TWW #1 – Summary & Outcome – April 2014

Canelands – Development Appeal Rejected

The Canelands is the name known locally for most of the open space between the existing western boundary of Twin Waters and the Sunshine Motorway. This has been the subject of a long-running possible development scenario which dates back to 2007. The matter was brought to a close in December 2013 when the Qld Planning & Environment Court refused an appeal by Stockland Development Pty Ltd (Stockland) against the Sunshine Coast Regional Council’s (SCRC) rejection of their Development Application for a Material Change of Use (MCU) for the land to be rezoned from Rural to Residential. This decision by the P & E Court has not been appealed and, according to our understanding, the case is now closed. The land will remain zoned as Rural Use.

This article is intended to provide an overview of the history and evolution of the matter from the perspective of the Twin Waters community. We believe the information provided here is factually correct but if anyone is aware of any factual errors, please draw it to our attention.

History & Key Dates

Prior to 2007

Lend Lease and Stockland separately acquired parcels of the land from the original owners with the intention that the land be used for residential development. The land had been used for growing sugar cane.

September 2007
Lend Lease and Stockland lodged a joint Development Application for the area. The DA proposed a development similar to that at Twin Waters with four residential zones around canals to be linked to the existing Twin Waters canal system. The proposed main vehicle access was from David Low Way just west of Settlers Park and with minor access linked to Esperance Way in The Banks precinct.

Early 2008

The Maroochy Shire Council changed the zoning of the Canelands site from rural to residential shortly before the council elections in March 2008. The Maroochy Shire Council was amalgamated with the Caloundra and Noosa councils to form the Sunshine Coast Regional Council (SCRC) in 2008.

Cr Debbie Blumel was elected as the councillor for Division 8 in the newly formed Council. Cr Blumel promptly took action to revert the zoning of the Canelands site west of Twin Waters to the original rural zoning as described in the Maroochy Plan 2000.

September 2008
Lend Lease sold its interest in the Canelands to Stockland. Stockland announced it was reviewing its plans for the area. As at September 2008, no new proposals had been lodged with SCRC.

January / February 2009

Preliminary briefing by Stockland executives on proposed development concept for the Canelands provided to community representatives, including TWRA, on 16 January 2009.

Stockland submitted a Development Application (DA) to SCRC for a Material Change of Use (MCU) of the Canelands site and to override the Planning Scheme. Signs for Public Notification of a DA on the Canelands site, referred to as Twin Waters West by Stockland, were displayed on the site. Any person was entitled to make a signed written submission by 13 March 2009.

At the TWRA general meeting in February, the details about the DA were explained, including the proposed initial position of TWRA and its intention to promote an informed decision process for the community.

A Community Information Session arranged by Stockland was held on 19 February at the Twin Waters Golf Club. This session had very strong community attendance.

On 24 February, TWRA presented a Community Forum at Novotel Resort for residents to put forward their views about the Stockland DA. Approximately 200 people attended. Stockland was invited but did not attend this Forum. Council representatives did attend and advised the Forum attendees on the process for public consultation and individual submissions by members of the public.

By this stage, it was very clear that there were strong community concerns about the proposed development, with the three principal areas of concern being:

the potential flooding impacts from any development;
traffic access, especially any that involved access through existing Twin Waters streets or a single exit to Ocean Drive;
the indicated average lot size of 400 square metres compared with the average size and character of the Twin Waters development.

The TWRA adopted the community position to oppose the proposed development by Stockland once the community position became clear during the information phase.

March 2009

The period for Public Submissions on the proposed Stockland development closed on 13 March 2009. The TWRA made a submission on behalf of its members opposing the proposed development and encouraged all community members with views on the matter to make individual submissions. Council advised that 893 properly made submissions were made about the application. Many, but not all, of these would have come from residents of Twin Waters.

July 2009

On 21 July, SCRC refused (unanimously) Stockland’s application for preliminary approval to develop the 103 hectare site that Stockland referred to as Twin Waters West.

August 2009

On 18 August, Clayton Utz Lawyers, acting on behalf of Stockland, filed a Notice of Appeal in the Queensland Planning & Environment Court against the SCRC’s rejection of their MCU application over the Canelands. The Respondent to this appeal was SCRC.

On 22 August, TWRA became the Sixth Co-Respondent by Election in the Planning & Environment Court, Appeal No. 2282 of 2009. Other Co-Respondents were Dept. of Transport & Main Roads, Dept. of Environment & Resource Management, Development Watch and two individuals who were residents of Twin Waters.

2009 – 2012

The appeal process is followed. See more details below.

October 2012

Formal Mediation session at P&E Court between the parties.

(Until late 2011, there had been no further contact between the TWRA and Stockland apart from those formally involved with the Planning & Environment Court process. During September 2011, a Stockland representative contacted the TWRA (and other community associations in the area) to discuss future infrastructure requirements if the proposed development was to proceed. Two representatives of the TWRA met with the Stockland representative on 20 September 2011 and reiterated that the TWRA did not support the proposed development and that the meeting was considered somewhat premature. No specific infrastructure possibilities were discussed.)

TWRA’s Involvement

While the TWRA, along with other community organisations, received an initial briefing from Stockland on 16 January 2009 at their offices on the proposed development, the initial position of the TWRA involved three steps:

to reserve adopting a firm position until the community was better informed and a wider community view could be heard;
to encourage the dissemination of information by Stockland by assisting to publicise their planned Community Presentation at the TW Golf Club (on 19 Feb 2009) and to sponsor the Community Forum at the Novotel Resort (on 23 Feb 2009); and
to provide initial response and feedback to Stockland about the importance of addressing expected community concerns about flooding, traffic access and proposed lot sizes.

Pending the finalisation of the TWRA position, a group of residents organised a network of volunteers throughout the Twin Waters community, to deliver literature about the development to all homes in Twin Waters. They promoted awareness about the development and the importance of providing individual submissions to Council during the public consultation period. This resulted in the organisers delivering 381 submissions to SCRC by the due date 13 March 2009.

Also, by the conclusion of the information sessions described above, it was clear that there were significant community concerns that needed addressing and the TWRA made a formal submission to Council on behalf of its members whilst also encouraging individual submissions to be made by the due date. The TWRA’s formal submission was important, since it would then enable the TWRA to continue to participate in the subsequent appeal process if the Council did not approve the Stockland proposal.

As mentioned above, Council did not approve the proposed development and Stockland exercised their right to appeal to the Queensland Planning & Environment Court. TWRA then joined the case as a Co-Respondent, which ensured that the TWRA would be fully informed and involved during the appeal process.

The TWRA formed a Sub-Committee to monitor the progress of the appeal, to manage its involvement as a Co-Respondent in the appeal and keep its members and the community informed to the extent possible within the constraints of confidentiality of the appeal process. Members of the Sub-Committee were: Geoff Billard, Peter Braithwaite, Dennis Kyling, Warwick Daniels, Rob Fletcher, Ken Vaughn, Ken Taylor and Ian Landreth. The Sub Committee met on a regular basis throughout the duration of the appeal and made key decisions at appropriate times to ensure that the community’s interests were managed. There was also liaison with other parties, such as the Respondent and the other Co-Respondents as necessary.

A key phase was the Mediation, which was held on 12 October 2012 which was the point judged to be optimum for the TWRA to conclude an agreement with Stockland under the guidance of the Mediator to address some of the TWRA’s principal concerns. This is discussed further in the section below headed Mediation.

As a result of the Mediation agreement, the TWRA subsequently did not participate directly in the Hearing. However, the Hearing was closely monitored with representatives in attendance on most days.

The Judge reserved his decision following the Hearing. His Decision was subsequently handed down on 16 December 2013. TWRA representatives were present in the Court when the decision was announced: “The appeal is dismissed”.

The Planning & Environment Court Appeal Process

The Queensland Planning & Environment Court is constituted to hear matters relating to disputes, inter alia, about planning matters and especially appeals against decisions on development matters made by local councils, as in this case. Cases are closely supervised and reviewed by judges of the P&E Court. Judge Rackemann, one of the most experienced judges in the Court, had the principal carriage of this case although other judges were involved from time to time in Review and Directions hearings.

In non-legal terms, the Court process involved a number of distinct phases:

expert reviews
review and directions hearings
mediation
hearing

Both the Council and Stockland appointed experts in thirteen separate fields – flooding, traffic management, ecology (flora and fauna), engineering, ground water, water quality, Qld Coastal Plan impact, noise, visual impact, planning, agricultural uses and need. The experts are tasked by the Court to prepare joint reports on things they agree about and things they do not agree about and, in the case of matters on which they do not agree, the reasons for their disagreement. This is a most critical part of the appeal process. The experts in each field, although separately appointed (and paid for) by each of the principal parties, are specifically and legally obliged to “assist the Court” by identifying areas of disagreement in their specific fields of expertise and the reasons for their disagreement. The purpose is to have the experts eliminate as many areas of contention as possible so that only the unresolved issues remain for resolution at the end of the Experts phase.

The progress and process is closely supervised by the Court. Review and Directions Hearings were held regularly (usually around every 6 weeks) to ensure that work is proceeding on schedule and that the matters which cannot be agreed are appropriately identified and fully investigated.

Following completion of the expert review phase, a compulsory Mediation session between the parties is held. This Mediation is again supervised by the Court. The purpose is to try to get the Parties (Appellant, Respondent and Co-Respondents) to reach agreement on the outstanding matters and to narrow (or eliminate) the points of difference and disagreement relating to the proposed development.

A Hearing before the Judge was then scheduled to argue the merits of the various unresolved issues. In this case, Judge Rackemann heard the case and the experts from both Stockland and Council were questioned and cross -examined by Counsel for both sides. In addition, the Judge asked many incisive questions of the experts. The whole purpose of the Hearing is to assist the Court (the Judge) to reach a decision about the unresolved matters and, in particular, whether the appeal should be allowed or dismissed. In this case, the Hearing lasted from 11 February to 6 March 2013.

As is normal for complex cases, the Judge reserved his decision following the Hearing. He then announced his decision some months later, on 16 December 2013. While the announcement was brief, it was supported by a 58 page Judgement document.

The Expert Reports

As mentioned, the Experts’ Review phase is a critical phase and was the phase that took the longest to be concluded. In this case, experts in thirteen fields (not in any order of significance) were appointed by the parties:

Flooding
Traffic management
Ecology – Flora
Ecology – Fauna
Engineering
Noise
Visual impact
Water Quality
Qld Coastal Plan
Ground Water
Agricultural uses
Need
Planning

In all cases, the experts were recognized authorities in their field and had previous experience in the P&E Court process, particularly the need for their reports and opinions to stand up to rigorous cross-examination by skilled barristers and by the Judge.

Brief comments that may be of interest from a Twin Waters perspective about each of the expert studies are provided below. They are not intended to be comprehensive but simply to note points in the various studies that were of interest to Twin Waters and which were being monitored by the TWRA Sub-Committee for possible later interventions as required.

Flooding – this was initially the most contentious issue of concern for Twin Waters.

Extensive flood modelling was undertaken by the experts. Our concern was that development on the site would result in additional flooding risk to Twin Waters. This concern was exacerbated when the State government of the day mandated that all future coastal plain developments would need to allow for future climate change, resulting in the required fill level for the proposed site to be increased by 0.8 metres above the average height for Twin Waters. In the end, after prolonged modelling and discussions, both experts agreed that the modelling showed that the potential flooding effect on Twin Waters would be minimal, even in a very severe weather event. The fact that both experts agreed, took this matter out of contention from the Court’s perspective, but the TWRA continued to have concerns that the residents of Twin Waters would need to be reassured about this. This was subsequently a subject in the Mediation.

Although the experts ultimately agreed on the flood modelling and potential outcomes, they could not agree on the protections necessary for the proposed development in the event of a severe flood which would isolate the area. Potential methods for evacuation of the area if that occurred became an unresolved issue for argument in the Court.

Traffic Management – Stockland had provided a concept development plan for the area that provide for the main internal collector road to run along the western boundary of Twin Waters and for the principal point of egress to be at Ocean Drive, near Toyango street, with a secondary point at Esperance Drive. No access to David Low Way was planned (unlike the earlier joint plan put forward with Lend Lease).

The TWRA had significant concerns about this proposed traffic management and also the concept proposal that the intersection of Ocean Drive with David Low Way would be re-engineered with traffic lights to make the main through road swing right on to Ocean Drive. Dept. of Main Roads and Transport joined as a Co-respondent to ensure their interests in David Low Way were protected as well as to ensure that their requirements for the aforementioned intersection were also met.

In addition, the TWRA was concerned about the volume of fill required for the site (estimated at 70-80,000 truckloads) and the disruption that would occur if this entered the site via Ocean Drive.

While the experts ultimately agreed on the traffic management plan external to the site (thus taking it out of contention for the Court), the TWRA remained very concerned about the proposed traffic plans. Again, this became a relevant consideration during the Mediation.

Ecology (Flora and Fauna) – the experts relatively quickly reached agreement and there were no issues of disagreement.

Engineering – there were no points of disagreement between the experts relating to potential water and sewerage reticulation to the site.

Noise – there were no areas of disagreement regarding noise and the proposed barriers in the event that the development went ahead.

Visual Impact – there were a number of areas of disagreement that could not be resolved between the experts. Principally, they related to the visual impact of any development from the Sunshine Motorway both while traveling north and south on the motorway. The impact of close urban development on the so-called inter-urban green break (including the river) between Maroochydore and Pacific Paradise as well as the longer view to Mount Coolum was a concern. There was also disagreement about the impact of the view from the Buderim escarpment if the development went ahead. The impacts could not be mitigated by vegetation screening close to the motorway. The TWRA shared these concerns about the potentially adverse visual impacts of the development.

Water Quality – there were ultimately no points of disagreement between the experts.

Queensland Coastal Plan – this report was requested by the court to follow up on issues associated with potential flooding of the site in the event of a severe (100 year) flood event. The experts (who were the same experts who had provided reports on Flooding referred to above) could not agree on the Emergency Flood Management Plan. This was left for resolution by the Court.

Ground Water – following extensive studies, including site drilling as well as modelling, the experts ultimately concluded that there were no areas of disagreement between them on this topic.

Agricultural Uses – the experts did not agree on several issues relating to the topic, with different views about its potential for use for future agriculture other than sugar cane because of the nature of the soil, its frequent flooding and the absence of contiguous agricultural land.

Economic Need – this report examined the potential supply of land for housing development on the Coast and the demand for that land into the future. The experts did not agree about this. One concluded, inter alia, that there was an ample supply of land set aside for future residential development for the Sunshine Coast over the next 20 years. The other concluded, inter alia, that there was a need for such land due to its location close to major employment areas (Maroochydore). This difference was not resolved and became a critical element argued during the Court Hearing.

Planning – this report by the respective experts was the final report which drew together all of the previous reports and considered them in the context of the town planning impacts. There was also extensive discussion about the relevance of various planning documents, such as the Maroochy Plan 2000 and the SEQ Regional Plan i.e. the local government planning document and the State planning document. This was the subject of very detailed examination and cross-examination during the Court Hearing.

Overall Comment on Expert Reports – the above provides only a brief summary of the conclusions of the various expert reports, focussed on the issues that were left for argument during the Court Hearing. While it does show the extensive scope of the areas studied and reported by the experts, it does not show the very extensive work undertaken by them in order to reach their conclusions. This work, which included modelling and even additional site works in some cases, was paid for by the two principal parties, both Stockland and Council. The TWRA acknowledges the very extensive studies and costs incurred to bring this stage of the appeal process to its conclusion.

Mediation

Following conclusion of the Experts’ Review phase, the parties were directed to a mediation supervised by the Court. The purpose was to see if the areas of disagreement between the parties could be resolved by direct negotiation with the assistance of an expert mediator. Again, the purpose was to seek to reduce the areas of contention so that only those issues otherwise unresolvable could be determined by the Judge following a Court Hearing.

The Mediation was held in Brisbane at the P & E Court on 12 October 2012. All parties still involved in the case were required to attend. The parties were:

Stockland Appellant
Sunshine Coast Council Respondent
of Transport & Main Roads First Co-Respondent
Development Watch Fifth Co-Respondent
TWRA Sixth co-Respondent

The second, third and fourth Co-Respondents in the case had elected to withdraw by this stage.

It was clear very early in the Mediation, that this was a very important opportunity for the parties, other than the Appellant and the Respondent, to get their issues of concern addressed as it was likely that they would not be addressed in the formal Court Hearing and if the Judge ruled in favour of the appeal these issues could go completely unaddressed and therefore unresolved.

The Dept. of Main Roads and Transport representatives quickly resolved their issues which were related to the construction of the traffic lights at the intersection of Ocean Drive and David Low Way (and also to make very clear to the parties that there was no way they would agree to an exit from the development to David Low Way.) The TWRA representatives were able to get agreement that the road alignment and markings at that intersection would not result in Ocean Drive becoming the main road and David Low Way becoming a lesser road.

Apart from this issue, the main concerns of the TWRA, on behalf of the Twin Waters community were:

Concerns about the potential flooding impacts on Twin Waters from the development, despite the fact that the Experts had reached agreement;
The location of the proposed main collector road within the development immediately adjacent to the western boundary of Twin Waters;
One principal access / egress roundabout opposite Toyango Street on Ocean Drive and a secondary access / egress point opposite Esperance Drive;
The proposed name of “Twin Waters West” for any development which would be of a completely different character to Twin Waters: ,
The construction access to the site which would require 70-80,000 truckloads of fill over the life of the project (plus normal construction and building activity);
The absence of a “corner store” shopping facility within the development which would result in much more local traffic from the estate.

It should be noted that none of the above matters would have been addressed by the Court, since none of them related to aspects of the disagreements on the Experts’ Reports. For example, the Judge would have no interest in making a ruling on the proposed name of the development.

The TWRA negotiating team focussed on getting an outcome from the Mediation that would address our principal concerns. We therefore negotiated the following principal points in an agreement with Stockland:

The internal collector road will be moved a minimum of 150 metres west from the eastern boundary (but a local road may be constructed along that boundary);
A noise barrier will be erected on the eastern side of the collector road near to the exit to Ocean Drive where the collector road is less than 50 metres from the rear boundaries of existing properties in Twin Waters;
A 10 metre wide landscape buffer is to be developed along the northern boundary of the site from the eastern boundary on Ocean Drive along to de Vere Road
The name of the development will not include “Twin Waters”;
Additional access for construction traffic only is to be via Godfrey’s Road subject to approval by DTMR;
Stockland to investigate in good faith with Council making an additional permanent access to the development via Godfrey’s Road;
TWRA may provide input to the proposed building and landscape covenants for the development;
Stockland will make application in good faith for a corner store in the development;
As an extension of the mediation, Stockland will arrange for up to three information sessions for TWRA members from its Flooding expert to inform members about the flooding studies and to answer members’ questions
TWRA will not oppose any merit issues nor contest any issues in the appeal and be excused from further participation in the Appeal until any conditions are being determined subsequent to a successful appeal i.e. TWRA will not be an active participant in the Court Hearings.

The TWRA team considered that this was an acceptable outcome and that these points should be “secured” under the mediation so that they would not require any further negotiation if the appeal by Stockland was successful. So this agreement was signed by the President of the TWRA and by the Partner of Clayton Utz on behalf of Stockland and with the supervision of the Registrar of the P&E Court.

The three subsequent mediation sessions under item 9 above were subsequently held at Novotel Resort on 30 October. Approximately 100 TWRA members attended and were provided with a detailed briefing on the flooding issues accompanied by a Q & A session. These sessions proved invaluable in reassuring members about the details of the flood modelling by the experts and the conclusions they reached agreement about that, inter alia, the risk to Twin Waters would not be materially changed by the development.

The Mediation was an important phase for the TWRA as it enabled us to address the principal concerns of our community. Unfortunately, we were not able to get any change to the principal access / egress point from Ocean Drive. Although Twin Waters has eight access / egress points from the estate, thinking amongst the road traffic engineers has now changed and getting any additional access / egress points was virtually a lost cause. The only faint hope was that an additional access point might be approved from Godfreys Road. DTMR would definitely not consider another access road to join David Low Way so close to the Sunshine Motorway roundabout.

The TWRA considered that we were able to conclude a satisfactory agreement for the community during the mediation.

P & E Court Hearing

The Hearing in the Planning & Environment Court commenced on 11 February 2013. The parties formally present for the Hearing were the Appellant (Stockland), the Respondent (SCRC) and Development Watch (the fifth Co-Respondent who did not reach any agreement during the mediation). The Hearing was before Judge Rackemann and both principal parties were represented by Senior Counsel supported by Junior Counsels and their respective solicitors (Clayton Utz for Stockland and SCRC Legal Department for Council). Development Watch represented themselves but had only a minor role in the Court proceedings. TWRA had representatives in the public gallery for most days of the Hearing. Our Divisional Councillor, Cr O’Pray, also attended on one day.

The Hearing concluded on 6 March 2013 At the conclusion of the Hearing, Judge Rackemann announced that he would reserve his decision and announce it at a later date.

The Judgement

Judge Rackemann delivered his decision on 13 December 2013. While the decision was announced in the Court and TWRA representatives were present, the decision was very brief: “The appeal is dismissed”. A 58 pager judgement document was provided setting out the basis of the judgement delivered by Judge Rackemann.

The judgement document is substantial and outlines the process of Judge Rackemann’s thinking as he weighed the merits of the arguments presented to him. It is a public document and can be accessed at the following web site: http://archive.sclqld.org.au/qjudgment/2013/QPEC13-79.pdf

It is not proposed to recount the details of the judgement, except to note that, in the end, the arguments around Need seemed to be significant. His Honour said at the end of his judgement “My conclusion may have been different had the need been substantially stronger”. He concluded: “The Appellant has failed to discharge its onus” (i.e. the onus to make the case that the original decision of the Council should be changed). The appeal was dismissed.

Our understanding was that a judgement from the P&E Court could only be appealed on the basis of an error of legal substance, not the merits of the case. That appeal, if it was to occur, would be an appeal to the Supreme Court. The time for any appeal to be lodged elapsed so the matter is now considered closed.

Conclusion

The future of the Canelands and, in particular, the proposed development of the area by Stockland was a very significant issue affecting the Twin Waters community. The Stockland appeal against the Council decision was a very significant one for Council and for the community. It is pleasing to note that Council heard the concerns of the community through the vigorous representations of the Division 8 councillors, initially Councillor Debbie Blumel and then Councillor Jason O’Pray. Council strongly defended its original decision to reject the Stockland application and the Court ultimately upheld this decision.

The TWRA acknowledges the substantial efforts involved by our Councillors, staff of Council and their consultants to follow this matter through to the end. This was substantial case stretching over nearly six years. The successful conclusion of the case also demonstrates the value of a well organised community association. One of the stated objectives of the TWRA is to do things that will enhance the amenity and quality of life in Twin Waters for our community. Clearly, this has been a case where we have achieved that objective.

Report prepared by Geoff Billard

April 2014