Leong v. Redland Shire Council [2006] QPEC 83 (3 August 2006)

Last Updated: 7 August 2006

PLANNING & ENVIRONMENT COURT

OF QUEENSLAND

[1] This appeal is against the refusal of an application by Leong for a development permit for a material change of use to build a dwelling house on land at Russell Island.

The site and surrounding area

[2] The site (lot 201) is at 7 Thompson Esplanade (which runs approximately east/west), on Russell Island. It is at the western end of Thompson Esplanade and abuts Moreton Bay. It contains 766m² and is rectangular in shape, the long axis running approximately north/south. The western boundary is defined by the Mean High Water Springs tide line. Approximately three quarters of the site is below the Council’s design storm surge level of RL2.4 metres AHD (Australian Height Datum).

[3] The site is vacant and has been partially cleared of vegetation. Several mature trees remain together with mangroves along the Moreton Bay frontage. It has a natural fall down to its south-west corner with storm-water sheet flow across the southern third of the allotment (through to Moreton Bay) from the catchment defined by Thompson Esplanade and Canaipa Point Drive (which runs approximately north/south and is to the east of the site).

[4] The site is one of several hundred allotments on the Canaipa Point peninsula toward the north-eastern tip of Russell Island. The portion of Moreton Bay which lies immediately to the west of the site is Ooncooncoo Bay which is dedicated as a Habitat Zone within the Moreton Bay Marine Park and has been recognised as being a Very High Conservation Priority Area within the Southern Moreton Bay Islands Planning Strategy.

[5] Immediately to the east of the site is a vacant lot (200) which has frontage to Thompson Esplanade. Immediately to the south of the site, with frontage both to Canaipa Point Drive and the Bay is lot 82 on which stands a dwelling house. The house is set on land which is well above RL2.4 metres.

The proposed development

[6] The application sought to enable the construction of a two storey house. In an attempt to overcome flooding constraints, it is proposed to create a building platform and to fill it to R.L. 2.4 metres. The platform is to be surrounded on three sides (east, south and west) by a retaining wall of approximately 58 metres in total length. The dwelling is to be at the southern end of the platform and its eastern, southern and western walls will be slightly less than 1 metre from the retaining wall. A 19 metre driveway will extend to the dwelling from Thompson Esplanade. Two septic/sullage trenches and a future back-up trench are proposed in the north eastern corner of the site. Russell Island has no sewerage system.

[7] Mr Chenoweth, a landscape architect, surveyed ten large trees on the land. Mr Paddison agreed that three existing trees, including a large Forrest Red Gum would have to be removed to accommodate the house, and that branches of some retained trees near the house would have to be removed. He also accepted that the substantial trees in the site’s north-eastern corner would have to be removed when the backup effluent trench was required. Accordingly six trees are marked for ultimate removal. I do not consider this to be a critical point in the appeal.

The Issues

[8] The issues agitated in the appeal can be summarised under the headings Planning Law, Stormwater, Tidal Surge, Effluent Disposal and Acid Sulphate Soils.

Planning Law

[9] The application was made on 14 December 2003 at which time the Town Planning Scheme for the Shire of Redland (“the 1988 Scheme”) was in force. An Integrated Planning Act 1997 (“IPA”) compliant scheme (“the IPA Scheme”) came into force in March 2006 after the Council had decided to refuse the application. The appeal should thus be heard and determined under the provisions of the 1988 Scheme (IPA, s.6.1.30) but as the IPA Scheme is now in force (following lengthy and carefully detailed studies and contribution from interested parties) and represents the current planning intentions of the Council, it is entitled to very considerable weight. See, for example, Ribpark Pty Ltd v BCC (2001) QPELR 204 at [11]. The onus of proving that the appeal should be allowed rests on the appellant (IPA, s.4.1.50(1)).

[10] On three occasions Mr Paddison has presented amended plans to the Council which took the view that minor changes only had been made. I agree with that.

[11] The site is within the Drainage Problem Zone under the 1988 Scheme. In the Strategic Plan, under the Non-Urban group heading, there appears the designation at s.4.5.4 “Drainage Problem” which contains this:-

“Generally development will not be permitted within these areas unless it can be demonstrated that the land is .... not susceptible to drainage ... or environmental constraints or suitable planning, environmental and engineering solutions (probably involving a number of allotments together) are available.”

[12] A similar reluctance to allow development for the zone appears in the relevant Development Control Plan, and in the planning scheme intent for the zone. Then s.11A of the 1988 Scheme which applies specifically to development on the Moreton Bay Islands, including Russell Island, contains this:-

“Any applications for approval to permit the construction of a dwelling house, extension or alteration to existing structures, domestic out building, alter surface levels (cut and fill), retaining wall or domestic effluent disposal system shall be determined having regard to criteria as follows:

(a) Construction shall not be allowed on land which is below the 100 year ARI (Average Recurrence Interval) flood level. Accordingly, the applicant shall provide information in accordance with the requirements of the Council’s ‘Interim Design Standards for Development’, prepared by a suitably qualified person, detailing the following:

(i) a plan of the subject land and adjacent allotments showing:

• Survey contours at 250mm intervals to Australian Height Datum;

• The location of the 100 year ARI flood level including, where applicable, the mean high water spring tide (M.H.W.S.) level and the highest astronomical tide (H.A.T.) level.

(ii) The effect of any proposed alterations to surface levels being existing levels above the 100 year ARI flood level on both the subject land and surrounding allotments.”

[13] Section 16 of the 1988 Scheme permits the filling of land in the 100 year ARI flood-prone area “where such filling is of a minor nature”. However this is a Shire-wide provision and must give way to the specific provision of s.11A.

[14] There is also reference in a Policy Statement under the 1988 Scheme, under the heading “Hydrology” to an objective:-

“(1) To protect residential housing from flood waters by excluding such development from lands inundated by the Average Recurrence Interval of 1 in 100 year flood.”

and the Policy provides for a buffer zone width, on a site specific basis, but in general of between 30 and 60 metres, from RL 2.4m in coastal areas. The policy also promotes measures to ensure

“the disposal of sewerage or other effluent in unsewered areas in such a manner that it does not directly or indirectly impact on the values (e.g. ........aesthetic, ecological etc) of the nearby ..... coastal zone.”

[15] Thus, the 1988 Scheme very clearly leans against development in the Drainage Problem Zone or indeed any land under RL 2.4 or below the 100 year ARI flood level.

[16] As I have said, the IPA Scheme is entitled to considerable weight. Among the Desired Environmental Outcomes in s.3.1.2 of Part 3 of the IPA Scheme are provisions which stress the intention to protect the environment, one of which expressly refers to “minimising the disturbance of acid sulphate soils”. Mr Chenoweth’s report summarises relevant passages from the State Coastal Management Plan which is a State Planning Policy under IPA. These passages emphasise the need to consider carefully the effect of development on the ecology of the coastal areas of the Bay.

[17] In s.3.2.4 of the Strategic Framework, referring to the Southern Moreton Bay Islands (“SMBI”) there appears:

“(a) (ii) Areas of high conservation value and areas required for the conveyance of stormwater or drainage constrained are precluded from development”

and of particular interest in that section is this:-

“(viii) Core environmental areas and land with identified insurmountable drainage constraints are protected and managed within the Conservation Zone. Urban development within the Sub-Area CN1 of the Conservation Zone is inconsistent with the Planning Scheme. Limited forms of development may be appropriate within the Conservation Zone (outside of the Sub-areas) where it can be demonstrated that environmental values are protected, maintained and rehabilitated where necessary.”

[18] The site is within Sub-Area CN1 of the Conservation Zone, the sub-area which affords the highest level of conservation protection in SMB1. A dwelling house application, for example, is impact assessable in the CN1 sub-area.

[19] Section 4.3.7(2)(a)(h) and (b)(ii) contain details of the key characteristics for the Conservation Zone. They provide outcomes to:

“(i) ensure uses and other development identify, protect and provide for the long-term management and enhancement of the environmental values associated with this zone, being -

...

h. where in sub-area CN1 – the ecological function of flood prone, inter-tidal and drainage constrained land.”

and

“(ii) Within sub-area CN1 – uses and other development, especially dwelling houses, are highly restricted. The nature, operational characteristics and impacts of the majority of uses and other development are inappropriate due to inherent drainage problems and are prejudicial to the protection, long term management and enhancement of the environmental values of sub-area CN1.”



and in Table 1 to Part 4, dwelling house is listed as an inconsistent use in sub-area CN1.

[20] Finally, the site is within the Flood Prone, Storm Tide and Drainage Constrained Overlay map which is reproduced in the report of Mr Ovenden, exhibit 8.

[21] So it can be seen that the IPA scheme, if anything, is more adverse to the proposed development than the 1988 scheme.

Stormwater

[22] Mr Paddison, who is a retired civil engineer, made an assessment of the catchment area as did Mr Collins, the Council’s consultant engineer. Mr Collins’s assessment led him to the conclusion that the run-off and flood flow were slightly greater than Mr Paddison had concluded. On hydraulic matters Mr Collins’s expertise is considerably greater than Mr Paddison’s and I prefer Mr Collins’s evidence where the two differed.

[23] In fact there was little difference in the theory adopted or raw figures arrived at by the two. The difference related to their views of the effect the proposed construction would have on the overland flow in the critical 100 year ARI flood event, on storm/tide surge, on effluent disposal and on the possible presence of acid sulphate soils.

[24] Lot 200, abutting the site to its east, carries the overland flood flow in a broad swathe about 20m. wide, from its northern boundary in a southerly direction before it sweeps off to the south west, entering the subject site about halfway along its eastern boundary and thereafter covering all of the southern part of the site. All told, about one third of the site is thus affected by floodwater in an ARI 100 year flood event.

[25] It is not disputed that the proposed retaining wall would intrude 12 metres into the overland flood flow path, and that it would re-direct and concentrate the flow and cause increased localised flooding on the adjoining lots 200 and 83.

[26] In Mr Collins’s view, the effect of this on lot 200 would be adverse, in that it would cover that part of the lot which is not now affected by the 100 year ARI flood and accordingly would be available to accommodate septic/sullage trenches in the event of a house being built on the lot. Should that area become flood-prone, it would not be able to be used for that purpose and there is no other sufficiently sized area on the lot available for that purpose.

[27] Mr Paddison’s response to that was to argue that, accepting that the diverted flow would prevent the accommodation anywhere on lot 200 of the effluent trenches, yet no adverse effect would result because the presently flood-prone land on lot 200 covers so much of the lot that a dwelling house could not be built on the lot. He referred to section 11A of the 1988 Scheme which I have set out in para [12].

[28] I accept Mr Collins’s evidence that, solely from an engineering perspective, a dwelling house could be built on lot 200 in the flood-prone area, and that many Councils permit it in appropriate circumstances. He instanced a pole house standing over a hard surface such as concrete.

[29] An application for a dwelling house on lot 200 would almost certainly be made under the IPA scheme. Lot 200 is, under the IPA scheme, in the SMB1 Residential Zone, in which a dwelling house is not listed as inconsistent development. So it would be a code assessable development and s.3.5.13 of IPA would make an application, even if in breach of a code, at least possibly successful. The Strategic Framework of the IPA scheme, in s.3.2.4(1)(a) (Local Level Strategy applying to the Urban Settlement Patterns of SMB1) provides that:

“...areas required for the conveyance of stormwater ... are precluded from development.”

But Mr Collins’ evidence suggests that a cogent argument could be put that lot 200, with a house on it of the type he suggested, would not have the requirement for the conveyance of stormwater in any way retarded.

[30] Of course I cannot say with certainty, on what is before me, what the outcome would be of an application for a dwelling house on lot 200 but I am of the view that the diversion of floodwater onto lot 200 by the proposed retaining wall would deny the owner of that lot an arguable case for that development. In my opinion that is a distinctly adverse effect on lot 200 caused by the proposed development on lot 201, and offends s.11A of the 1988 Scheme and its Policy Statement see especially s.11A (a)(ii).

[31] So far as Lot 83 is concerned, Mr Collins conceded that the extra area and depth of floodwater which would affect it in a 100 year ARI event because of the retaining wall would be of nuisance value only. Even that, in my opinion, would still amount to an adverse effect on lot 83.

[32] Mr Paddison referred me to a number of authorities which, he submitted authorised Leong, as owner of lot 201, to build the retaining wall to keep floodwater off his land and to permit him to enjoy it free of floodwater. In my opinion, each of them is distinguishable from the matter before me in this appeal.

[33] R v Commissioners of Sewers for Pagham (1828) 8 BrC 355 concerned reasonable work done by the Commissioners pursuant to a statutory duty to protect landholders from the inroads of the sea. It was held that they, and any individual landowner, could do that. But there was no statutory provision which affected that right and in this appeal there is, the planning schemes. Redland Shire Council v Jansen 4189/2002, 12 September 2003 was concerned with the question whether certain work was “self-assessable development” under the Standard Building Regulation, which is not the question here. Here I am concerned with the interpretation of the planning schemes. Sabdoen Pty Ltd v Redland Shire council (1989) QPLR 149 and Sabdoen Pty Ltd v Redland Shire Council (1991) QPLR 185 were decided before s.11A of the 1988 Scheme was inserted which provided a prohibition on construction on land below the 100 year ARI flood level, which the retaining wall will offend and also before the commencement of the Strategic Plan which also contains material provisions concerning the development of land zoned Drainage Problem. Knezovic v Shire of Swan-Guildford [1968] HCA 38; (1967-8) 118 CLR 468 turned on whether certain land was a “watercourse” as defined by a West Australian Statute. Both Gartner v Kidman [1962] HCA 27; (1961-2) 108 CLR 12 and Micallet v Gallea (2001) NSWSC 985 (5/11/01) concerned the common law of nuisance. This appeal will turn on the legal interpretation of the applicable planning schemes.

Tidal Surge

[34] The Council has set, for the Bay islands area, an ARI 100 year storm/tide surge level of RL2.4m AHD and a minimum habitable floor level of RL2.7m. Mr Collins told me that the RL 2.4m is consistent with that set in other Bayside shires. Only about a quarter of the site is currently above this level. The proposed retaining wall is to reach RL2.5m. But Mr Collins’ evidence was that it is quite feasible that waves of up to 200m above the nominated RL2.4m could occur. This would overlap the retaining wall and, the wall of the house being only about a metre distant, it would create a ground floor inundation risk. I accept that, but do not regard it as a serious impediment to the proposed development.

Effluent Disposal

[35] The proposed sewerage/sullage trenches are to be located above the RL2.4m line. The base of the trenches would be very close to the high tide level and, depending on actual construction, could be below it. Mr Collins was critical of the lack of investigation of this, which makes it impossible to determine whether there would be leakage and if so at what rate and with what likelihood of polluting the Bay. He was also critical of the capacity of the planned “Ozzi Kleen” treatment system to reduce the discharge of total nitrogen and total phosphorus to acceptable levels. He described these matters, in his report, as “an obvious concern”. That is a proper description, in my opinion. and the insufficiency of investigation by the appellant counts against him in the appeal.

Acid Sulphate Soils

[36] Similarly, Mr Collins was of the view that the soil testing which was carried out by Mr Paddison’s consultants would not determine whether acid sulphate soils are present, and if they are at what rate preventative treatment would be required and how it would be done. It seems clear to me that the proximity of the trenches to the Bay (and possibly to the high tide line) makes this a genuine concern about which the Council had the right to be fully informed and again the insufficiency of investigation counts against the appellant on the appeal.

[37] Mr Paddison was critical of the Council in allowing insufficient time between an information request on 26 July 2004 (seeking environmental and flooding information) and its decision on 16 August 2004. There are, I think, two answers to that. First, those investigations could have been carried out before the application was made so that information could have been supplied with the application. Second, nearly two years later, they still have not been carried out.

Conclusion

[38] Mr Paddison conducted the appellant’s case competently and relevantly and gave clear and cogent evidence. As is obvious from the above discussion, he has not satisfied the onus of establishing that the appeal should be allowed. His real complaint, as his frank answers in cross-examination demonstrated, was based on his disagreement with the 1988 Scheme zoning of the site, the treatment of drainage problem land in the Strategic Plan and the IPA Scheme’s treatment of the site. But the hard fact is that those provisions constitute the law, and that is what I must apply.

[39] The appeal is dismissed.