Australia: 31/12 Macadam v Moreton Bay Regional Council & Anor [2012] QPEC 38

Planning and environment case updates

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Proposed residential development adjacent to rural residential land – where appellants operate an orchard on two rural residential lots – where proposed residential development adjoins southern boundary – whether higher density residential subdivision likely to threaten ongoing operation of existing orchard – whether proposed residential subdivision threatens good quality agricultural land – whether proposed residential subdivision is sufficiently buffered and separated from existing orchard use – whether adequate provision made for park and/or nature reserves – whether proposed development results in conflict with the planning scheme – ss. 3.2.8, 4.1.5A, 4.1.50(2)and 6.1.3 Integrated Planning Act 1999 (Qld) – ss. 4.11 and 4.4(5A) Local Government (Planning and Environment) Act 1990 – ss. 380 and 819 Sustainable Planning Act 2009 (Qld)

Facts: This was a submitter appeal against the Respondent Council's decision to approve the Co-Respondent's proposed development, which comprised a subdivision to create 36 residential allotments. The Appellant operated an orchard on land to the immediate north of the proposed development that involved the spraying of mature orchard trees and seedlings and the use of chainsaws and other farm plant and equipment.

The main issues for determination in the appeal related to:

  1. public notification;
  2. whether a proposed park dedication was sufficient;
  3. various environmental issues, and in particular, the alleged need to provide a koala habitat area;
  4. alleged conflicts with the Respondent Council's planning scheme;
  5. whether there was sufficient need to justify approval of the development; and
  6. good quality agricultural land.

The issue in relation to public notification was whether the Council had no power to decide the application because the public scrutiny requirements of section 3.2.8 of the Integrated Planning Act 1997 (IPA) had not been complied with. The Appellant alleged that the Council failed to display the adverse response of the then Environment Protection Agency (EPA), which was a referral agency for the subject development application, and that as a result, the Appellant and other interested parties were prejudiced.

In relation to the issue of park dedication, the Appellant contended that the proposed dedication of 13,563m2 was not adequate and that 10 per cent of fair–average land ought to be dedicated as park. In support of his argument, the Appellant contended (among other things) that the payment of a financial contribution to the Council in lieu of dedicating 10 per cent of fair-average quality land (which was at the Respondent's discretion under the planning scheme) would result in a "boon" for the Co-Respondent for which the residents, particularly those on small blocks, would bear the cost.

The Appellant argued that if the Co-Respondent was not required to dedicate 10 per cent of fair-average land then, in the alternative, a development condition should be imposed requiring the Co-Respondent to retain as much native vegetation as possible, which was identical to a condition imposed on a sub-division development to the immediate north of the Appellant's land. In particular, the Appellant submitted that this was because there was a need to provide a koala habitat area and gave evidence to the effect that koalas had been seen from time to time on the subject land.

In relation to this issue, the town planners for Council and the Co-Respondent gave evidence that there was sufficient parkland planned for the locality and that a condition requiring a monetary contribution was a reasonable and relevant requirement of the proposed development.

A number of matters were also raised by the Appellant in relation to conflicts with the planning scheme. However, the evidence of the town planners for Council and the Co-Respondent was that the proposed development was not in conflict with the planning scheme.

In relation to need, the Appellant contended that there was no need for any further residential land in the subject locality. The Appellant pointed to advice he had received from the Respondent Council in June 2005, to the effect that an analysis of residential land did not identify a need to make the Appellant's land available for urban residential development within the life of the plan, and also to the slow rate of building and lack of development activity in surrounding areas.

The Respondent's town planning evidence indicated that there was a need for smaller residential land in the subject location.

The final issue for determination related to whether the proposed development allowed for appropriate buffers between residential development and legitimate farming operations.

The Appellant argued that the proposed three-metre wide buffer along the northern boundary of the proposed development (which was to be heavily vegetated) was not wide enough, and that complaints would be made about his farming activities and pressure brought on him to close down his orchard business. The Appellant proposed a buffer in the order of 30-40 metres, which may have resulted in the loss of four residential allotments. In support of this argument, the Appellant contended (among other things) that his land was good quality agricultural land (GQAL) for the purposes of State Planning Policy 1/92 (SPP1/92) and its associated Planning Guidelines: Separating Agricultural and Residential Land Uses (Separation Guidelines), which recommended a buffer of at least 40 metres.

The Appellant's land was zoned rural residential and had been identified for residential development in the Council's Strategic Land Use Plan and was included in the urban footprint of the South East Queensland Regional Plan. Each of the parties' town planning experts agreed that the planning intent for the Appellant's land was that it was to be developed in the future for residential purposes.

Decision: The Court held that:

  1. while there was probably a failure on the part of the Respondent to fully comply with the public scrutiny requirements of section 3.2.8 of the IPA, and that no material prejudice was suffered by the Appellant or any other interested member of the public. This was particularly so in circumstances where the proposed development was consistent with the planning scheme, was supported by a detailed ecological assessment report and the EPA did not oppose the development subject to suitable buffers and stormwater management
  2. there was no basis for concluding that the Respondent should not have accepted a monetary contribution in lieu of more park area
  3. that the conditions imposed on the proposed development were not identical to those on the neighbouring development was of no real significance, as each case has to be treated on its own merits. There was no reason to conclude that the conditions imposed on the proposed development were not adequate
  4. the proposed development was not in conflict with the planning scheme. For there to be a genuine conflict, there must be some real and identifiable variance or disagreement, which was not the case in this appeal
  5. there was a need for further residential land in the subject locality
  6. the operation and effect of the Separation Guidelines were not directly relevant to the appeal. However, although the Separation Guidelines did not apply, that did not mean that no buffer was required between the Appellant's land and the proposed development
  7. the evidence was not sufficient to conclude that the proposed buffer along the northern boundary of the proposed development was adequate
  8. apart from concerns about the proposed buffer, there were no grounds for upholding the appeal.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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