom at Noosaville –
where showroom uncontroversial – where proposed Masters consistent with the regional
plan – where proposal not a “consistent use” or an “inconsistent use” pursuant to the
planning scheme – whether conflict – community, economic and planning need – economic
impact – sufficiency of grounds to justify approval notwithstanding conflict
Facts: This was an appeal against Council’s refusal of a development application to
facilitate the establishment of a Masters Home Improvement Centre in Stage 1 and a
separate showroom in Stage 2 on land at Hoffman Drive, Noosaville. Only the Masters
component of the application was in dispute at the hearing.
The subject site was located at the periphery of the Noosa Shire Business Centre (NSBC),
which was home to Noosa Civic shopping centre. A mid-size Bunnings was located
proximate to the business centre. There was no other competitor to Bunnings on the
Sunshine Coast. The nearest Masters was more than 100 kilometres away. The subject site
was located within the Urban Fabric under the South East Queensland Regional Plan
(SEQPR). The NSBC was identified as a Major Regional Activity Centre. Such centres
were intended to complement the Principal Regional Activity Centres by serving
catchments of sub-regional significance and accommodating key employment
concentrations. Out of centre development was inconsistent with the SEQPR’s strategic
intent. The SEQRP encouraged large format retail premises to be located on a centre’s
periphery. The proposal was consistent with the SEQRP. The subject site fell within the
area covered by the Noosaville Locality Plan under Council’s planning scheme, Noosa
Plan. The locality was divided into zones. The site was located within the Shire Business
Centre Zone.
The proposed use was identified as falling with the “Retail Business” use class under the
“Business Uses” primary use category under the planning scheme. The proposal did not
fall within any of the specified use types within the “Retail Business” use class.
The issues in dispute at the time of the hearing were:
(1)
(2)
(3)
(4)
conflict with the planning scheme;
need and benefit;
economic impact; and
sufficiency of grounds to warrant approval notwithstanding any conflict.
1.
2.
3.
4.
5.
6.
7.
While the proposal was not classified as an inconsistent use, there was some
conflict with the planning scheme as a consequence of the departure of the proposal
from what was intended within the relevant precincts of the NSBC. The proposal
would provide a substantial amount of retail development which would displace
opportunity otherwise for potential future development for specified consistent
uses, including non-retail uses, in the applicable precincts on the subject site.
It was well settled that town planning was not generally concerned with the
protection of existing operators from competition per se.
The evidence did not justify a conclusion that the proposal was likely to result in an
overall adverse effect on the extent and adequacy of facilities available to, or
planned for, the local community.
While the catchment population might not be generous for two large format home
improvement stores, there was a sufficient economic demand to support the
proposal in addition to the existing Bunnings.
The conflict which arose by reason of a departure from what was intended in the
relevant precincts was more than merely technical or minor but it was not so
serious as to fundamentally undermine the planned hierarchy or the function of the
NSBC overall.
Sufficient grounds to justify approval notwithstanding conflict lay in the significant
public or community need, sufficient economic need and significant planning need
for the proposal and the benefits which it would bring to the community viewed in
the context of the suitability of the site.
The appellant had discharged its onus and the appeal was allowed.
Southern Downs Regional Council v Kemglade Pty Ltd and Anor [2014] QPEC 19
(Jones DCJ – 8 May 2014)
Costs – where costs of the proceeding were in the discretion of the court but followed the
event unless the court orders otherwise – whether circumstances existed warranting
departure from the general rule that costs follow the event – whether circumstances existed
justifying depriving the successful applicant of its costs of its application
Facts: The first respondent was the registered proprietor of land located at Granite Belt
Drive, Thulimbah. The second respondent was the sole director of the first respondent. At
some time prior to 19 March 2014, the respondents commenced using the land for the
purpose of providing non-resident, casual workforce accommodation without a
development permit authorising the use.
Council filed an Originating Application, in which it was alleged that the unauthorised use
was a development offence and contravened a number of existing approvals (unrelated to
the workers accommodation use). The Originating Application was heard on 3 April 2014.
On that date the respondents consented to enforcement orders requiring the workers
accommodation use to cease. The applicant subsequently sought its costs from the
respondents.
Decision: The Court held, in making an order for costs:
1.
2.
3.
4.
Generally speaking, costs were not ordered against the unsuccessful party as some
form of punishment. The primary purpose of cost orders was to indemnify the
successful party in respect of the expenses it had to incur in either successfully
prosecuting or successfully defending a proceeding.
As the applicant was entirely successful and the respondents made no attempt to
defend the proceeding, prima facie there could be little doubt that the applicant was
entitled to a favourable cost order. There was no conduct on the part of the
applicant which would cause it to be deprived of a favourable cost order.
The conduct of the respondents not only constituted a development offence but also
created an environment hazardous to the health and safety of those using the
accommodation. The respondents’ conduct was both unlawful and flagrant and
exposed numerous innocent people to an immediate threat. The position of the
respondents could fairly be described as hopeless.
The respondents should pay the applicant’s cost of its application.
18/14 Powell and Ors v Toowoomba Regional Council and Ors [2013] QPEC 20
(Durward SC DCJ – 9 May 2014)
Residential area – Commercial/Retail/Non-residential proposed use – whether food outlets
(café/restaurant/convenience restaurant), supermarket and operational works for
advertising signs development – national fast food facilities – whether appropriate in
residential area.
Facts: This was an appeal by a group of submitters (appellants) against the decision of the
Toowoomba Regional Council (Council) to approve a development application for a retail
and fast food development (including two national fast food chains) in relation to land
located at 9-17 Herries Street and 1 Cohoe Street, East Toowoomba. At the time the
development application was made the subject site was located within the Mixed Housing
Zone under the Toowoomba Planning Scheme 2003 (Superseded Planning Scheme).
Under the Superseded Planning Scheme, the proposed uses were impact assessable (not
preferred).
On 1 July 2012, the Toowoomba Regional Planning Scheme 2012 (Current Planning
Scheme) came into force. Under the Current Planning Scheme, the subject site was
included within the Residential Choice – Urban Residential Precinct. Under this scheme,
the development application was impact assessable. The co-respondent by election, the
Department of Transport and Main Roads (DTMR) was a concurrence agency to the
development application. The development application was publicly notified between 13
September 2012 and 8 October 2012. The appellants and others made properly made
submissions about the development application during the public notification period. On or
about 21 December 2012, the Council issued a Decision Notice approving the development
application subject to conditions.
The appellants alleged, that amongst other things:
(1)
(2)
(3)
(4)
(5)
(6)
The development was in conflict with both the Superseded Planning Scheme and
Current Planning Scheme in that it proposed retail uses in a residential locality;
There were insufficient grounds to justify approval of the development despite the
conflicts with both of the planning schemes;
There was no planning or economic need to support the development;
The proposed development would have unacceptable traffic impacts on the local
and State-controlled road networks including pedestrian, vehicle and heavy-vehicle
safety;
The Council failed to consider the residential nature of adjacent properties and the
visual impacts that a retail development and associated signage would have on the
surrounding locality and the reasonable expectations of residents; and
The development was in conflict with the relevant planning schemes with respect to
the conservation of residential amenity (including noise, light and odour) and
lifestyle for residents in and around the locality.
1
2
3
4
5
6
Insofar as visual amenity was concerned, the landscaping as recommended,
reduction in the size of any tower type advertising or naming structure, and soft
external treatment of building exteriors would reduce any adverse impacts.
The character and amenity issues were not unacceptable, provided conditions were
imposed, and did not inhibit any approval of the development.
Need in the accepted sense that was referred to in the authorities, had been
established. That was not something overwhelming, urgent or palpably deficient,
but there was nevertheless a need as understood in the conventional planning sense,
for the proposed development in the Trade Area.
Whilst the resolution of traffic issues generally may leave a lot to be desired if
endeavouring to achieve a best or preferred result, the proposals were appropriate
and were not unacceptable.
There was a prima facie conflict with the Superseded Planning Scheme in respect to
the location of a retail facility in the Mixed Planning Zone, other than as an
extension of an existing centre. However, the conflict with the Superseded Planning
Scheme was a minor conflict.
There were sufficient grounds that would justify approval despite the conflict with
the superseded planning scheme. Those grounds were need (in its holistic and
7
conventional planning context), a preferred use for the site by reason of its
proximity to the highway, the provision of employment opportunity, the character
of the adjoining non-residential facilities and the absence of impact on the
economic viability of any existing centre.
There was no conflict with the Current Planning Scheme. If there was conflict, the
grounds referred to in respect to the Superseded Planning Scheme applied equally
to the Current Planning Scheme.
Parklands Blue Metal Pty Ltd v Sunshine Coast Regional Council and Ors [2014]
QPEC 24 (Robertson DCJ – 16 May 2014)
Appeal against refusal – where proposal had strong planning support in State Planning
Policy and Planning Scheme – where proponent must satisfy the Court that the inevitable
impacts on amenity from noise, dust, traffic from such a use could be acceptably limited or
minimised and that there was a need and community benefit for quarry products – where
site was within the flight path of the proposed new east / west runway for the Sunshine
Coast Airport – whether fly rock from unconstrained blasting presented an unacceptable
safety risk to aircraft departing and arriving via the new runway
for a proposed quarry on land at Yandina Creek Road, Yandina. The proposed quarry
would have an output of 350,000 tonnes per annum with a maximum permitted output of
500,000 tonnes per annum in times of peak demand. It would operate 6 days a week and
employ approximately 10 permanent staff members. The proposal would generate a
maximum of 112 heavy vehicle trips per day. The development application was impact
assessable. There was a large number of submitters, several of whom joined the appeal.
The (former) Department of Environment and Resource Management (DERM) and the
Department of Transport and Main Roads (DTMR) were concurrence agencies for the
application. The DTMR did not play an active role in the hearing.
The use of the site for extractive industry had been supported by State and local
government planning instruments for more than 30 years. A previous appeal (Suncoast
Quarries Pty Ltd v Council of the Shire of Maroochy & Ors [1992] QPEC 72) had also
resulted in the approval of an application to rezone the site for extractive industry, although
the approved use never proceeded. At the time of the hearing, the relevant planning
scheme was Maroochy Plan 2000. The Court also had regard to the South East Queensland
Regional Plan 2009 – 2031, State Planning Policy 2/07: Protection of Extractive
Resources and State Planning Policy 1/02: Development in the Vicinity of Certain Airports
and Aviation Facilities, the single State Planning Policy adopted in December 2013 and
Council’s draft planning scheme. Under SPP 2/07, the subject site was part of Key
Resource Area (KRA) 54 – Yandina Creek KRA. The SPP2/07 Guideline described KRA
54 as strategically placed to provide construction aggregates and armour stone for a large
part of the northern Sunshine Coast.
The matters for the Court to determine at the hearing were, in summary:
(1)
whether the proposal conflicted with the planning scheme as a consequence of
unacceptable environmental and amenity impacts (resulting from blasting, noise,
(2)
(3)
dust, visual amenity and traffic) and insufficient overall community benefit to
outweigh the unacceptable impacts;
whether there were unacceptable impacts on the safety of future aviation associated
with Sunshine Coast Airport; and
whether there were sufficient grounds to justify approval of the application despite
any conflict with the planning scheme and, in particular, whether planning or
community need for the proposal had been demonstrated.
1
2
3
4
5
6
7
It was essential for traffic safety reasons that the haul route should be upgraded to
the appropriate standard before the use commenced. There was nothing in the
evidence which suggested any basis on which Council should be called to
contribute to the upgrade of the haul route. However, if the issue could not be
resolved, a conditions hearing could take place.
In terms of potential amenity and safety impacts associated with blasting, the very
strict conditions contained in the Blast Management Plan were sufficient to reduce
impacts of blasting to acceptable levels.
Blasting was the only activity with potential aviation safety impacts and those
impacts were limited to the risk of fly rock being propelled into the air. The risk of
that occurring was very low but even so it could be avoided by separating, in time
and space, blasting activities and aircraft movements under a protocol to be
approved by the Air Safety Authority.
On the issue of noise, the evidence established that with the imposition of very
stringent conditions required by DERM, and proposed by the experts, the proposal
could operate in such a way to minimise or limit noise impacts to an acceptable
level.
Persons living in a locality did not have a monopoly on expectations. Developers
were entitled to rely on reasonable expectations drawn from the planning
documents as much as opponents of development. Just as opponents were entitled
to reasonably expect that a quarry in a KRA would not be approved if it had
adverse amenity and character impacts which were not managed and minimised, a
proponent was entitled to expect approval for a quarry in a KRA which
appropriately mitigated such impacts and otherwise was not in conflict with
relevant planning controls.
The issue for the Court was to assess objectively the subjects of concern for the
residents in light of all relevant evidence, keeping in mind the reasonable
expectations of residents as informed by the planning controls, particularly those in
the planning area but also the designations of the site over many years.
The conditions to be imposed in relation to “hard” elements of amenity impact,
being noise, dust, blasting, truck movements, environmental issues and visual
amenity, were such as to appropriately minimise and limit impacts on amenity to an
acceptable level. It was accepted that there would be intangible adverse effects on
amenity which would affect peoples’ sense of place in a subjective sense. However,
having regard to the long term planning support for a hard rock quarry at the site,
the reasonable expectations of the residents and the evidence of “hard” impacts,
Parklands had demonstrated that the proposal could be appropriately conditioned to
minimise and limit tangible and intangible amenity impacts to acceptable levels.
8
9
10
11
12
13
14
Need was an important issue because the assessment process required an objective
balancing of the maintenance of a high standard of amenity in what was a pleasant
rural valley overlooked by pockets of residential development against the
community need for extractive material.
The question of whether a need was shown to exist was to be decided from the
perspective of the community and not that of the appellant or the objectors.
The concept of planning need did not mean pressing or critical or urgent need or
widespread desire or anything of that nature.
On the balance of probabilities, Parklands had established that there was a future
need for the quarry and that there would be some community benefit. Given the
effects of the global financial crisis and the economic forecasts for growth, the need
could not be described as significant, but was between modest and significant.
Parklands had satisfied the onus upon it of establishing that the proposal,
conditioned appropriately, was not in conflict with the planning scheme.
Parklands had established grounds, namely a future need for the quarry, some
community benefit and that the upgrade of the haul route was a matter of public
interest in the sense that it would provide a safer driving environment for users of
the road network.
The appeal should be allowed.
Fanirata Pty Ltd (as Trustee) v Logan City Council and Hogan; Hogan v Logan City
Council & Fanirata Pty Ltd [2014] QPEC 25 (Jones DCJ – 12 May 2014)
Giving effect to a mediation agreement – indemnity costs
Facts: This was an application by Fanirata Pty Ltd (applicant) under section 51 of the
Civil Proceedings Act 2011 which sought an order that effect be given to an agreement
reached at a mediation held on 25 March 2014. The applicant also sought their costs of and
incidental to the filing of the application on an indemnity basis. The appeals related to
Council’s approval of the applicant’s development application for a material change of use
for a multi-unit dwelling. The applicant’s appeal (No. 3940 of 2012) was against some of
the conditions in the approval. A second appeal was filed by a submitter, Mr Hogan (No.
4339 of 2012) against the respondent’s approval. The appeals were the subject of several
mediations and without prejudice discussions between the parties.
On 25 March 2014, the parties participated in a third mediation. At the conclusion of the
mediation all of the parties, including Mr Hogan, signed off on a purported agreement. As
a consequence of the mediation agreement, the respondent drafted an amended conditions
package for the proposed development. On or about 9 April 2012, Mr Hogan approached
the applicants and requested further amendments to the conditions package. These
amendments were incorporated into a new amended conditions package. On 22 April
2014, Mr Hogan wrote to the other parties stating that he was not satisfied with the
mediation agreement and suggested further amendments to the draft conditions.
The applicant subsequently filed an application seeking declarations and orders that
Condition 12.17 accorded with the mediation agreement that the DA be approved and that
Mr Hogan should pay the applicant’s costs of the application. The wording of condition
12.17 of the draft conditions package was the source of the disagreement between Mr
Hogan and the other parties. Condition 12.17 dealt with fencing between the applicant’s
land and the land owned by Mr Hogan. Mr Hogan was primarily concerned with matters of
privacy associated with the proposed bikeway within the development and the design of
the proposed fencing.
1
2
3
4
5
6
7
8
9
There were substantial similarities between the new proposed Condition 12.17 and
that that had previously been agreed.
Whilst the agreement produced following the mediation was not in entirely precise
terms, it was, nonetheless enforceable as an agreement reached at or after
mediation.
The further changes to Condition 12.17 went beyond what had been agreed and it
would be premature to lock the applicant into a specific form of design and
construct at this stage of the development.
When construed objectively, the agreement produced at the end of the mediation
was one where the parties intentions were able to be clearly identified and
attributed.
The appellant should be granted the relief sought in relation to Condition 12.17.
On balance, some form of costs order ought to be made.
Costs orders were not made to punish the unsuccessful party, but to indemnify the
successful party in respect of its costs, or at least, part of those costs in either
having to successfully prosecute a matter or successfully defend itself against
prosecution.
Misguided as some of Mr Hogan’s behaviour might have been, there was no doubt
that he always attempted to act in the best interest of his family and not as a
consequence of any attempt of commercial benefit or malicious conduct.
Mr Hogan should pay the applicant’s costs of its application, limited to those
concerned with Condition 12.17.
Wigan v Redland City Council and Ors [2014] QPEC 27 (Jones DCJ – 23 May 2014)
Declaratory relief – whether a development application lodged by the appellant was a
valid application for the purposes of the Integrated Planning Act 1997 – whether the
application was within the contemplation of that Act – whether the application was
incompetent and ought to be struck out – whether or not a valid development application
for the purposes of the Act non-compliance ought to be excused
Facts: This was an application made by Council in the course of an appeal by the appellant
against Council’s decision to refuse a development application (superseded planning
scheme) for preliminary approval for a material change of use and a development permit
for a material change of use of premises. Council sought a declaration that the
development application was not an application within the contemplation of s 3.2.1 of the
Integrated Planning Act 1997 (Qld) (IPA) and an order that the appeal be struck out.
The development application the subject of the appeal:
(1)
described the proposed change of use as being “Rural to Residential A and
Residential B;”
(2)
(3)
identified that the intended uses of the land involved development for which
preliminary approval was sought under s 3.1.6 of the IPA (to vary the effect of a
local planning instrument); and
proposed that the level of assessment should be “self-assessable development” and
that development was to be assessed by reference to the “codes contained in the
Town Planning Scheme for the Shire of Redland 1988” (1998 Scheme).
In its Acknowledgement Notice, Council described the development application as being
for “material change of use – rezoning (rural non-urban to res A and res B)” and identified
that the application was to be assessed under the existing Redlands Planning Scheme 2006
(2006 Scheme). The development application was eventually refused by Council on a
number of grounds. The issues to be determined by the Court were whether the
development application:
(1)
(2)
sufficiently (or at all) identified the development (uses) to which the land would be
put if approved; and
identified the way in which the approval would vary the effect of the 2006 Scheme.
In relation to the identification of the proposed use, Council submitted that the
development application was incompetent because the “use” applied for was something
akin to a rezoning of the land. It was argued by Council that since the commencement of
the IPA, there was no longer such a thing or process as rezoning. On this basis, it was
submitted by Council that the development application was in effect a nullity which was
not capable of being considered by the assessment manager or otherwise dealt with under
the IPA.
The appellant submitted that even if the original form of the development application may
not have been a properly made one for the purposes of the IPA, once the assessment
manager received and considered the development application and decided to accept it, the
development application was effectively deemed to be a properly made one for the
purposes of the IPA.
In relation to the question of how the application was intended to vary the 2006 scheme,
Council submitted that the 1998 Scheme contained no codes against which the
development could be assessed and that the development application was unworkable, if
not impossible, to reconcile with the “standards” in the 1998 Scheme. It was also argued
that prospective submitters to an appeal would have no idea what “development” was
proposed and would have no idea of the way in which the application sought to vary the
effect of the 2006 scheme.
The appellant submitted that the variance to the 2006 Scheme had been clearly identified
in the development application by the appellant nominating the change to the level of
assessment from what would have applied under the 2006 Scheme to self-assessable
development. It was also submitted by the appellant that the “codes” that were to apply
were the relevant “standards” referred to as being applicable to self-assessable
development under the 1998 Scheme, being a transitional scheme under the IPA.
Decision: The Court held, in dismissing the application:
1
2
3
4
5
The development application was one capable of being received and considered by
the assessment manager and, in the event that for some reason it was not otherwise
a properly made application, the conduct of the Council rendered it so.
It was sufficiently clear that the intended material change of use was not in truth for
a rezoning, but for uses including (but not limited to) Residential A and Residential
B uses.
While to identify the “codes” the appellant wanted applied was a somewhat
complex exercise, it did not alter the fact that, for the purposes of 3.1.6 of the IPA,
the way in which the appellant wanted Council’s planning regime varied was
sufficiently clear.
The level of complexity when considered in light of the proposed use of the land
would not have prejudiced in any material way any interested person’s ability to
clearly identify the real effect and potential consequences of the development
application if approved.
It was not necessary for the appellant to resort to s 4.1.5A of the IPA.
Holcim (Australia) Pty Ltd v Bundaberg Regional Council (No. 2) [2014] QPEC 29
(RS Jones DCJ – 30 May 2014)
Planning law – where, without relief from the court the applicant’s permission to carrying
out quarrying to cease – whether conditional extension of the time for which the quarry
might operate is a permissible change for the purposes of s 367 of the Sustainable
Planning Act 2009 – whether relief sought would result in substantially different
development – whether relief sought would require referral to additional concurrence
agencies or require impact assessment or cause development to which the approval relates
to include any prohibited development – whether relief sought would, if granted, be likely
to cause a person to make a properly made submission objecting to the proposed change
Facts: This was an application to conditionally extend the operation period for a long
standing quarry located east of Bundaberg. The subject town planning consent permit was
granted, as a consequence of an appeal, on 17 December 1993 and was subject to a
condition which restricted the operation term of the quarry to a 15 year period. In April
2009, the term was extended by the Court to 12 April 2014. In this matter, the applicant
sought a further extension of the term to 31 December 2016 provided:
(1)
(2)
The extraction of materials from the land is authorised to continue only until 30
November 2014;
From 1 December 2014 to 31 December 2016, the permitted use shall be limited to
the stockpiling of extracted materials and the completion of rehabilitation of the
land.
The application to extend the term was supported by the respondent.
1
The extension of the term would not result in a substantially different development
or involve any prohibited development. When only a time period is under
consideration, no assessable development results.
2
3
4
5
Having regard to the nature of the change, no issue involving additional
concurrence agencies arises.
Accordingly, the only live issue in the application is whether the change would be
likely to cause a person to make a properly made submission objecting to the
proposed change.
The term ‘likely’ could mean a range of things, including ‘probably’, ‘more likely
than not’, ‘more than a 50% chance’ or ‘a real and not remote chance regardless of
whether it is more or less than 50%’.
In this case, regardless of whether ‘likely’ means probable (i.e. greater than 50%)
or something less, the application should succeed because:
(1) Quantities of material considered by the State to be a ‘key resource’ for the
purposes of the State Planning Policy (December 2013) remain to be won;
(2) Under the terms of the proposed order, all extractive and processing activities
must cease by 30 November 2014;
(3) From November 2014, the only significant activities that can be carried out
on the subject land would be those involved with the transporting of material
from existing stockpiles and the ongoing rehabilitation of the site, which are
to the public’s benefit;
(4) The potential concerns of residents have to be seen in the context of what is
proposed, which would result in only minor negative impacts on amenity;
(5) On balance, once appraised on the relevant facts and circumstances, it is not
likely that the proposed change would cause a person to make a properly
made negative submission for the purposes of section 367(1)(c) of the
Sustainable Planning Act 2009 (Qld).
(6) The proposed change was a permissible change.
Westrex Services Pty Ltd and Anor v Maranoa Regional Council and Anor [2014]
QPEC 30 (Jones DCJ – 4 June 2014)
Application – where applicant sought to raise four preliminary matters prior to the
substantive hearing of the appeal – whether matters ought to be heard and determined as
preliminary matters or heard at the same time as the substantive hearing of the appeal –
whether matters raised so fundamental as to require them to be determined as preliminary
matters
Facts: This proceeding concerned applications brought by the applicants (Mr Golder and
Westrex Services Pty Ltd) (Westrex) to have four matters dealt with by way of a
preliminary points hearing prior to the substantive hearing of their respective appeals. The
substantive proceedings were two submitter appeals against Council’s decision to approve
a development application lodged by We Kando Pty Ltd (We Kando) for a development
permit for a material change of use – high impact industry (waste water storage pond) and
a development permit for environmentally relevant activity (ERA) 56 – regulated waste
storage. The development application was impact assessable and was required to be
publicly notified. The Department of Environment and Heritage Protection (DEHP) was a
concurrence agency. DEHP had no requirements for the development application and
approved the environmental authority application subject to conditions.
The four preliminary points identified in Westrex’s applications were:
(1)
(2)
(3)
(4)
Public notification: Westrex submitted that We Kando had not complied with its
public notification obligations under the Sustainable Planning Act 2009 (SPA).
Finality: The conditions imposed by Council on its approval of the development
application required We Kando to submit an Environmental Management Plan
(EMP) to Council to be approved prior to commencement of the use. The EMP was
to be in accordance with Schedule 9 of the Bungal Shire Council Planning Scheme
2006 (Scheme). The Scheme stated that the Council could refuse an application if
an EMP had not been completed to Council’s satisfaction.
Responsibility: The DEHP prepared a concurrence agency response to the
application. Council then prepared a report in support of the application, stating that
“because the environmental management of waste water storage facilities [was]
controlled by an environmental authority which [was] approved by the [DEHP],
the Council should not refuse a development application on any grounds which
[were] within the scope of the environmental authority…”
Westrex submitted that Council’s decision to approve the application was defective
in that Council failed to carry out an independent assessment of the environmental
impacts and management issues associated with the proposed development, instead
relying on the conditional approval granted by DEHP.
Characterisation: Westrex submitted that the ERA component of the development
application was not properly characterised. It was submitted that what would
actually occur went beyond the waste water storage contemplated by ERA 56 and
would include at least some level of treatment.
Council and We Kando opposed the applications, save for the public notification point
which all parties agreed should be dealt with as a preliminary point.
Decision: The Court held, in allowing the applications in part:
1
2
3
4
5
The “finality” point did not involve significant contested factual issues nor was it
likely to require further evidence. It could be dealt with on the material currently
filed in the Court.
The “finality” point was a matter about which a judicial final or conclusive decision
could be made.
The “responsibility” point was disposed of in the same way as the “finality” point.
Unlike the other matters, it was likely that if the “characterisation” point were to be
dealt with in a preliminary manner, some evidence would be required including the
potential cross examination of expert witnesses and would be likely to result in the
hearing going beyond one day. Further, unlike the other matters, even if Westrex
succeeded on the point, it did not go directly to the standing of the Council’s
decision to approve the development. It would not result in the Council’s approval
being invalid. It could readily be dealt with during the conduct of the substantive
appeal.
It was appropriate that the “notification”, “finality” and “responsibility” points
raised by Westrex be heard and determined as preliminary matters prior to the
substantive hearing of the appeals.
Emaas Pty Ltd v Brisbane City Council and Ors; Pacifique 121 Pty Ltd and Anor
[2014] QPEC 31 (Rackemann DCJ – 6 June 2014)
Planning and environment – appeal against approval of a development application to
facilitate the construction of a high-rise office and retail development – application for
minor change – reduction from high-rise to mid-rise development – whether the proposed
change resulted in a substantially different development
Facts: These were minor change applications in the course of two submitter appeals
against Council’s decision to approve a development application to facilitate construction
of a high-rise office and shop development on land situated at Albert Street, with frontage
to the Queen Street Mall, in the Brisbane CBD. There was an existing low-rise local
heritage place on the land. The original proposal was for a high-rise tower which retained
the two level façade of the heritage building and featured:
(1)
(2)
(3)
(4)
a lower basement level, predominantly for commercial storage and upper basement,
with two retail tenancies;
“street” level and first floor retail tenancies;
12 levels of office space above the retail levels; and
two plant levels on top of the building.
The high-rise tower was to extend over a laneway and also into space that was occupied by
an extension of development at 117 Queen Street (which was to be demolished). The new
proposal was for a mid-rise development, which still retained the two level façade of the
heritage building and the street and first floor level retail tenancies, but featured only:
(1)
(2)
(3)
one basement level of retail tenancies;
four levels of office space above the retail levels; and
one level for plant.
The new proposal did not extend into the laneway and did not involve re-development of
the existing extension of 117 Queen Street. By comparison with the approved proposal, the
new proposal:
(1)
(2)
(3)
(4)
(5)
had a greatly reduced gross floor area (around 55%);
was reduced in height, from 61.2m to 27.37m (around 55%);
had reduced office space and one less basement level;
had a different internal configuration of the floor levels, including the size of
proposed tenancies, the number and location of lifts and the location of amenities;
and
had a different number of plant levels which were presented differently.
The determinative issue for the Court in determining whether the change was “minor” was
whether the extensive redesign work in the new proposal resulted in a “substantially
different development”. The appellants submitted that the new proposal involved a change
that was more than minor which required fresh assessment, particularly due to the
differences in bulk and scale between the original proposal and the new proposal. The corespondent conceded that the changes were significant, but submitted that they did not
result in a substantially different development. The two proposals were both multi-storey
developments involving the redevelopment of a local heritage place with offices above
retail and that the changes reduced impacts and addressed the concern in relation to
encroachment on the laneway. It was contended that the change in height and gross floor
area of the subject building was not dramatic in the context of the amount of floor space
and the mix of building height in the CBD.
Decision: The Court held, in dismissing the applications:
1
2
3
4
5
6
7
It was appropriate to have regard to the statutory guideline made under s. 759(1)(c)
of the Sustainable Planning Act 2009.
The dramatic change in built form in terms of scale, bulk and – largely as a
consequence, appearance may support a conclusion that it was more than a minor
change but did not necessarily or inevitably do so.
It was relevant to consider the proposed change from a qualitative, as well as
quantitative, perspective. Traditionally changes which had the potential to raise
new or additional impacts not dealt with at the application stage were scrutinised
more critically. That approach was consistent with the statutory guideline.
An overly conservative approach to the statutory scope for change would be
counter-productive. Proposed changes were assessed broadly and fairly, rather than
pedantically.
The ultimate question was not whether the new proposal was smaller or better per
se, but rather whether it represented more than a “minor change” and whether it
was a substantially different development.
It was possible for a proposal to be both reduced in height and scale and to be
described as substantially different from the original proposal.
The new proposal was dramatically different in its bulk, scale and appearance and
represented a different response to the site’s physical and planning context. It was a
substantially different development.
Boral Resources (Qld) Pty Ltd v Bundaberg Regional Council [2014] QPEC 32 (Jones
DCJ – 6 June 2014)
Planning law – application – whether application to extend operation period of an existing
quarry a permissible change of a development application pursuant to s 367 of Sustainable
Planning Act 2009 – whether change to development condition extending period of
operation of quarry resulted in a substantially different development – or required referral
to additional concurrence agencies – or required impact assessment where previously
activity did not – or caused the development to which the change related to include any
prohibited development – or whether change to the development application was likely to
cause a person to make a properly made submission
Facts: This was a permissible change application made by Boral under section 369 of the
Sustainable Planning Act 2009 (SPA). The application sought to change a condition of an
existing development approval concerning the operation period for a quarry at Inness Park,
Bundaberg. The Boral site was in close proximity to an existing quarry as well as a
proposed quarry site, both owned by Holcim (Australia) Pty Ltd (Holcim).
The existing development approval for the Boral site was a Town Planning Consent Permit
issued by Council’s predecessor on 22 March 1999. Condition 1.2 of the permit stated that
the permit ceased to have force or effect after 15 years. Boral sought to extend the
operation period to 20 years. Council did not oppose the application.
The main issue in the application was whether the change was likely to cause a person to
make a properly made submission objecting to the proposed change. Boral led expert
evidence dealing with traffic, noise and dust. It was submitted on behalf of Boral that the
quarry could continue to operate within the applicable amenity standards of the existing
Permit. Boral submitted that it was unlikely that the change to the Permit would cause a
person, taking a rational view of the matter, to object to the change because:
(1)
(2)
(3)
there was no change to the quarry operation which had been well established for
decades;
the recent complaint history was low or minimal; and
the lodgement of an objection would be perceived to lack utility in light of the
above and the fact that Council would be known to support the change and the
pursuit of an appeal against Council’s approval would be risky.
Evidence was given that the proposed Holcim quarry near to the site had attracted 81
submissions. A number of these submissions had raised the issue of expectations about the
remaining operational terms of the existing quarries.
Decision: The Court held, in adjourning the application to allow the parties to consider
these reasons:
1
2
3
4
5
6
7
8
9
10
As to section 367(1)(a) and (d) of the SPA, the proposed change would not result in
substantially different development or involve any prohibited development.
As to section 367(1)(b)(i) of the SPA, no issues involving additional concurrence
agencies arose.
As to section 367(1)(c) of the SPA, the word “likely” should be construed to mean
“to convey the notion of substantial – a real and not remote change regardless of
whether it is more or less than 50 percent.”
The operation of section 367 of the SPA was not concerned with whether or not a
submitter’s objection would be ultimately upheld by the Court but whether the
change would be likely to cause a person to make a negative submission.
Any submission had to be one made on a reasonable basis. However, expert
evidence of the type given did not rule out the making of a properly made
submission.
Caution had to be exercised in attempting to draw inferences about what would be
likely to occur based on what had occurred in respect of the proposed new Holcim
quarry.
Further, while the number of “objections” may be a relevant fact, the Court must
consider and take into account the substance (or lack thereof) of such objections.
Nonetheless, there was evidence of a genuine desire on the part of a not
insignificant number of residents to see all quarrying in the area cease at the earliest
possible date.
While the every low number of complaints relating to the existing use was relevant,
it was far from conclusive.
It would not be unlikely (even on the balance of probability test) that a change
which would see the subject quarry continue to operate at its current capacity and
11
under its current operating regime, would cause a person to make a properly made
submission objecting to the proposed change.
Having regard to matters raised, the application should not be dismissed until the
parties had an opportunity to consider the reasons.
Karalee Land Partners Pty Ltd v Ipswich City Council and Ors [2014] QPEC 34
(Searles DCJ – 20 June 2014)
Appeal against Council refusal of small lot development in Large Lot Residential Zone –
significance of existing approval – whether proposal conflicted with the Ipswich Planning
Scheme 2006 – sufficient grounds
over a site at Karalee. The development application originally sought a preliminary
approval overriding the planning scheme to facilitate Residential Low Density
development and a development permit for reconfiguration of a lot for Stages 1 – 3 of the
development (8 into 101 lots and 2 balance lots). The ultimate intention was to develop the
site for approximately 420 lots in 11 stages over 20 years. By the time of the hearing, the
proposal had been amended to reduce the total number of allotments to 341 lots. The site
was part of a larger area which had the benefit of an existing approval for large lot
development. Operational works permits had been issued for Stages 1 and 2 of that
development, which immediately bordered the site. The site was contained within the
Large Lot Residential Zone under Council’s planning scheme.
The issues in dispute related to engineering (geotechnical, hydrology and stormwater
management and civil engineering), ecology, character and visual amenity, town planning
and need. At the time of the hearing, engineering issues had essentially been resolved
between the parties’ experts.
1
2
3
4
5
6
The Court should have regard to the existing approval, which regard should extend
to a consideration of the implications of that approval for the subject site and any
future impacts of development under that approval.
The proposed development would have a significant impact on the fauna and flora
habitat areas of the site and on the ecological values associated with natural
vegetation of the area. It was also inconsistent with the Vegetation Management
Code under the planning scheme.
It was difficult to accept that the proposed development would not erode and alter
the existing character and amenity of the area. The substantial increase in the
number of lots and corresponding decrease in their size was at odds with the
existing character and amenity of the site.
The proposal conflicted with the scheme. The conflict was more than minor.
There was no need for the proposed development.
None of the grounds advanced by Karalee, taken individually or collectively, were
sufficient to overcome the conflict so as to justify approval of the application.
Hymix Australia Pty Ltd v Brisbane City Council and Ors [2014] QPEC 35
(Rackemann DCJ – 27 June 2014)
Planning and environment – proposal to re-establish the use of an industrial development
previously developed within a green space and rural area as exempt development – where
exemption had expired – whether undesirable entrenchment – conflict with the planning
scheme – sufficiency of grounds – SEQRP regulatory provisions
to facilitate the recommencement of a concrete batching plant and pre-cast facility use at
Bald Hills. The uses were previously lawfully carried out as exempt development in
conjunction with the Airport Link project. The site was 29.47 hectares with existing
disused facilities including a large pre-cast shed with associated mobile cranes, crane
tracks and demountable buildings located towards the centre of the site. The site was
adjacent to a waterway that linked wetlands of ecological significance. The proposal was
for a material change of use for a pre-cast facility and concrete batching plant that would
supply concrete to the pre-cast facility and the general market and a preliminary approval
overriding the City Plan.
The applicable planning scheme was the Brisbane City Plan 2000 (City Plan), under
which the site:
(1)
(2)
(3)
(4)
(5)
(6)
was located in a Rural Area;
was part of a Waterway Corridor (subject to the Waterway Code and Biodiversity
Code) as defined by the Flood Regulations Lines;
was located on floodable land (subject to the Stormwater Management Code);
contained wetlands (subject to the Biodiversity Code);
was adjacent to Conservation and Parkland Areas; and
was within the Green Space (Rural Component) Area.
The site also fell within the Regional Landscape and Rural Production Area (RLRPA)
(outside of the Urban Footprint) under the South East Queensland Regional Plan
(SEQRP).
The Council’s grounds for refusing the proposal were spread across the following
disciplines: terrestrial ecology; aquatic and wetland ecology; acoustics and air quality;
geotechnical engineering; groundwater; hydrology; water quality; acid sulphate soils;
traffic; visual amenity; need and town planning. Following joint expert meetings in the
course of the appeal, a number of the disputed issues were resolved, subject to the
imposition of appropriate conditions. The remaining disputed issues related to conflict with
the planning scheme, conflict with the SEQRP and its regulatory provisions, visual
amenity, traffic, need and whether there were “sufficient grounds” to overcome conflicts
with the City Plan and the SEQRP and its regulatory provisions.
1
That the fact that the use was formerly carried out (as exempt development) was
not, in and of itself, justification for approval notwithstanding conflict.
2
3
4
5
6
7
The new City Plan 2014, which had been adopted but was not yet in force, was
deserving of weight.
In relation to the visual amenity issues:
(1) The site had only a modest effect on the visual quality and landscape
character in that part of Brisbane;
(2) The current state of the developed part of the site did not contribute positively
to the green space values of the broader area, but the proposal would bring
some overall benefit (and no significant adverse impact) from a visual
perspective; and
(3) Refusal of the proposal would not necessarily, or even probably, lead to the
developed part of the site being rehabilitated in a way which made a
significant positive contribution to Green Space values.
In relation to traffic, the use of the on-ramp by laden agitator trucks would be, at
least, undesirable. That was a matter of relevance to be weighted in the ultimate
decision as to whether external concrete deliveries should be permitted.
In relation to the need issues:
(1) There was a strong public or community need and at least a significant
planning need that supported the proposal for recommencing use of the precast concrete facility, together with concrete batching plant, insofar as it
supplied the pre-cast facility.
(2) Insofar as external deliveries were concerned, there was not, on a traditional
analysis, a strong planning need to provide an approval at the subject site to
facilitate the establishment of a concrete batching plant to service the external
market. The balance lay in favour of refusing the external deliveries
component, so as to obviate the undesirable traffic consequence.
In relation to the conflict with SEQRP:
(1) The developed part of the subject site did not exhibit the desired values of the
RLRPA. The departure from what was intended on the site (which was
proximate to the Urban Footprint) would not do violence to the intentions of
the RLRPA in that area more broadly and the subject proposal would, with
the landscaping, rehabilitation and other works proposed, increase the values
of the land, particularly beyond the developed part.
(2) The question was not whether a facility should be allowed to be located for
the first time on a site within the RLRPA but whether a development which
already existed in that area should be allowed to be reused in circumstances
where to do so would bring benefits and increase the site’s contribution to the
values of the RLRPA.
There were sufficient grounds to approve the pre-cast facility and batching plant
(for the purposes of supplying the pre-cast facility) notwithstanding conflict with
the planning scheme.
Kadhem v Trinity Green Development Pty Ltd [2014] QPEC 36 (Jones DCJ – 3 July
2014)
Application – leave to appeal – whether time for filing notice of appeal expired – whether
if time for filing notice of appeal had expired leave ought be granted – whether reasonable
explanation for delay – whether applicant had reasonable prospects of success in the
substantive appeal if leave granted – whether fairness dictated that leave be granted –
costs.
Facts: This was an application for leave to appeal against Council’s decision to approve a
development proposal advanced by Trinity Green Development Pty Ltd (Trinity) where
the time for filing a notice of appeal under the Sustainable Planning Act 2009 (Qld) (SPA)
had expired. Following the end of the appeal period, the applicant filed a document
purporting to be a notice of appeal which stated the grounds of appeal were: “we are
requesting an extension to the appeal lodgement deadline to have more time to organise
the appeal properly.” The applicant subsequently filed two documents described as
applications in pending proceedings which set out a number of grounds upon which the
applicant contended that the proposal should be overturned, including on the basis of
preservation of open space and protection of koala habitat areas.
The issues for the Court’s consideration were whether the purported notice of appeal was
filed out of time, and if it was, whether there were sufficient reasons, despite the delay, to
grant the applicant leave to appeal. The applicant led evidence that he had acted on advice
of the Court registry in filing his material. The applicant argued that because of the alleged
representations made by the Court registry, he had complied with the SPA and, if he had
not, any non-compliance should be excused because of the advice given. Trinity opposed
the application on the basis that the grounds of appeal were unarguable and disclosed no
reasonable cause of action.
No application for costs was made by Council. Trinity submitted that costs should follow
the event.
Decision: The Court held, in dismissing the application:
1
2
3
4
The applicant had not complied with the relevant provisions of the SPA dealing
with the filing of a proper notice of appeal.
The Court’s discretion in deciding whether or not to extend time was a wide one
and one that ought not be fettered by reference to rigid criterion such as the need
for exceptional circumstances.
Even without subjecting the applicant’s material to any substantive scrutiny, the
applicant did not reveal a case (or potential case) with any realistic prospects of the
success. It was not a case where the interests of justice or fairness warranted an
extension of time to appeal.
The co-respondent was entitled to a favourable costs order, but such costs should be
limited to no more than $750.
Falzon v Gladstone Port Corporation [2014] QPEC 37 (Andrews SC DCJ – 11 July
2014)
Practice and procedure – Pleadings – whether to strike out points of claim – whether
allegations of costs and impacts were allegations of financial loss – where only persons
whose interests are significantly adversely affected by the subject matter of the litigation
may claim a declaration – whether the applicant sufficiently alleged material facts to
establish status to apply for declarations
Facts: In this proceeding Gladstone Ports Corporation (GPC) applied to strike out the
Points of Claim (POC) filed by the applicant in proceedings commenced by the applicant
against GPC seeking declarations under section 54G of the State Development and Public
Works Organisation Act 1971 (Qld) (SDPWO Act) that GPC had not complied with
certain conditions imposed on its dredging activities in the Port of Gladstone (Project).
The applicant was a commercial fisherman in Gladstone Harbour and purported to
commence the proceeding as a representative proceeding for certain persons listed in his
POC (Purported Represented Class).
The Coordinator-General’s report evaluating the environmental impact statement in respect
of the project imposed a number of conditions on GPC. Specifically, Condition 20 required
GPC to mitigate all reasonable financial losses to existing commercial fishing operators
attributable to the Project. Condition 21 required GPC to meet any costs associated with
the investigation, negotiation and administration of any compensation package.
The issues in dispute at the hearing were whether:
(1)
(2)
(3)
(4)
the applicant had pleaded his standing to apply for a declaration;
the applicant had pleaded sufficiently to obtain both declarations;
the declarations sought were too wide to be available; and
the proceeding was not validly brought as a representative proceeding.
Standing
It was agreed between the parties that the applicant was required to allege and establish
that the applicant was a person whose interests were significantly adversely affected by the
subject matter of the proceeding pursuant to section 54F(2)(e) of the SDPWO Act. The
applicant’s POC alleged that the Project had necessitated his incurring expenses exceeding
$480,000 and had interfered with and otherwise delayed his commercial activities.
However he did not allege that the expenses or the delays had caused a financial loss to
him. The applicant argued that he need not allege and prove his own financial loss as a
material fact to establish his status as a person whose interests were “significantly
adversely affected” by the proceeding.
GPC submitted that there was no allegation in the POC that the interests of the applicant
and the Purported Represented Class were significantly adversely affected by the subject
matter of the proceeding.
Sufficiency of pleading
In relation to Condition 20, there was no issue between that parties that GPC must mitigate
certain types of financial losses. The applicant argued in his POC that he had incurred
costs with respect to additional equipment and that the program did not compensate
existing commercial fishing operators. GPC argued that the applicant needed to plead facts
which established that financial losses had been incurred and that the losses had not been
mitigated by GPC. GPC also argued that the applicant had not pleaded sufficient
allegations in relation to “existing commercial fishing operators” which on construction of
Condition 20, was a necessary element to be satisfied.
Likewise, in relation to Condition 21, the POC did not allege that the applicant or any of
the Purported Represented Class had suffered reasonable financial losses attributable to the
Project by way of costs associated with the preparation, submission and prosecution of a
claim, let alone plead or particularise what such losses were.
Declarations sought
GPC submitted that the declarations sought by the applicant were too wide. Firstly, GPC
argued that the relief sought must be limited to the applicant personally and that he was
only entitled to seek a declaration that GPC’s compensation program did not substantially
comply with Conditions 20 and 21 insofar as it affected him personally. Secondly, it was
argued that the declarations sought were not available to the applicant on the basis that he
had not alleged the material facts to show that he was significantly adversely affected by
the issue the subject of the declarations. Thirdly, GPC argued that the POC did not plead
sufficient material facts or circumstances concerning persons other than the applicant.
Validity of representative proceeding
In light of the above, the Court was not required to consider whether the proceeding was
validly brought as a representative proceeding.
1
2
3
4
5
6
The applicant did not allege his expenses or the delays and interferences had caused
reasonable financial loss to him, let alone a reasonable financial loss which the
scheme did not mitigate. That omission meant he did not establish a tenable case of
status to claim a declaration.
An obligation to compensate for financial losses was not equivalent to an obligation
to compensate for increased costs. Those increased costs may well be mirrored by
financial losses resulting from those costs and in an identical amount. But it did not
necessarily follow that a financial cost or an interference with business operations
had caused financial loss.
In relation to Condition 20, the applicant had:
(1) made no allegation in the POC that any “commercial fishing operator” (let
alone the applicant or the Purported Represented Class) had in fact suffered
any “reasonable financial losses;” and
(2) had not sufficiently pleaded a case to establish that he and each of the
Purported Represented Class were “existing commercial fishing operators,”
making the entire POC liable to be struck out.
In relation to Condition 21, the POC did not allege that the applicant or any of the
Purported Represented Class had suffered reasonable financial losses attributable to
the Project by reason of legal and accountancy fees associated with the preparation,
submission and prosecution of a claim, let alone plead or particularise what such
losses were.
Until the pleading alleged sufficient material facts to create a tenable argument that
another relevant person sustained a reasonable financial loss which the
compensation program failed to mitigate the applicant could not rely on the
Project’s consequences to any other. If the pleading were to adequately allege a
failure to mitigate all reasonable financial losses of another relevant person there
may then be an issue as to whether the applicant was significantly adversely
affected by the failure in respect of that other. The declarations sought are too wide
having regard to the material facts currently pleaded.
It was too hypothetical to consider the issue of whether it was appropriate to permit
the applicant to bring a representative proceeding because it required one to
foreshadow what the case would become.
Johnson v Brisbane City Council and Ors [2014] QPEC 38 (Wall QC DCJ – 18 July
2014)
Costs – application by appellant that submitter co-respondent pay appellant’s costs from a
particular date – whether co-respondent thereafter acted “unreasonably” or raised issues
not “properly arguable” or “lacking any substance” – whether issues raised by corespondent were “bona fide matters of town planning relevance”
Facts: This was an application by the appellant that the first co-respondent by Election
(Ham) pay the appellant’s costs of and incidental to the appeal limited to those incurred
between 17 December 2013 and 4 April 2014.
The appeal was against Council’s refusal of a development application for four multi-unit
dwellings on land at Toowong. Ham was a submitter and elected to join the appeal.
Several without prejudice conferences occurred in the second half of 2013. Under a
subsequent Order, Ham notified the parties that the development application should be
approved subject to conditions and identified matters which should be addressed by
conditions. Council circulated draft conditions on 17 December 2013. On 7 January 2014,
the appellant consented to Council’s conditions. On 8 January 2014, Ham proposed a
number of additional conditions. On 10 January 2014, further orders were made setting a
hearing date and identifying the remaining issues in dispute which related to conditions
concerning a construction management plan (addressing, amongst other things, adverse
impacts on water supply standards) and traffic.
The second co-respondent by election (Queensland Urban Utilities) then joined the appeal.
In February 2014, Ham participated in expert meetings, to allow the parties’ experts to
understand his views about the disputed issues. A joint report was produced, the results of
which Ham accepted and the appeal was subsequently resolved by a consent order which
included different conditions.
The appellant argued that he achieved “overall success” in the appeal and that Ham acted
unreasonably in raising new or expanded issues and ignoring Court rules in relation to
expert evidence. The appellant conceded that issues raised by Ham resulted in amendments
to the draft conditions but submitted that the amendments were only narrow. Should the
application fail, Ham sought an order that the appellant pay his costs of the application.
Decision: The Court held:
1
2
3
It was unfair to Ham to categorise the amendments to the draft conditions in a
minimalist way. Ham did succeed on some of the issues he raised notwithstanding
the absence of his own experts, or as a result of raising them conditions were varied
from their original draft or added.
The issues raised by Ham were properly arguable and he did not act unreasonably
in raising them; it could not be said that they lacked any substance. They were bona
fide matters of town planning relevance. The extent to which he succeeded on the
issues raised by him militated against the appellant’s application.
No sufficient basis had been advanced to warrant an order such as that sought by
the appellant and his application must be dismissed.
4
The appellant had failed completely in his application and costs should follow the
event.
Friend v Brisbane City Council [2014] QPEC 39 (Robertson DCJ – 31 July 2014)
Unsuccessful submitter appeal – where appeal unsuccessful primarily on the basis of the
rejection of the town planning opinion evidence of the planner relied upon by appellants
Costs – successful developer applying for costs under s 457 of the SPA
Facts: This was an application for costs arising out of an unsuccessful submitter appeal
against Council’s approval of a development application for mixed use development on the
site of the Chalk Hotel. Costs were sought by the developer (Trentham) against submitters
Mr Friend and Mr and Mrs Manning. The appeal was commenced on 25 January 2013 and
as such the parties were submitted to the new costs regime in the Planning and
Environment Court. The disputed issues in the appeal were predicated on essentially the
different opinions of the expert town planners called by the parties, particularly in relation
to the critical planning instrument being the Woolloongabba Centre Neighbourhood Plan,
which had several drafting anomalies. At the hearing, Trentham successfully rebutted all of
the many allegations of conflict asserted by the appellants, except in one minor aspect.
Trentham’s application for costs was based on several of the matters identified in s. 457(2)
of the Sustainable Planning Act 2009 (SPA), namely the relative success of the parties,
whether the appeal was alleged for an improper purpose, whether the submitters had
reasonable prospects of success, whether there was any matter of public interest in the
appeal, whether the submitters had acted unreasonably in the conduct of the proceeding
and whether there had been any non-compliance with procedural requirements of the
Court. Trentham argued, among other things, that:
(1)
(2)
(3)
(4)
(5)
Mr Friend had commenced the appeal for the improper purpose of avoiding the
establishment of a precedent for the Woolloongabba area if the development
application was approved and had continued the appeal even after becoming aware
that such a purpose lacked merit in a planning sense The allegation was based on a
letter sent from Mr Friend to another adverse submitter seeking to raise funds for
the appeal.
Mr Friend had become a director and shareholder of the legal practice acting for the
appellants during the course of the proceeding and that his purpose in continuing
the appeal after that point was improper as he stood to profit from the litigation.
That the opinion evidence of the submitters’ town planning expert was “perverse”
and that no reasonable party ought to have proceeded with the appeal based on
those opinions.
That Mr Friend had no reasonable prospects of success in relation to traffic issues,
heritage issues and the relevance of a temporary local planning instrument.
The submitters had acted unreasonably in refusing offers to settle.
Evidence was also given to the Court that the submitters’ town planning expert was
married to an adverse submitter.
Decision: the Court held, in dismissing the application for costs:
1
2
3
4
5
6
7
8
9
10
There was no presumption in SPA that costs follow the event. Nor was there a
presumption that each party should bear its own costs.
Although the success of Trentham was a factor which may be taken into account, it
must be seen in light of the serious drafting anomalies in the Neighbourhood Plan.
Those anomalies had underpinned the opinion of the submitters’ expert which, in
the absence of bad faith, the submitters were entitled to rely upon in continuing
with the appeal.
Even if it was made clear to Mr Friend that the purpose of avoiding the
establishment of a precedent lacked merit, it was difficult to see that it could be
regarded as improper to proceed with the appeal after the point he became aware.
In the absence of any evidence, the Court was not persuaded that Mr Friend
continued to participate in the proceedings for an improper purpose as a result of
his involvement in the legal practice representing the appellants.
The evidence of the submitters’ town planning expert was not found to be perverse,
nor was he found to lack objectivity or to be a zealot. The fact that his evidence was
not preferred did not render Mr Friend’s prosecution of the appeal as unreasonable
or improper.
It could not be said, on either the traffic issue, the heritage issue or the temporary
local planning instrument issue, that the submitters had no real prospects of
success.
The argument that there was an absence of any public interest element to the
litigation had been undermined by an earlier finding of the Court which led to an
Amended Notice of Appeal.
Given the advice that the appellants had from their town planning expert, it could
not be said that they acted unreasonably in not accepting offers to settle.
It would have been prudent to advise the parties of the submitters’ town planning
expert’s relationship with an adverse submitter. That was a long way from
establishing impropriety on the part of Mr Friend or the Mannings or
unreasonableness.
The applications should be dismissed.
R F Thompson (Qld) Pty Ltd v Noosa Shire Council [2014] QPEC 17 (Robin QC DCJ
– 24 April 2014)
Planning and environment – appeal against respondent Council’s refusal of compensation
for injurious affection asserted by coming into force of a new strategic plan – preferred
dominant land use (PDLU) mapping and descriptions of designations changed – open
space PDLU designation (with wording allegedly more restrictive of development)
significantly expanded to overlie more land zoned Residential High Density
Flora and fauna, geotechnical, hydraulic, traffic, visual amenity, economic, architectural,
town planning and valuation issues – changing legislative regimes – Government,
community and Court attitudes to environmental issues
Facts: This was an appeal against Council’s refusal of an application for compensation
under s.3.5 of the Local Government (Planning and Environment) Act 1990 (PEA). The
appeal was commenced in 2000. The subject site had an area of 37 hectares and was
centrally located in Noosa Heads. At the east of the site there were two areas of high dunes
separated by a low-lying corridor to the low, flat remainder of the site which fronted
Weyba Creek. The northern dunal area was referred to as Area A, the southern as Area B.
The flat area was referred to as the sedgeland.
The claim was based on the coming into force on 5 September 1997 of a new Strategic
Plan which replaced the 1988 Strategic Plan, and changed the preferred dominant land use
(PDLU) designations of the site. The 1988 Strategic Plan had included the water frontage
and western half of the site as being located within the “Public and Private Open Space”
PDLU, with the remainder being located within the “Urban Area” PDLU. Under the 1997
Strategic Plan, approximately 4 hectares of the site was within the “Semi-Detached and
Attached Residential” PDLU, approximately 8 hectares were within the “Detached
Housing” PDLU and the remainder was within the “Open Space – Conservation and
Waterway Protection” PDLU.
Under s.3.5(1) of the PEA, where a person’s interest in land was injuriously affected by the
coming into force of a provision contained in a planning scheme (or of a new prohibition
or restriction) compensation was payable by the local government. Section 3.5(8)(a) stated:
the amount of compensation is (subject to paragraphs (b), (c) and (d)) to be an
amount equal to the difference between the market value of the interest immediately
after the time of the coming into operation of the provision of the planning scheme
by virtue of the operation hereof the claim for compensation arose and what would
have been the market value of that interest if the provision had not come into
operation.
The Court was required to determine whether the site was “injuriously” affected in the
sense of a reduction in value by the coming into effect of the 1997 Strategic Plan. That
turned on what a hypothetical prudent purchaser would pay for the site on an open market
immediately before and immediately after the coming into effect of the 1997 Strategic
Plan. The appellant argued that:
(1)
(2)
(3)
the 1997 Strategic Plan materially changed the pro-development line taken in the
1988 Strategic Plan;
Council had approved a rezoning for a large-scale development on the site in 1988
on the basis that it was consistent with the objectives of the 1988 Strategic Plan
(although that rezoning was never subsequently approved gazetted); and
there was a contemporary approval of similar development on a site immediately
adjacent approved in 1997.
Evidence was also given about subsequent development applications over the site, after the
commencement of the 1997 Strategic Plan, in particular:
(1)
(2)
an application made in December 1994, for development similar to that which was
the subject of the 1988 approval. Council had failed to decide that proposal and a
deemed refusal appeal had resulted, which was resolved by consent Order
approving a modified proposal; and
an application made in September 2001 and ultimately refused. The
recommendation of refusal was based significantly, but not solely, on the 1997
Strategic Plan.
The Court heard from experts in numerous fields (including geotechnical, flooding, flora
and fauna, acid sulphate soils, stormwater and water quality, visual amenity, traffic,
engineering, economics, architecture and valuation) who were called upon to indicate what
advice they would have given to a potential purchaser of the site in relation to its realistic
development potential. The appellant’s valuer assessed the value before the relevant date
as $37.73 million, compared with $14.45 million immediately after the relevant date.
Council’s valuer did not put dollar amounts on values of the site on the basis that the
before and after values would be the same because a properly advised hypothetical prudent
purchaser would assess changes in strategic planning as not having any impact on a site’s
development potential.
The parties argued about the implications of the increase in “environmental awareness”
leading up to the relevant date at all levels of government and in the community. Council
argued that the phenomenon would have meant that a hypothetical prudent purchaser
would not rely on historical approvals as an indication of what would currently be
approved. The appellant argued that a hypothetical purchaser would have thought that if
Council had pursued a “green agenda” under the 1988 Strategic Plan it would have lost in
an appeal, while under the 1997 Strategic Plan it would have won. Council also relied upon
the decision in Sparke v Noosa Shire Council [2001] 1 Qd R 344 as a basis for rejection of
the appellant’s claim. It argued that rezoning of Area B would have been necessary in the
appellant’s “before” case and that therefore the appellant could not show a legal right to
use the land for the purposes which it said were prohibited or restricted from the relevant
date. The onus was on Council to show that compensation was not payable.
1
2
3
4
5
6
The 1988 Strategic Plan would have stood in the way of the appellant’s “before”
cases as effectively as its successor.
The appellant failed to show that a hypothetical prudent purchaser properly advised
would have held any reasonable expectation of rezonings in the “before” case.
Further, reasonable prospects existed for rezoning (or development approvals
necessary to achieve the before case) after the relevant date, which could not
practically or convincingly be shown to fall short of those that could be expected
before.
The case law did not support the appellant’s argument about increasing
environmental awareness.
The appellant was not entitled to rely on the 1988 approval. Council’s resolution on
that rezoning application did not affect rights in the way a town planning permit
did. Statements by Council that the proposal was in accordance with the 1988
strategic plan did not create an estoppel or in any way bind Council. Council was
free to contend that whatever may have been said or done in regard to that
application was wrong.
Only an irrational purchaser would have taken any heart from the Council’s
statements and actions in respect of the 1988 approval by September 1997. To the
extent that there may have been some value in the 1988 approval, the potential
purchaser would not pay for it.
There were a number of matters that would have given a prudent purchaser pause
before placing reliance on the 1997 approval over the neighbouring site.
7
8
9
10
11
12
13
14
15
16
17
18
19
The coming into force of the 1997 Strategic Plan appeared not to have had the
overnight effect of restricting development possibilities.
It had to be accepted that there were geotechnical unknowns which had the
potential to significantly affect the feasibility of development of the site. While all
acknowledged constraints could be overcome, the cost was unknown and could be
considerable.
Flooding issues hardly loomed large but pointed out problems a developer of the
site concerned to achieve maximum development might face, the engineering and
financial implications of which were unknown.
In relation to ecology, enough had emerged by September 1997 in relation to the
site to send a clear warning that serious environmental concerns were held
regarding development proposed on it.
Inconsistency with the attitude taken to development to the immediate south did not
matter. It would have been extraordinarily rash to count on what happened there as
in any way indicating what might happen on the subject site.
Circumstances pertaining by September 1997 dictated the cautious advice that the
site presented with serious ecological issues that could limit development, further
assessment of the site was needed to identify its values and other expert advice was
required.
There were risks in relation to acid sulphate soils which could not be calculated
accurately and that would have placed any potential purchaser in a state of huge
uncertainty.
In relation to stormwater and water quality, the evidence of Council’s experts was
accepted as to the extent that caution would have characterised advice given to a
potential purchaser.
The visual amenity evidence was largely neutral. There was no significant change
in the planning arrangements on the relevant date.
In relation to traffic, it remained entirely mysterious what was known or could have
been ascertained at the relevant date.
In relation to economic need, the hypothetical prudent purchaser should be treated
as being in receipt of the cautious advice of Council’s expert, whether or not less
cautious advice was also available.
Council’s Sparke point succeeded. In other contexts it might be a concern that a
landowner was left by changes in strategic planning with land reduced to a fraction
of its value otherwise, by recourse had to Sparke. However, ignoring any effect of
Sparke, the Council had established that at the relevant date there occurred no
diminution in the development potential of the site, and therefore no diminution of
market value.
The appellant did not show that its interest was “injuriously affected” which was
the essential recourse to s.3.5 of the PEA. The appeal should be dismissed.
2.
The Court of Appeal
By Michael Walton and Ben Job
Zappala Family Co Pty Ltd v Brisbane City Council and Ors; Brisbane City Council
v Zappala Family Co Pty Ltd and Ors [2014] QCA 147; Clelland v Brisbane City
Council [2013] QPEC 27 (McMurdo P, Morrison JA and Douglas J – 20 June 2014)
Appeal and new trial – appeal – practice and procedure – Queensland – when appeal lies
– by leave of Court – generally – where Brisbane City Council (BBC) and Zappala Family
Co Pty Ltd (Zappala) seek leave to appeal, pursuant to s 462 of the Sustainable Planning
Act 2009 (Qld), against the decision of the Planning and Environment Court upholding a
submitter appeal against the decision of BCC to approve a development application by
Zappala – whether leave to appeal should be granted
Facts: These were applications by Zappala Family Co Pty Ltd (Zappala) and Brisbane
City Council (Council) seeking leave to appeal against the Planning and Environment
Court’s decision to uphold a submitter appeal against Council’s decision to approve
Zappala’s development application for a hotel on land situated at McDougall Street,
Milton. The site was already improved with an operational three storey hotel (the “Coro”)
that did not provide for accommodation. The proposal was for a hotel incorporating short
term accommodation (132 rooms), conference facilities, gym, dining, bar and lounge areas
and 56 on-site car parks. The submitters were unit owners in Coronation Residences,
which was a 10 storey building located between the subject site and Coronation Drive.
The relevant planning scheme was the Brisbane City Plan 2000 (City Plan). The Court
considered the Strategic Plan, Milton Local Plan, Milton Local Plan Code, Residential
Design – High Density Code, Short Term Accommodation Code and Transport, Access,
Parking and Servicing Code (TAPS Code).
Performance Criterion P7 and Acceptable Solutions A7.2 and A7.3 of the TAPS Code
were at the centre of the Court of Appeal proceedings. P7 required that vehicular parking
must not detract from the amenity of an area, must discourage on-street parking and must
be consistent with pedestrian and cyclist access. A7.2 required on-site car parking to
comply with a table in the Transport, Access, Parking and Servicing Planning Scheme
Policy, except for “non-residential development in the City Centre or City Frame”. It was
common ground that the site was in the “City Frame”. A7.3 required on-site car parking
within the City Centre or City Frame to not exceed 1 space for “every 200m2 of gross floor
area for any development other than multi-unit or single unit dwellings or Short Term
Accommodation”.
At first instance the disputed issues included conflict with City Plan, density, bulk and
scale, amenity impacts and traffic impacts resulting from inadequate on-site parking. The
primary judge found that the proposed development would conflict with two planning
provisions, namely the Milton Local Plan because a 15 storey hotel was not commensurate
with the intent of the Office Precinct where the site was located, and the High Density
Residential Area because the proposed development exceeded 10 storeys. However, it was
determined that that there were sufficient grounds to justify approval despite those
conflicts. The primary judge went on to consider the issue of traffic impacts. In evidence,
Zappala’s expert conceded that the likely demand for car parking spaces was up to 70.
Council’s expert thought “design peak demand” was in the region of 80 car parking spaces.
The submitters’ expert concluded the likely demand was well in excess of the proposed
number of spaces. All three agreed that the design peak parking demand from the
accommodation portion of the development was between 33 and 44 spaces. Both Council’s
expert and the submitters’ expert expressed the view that the proposal should not be
refused because of inadequate parking.
On the basis of that evidence, the primary judge found that the proposed development
seriously conflicted with Performance Criteria P7 of the TAPS Code and held that the
conflict could not be justified on the basis that it was in accordance with Council’s
apparent policy to restrict parking in the City Frame Area because:
(1)
(2)
(3)
Short Term Accommodation was expressly excluded from A7.3 and the particular
use was a significant parking generator for the proposed development;
Milton was an area which already suffered from significant parking constraints; and
The existing hotel and restaurant on the subject site already generate demand for
parking that was not always accommodated within the existing facility.
The grounds of appeal raised in the applications turned on the primary judge’s
interpretation of parts of the City Plan and TAPS Code.
Decision: The Court held in granting leave to appeal and allowing the appeals:
1
2
3
4
5
6
7
8
9
10
It was appropriate to grant leave to appeal. If the applicants succeeded on the
grounds of appeal, which if correct clearly raised errors of law, the consequence
was that Zappala’s application for approval was incorrectly rejected by the
Planning and Environment Court. That was a substantial indication in favour of the
grant of leave.
The same principles which applied to statutory construction applied to the
construction of planning documents.
The proposal was for a Hotel and as such it did not come within the definition of
Short Term Accommodation.
The proposal was not for a residential development and was excluded from A7.2
The same would apply even if the development was characterised as Short Term
Accommodation.
A7.3 was the only Acceptable Solution applicable in the circumstances.
The primary judge focussed attention on the question of whether parking demand
could be met on-site. There was no analysis of whether A7.3 had been met by the
proposal.
On the evidence, a finding that the accommodation component was the significant
parking generator that caused conflict with P7 was not open.
The primary judge’s finding that the proposal was in conflict with P7, when in fact
it came within A7.3 was an error of law which should be corrected.
On a proper construction of A7.3 there was no requirement to look at the various
components of use in the proposed development. A7.3 applied to impose a
maximum number of required spaces at a rate applicable to the entire development.
It seemed plain that the traffic engineers’ conclusion that only 33 to 44 spaces were
needed for the hotel room component was the reason why each of them said the
proposal should not be refused. The primary judge’s failure to deal with the traffic
11
12
engineers’ evidence contributed to the conclusion that there was serious conflict
with P7. On any view that evidence showed there was no conflict. In that regard the
learned primary judge fell into error.
The primary judge erred in failing to explain why the unanimous view of the
experts that the proposed development should not be refused was rejected.
In relation to the contentions raised by the submitters:
(1) It was not demonstrated that the learned primary judge failed to deal with the
“loss of views” of the submitters, or that there was any error in the way he
did.
(2) The primary judge’s finding that it was incongruous for the site to be in the
Office Precinct of the Local Plan was open on the evidence.
Queensland Heritage Council v The Corporation of the Sisters of Mercy of the
Diocese of Townsville [2014] QCA 165 (McMurdo P, Gotterson JA and Douglas J – 22
July 2014)
Heritage conservation – judicial review of heritage decisions – generally – where the
Queensland Heritage Council entered a convent owned by the respondent into the
Heritage Register – where the respondent appealed to the Planning and Environment
Court from the Council’s decision to enter the convent in the Register – where the grounds
available in that appeal were contested – Sustainable Planning Act 2009 (Qld) – appeal by
way of hearing anew – extent of powers of the Planning and Environment Court to
consider other matters
Appeal and new trial – appeal – general principles – right of appeal – when appeal lies –
from interlocutory decisions – leave to appeal – whether the right of appeal to the Court of
Appeal in s. 498 of the Sustainable Planning Act 2009 (Qld) applied
Facts: This proceeding involved the St Patrick’s Convent in Townsville. The convent was
built in 1873 and was the oldest known surviving convent in Queensland. On 3 February
2012, the applicant entered the convent into the Heritage Register on the basis that it
satisfied the cultural heritage criteria set out in s. 35(1)(a), (d) and (h) of the Queensland
Heritage Act 1992 (QHA), namely that it:
(1)
(2)
(3)
was important in determining the evolution or pattern of Queensland’s history;
was important in demonstrating the principal characteristics of a particular class of
cultural places; and
had a special association with the life or work of a particular person, group or
organisation of importance in Queensland’s history.
Section 51(3) of the QHA permitted the Council, in making its decision, to have regard to
“whether the condition or structural integrity of the place may prevent its cultural heritage
significance being preserved”. The Sisters of Mercy challenged the decision to list the
convent by appealing to the Planning and Environment Court. There was a dispute
between the parties as to the factual issues that could be canvassed on that appeal. The
Sisters of Mercy argued they should be entitled to include, as grounds of appeal, the
matters referred to in s. 51(3) of the QHA, namely whether it was likely that the convent
would need to be removed and replaced and whether its physical condition and structural
integrity may prevent its cultural heritage significance from being preserved.
The Sisters of Mercy also sought to rely on the Sustainable Planning Act 2009 (SPA) in
arguing that the appeal was a “hearing anew” and that if one of the grounds of appeal were
made out, the Court should be entitled, in making a new decision in place of the Council’s,
to consider the issues referred to in s. 51(3) of the QHA.
The Council argued that s. 162(1) expressly limited the possible grounds of appeal against
its decision to whether the convent satisfied the criteria stated in s. 35(1) of the QHA.
Section 162(1) stated that an appeal “may only be made on the ground that the place the
subject of the appeal does or does not satisfy the cultural heritage criteria”. The Council
also argued that s. 162(1) confined the powers of the Court.
The primary judge had decided the issue in favour of the Sisters of Mercy. On appeal, the
Sisters of Mercy argued as a preliminary issue that the QHA did not provide an avenue of
appeal to the Court of Appeal. The Council argued that an appeal was possible under the
SPA.
Decision: The Court held (Douglas J and Gotterson JA concurring as to the orders made,
McMurdo P dissenting in part):
1
2
3
4
5
6
7
The conclusion that the SPA permitted the Council to appeal with the leave of the
Court was compelling.
When approaching the issue of the proper resolution of the potential conflict
between two statutes, looking at the provisions as a whole and seeking to give them
harmonious goals led to the conclusion that a ground of appeal asserting the place
the subject of the appeal did not satisfy the cultural heritage criteria must be made
out in order for it to be open to the Planning and Environment Court to exercise any
powers under the SPA.
If such a ground of appeal was made out, it was then appropriate to permit the
Court, in exercising its powers, to hear the matter anew and, in doing so, to
examine the issues which the Council itself had to examine under s. 51(3) of the
QHA, namely whether the physical condition or structural integrity of the place
may prevent its cultural heritage significance from being preserved.
The success of a ground of appeal may throw quite a different light on the
particular issues related to the physical condition or structural integrity of the place
justifying the Council, were it considering the matter anew, in reaching a different
decision. If it was the case that error could be shown in the Council’s assessment of
the cultural heritage criteria relevant to the place then that was also likely to throw
doubt on the decision generally, justifying a reconsideration of the issues.
It would be wrong to preclude a litigant from arguing that the Court should make a
decision replacing the decision set aside without reference to all the issues actually
considered by the Council itself. The better view was that a broad view should be
given to those grants of power to permit such issues related to physical condition or
structural integrity of the place to be litigated if one of the statutory grounds of
appeal was made out.
It was appropriate that the issue whether a ground of appeal under s. 162(1) of the
QHA had been established should be determined in the first instance to save the
costs associated with the potentially unnecessary litigation of the issues relevant to
s. 51 of the QHA.
Leave should be granted and the appeal allowed.
Environmental Extension in Queensland
By Hugh J. Lavery
Introduction
This paper reviews the public presentation of natural environment research findings
during more than half a century in Queensland. Because translation of scientific outputs
into lay practice has long been demonstrated in the discipline of agricultural extension –
a field closely related to environmental management – outputs are compared with those
currently presented by major agricultural agencies.
Trends – and thus the prospective direction for environmental management education in
this large, resource-rich Australian State – are described. These entail a progression of
efforts from natural history research results in print and documentary films to the
outputs of Community Reference Groups, where representatives of environmental and
commercial interests seek to achieve consensus about ecologically-responsible
development. A serious shortfall in priority local management guidelines is evident
throughout – particularly at the practicable level.
Methods by which sound extension could be progressed are considered, with comment
on the underlying value of a ‘narrative’, that is, the storyline of an area’s characteristic
natural (and associated cultural) heritage around which its enduring identity can be
promoted and managed. In the process, the rapidly-evolving communications
technologies can take more advantage of landscapes to better inform field actions.
Environmental Education
During the past 70 years, information about the management of the natural environment
in Queensland has been conveyed primarily to the public either by government agencies
or by non-government organisations, mainly using the print and television media.
Attempts to resolve the issue of maintaining a balance between development and the
natural environment that sustains it over time have involved numerous laws, regulations,
by-laws and policies – promulgated in an effort to deliver prescribed standards for
environmental management. Although there can be no question that actions which
result in environmental destruction must be prevented, mandated outcomes alone are
inadequate over the long-term.1 Attempts to encourage the adoption of more effective
environmental management practices, by demonstrating economic consequences of
ecosystem disruption, have been introduced2 but remain to be applied.
Experience has shown that such approaches have not, by themselves, delivered the
results on which sustainability ultimately relies. Field information in Australia still
lacks sufficient search effort and is usually missing local detail. Practicable measures by
which landholders can (i) identify the core private lands essential for regional
sustainability, (ii) apply suitable management methods, and (iii) acquire incentive to act
in both their own and the community’s long-term interests, are still wanting.
Experience in Other Fields
1
See e.g. DE Fisher, Australian Environmental Law: Norms, Principles and Rules, (2nd ed., Lawbook,
2009).
2
See e.g. R Gittins, ‘Facing up to our problems’, (2012) 83(7) Charter 8.
The most sophisticated education effort pertinent to environmental management has
been demonstrated in the field of agriculture. It began in modern times through
alternative agronomic practices advocated by government following the Great Irish
Famine (1845–51); scientific discipline was imposed on this effort by Oxford and
Cambridge Universities (after 1866). In the United States, ‘extension’ programs were
significantly advanced through the provisions of the Smith-Lever Act 1914, by way of
land-grant universities.3 Their task had two main objectives: ‘To develop practical
applications of research knowledge; and to give instruction and practical
demonstrations of existing or improved practices or technologies’. The consequent
agricultural extension services reached a benchmark peak following the Dust Bowl of
mid-North America (1933–34), with President FD Roosevelt’s post-Depression ‘New
Deal’ addressing the topic of soil erosion/soil conservation (among other matters).
Determination of sound methods in ecological sustainability are nowadays most likely to
be successfully conducted – and demonstrated – in those large areas where readily
identifiable ecosystems are still in sound (self-perpetuating) condition. Such a ‘frontier’
occurs in Queensland, the large and still naturally viable north-eastern quarter of the
unique bioregional realm of Australia. In this setting, a series of case studies4 has
ventured to define an ecological design process whereby adequate scope and scale can
be imposed to sustain ecosystems.
This suite of techniques now faces the challenge of informing those best positioned to
implement them in the field.
Current Practices in Environmental Management Extension
Communication on environmental matters through National Geographic Society
publications and the like is undeniably skilful, but is global rather than local in
dedication. At the other extreme, are publications such as the African-based Journal of
Environmental Extension which aims to generate ideas on formulation, packaging,
dissemination and consequential impacts of ideas and policies relating to the quality and
sustainability of the environment; however, while promoting waste and water
management, natural resource management is not included in these periodicals. Two
examples appear to demonstrate the current state-of-art extension practices best, one in
North America and the other in Australia.
In the USA, the Cooperative Extension System (CSREES) is a major non-formal
educational program (e-eXtension) designed under the Smith Lever Act 1914 to help
people use research-based knowledge to improve their lives. Information is organized
into 10 ‘communities of practice’ and takes the form of articles, news, events and
frequently-asked-questions that come from 51 land-grant university faculty experts
using research results which have been subjected to peer review prior to publication.
Those relating to environment and pest management offer the most ‘how to manage
natural resources’ type of advice in an interactive learning environment.
There are now six areas of extension actioned in North America: agriculture, natural
resources, community and economic development, leadership development, youth
3
US Congress, The Smith-Lever Act 1914, as Amended Through Public Law 107–293 (Nov. 13, 2002).
Land grant universities are those established under the Morrill Act of 1862.
4
HJ Lavery, The Use of Ecological Design to Achieve Sustainable Development in Queensland, Australia
(Queensland University of Technology, 2012).
development, and family and consumer services. The second of these teaches extension
professionals and volunteers how to use natural resources wisely and protect the
environment, with educational programs in water safety, timber management,
composting, lawn water management, and recycling. The US National Institute of Food
and Agriculture (through the program EXtension) offers webinars with advisory video
clips.5 Such extension expertise meets public needs at the local level, but is limited in
ecological scope and does not address the unique Australian environment.
In Australia, the Australian Rural Industries Research and Development Corporation
(ARIRDC) manages and funds priority research, and translates the results into practical
outcomes for industry development, with a focus on new rural industries and national
rural issues. Translation in environmental matters is by way of Environment Community
Information, using publications. Although broad-ranging, the topics tend to describe
funding initiatives rather than serving as information on how to manage natural
resources, particularly at the local level.
Elsewhere in Australia, while university and other research organisations have continued
to study particular topics (presented in such journals as the Australasian Journal of
Environmental Management and Environmental Humanities), extension at any local
level has been more through webcasting by Landcare, Regional Natural Resource
Management organisations, and other community groups, sponsored by government but
largely voluntary. There remains a significant disjunct between scientist and landholder,
irrespective of any good intent by both parties. Field efforts by government agencies at
Commonwealth and State levels6 have been declining,7 just as in North America.8 It is
paradoxical that where numbers of agricultural extension officers have increased in
Australia, this has been particularly in the environmental area (or natural resources and
environment) but is pre-occupied with ‘statistics, maps and atlases, sources of market
information, legislation and (lists) of Departmental publications’,9 not with new
practical methods by which the landholder can sustain the land.
Land management extension has been employed widely in Queensland, where some of
the earliest environmental conservation management also was instituted by the then
Queensland Department of Agriculture and Stock.10 Thus, during much of the latter half
of the 20th century, as many as 650 departmental extension officers translated the
agricultural/pastoral findings of some 1,300 staff scientists. Practical information was
conveyed in a widely-distributed publication (Queensland Agricultural Journal), which
appeared much more frequently than purely scientific material (in the Queensland
Journal of Agricultural and Animal Sciences). Extension (‘semi-technical’) material also
5
Both live and archived webinars are available, with 96 on offer from 2009 to 2013, ranging from
‘ecological farm design for pest management’ to ‘trees for energy conservation’.
6
Such as Research and Development Corporation, Riparian Land Management Technical Guidelines
(Commonwealth Land & Water Resources, 1999) and Department of Natural Resources, Natural
Resource Monitoring Guide (State of Queensland, 1999).
7
As one example, Rural Research in CSIRO was published quarterly from 1952 to 1979, became Rural
Research until 1997, and has now ceased publication.
8
It has been argued that this reduction is a consequence of the on-going New Deal policy of keeping
prices up by keeping production down (B Ganzel, New Deal farm laws. In: Wessels Living History Farm,
available on http://www.livinghistoryfarm.org/ farming).
9
S Anderson, Information and library services for extension officers in NSW Agriculture: developments
to meet their needs (The Regional Institute, 2003) available on http://www.regional.org.au/au/apen/2003
10
Under the provisions of the Fauna Conservation Act 1964.
was presented in a series of Shire Handbooks in which extension officers were required
to demonstrate ‘a thorough knowledge of the environment, detailed with respect to
physical resources and conditions’.11 These comprehensive, readily available documents
were intended to inform local landholders about the possibilities (and limitations) of
their lands.
More recently in Australia, the use of web-based environmental services using television
news or YouTube sources of video clips – usually a few minutes in duration – tend to be
either general statements, field project outlines, or fund-raising endeavours. Specialised
social networking (e.g. through US-based Earth Protect Inc.) offers promise in this
direction, if linked technically with regional physical and social catchments (e.g. as in
Queensland’s sustainablesunshinecoast.com.au – particularly with its University of
Sunshine Coast connections). One danger is that rather than narrowing the gap between
scientist and landholder, such networking may widen it because targeting is more
difficult. Another potential failing is that digital technology is presently outpacing the
ability to archive and retrieve data cost-effectively and thus fails to allow changes
effected over time to be measurable (the basis of sustainable practice).
Even in agricultural extension, it has been acknowledged that services offered in
Australia (by extension officers) are not always relevant and/or appropriate.12 The
members of a community who warrant priority attention for targeting with suitable
management information are difficult to identify; it has become customary to view these
as the next generation (i.e. children of current landholders). Regrettably, the need to
sustain our resources may be so pressing that the proper audience will need to be the
current landholders, experienced in use of their landholding(s) and prepared to test new
techniques. These are more likely to have parental or other protracted interests
encouraging long-term horizons for their land, and be well known in their local
communities – and thus set a lead in land-use changes. It must be remembered that they
will be preoccupied with efforts to sustain their landholdings under the prevailing
economic conditions. Corporate landholders that manage large aggregations of
Australian land are critical ‘targets’ to ensure wider acceptance of new practices
(because of the example they set). In any event, guidance will need to be concise,
accurate, eminently practicable and not detrimental to commercial survival.
Trends in Queensland
The stepwise progression of both the information and dissemination of environmental
knowledge has been shown to be separate and episodic (Figure 1).13
11
See e.g. DJ Beal, Eidsvold Shire Handbook (Queensland Department of Primary Industries, 1969),
among >50 such Shire Handbooks.
12
Anderson, above n 9.
13
HJ Lavery, ‘A history of environmental management in the field in Queensland: episodes of activity’
(2011) 17(76), Queensland Environmental Practice Reporter 29.
Fig. 1. The pattern of environmental information outputs in Queensland since European settlement
There are two distinct elements to the overall trend: (a) relevant knowledge has been
gained through eras of exploration, inventories, ecological surveys, ecological planning
and ecological design; only now is there becoming suitable knowledge to initiate and
encourage voluntary endeavour on private landholdings, where action is increasingly
essential; (b) some of this knowledge has been presented in eras of non-government
organisations or media and government regulatory action; the period where animated
visual presentations displaced an earlier period of static scientific illustration (including
through vastly popular field guide books) appears, in turn, to be finishing.
It remains to be shown whether the move into digitisation retains the archival capacity
of hard copy print (books). At the same time, the ever-advancing technology clearly
contributes to the evolution of extremely effective local communication. Appendix 1
provides more detailed evidence of trends in ‘environmental management extension’,
based on a set of scientific publications by one environmental scientist (the current
author) over five decades of practice.
A Way Forward
David Attenborough remains ‘the unchallenged king of natural history film-making’;14
his 60 years of filming are ‘a lifetime of developments in filming technology and
scientific discovery and explore the ever-growing plight of the natural environment’.15
These outputs include a visual presentation of problems increasingly besetting our
natural environment; they do not, however, offer solutions to the methods needed to
maintain the local ecosystems. Indeed, controversial issues are suppressed.16 Television
14
Michael Palin on dust jacket of David Attenborough: Life on Air (BBC Books, 2003).
From cover of David Attenborough: 60 Years in the Wild (Blue Ray DVD, 2013).
16
M Richards, ‘Greening Wildlife Documentary’ Chapter 11 in: L Lester & B Hutchins (eds)
Environmental Conflict and the Media (Peter Lang, 2013).
15
documentaries (from BBC Natural History, Discovery Channel, and so on) – popular
though these are with the community at large – do not (and indeed cannot) deliver
locally applicable management advice to key landholders. Bousé points out ‘There is
little to suggest that the genre has made a significant contribution to protecting the lives
of wild animals, or to preserving species and habitat, in the sort of systematic and
predictable ways that would prove to be an effective tool’.17 Huggan expresses a similar
view: ‘I remain deeply sceptical of the potential of nature documentary/wildlife film to
serve conservationist imperatives”.18 Little heed has been paid by anyone to the
foresight of the eminent conservationist Aldo Leopold, who in 1940 concluded: ‘The
problem which faces our profession is how to organize extension19….. to help
landowners to help themselves’.20 Just as ‘Agricultural extension needs to be re-invented
as a professional practice’,21 so environmental management extension needs to be
invented. Future guidance on more effectiveness in practices relating to the environment
will occur by offering preventative rather than curative action (now largely the
situation).
Given the time and effort that has been expended in Queensland over the past half
century on the subject of environmental management, the prevailing conclusion that
‘there is presently a relatively poor understanding of many of the (management)
principles for virtually every Australian ecosystem’22 is alarming. This is particularly so
because sustained land use involves determination of the best return on investment of
effort over time – where time may be running out rapidly.23 In countries where agrarian
productivity is critical, the development of close co-operation between extension
agencies and formal research institutes is now regarded as essential.24
As highlighted long ago in North America under the Smith Lever Act, two quite different
matters are at the core of any field education activity: (1) The creation of practicable
techniques that can be confidently and affordably applied to the particular natural
resources at risk; and (2) the means whereby these methods can be accessed, understood
and implemented by involved members of the relevant landholding community. The
same conclusion has been expressed plainly in Australia as ‘Research is of no value if it
is not “extended” to farmers, industries and the community; one cannot exist effectively
without the other’.25
17
D Bousé, Wildlife Films (University of Pennsylvania, 2000).
G Huggan, Nature Saviours: Celebrity Conservationists in the Television Age (Routledge, 2013).
19
The term ‘extension’ is defined as ‘A professional communication intervention deployed by an
institution to induce change in voluntary behaviours with a presumed public or collective utility’: P Freire,
‘Extension y communicacion’, translated by L Bigwood & M Marshall in Education:The Practice of
Freedom ([Writers and Readers Publishing Cooperative, 1976]).
20
AS Leopold, ‘The state of our profession’ (1940) 4(3) Journal of Wildlife Management 343.
21
C Leeuwis & A van den Ban, Communication for Rural Innovation: Rethinking Agricultural Extension
(Third Edition) (Blackwell Publishing, 2004).
22
MA Burgman & DB Lindemayer, Conservation Biology in the Australian Environment (Surrey Beatty
& Sons, 1998).
23
The ‘exponentially accelerating horse race’ of J Diamond, Collapse: How Societies Choose to Fail or
Survive (Penguin Books, 2005).
24
Bangladesh Ministry of Agriculture, New Agricultural Extension Policy (NAEP) (Government of the
People’s Republic of Bangladesh, 1996).
25
Director-General of NSW Agriculture in G. Sheldrake, Agstaff forum feedback, Circular No02/085
(NSW Agriculture, 2002).
18
Behind the public arenas of legislation and the media, an undercurrent of serious study
has provided more precise information about natural resources; inventories (as most
popularly manifested in natural history guide books and later documentary films) are
being quietly accompanied by ecological surveys leading to ecological planning. These
latter two disciplines in Australia are now advancing into an era of ecological design.26
Such a systematic course has been mostly ‘self-serving’ to date, i.e. feeding its own
progressive knowledge needs. While this work is proceeding soundly when systematic,
thorough, expert search effort can be afforded, it is presented largely in a scientific
jargon recognised by its practitioners but indecipherable to the majority of land users
who need to know about it.
Environmental management extension to date reveals a process in place whereby
material is selectively chosen from scientific research results and presented in book and
film form according to state-of-art technologies and populist demand (for
entertainment). In the course of the past half century, this evolving path – from offset,
black and white printed books and films by publishers and producers to self-published,
colour e-books and international, broadcast quality documentaries by individual authors
– has culminated in global outreach, almost from a personally affordable platform.
Webcasts offer promise of more immediate interaction, an invaluable component of
education and training once the prime audience is identified.
Any move towards more effective communication of environmental management results
is in keeping with the modern view of ‘creating shared value’, simultaneously
unleashing a wave of innovation and growth.27 Modern opinion is that such
communication is of two categories, aiming to change the knowledge and the behaviour
of rural people. These are sought to be accomplished by ‘participatory extension’ and by
‘negotiation (rather than by transmission)’. ‘We need translators – people who can
communicate across boundaries…bringing groups together and sparking creativity and
innovation. Traditional institutional arrangements are not keeping up with the pace of
change or the complexity of the challenge’.28
In Australia, a vehicle for effective participatory environmental extension on an
appropriate scale nowadays could be the Community Reference Group (CRG), a
requirement for the environmental scrutiny of large development projects that can be
enforced in Australia by State and/or Commonwealth governments. Selected
representatives of the related interests of the region surrounding major new
developments are invited to contribute their long-term experience of the physical
catchment. Their potential to generate a more locally knowledgeable and committed
community input that is proactive and creative is currently under investigation using ongoing case studies in Queensland and New South Wales. These need to recognise that
‘this places the onus on diversifying the publics with whom scientists collaborate, and
the terms on which they do so’.29
At the same time, the messages about environmental management will need to be
crafted from strong ‘narratives’, using CRGs to access relevant local history before any
26
Lavery, above n 13.
ME Porter & MR Kramer, ‘Creating Shared value: How to reinvent capitalism – and unleash a wave of
innovation and growth’ (Jan-Feb 2011) Harvard Business Review 2.
28
G Harris, Seeking Sustainability in an Age of Complexity (Cambridge University Press, 2007).
29
SJ Whatmore & C Landström, ‘Flood apprentices: an exercise in making things public’ (2011) 40(4)
Economy and Society 582.
27
development action is taken. Lessons about sustainability in such narratives may be
gleaned from sets of historic stone carvings (such as on the Oxford and Cambridge
University buildings), where a firm portrayal of intent is sufficiently dynamic to stand
the test of time regardless of increasing knowledge, changes of popular taste, and
improvements in technology. The narrative must be sufficiently specific to reflect the
uniqueness of the particular environment being sustained, bringing real character to a
site. The narrative, and the themes these generate, would appear to have immediate
application in development proposals prior to their scrutiny by government. Such
documents currently lack this profound statement of intention – together with the
supporting credentials – to instil confidence in the future. The environment has singular
potential for themes; its scenery provides the landscape setting to convey messages
visually.
Acknowledgements
The papers in these series continue to owe much to the experienced advice of Dr T.H.
Kirkpatrick, formerly chief scientist in the Queensland Environmental Protection
Agency. Dr Morgan Richards, Centre for Cultural & Critical Studies, University of
Queensland, provided valuable insights into international natural history documentary
film-making.
Hugh Lavery
APPENDIX. An example of a progressive set of ‘environmental management
extension’ productions for Queensland, 1960-2012 (by the author).
Extension format & form Status
Target distribution Example title (&
Outcome (circulation)
(& Principal
Supporting agency)
audience)
1950sPrint (black & white,
First environmental Regional
Wild Ducks and Other Print-run exhausted.
typeset, Government
book published by (wildfowlers)
Waterfowl in
Printer) - booklet from
Queensland
Queensland (QDPI)
journal series
Government
1960sCamera film (16-mm black First national
Across the Saltpans Honourable Mention,
Regional
& white negative film
(QDPI/ ABC)
Australian Film Awards
television natural
(naturalists)
processed to rough
(1972); Logie for Best
history series (Wild
print/cutting copy/ release Australia – A View
Australian Documentary Series
print) - short documentary of Birds and Men)
(1973).
film
1970sPrint & camera film (16-mm First regional
Regional & national Exploration North - Two editions (of 10,000 each)
colour, offset, commercial Australian treatment (conservationists) Australia’s Wildlife sold out and rights to third
publisher & with colour TV instituted as basefrom Desert to Reef edition on-sold. Film series
requirement, incl. future(QNPWS & ABC)
line reference
selected for Melbourne Film
proofing) - book &
Festival (1979); also broadcast
documentary film series
internationally.
(commercial-hour)
1980sFilm (16-mm film camera) First Australian
National &
Messengers of the
Screened at 19 International
& artworks - Independent treatment of nature international
Gods (QEPA,
Ornithmajor documentary film
in relation to society (general)
Queensland Film
ological Congress; 1
International Wildlife
Corporation &
Management Conference
Australian Film
Commission)
(Beijing, 1987); American
Film & Video Festival, New
York 1986; Wildscreen ‘86;
Bronze Medal,
Festival International du
Cinema Animalier (1986);Prix
du Menigoutais en Gatine,
Original artworks First series
paintings & artist’s sketches representation of an National (art world) Lakefield National
International Ornithological
Park
Film Festival (1987); etc. Still
Australian national
(QUT/QELA/
park by a leading
being broadcast internationally
Q Govt)
painter
(> 23 years).
John Olsen Exhibition (6 major
works, 2 etchings & 38
Period
th
st
drawings), Queensland Art
Gallery 1985.
Part of Australia’s largest-ever
single return for tourism.
1990sFilm (Videocamera (Betacam, tape) - television
documentary
First documentary National (children) Australia’s Gift of
Koalas to Japan
reporting a State Gift
(‘Koara’)
of Wildlife overseas
(QNPWS & Channel
7)
International
First Australian
Wonderful Animals of An on-going NGS best-seller
Print (Paper-engineered) - ‘pop-up’ book for (children)
Australia (National (142,000 copies printed in one
Action book
global market
Geographic Society year).
[USA])
Duck Decoys Down
Under (AEI/Wildfowl
International
First national
Art [USA])
Original folkart - craft
(wildfowlers &
collection outside
North America
folkart world)
Selection for ‘Gold Room’
display at
Wildfowl Festival (Easton
MD, USA), and for sale at the
World Decoy Championships
(Ocean City, MD, USA)
2000sPrint (Offset) - booklet
Community Reference Print-run exhausted.
First public semiRegional
Group-Port of Airlie
technical report on a (community)
Review 2009
major development
project
(Queensland
Government)
First environmental
The Use of Ecological
National
Design to Achieve
compilation for
Digital print
Limited edition fulfilled.
Sustainable
(developers &
(Computer to plate, with no guiding the
Development in
community)
Development
film or printing plates
Queensland
Approval process
involved) - book from
(QUT/QELA/
journal series
DEEDI)
2010sDigital I-print – E-book
First e-book deriving International
from Australian
(general)
environment
First e-book on the
pre-eminent US
Digital I-print – E-book
International
environmental folk (wildfowlers)
art
First on-going series
Digital webpage - webcasts about environmental Regional, national
management
& international
practices
(landholders)
Cranes: The Eyes of In prep.
Heaven (AEI)
Duck Decoys of
Australia (AEI)
In prep.
Streaming (tba)
In prep.
Reforming the Queensland Heritage Act 1992: Local Heritage Registers –
should decisions to list be appealable?
By David Nicholls
As recently pointed out by His Honour Judge Rackemann in a paper published in this
journal,1 the Queensland Heritage Act 1982 (QHA) does not confer a right to appeal to the
Planning and Environment Court (the Court), from a decision by a local government to enter
a place on a local heritage register.2 This may be compared with a decision to enter a place on
the State heritage register for which there is a right of appeal to the Court.3 As His Honour
Judge Rackemann also points out, entry on a local heritage register is taken to be a change to
the local government’s planning scheme, which may give rise to a right to compensation for
injurious affection under the Sustainable Planning Act 2009 (SPA).4
To the extent a local government, such as the Brisbane City Council, is exempt from Part 11
of the QHA because it is prescribed for that purpose, inclusion of a place on the heritage
register constitutes a change to a planning scheme triggering a potential right to claim
compensation for injurious affection under the SPA in the ordinary way. Where the local
government is not so exempt, it is required to have a local heritage register and may of its
own volition enter places on it.5 If a local government does so it is then taken to have changed
its planning scheme and the owner of the place entered in the register is entitled to claim
compensation under section 704 of the SPA. The right is the same as that which applies to
any planning scheme change. Section 124(4)(c) of the QHA provides that:
The Planning Act Chapter 9 Part 3, applies in relation to the claim with any necessary
changes.
This means that before an entitlement to claim compensation arises, the provisions of the SPA
in relation to the making of a development application (superseded planning scheme)
(DA(SPS)), have to be satisfied.6 Further, the matters which exclude or limit claims for
compensation under the SPA are potentially applicable.7
One of the limitations on compensation for injurious affection due to a planning scheme
change arises where the change –
has the same effect as another statutory instrument, other than a temporary local
planning instrument, in relation to which compensation is not payable.8
The State Planning Policy (SPP) of July 2014 is a statutory instrument. It expresses the
following State interest in relation to cultural heritage –
1
Heritage and Character Buildings: State and Local Controls in Queensland, and the Story of Hesketh House
(2014/2015) 20(86) QPER 1
2
Ibid, 35
3
QHA section 161
4
Ibid.
5
QHA ss 113 and 116
6
SPA s 704(1)(b)
7
SPA s 706(1)
8
SPA s 706(1)(a)
The cultural heritage significance of heritage places and heritage areas, including
places of indigenous cultural heritage, is conserved for the benefit of the community
and future generations.
For non-indigenous cultural heritage
... identify heritage places of local cultural heritage significance and heritage areas;
and
Facilitating the conservation and adaptive re-use of heritage places of local cultural
heritage significance in heritage areas so that the cultural heritage significance of the
place or area is retained; and
Including requirements that development on or in heritage places of local cultural
heritage significance or heritage areas:
(a) avoids, or otherwise minimises, adverse impacts on the cultural heritage
significance of the place; and
(b) does not compromise the cultural heritage significance of the place or area.”9
Local governments are required to consider and apply the SPP when making or amending
planning schemes. While local governments are afforded flexibility in balancing and applying
all State interests, the State’s expectation is clear, and is reinforced by the proposed reforms to
the QHA referred to below. Where there is an inconsistency between a SPP and a local
planning instrument, the SPP prevails to the extent of the inconsistency.10
To the extent that State planning instruments, such as the SPP, impact on the value of land
there is no entitlement to claim compensation. Section 706(1)(a) of the SPA is intended to
give local governments immunity from claims for compensation in circumstances where a
statutory instrument, such as the SPP, imposes a requirement on local government to take
particular actions when preparing planning schemes. The State has proposed amending or
replacing the QHA and possibly including a provision that recognises heritage places
identified in local planning schemes –
The Queensland Government proposes to recognise that local governments are now
required to identify local heritage places in their planning schemes, and is
considering whether to change the Heritage Act to specify the places identified in
local planning schemes, in accordance with the single state planning policy, are taken
to be local heritage places under the terms of the Heritage Act.11
The form in which this policy may ultimately be expressed is unknown but the intent is to put
statutory weight behind local heritage registers separately from the SPA’s general provisions
concerning the making of planning schemes. The effect of this could well be to exclude
recourse to the DA(SPS) and compensation provisions of the SPA.
The current bifurcated system for protecting places of cultural heritage significance at the
State and local levels is confusing. The secondary bifurcation in relation to local heritage by
which some local governments have been prescribed and are exempt from the provisions of
the QHA whilst others are not, adds to the confusion. As pointed out by His Honour Judge
Rackemann, there is a distinction between the protections provided to places through State
heritage listing, and the concomitant rights of the owners of places so listed, in contrast to
heritage protection through planning schemes. The distinction between planning controls on
9
State Planning Policy July 2014, p 29
SPA s 25
11
Our Heritage: A collaborative effort Discussion Paper – Review of the Queensland Heritage Act 1992, May
2014. See http://www.qld.gov.au/environment/land/heritage/queensland/protecting/
10
the one hand and heritage listing on the other is demonstrated by comparing the character
preservation and local heritage provisions of Brisbane’s planning scheme. Whether heritage
listing happens at State or local levels, the applicable principles for determining whether to
list a place for heritage conservation reasons ought to be identical. Those principles are
derived from the Burra Charter.12 Currently, the clear distinction between the two approaches
is that listing at the State level is an administrative action which must objectively satisfy the
legislation’s listing criteria, and any decision to list may be reviewed on its merits in the
court. At the local level, a decision to list is essentially political/legislative and there is no
means of having it independently and objectively tested in the court.
Testing the validity of local heritage listing by making a development application after the
listing has taken effect is both counter-intuitive and problematic. His Honour Judge
Rackermann notes in his paper that:
... the court has accepted that, where evidence establishes that a place has no cultural
heritage significance, its entry on the Register would not be an insurmountable hurdle
to approval of an application for demolition. In such circumstances the conflict with
the planning scheme provisions would be textual, rather than substantive, and there
would be a sufficient basis to grant approval notwithstanding the conflict.
His Honour’s judgment in Cowan v Brisbane City Council (2012) QPEC 81 is referenced in
the paper in support of that proposition. The relevant passages in the judgment were obiter
dicta as the evidence in the case did not establish that the place in question had no heritage
value. His Honour’s comments in Cowan have as their source particular provisions of City
Plan 2000 which suggest that whether a place satisfies the criteria for local listing may not
have been fully considered at the time of listing and may be reviewed when a development
application is received. Those provisions have been carried forward in substantially the same
form into City Plan 2014. The Heritage Planning Scheme Policy (HPSP) in the new scheme
relevantly provides:
(3)
A citation may have not been prepared prior to including the premises in the
Heritage overlay. The Council will prepare a heritage citation when a development
application is lodged on the site of a local heritage place to assist in assessing the
proposal against the Heritage overlay code. This may demonstrate that the site is
not worthy of retention as a local heritage place. The Council may then initiate the
process of removing the site from the Heritage overlay.13
A citation may or may not have been prepared prior to the planning scheme being changed. If
a citation has been prepared, there is no reason to think that the listing is open to reversal
when a development application is subsequently assessed, or that the court would be prepared
to ‘review’ the listing. Moreover, it cannot be assumed that all planning schemes will adopt a
similar approach to that taken by the Brisbane City Council under City Plan 2000 and City
Plan 2014.
This approach is not in accordance with the Burra Charter, nor the Queensland Government’s
cultural heritage branch publication ‘Using the Criteria’, neither of which advocates listing in
the absence of evidence that a place has heritage significance in accordance with the accepted
criteria. Further, it must be observed that even if the preparation by the Brisbane City Council
12
The Australian International Council on Nomuments and Sites (ICOMOS) Charter 1999 (Burra Charter). See
http://australia.icomos.org/publications/charters/
13
Heritage Planning Scheme Policy, s 2(3), Brisbane City Plan 2014 [emphasis added].
of a heritage citation when responding to a development application suggests to the Council
that the place should not have been listed, the Council is under no legal obligation to remove
the place from the local heritage register. Section 2(3) of the HPSP is expressed in permissive
language.
In the absence of planning scheme provisions which ‘open the door’ to challenging the
validity of a local heritage listing in an appeal concerning a development application, it is
likely to be impermissible for the court to ‘disagree’ with such a listing. There is a substantial
body of authoritative judicial opinion on this subject in the context of scheme provisions
generally. The current Planning and Environment Court, and its predecessor, the Local
Government Court, as well as the Supreme Court, have consistently endorsed a legal principle
that in planning appeals the court is not the planning authority and cannot make planning
policy.14 Usually it is only possible to argue that a provision of a planning scheme is out of
date if it can be clearly demonstrated that it has subsequently been overtaken by events and is
no longer appropriate.15 Where a local government has made appropriate investigations and
prepared a citation is it open to the court to, in effect, reverse the citation based upon expert
evidence in an appeal about a development application? In circumstances where a local
government has investigated the local cultural heritage significance of a place, perhaps
obtained independent expert advice, and decided to change the planning scheme, the court
could well take the view that it has no jurisdiction to interfere, and must apply the scheme as
changed. Indeed, it seems inevitable that such a point would be taken against a person
seeking to undertake development on, or demolition of such a place in the event of an appeal
against refusal of the application.
This demonstrates that the current bifurcated system for heritage listing at the State and local
levels is flawed. The potential right to compensation for such listing at the local level is
likely, not putting too fine a point on it, to be illusory in practice. Successful claims for
compensation for injurious affection under SPA and predecessor legislation are rare. Gaining
compensation requires the making of a DA(SPS) which involves observing strict, and
relatively short, time limits if the rights are not to be lost. The owner of such a place may have
no present intention to develop it. There may be commercial arrangements in place, such as a
long term lease, which render the making of such a development application impossible or
pointless. The economic implications of making such an application may also preclude it. The
right to claim compensation, such as it is, is no answer to obvious natural justice
shortcomings inherent in the current local heritage listing system. How could such a right,
which involves making a development application with the associated difficulty and expense,
and then possibly appealing to the court against refusal or conditioning of a development
approval, with all of the risks that entails, be compared favourably to a direct right to appeal
to the court against a flawed listing?
Conclusion
At the local level, the line of demarcation between development control based upon planning
considerations such as character and streetscape and heritage conservation is blurred. Further,
the legal protections afforded to the owners of places that are subject to State heritage listing
are far superior to those of owners of places that are listed under planning schemes. This is a
completely unacceptable state of affairs from the perspective of fairness and equity. The
14
Grosser v Council of the City of Gold Coast [2001] QCA 423; Holts Hill Quarries Pty Ltd v Gold Coast City
Council [2000] QCA 268; Elan Capital Corporation Pty Ltd v Brisbane City Council (1990) QPLR 209; Sheezel
& Anor v Noosa Shire Council (1980) QPLR 30 Cowan v BCC (2012) QPEC 81.
15
See for example, Handley v Brisbane City Council [2004] QPEC 39 at [13].
owners of locally listed places are denied natural justice. If it is proposed to develop new
heritage legislation which strengthens local heritage listing, the legislation should:



include local heritage listing criteria that mirror the criteria for State listing at the local
scale;
provide equivalent provisions for removal of places from local heritage registers; and
provide equivalent rights of appeal to the court.
A common approach at both State and local levels is essential to ensure that heritage
conservation is approached in a consistent and disciplined way, in particular because the
initiative for heritage listing at both levels is substantially driven by anonymous submissions
from members of the public. The process of local heritage listing needs to be transparent and
accountable and this can only be achieved if affected land owners have a direct right of appeal
to the court, in which the proposed listing can be objectively assessed having regard to
independent expert evidence.
David Nicholls

editorial board - Queensland Environmental Law Association

Transcription

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