Harris v Scenic Rim Regional Council [2014] QPEC 16

[145] The bushfire experts agreed that, with implementation of the Bushfire Management Plan and Evacuation Plan - Bushfire, the land is suitable for the proposed development (as modified) and the effects of bushfire risk to patrons can be satisfactorily mitigated, and that bushfire is not a limiting factor in the appeal.

[146] I find that the risk of bushfire to patrons of Harris' proposed development can be satisfactorily mitigated if the Bushfire Management Plan and the Evacuation Plan - Bushfire are implemented and that conditions of approval can ensure that this is done.

[147] Harris engaged Mr Stephens of Gilbert & Sutherland to prepare a flood study in support of the proposed development. Mr Stephens' flood study dated March 2014, which was received into evidence, described:

(a) a hydrological analysis of the catchment under current conditions;

(b) a hydraulic assessment of flooding of the site for the 100 year ARI rainfall event; and

(c) an assessment of the potential impact of flooding on any proposed camping locations within the site.

[148] Based on the assessment in the flood study, Mr Stephens concluded that the 14 campsite locations proposed in the changed development application (shown on Figure 4, Drawing No 13-099-4, dated 28 February 2014) would be outside the Q100 flood event and that flooding would pose no constraint on these proposed campsite locations. The 14 proposed campsite locations are based on the existing campsite locations, but some have been moved to be clear of the Q100 flood event.

[149] The Council and the co-respondents by election did not contest Mr Stephens' evidence or his findings and conclusions. I accept them and find that flooding poses no constraints to the proposed campsite locations.

[150] Harris and the Council called experts on water quality, Mr Anderson and Mr Bristow respectively. The water quality experts conferred and produced two joint expert reports. The first joint expert report dated 29 November 2013 addressed the development as originally proposed in the development application while the second joint expert report dated 19 March 2014 addressed the changed development application.

[151] In the first joint expert report, the water quality experts considered that the original development application provided insufficient detail in respect of water quality measures, such as sediment and erosion control, vegetation and weed management, and public health management (water supply and sewage management). Nevertheless, they considered that appropriate water quality, public health and environmental management control could be implemented on the land to allow the application to be approved subject to suitable conditions. They recommended conditions requiring that various management plans be prepared by the applicant for assessment and approval by the Council, including a site based management plan, a track management plan, a stormwater management plan, a vegetation management plan, a sediment and erosion control plan, a surface water management plan, a water supply management plan, a waste water, sewage and sullage management plan, and a waste plan.

[152] The changed development application proposed conditions of approval, as recommended by the water quality experts, requiring the preparation of these management plans. The proposed conditions included:

"3. The proposed development is required to comply with all management plans applying to the approved use.

1. MANAGEMENT PLANS GENERALLY - Within 3 months of approval, the Applicant must have approved a Site Based Management Plan (SBMP) that addresses the following individual plans:

(a) Track Management Plan (incl. Track Closure Plan);

(c) Vegetation Management Plan (incl. Weed Control Plan);

(f) Water Supply Management Plan (for patron and ancillary activities); and

(g) Wastewater, Sewage and Sullage Management Plan.

(i) Owner, developer and contractor responsibilities.

(iv) Management practices, corrective actions and contingency plans.

(vii) Incident management, investigation and reporting.

22. The above nominated management plans are to be approved by the CEO of SRRC acting reasonably prior to the commencement of the use.

23. Before commencement of the approved use, the Applicant must prepare a Track Management Plan. The Track Management Plan needs to address the following areas:

(b) A Track Closure Plan for storm events and a map provided to park visitors of which tracks are open/closed with the emergency track leading out of the park clearly marked.

(c) Any bare areas with exposed soil are to be stabilised and managed to ensure grass establishment

(f) Identify the locations, design and maintenance of creek crossings.

(g) Vehicle crossing points to creeks are to be kept to a minimum and no creek crossings are to be created except for those allowed within the approved SBMP.

(h) Except at crossings defined within SBMP vehicles are prohibited within the creek.

(i) The Applicant must only use those existing tracks and areas already established on the development sites with no new or additional tracks or areas to be created without the prior approval of Council.

(j) Track sediment and erosion control measures such as:

(v) Following significant rain and/or storm events, inspection of all tracks to be conducted with any showing degradation to be closed until rectified.

(vi) Sediment and erosion control measures to be maintained and to be repaired as required, within 2 weeks of the storm event.

24. Before commencement of the approved use, the Applicant must prepare a Stormwater Management Plan. The Stormwater Management Plan for the site needs to address water quality by documenting measures that:

(a) Take into consideration and minimise the impact of stormwater flows and sediment deposition on the regional ecosystems at the site, including particular focus on endangered, vulnerable and essential habitat regional ecosystems.

(b) Prevent gully formation due to erosion, including tunnel erosion at the head of drainage lines.

(c) Stipulate buffer distances around the endangered and vulnerable regional ecosystems and incorporate into the management and placement of tracks.

(d) Include the protection and management of creek lines.

(e) Describe the prevention of waterway pollution, together with the timely removal and disposal of gross pollutants and other litter. Waste is not to be stockpiled so as to cause environmental nuisance or attract flies and vermin. All waste produced at the site must be stored in appropriate containers/receptacles of a sufficient number to receive all waste generated at the site. Waste containers/receptacles must be maintained in full working order and lids are to remain closed at all times except when receiving or disposing of waste. All wastes must be removed to an approved disposal facility by a transporter holding all necessary government approvals. Waste must be removed at a frequency and in a manner that prevents nuisance from the waste of neighbouring premises.

(f) Roof water from the Endeavour Maze structure to be assessed for its contribution to the soil piping evident on Main Street.

(g) All campsites should be surveyed to identify the distances from watercourses. The minimum setback distance to watercourses is 35 m.

(h) Except where sediment reduction devices are utilised or where shown within the SBMP, that a buffer (in accordance with the Beaudesert Shire Planning Scheme 2007, Schedule 4, Table 2.1) between the creek and any infrastructure, trail or camping areas, be established.

(i) Monitor water quality of each event flow from mapped watercourses shown on the regional ecosystem overlay (Department of Natural Resources and Water (2007) Catchment Management, Waterways and Wetlands Overlay (OV 6.1C), Beaudesert Planning Scheme Integrated Planning Act 1997) as it exits the site boundary. Ensure the water quality of these waters during flow events up to and including a 24 hour, 5 year ARI event satisfies the following criteria (unless superseded by appropriate, site-specific criteria representing background conditions):

25. Before commencement of the approved use, the Applicant must prepare a Vegetation Management Plan. The Vegetation Management Plan must describe:

(b) Weed management that needs to be conducted in a controlled, staged and planned manner, effectively minimising the time where soil is exposed to erosion. APZ areas for campsites, as nominated in the Bushfire Management and Evacuation Plans, are to be maintained.

(c) Following the removal of weeds or vegetation, exposed soils should be stabilised and sward established within two weeks of initial soil exposure.

26. Before commencement of the approved use, the Applicant must prepare a Sediment and Erosion Control Plan. The Sediment and Erosion Control Plan must include:

(a) An erosion hazard assessment, including soil mapping and a slope analysis.

(b) Controls must be in accordance with the 'Best Practice Erosion & Sediment Control', International Erosion Control Association, November 2008.

(c) Trails must have sediment control devices that minimise the sediment discharge into creeks. Details should be shown within the SBMP.

27. Before commencement of the approved use, the Applicant must prepare a Surface Water Management Plan. The Surface Water Management Plan must address:

(a) Surface water dams that are not required should be properly stabilised and decommissioned.

(b) Releases to water must not cause any visible oil slick or other visible evidence of oil or grease, nor contain visible grease, scum, litter or floating oil.

(c) Surface water dams that are to be retained, must be maintained and managed to ensure that their:

(ii) water quality meets ANZEEC guidelines for raw water supplies.

28. Before commencement of the approved use, the Applicant must prepare a Water Supply Management Plan, for patron and ancillary activities. The plan must include:

(a) Emergency water supply tanks need to be appropriately labelled as 'Non-Potable' as well as their purpose, e.g. 'Emergency Bush Fire Water Supply'. Any misleading labels on these tanks should be removed forthwith.

(b) Emergency Potable and Domestic use Water Supply of 50,000L combined volume is to be provided and maintained throughout the park at campsites. Such supplies are to be inspected weekly and maintained full and with a water quality that meets the Australian Drinking Water Guidelines for pH, turbidity, Faecal Coliforms/E.Coli.

29. Before commencement of the approved use, the Applicant must prepare a Wastewater, Sewage and Sullage Management Plan. This plan must address:

(a) An Effluent Management Plan for the site should be developed, accounting for the anticipated number of visitors, the disposal of chemical toilet waste and should comply with the relevant provisions of AS 1547-2012 and the relevant sections of the Building Code of Australia. Clarification is required on the management process for effluent disposal to ensure no overflow occurs into areas of high ecological significance.

(b) The Applicant is to make provision for the design and construction of an adequate wastewater treatment and disposal system capable of servicing the proposed development so as to adequately provide for the treatment and disposal of wastewater on-site. The wastewater disposal system is to conform with the provisions of the Department of Infrastructure and Planning 'Queensland Development Code', the 'Queensland Plumbing and Wastewater (QPW) Code' AS 1547 and AS 1547-2012. Details on the proposed method of treatment and disposal of wastewater are to be submitted as part of a Development Application for Plumbing and Drainage Works. The works required by this condition are to be completed within six months of the Respondent approving the Plumbing and Drainage Works application.

(c) The Applicant is to ensure that equipment is available on the land to contain and clean up a spill or leak of dangerous goods or combustible liquids at the premises at all times. A suitable kit will contain the following as a minimum - a lidded container, non-combustible absorbent material, shovel, goggles and gloves.

30. Before commencement of the approved use, the Applicant must prepare a Waste Plan. The Waste Plan must include:

(d) Prevention measures for littering, unauthorised dumping of liquid."

[153] In the second joint expert report, the water quality experts noted that the reduction in the intensity of the proposed development from that considered in the first joint expert report represented an improvement in respect of issues of water quality. They noted that the draft conditions of approval for the changed development included requirements for various management plans for the land which, properly implemented, would address their concerns about water quality. Nevertheless, they recommended some new conditions and some amendments of the proposed conditions which they considered would improve water quality management. These included:

(a) A new condition requiring appropriate siting of the proposed

"In formalising each proposed camping area, sites should be surveyed to delineate the extent of each area and to set patron number limits at each site. This will ensure that each campsite appropriately matches the facilities provided. Additionally each campsite and its extents are to be placed above the Q100 flood line as defined by the Gilbert & Sutherland flood study dated March 2014 or such updated study as accepted by the parties as representing the likely flood extents and conditions on the site."

(b) New conditions requiring better description of the extent and

location of all facilities relative to each proposed camping area:

"The proponent will, upon a patron's arrival to a campsite:

(a) demonstrate that they have made adequate provision for water supply and effluent management during their visit (e.g. brought adequate potable water and a suitable portable toilet facility (porta potti) with them and are made aware of the location of the nominated water supply and/or effluent disposal point(s) within the park); or

(b) be allocated to a camping area with appropriate facilities for their needs; or

(c) ensure suitable water supply and wastewater facilities (jerry cans of water/porta potties) are available for hire.

The proponent will ensure that upon arrival, daily patrons of the park will be made aware of the location of all facilities (i.e. with the provision of a map, appropriate signage or equivalent)."

(c) Amendment to draft condition 25 to insert a new paragraph requiring that the Vegetation Management Plan describe:

"(d) Measures for vegetation management that are consistent with the aims and objectives of the Bushfire Management Plan for the site (as prepared and agreed by others), whilst still maintaining close ground cover for erosion control management."

(d) Amendment of draft condition 28 to insert a new paragraph requiring that the Water Supply Management Plan include:

"(c) The existing onsite infrastructure for the capture and storage of roof water at the huts camping area must be inspected and works undertaken to ensure that:

(i) Appropriate provision is made for the inclusion of a filtration unit and/or first flush diverter.

(ii) Gutter guards or equivalent are installed on contributing roof areas.

(iii) The existing tank is cleaned and treated to ensure safe supply or replaced (if necessary).

(iv) All tanks should be sealed to prevent mosquito access."

(e) Amendment of draft condition 29 concerning the Wastewater, Sewage and Sullage Management Plan:

(i) to insert in condition 29(a) "and nominating an effluent disposal point for" after "visitors" and before "the disposal of chemical toilet waste"; and

(ii) to insert a new paragraph (c) (and renumber the existing paragraph (c) to be (d)) that:

"(c) The management plan should include an assessment of the existing composting toilet facility at the huts camping area to assess compliance with the required standard. This is to include an inspection of the liquor trench to ensure that it is installed across the slope and is functioning as intended."

(f) Amendment of draft condition 30 concerning the Waste Plan:

(i) to add at the end of paragraph (d) the words "putrescible, sanitary product and solid wastes"; and

"(e) Prevention measures to protect the land and waterways (creeks and drainage line) from litter and dumping of liquid, putrescible, sanitary product and solid waste."

[154] I find that, if the water quality management measures required by the proposed conditions of approval, amended as recommended by the water quality experts, are implemented, appropriate water quality, public health and environmental management control can be implemented on the land for the proposed development.

[155] Harris and the Council called experts on acoustic and air quality, Mr King and Ms Richardson respectively. The acoustic and air quality experts conferred and produced two joint expert reports. The first joint expert report dated 3 December 2013 addressed the development as originally proposed in the development application while the second joint expert report dated 19 March 2014 addressed the changed development application.

[156] In the first joint expert report, the experts considered the noise impacts of traffic on Tamrookum Creek Road and of the on-site activity. Their assessment of traffic on Tamrookum Creek Road was based on the traffic volumes predicted to be generated by the originally proposed development, which was far more intensive in normal operations than the currently proposed development and also included the special "King of the Rim" event that is now no longer proposed. The experts concluded that:

"On the basis of the estimated numbers of vehicle movements on Tamrookum Creek Road during normal operations and under special event (King of the Rim) events [sic] the experts agree that the traffic volumes are such that no road traffic noise planning limits would be breached at residences along Tamrookum Creek Road. That said, the experts agree that it would be prudent for the site operator to advise all customers/visitors that access to the site via Tamrookum Creek Road should observe a maximum speed limit of 60 km/hour on this road."

[157] In relation to acoustic impacts of on-site activities, the experts considered a map showing the originally proposed existing and future tracks on the land. The experts identified those tracks that, based on their acoustical calculations, were not appropriate for use due to acoustic constraints and should be excluded from any approval. Use of the remaining tracks was considered not to cause unacceptable acoustic impacts to surrounding residences. The experts recommended a 10 kph zone within a 650 m radius of the site entry.

[158] The experts also considered nine campsite locations clustered in the mid section of the land accessed by the eastern trail. The experts agreed that those campsites were acceptable from an off-site acoustic amenity perspective.

[159] The experts recommended that certain activities were not appropriate on the land, including use of non-road registered vehicles with modified or no mufflers (except for the once off King of the Rim event); night four wheel driving; a gully run; motorised recreation such as 4WD buggy roads except where noise testing has confirmed source noise levels are below a sound pressure level of 73 dB(A) at 5 m; and monthly 4WD competitions.

[160] The experts agreed that use of the site for the then proposed activities could be suitably conditioned to ensure the amenity of surrounding residences would not be unduly affected. The experts recommended that the following conditions of approval be imposed to address the acoustical impacts of the uses on the land:

"(i) Tracks on the site to be limited to specific areas to provide adequate buffers to surrounding residence[s] for both noise and dust (refer to Figure 4);

(ii) The approved tracks (existing and proposed) and recommended speed limits are to be nominated on the plan as part of the approval. This shall include approved directions of travel where appropriate;

(iii) Should any additional tracks other than those approved be proposed, they will require approval from Council including input from a noise consultant to confirm that adequate acoustic buffering is achieved.

(iv) The maximum number of persons on site is to be capped at 300, and the maximum number of vehicles to 200;

(v) The hours of vehicle movements for patrons on the site be limited to (6 am to dusk);

(vi) Camping areas are to be limited to those nominated (1 to 9);

(vii) Appropriate amenities (i.e. toilets) are to be provided within walking distance of camp sites;

(viii) The site environmental management plan be updated with a specific noise management plan which will include, but not be limited to the following:

1. No amplified music or Public Address system use on site (except for an approved special event (ie King of the Rim once a year));
2. Unmuffled 4WDs are not permitted on site (except for an approved special event once a year);

1. Provision of adequate facilities at each camp area to ensure that it is practical to enforce the requirement for no night driving (e.g. access to toilets by foot for all camp areas);

1. Monthly competitions are not permitted;
2. A 10 kph speed limit is to apply within a 650 m radius of the site entry (as shown at Figure 4);
3. Camping is only permitted in the camping areas designated 1-9 (as shown on Figure 4);
4. Patrons are not permitted to drive on site outside of the hours of 6am to dusk;
5. The King of the Rim event is permitted to occur once per year, subject to an event management plan being developed, and submitted to Council for approval. A minimum of 4 weeks prior notice of the event must be provided to the local community;
6. Motorised recreation such as 4WD buggy rides are only permitted where noise testing has confirmed source noise levels are below a sound pressure level of 73 dB(A) at 5m."

[161] In relation to air quality, the experts agreed that odour was not of concern on the basis of available separation to surrounding sensitive uses. The generation of dust by vehicles traversing the unsealed tracks on the site could be best controlled by limiting vehicle speeds on the site and, where necessary, application of water to unsealed roadways which exhibit high dust generation potential. The experts also agreed that dust generated by vehicle movements on Tamrookum Creek Road was best controlled by limiting vehicle speeds to 60 kph.

[162] The experts further agreed that dust generated by on-site vehicle movements and vehicle movements on Tamrookum Road is unlikely to cause exceedance of regulatory dust standards with regard to both concentration and deposition (nuisance).

[163] The experts agreed that with appropriate approval conditions in place, the development could achieve acceptable air quality amenity outcomes. The experts recommended that conditions should be imposed requiring the implementation and maintenance of the following dust management measures on the land:

"● 30 kph speed limit for trucks on the site with the exception of within 650 m of the site entry, where a 10 kph limit applies.

• Advisory speed limit of 60 km/hr for Tamrookum Creek Road.
• Use of water application by mobile trailer to tracks with high dust generation potential.
• Maintaining main tracks in condition to minimise dust generation i.e. grading and/or application of appropriate gravel surfaces as necessary."

[164] The changed development application proposed conditions of approval, as recommended by the acoustic and air quality experts. These included:

"2. The proposed development is to consist of the following uses:

(b) Use of existing cabins for short term camping accommodation;

(c) Four wheel drive training and education courses;

(d) Outdoor adventure uses, including four wheel driving, bushwalking, abseiling, flying fox and rope courses; and

(e) Use of road registered 4WD vehicles associated with the above uses.

1. The proposed development is required to comply with all management plans applying to the approved use.

1. Only road registered customer vehicles are permitted to access the land.

1. No trail bike use on the land is permitted under this approval.
2. Tracks on the land are to be limited to those specific areas provided for in the Approved Plan of Development dated 28 February 2014, to provide adequate buffers to surrounding residence[s] for both noise and dust.

1. Camping may only occur in those areas nominated in the Approved Plan of Development dated 28 February 2014.

1. Appropriate amenities to be provided within walking distance of campsites.

1. Tracks may only be used by customers if depicted as publicly accessible tracks in the Approved Plan of Development dated 28 February 2014.

1. The approved tracks and recommended speed limits are to be nominated on a plan as part of the approval. This shall include approved directions of travel where appropriate.

1. A 10 kph speed limit is to apply within a 650 m radius of the site entry on the land. Otherwise, a 30 kph speed limit applies for the use of the 4WD tracks.

37. No amplified music or public address system use on site.

1. Customers are not permitted to drive on site outside of the hours of 6am to 7pm.

1. A Noise and Dust Management Plan is to be prepared which provides:

(c) Speed limits for tracks to be used by the public;

(e) For the intermittent application of water by mobile trailer to tracks with high dust generation potential; and

(f) For the maintenance of tracks in such a condition as to minimise dust generation (i.e. grading and/or application of appropriate gravel surfaces as necessary).

[165] In the second joint expert report, the acoustic and air quality experts noted the limitations in scope and intensity of the uses proposed in the changed development application and the proposed conditions of approval. The experts agreed the removal of noise and dust generating activities, such as the King of the Rim event and 4WD buggy rides, further reduced the potential for noise and dust impacts.

[166] The experts noted that they had not previously assessed the outdoor adventure uses, including bushwalking, abseiling, flying fox and rope courses, from an acoustic and air quality perspective. They did so in the second joint expert report and concluded that these uses would have a lesser impact than the uses considered as acceptable in the first joint expert report and were appropriate from an acoustic and air quality perspective.

[167] The experts noted that the maps provided as part of the changed development application provided different locations for tracks and additional tracks to those shown on the map considered in the first joint expert report. They noted that the map for the changed development application was more accurate and showed only existing tracks and that no new tracks were proposed. The tracks that the experts had recommended in the first joint expert report be removed, because of adverse acoustic impacts, were not proposed in the map for the changed development application.

[168] The experts also noted that the map provided for the changed development application identified 14 campsites and located some campsites in slightly different locations to those shown in the map considered in the first joint expert report. They noted that campsites 2-8 were proposed in the previous map. Campsite 1 had moved slightly to be outside of the Q100 flood area. They noted that five additional campsites, 10-14, were located in remote locations on the land, away from neighbouring residences.

[169] They noted proposed condition 33 that appropriate amenities be provided within walking distance of campsites but recommended that it be amended to specify that toilet amenities should be provided within 100 m walking distance of all campsites.

[170] In conclusion, the acoustic and air quality experts considered that the changed development application resulted in a further reduction in the potential for acoustic and air quality impacts. They agreed that the proposed draft conditions of approval were suitable for managing noise and air quality impacts such that impacts on surrounding residential properties would be maintained within the appropriate criteria.

[171] I find that, if the acoustic and air quality management measures required by the proposed conditions of approval, amended as recommended by the acoustic and air quality experts, are implemented, the proposed development will not cause unacceptable noise or air quality impacts on properties surrounding the land or along Tamrookum Creek Road.

[172] Harris and the Council called experts on traffic, Mr Douglas and Mr Beard respectively. The traffic experts conferred and produced two joint expert reports. The first joint expert report dated 14 November 2013 addressed the development as originally proposed in the development application. The second joint expert report dated 19 March 2014 addressed the changed development application.

[173] The changed development application proposed conditions of approval with respect to traffic, including:

"4. The proposed development be limited to a total number of 40 customer vehicle bookings for the approved use per day.

1. The proposed development must not have any more than 40 customer vehicles per day on the land at any one time.

1. Only road registered customer vehicles are permitted to access the land.

1. The proposed development be limited to a total number of 65 customer vehicle bookings for the approved use per week.

1. The Applicant must only 'check-in' and 'check-out' customers for the approved use from 7am - 6pm each day.

1. Visitation of the land for the purposes of the approved use (i.e. not for domestic purposes) is to be by booking only.

1. The Applicant is required to pay to the Respondent $3 for each customer vehicle accessing the land for the purposes of the approved use, paid on a quarterly basis. This levy is to be used by the Respondent for the purposes of maintaining Tamrookum Creek Road.

1. The Applicant is required to undertake the following works (or reimburse Council for undertaking the following works) with respect to creek and gully crossing along Tamrookum Creek Road.

(a) Widening of the shoulder on the approach or departure side of crossings 1 to 6 and 6a, as indicated on the attached 'Upgrade Plan 1'; and

(b) Installation of the signage set out on the attached 'Upgrade Plan 2' at Creek Crossings 1 to 6 and 6a.

Note: The crossings are numbered from east to west. The widening is indicated by the trapezoid on the left hand approach to each crossing location. All works undertaken in respect of this condition are to be to the satisfaction of the Chief Executive Officer of SRRC.

1. The Applicant is required to install speed limit signage (or reimburse Council for providing such signage) advising of a 60 kilometre per hour speed limit along Tamrookum Creek Road, generally as indicated in the attached 'Upgrade Plan 1'.

1. The Applicant is required to install (or reimburse Council for providing such signage) along Tamrookum Creek Road, as indicated in the attached 'Upgrade Plan 1', including:

(d) Cattle Grid Warning signage (W5-16) with hazard markers (D4-3); and

1. When making a reservation for use of the subject land (eg camping), that person making the booking must be advised of:

(a) The requirement to arrive and depart during the hours set out in Condition [9] above;

(b) The requirement to provide the names and contact details of all persons staying with the vehicle;

(c) The requirement to provide a legible photocopy of the driver's licence and vehicle registration number;

(d) The fact that irresponsible driving behaviour onsite or on nearby roads will result in that person being asked to leave the land and may result in future entry being refused; and

(e) That they will be provided by email or post with a map of the land and surrounds, including how to access the land from the Mt Lindesay Highway. The map to be provided is to be approved by the CEO of SRRC prior to the commencement of the use.

1. The Applicants must establish and maintain a complaints register."

[174] The traffic experts also produced individual trial reports, Mr Douglas' traffic report dated 28 March 2014 and Mr Beard's report dated 26 March 2014. The traffic experts also each gave oral evidence at the hearing.

[175] In response to the oral evidence of the traffic experts, Harris proposed, and the Council agreed, to amend the proposed conditions of approval to, amongst other things, reduce the total number of customer vehicle bookings for the approved use per day and the number of customer vehicles per day on the land at any one time from 40 to 20, and to remove the limit on the number of customer vehicle bookings for the approved use per week, and to require that the proposed works with respect to creek and gully crossings along Tamrookum Creek Road and associated signage and the installation of speed limit signage and other warning signage along Tamrookum Creek Road be undertaken within 12 months of the date the proposed development is approved. The reduction in the number of vehicles on the land per day would necessarily reduce the impacts of the traffic generated by the development on Tamrookum Creek Road and the intersection of Tamrookum Creek Road and the Mt Lindesay Highway.

[176] As a consequence of this reduction in the number of customer vehicles, and ensuring that road works and signage be completed within 12 months, both traffic experts agreed that the traffic impacts of the proposed development (as modified) on both Tamrookum Creek Road and its intersection with the Mt Lindesay Highway would be acceptable and that the traffic impacts were no longer reasons for refusing approval to the proposed development. One of the co-respondents by election, Mr Barbagallo agreed. However, the other co-respondent by election, Mr Halpin, maintained that even with the reduced traffic flows, there still would be an unacceptable safety risk at both the intersection of Tamrookum Creek Road and Mt Lindesay Highway and along Tamrookum Creek Road itself. I need, therefore, to address these two issues.

[177] The intersection issue concerned the safety of southbound traffic on Mt Lindesay Highway making a right turn into Tamrookum Creek Road.

[178] The traffic experts had agreed that the intersection was not constructed to current standards, particularly in respect of the absence of a BAR (basic) right turning treatment. However, they noted that upgrading of the intersection to provide a BAR treatment would not be possible for a design speed of 100 kph (the existing posted speed limit on the highway) without prohibitively expensive widening of the existing bridge on the highway just to the north of the intersection.

[179] Nevertheless, the traffic experts agreed that an increase in the number of vehicles turning into and out of Tamrookum Creek Road could be acceptable at the current intersection, but they disagreed as to the quantum of the increase that would be acceptable. Mr Douglas considered that an increase of up to 40 vehicles per day would be acceptable. Mr Beard considered that an increase of more than 25 vehicles per day would be significant but an increase of up to 25 vehicles per day could be tolerated without doing further works to the intersection. Mr Beard estimated that 80% of arrivals would be likely to be via right turns off the Mt Lindesay Highway. Hence, Mr Beard's threshold of 25 vehicles per day visiting the land translated to 20 vehicles making right turns off Mt Lindesay Highway.

[180] The agreed reduction in the cap on the number of vehicles able to visit the land per day to 20, therefore, fell within both Mr Douglas' and Mr Beard's thresholds. Even if all of the 20 vehicles visiting the land turned right off the Mt Lindesay Highway (which would be most unlikely - Mr Beard's estimate being 80%), this would still be within Mr Beard's tolerance level for the intersection.

[181] The acceptability of the likely increased use of the intersection by traffic generated by the proposed development is supported by other factors.

[182] First, the Mt Lindesay Highway is a State controlled road and hence under the control of DTMR. DTMR was a concurrence agency for the proposed development. It considered the development proposed in the original application and gave its concurrence agency response. The development proposed in the original application was of a much larger scale and more intensive, including proposing the annual King of the Rim event and monthly 4WD competitions and did not have any caps on the number of customer vehicle bookings or customer vehicles per day on the land, and hence would have generated considerably greater traffic volumes. Nevertheless, DTMR did not, in its concurrence agency response, tell the Council to refuse the application (as it could have under s 287(2)(b) of SPA), but instead agreed to the application being approved subject to only one notified condition that the development be carried out in accordance with the original plan. Subsequently, in response to a request by the Council, the DTMR advised in a letter dated 28 March 2014 that it did not tell the Council, in its concurrence agency response, to attach a condition to any approval requiring any upgrade to the Mt Lindesay Highway - Tamrookum Creek Road intersection "because the cost of upgrading the intersection would impose an unreasonable financial burden on the development".

[183] Secondly, the intersection does not have a record of crash incidents. A search of the Queensland Road Crash Location database for crashes at the location of the intersection of Mt Lindesay Highway and Tamrookum Creek Road showed no reported crash incidents from 2001 to 2012. This period included the time when the Scenic Rim Adventure Park was operating (albeit without consent) more intensively and generating greater traffic volumes than is now proposed.

[184] Thirdly, the operation of the intersection for the traffic volumes now proposed needs to be considered in light of a reasonable assumption that motorists will, as a whole, comply with the road rules and obey road markings and signage: Petroleum Design and Management Pty Ltd v Mackay City Council [2004] QPEC 20; [2004] QPELR 593 at 596 [22].

[185] In this case, for southbound traffic on the Mt Lindesay Highway, there is a long and clear line of sight to the intersection of Tamrookum Creek Road, there is a solid white, no overtaking line for about 120 m before the intersection, there is a large sign notifying of the Tamrookum Creek Road turnoff before the bridge, and the bridge itself is clearly marked with chevron hazard signs and guard rails. It is not reasonable to assume that a vehicle following a vehicle proposing to turn right into Tamrookum Creek Road will not comply with the road rules or disobey road markings and signage, or fail to slow to allow the leading car to turn right off the highway into Tamrookum Creek Road, or break the law and overtake the leading car before the intersection.

[186] I find, therefore, that the proposed development, with the number of vehicles per day capped at 20, will not lead to unacceptable impacts on the performance or safety of the intersection or on right turns off the Mt Lindesay Highway into Tamrookum Creek Road.

[187] The second traffic issue concerned whether the traffic generated by the proposed development would have unacceptable impacts on Tamrookum Creek Road.

[188] The traffic experts had agreed in the first joint expert report that parts of Tamrookum Creek Road did not comply with a cross-section standard for a Class 5C road in accordance with the Council's typical road cross-sections intended for roads carrying less than 40 vehicles per day. However, improving the cross-section of the road to the Council's published standards may have the effect of encouraging higher traffic speeds, and hence introducing new safety risks, and also would involve significant clearing of vegetation within the road corridor, with consequential adverse environmental effects. Instead, Mr Douglas proposed a pragmatic response based on maintaining a lower speed environment, and works limited to upgrading of warning and regulatory signage, including introduction of a 60 kph speed limit along Tamrookum Creek Road. The proposed development (as modified), therefore, proposed that works be undertaken with respect to creek and gully crossings with associated signage as well as other regulatory warning signage be installed along Tamrookum Creek Road. The proposed roadworks and signage were described in Upgrade Plan 1 and Upgrade Plan 2.

[189] The roadworks essentially involve widening of the shoulder of the road on either the approach or the departure side of seven creek or gully crossings along Tamrookum Creek Road to allow a vehicle travelling in one direction to give way to an oncoming vehicle travelling in the other direction so as to allow that other vehicle to pass the crossing first. The crossings were numbered from east (nearest to the Mt Lindesay Highway) to west (nearest to the entrance to the land). The widened shoulders were proposed to be on the departure (western) side of crossings 1, 2, 3, 5 and 6a and on the approach (eastern) side of crossings 4 and 6. Hence, for most of the crossings, vehicles travelling from the land would need to give way to vehicles travelling to the land. Mr Douglas explained that this was preferable from a traffic safety perspective because more familiar users of the road (having travelled at least once on the road to access the land) would be giving way to less familiar users (not having travelled on the road before).

[190] The precise location and details of the shoulder widening and the undertaking of the works would be to the satisfaction of the Chief Executive Officer of the Council.

[191] Signage would be installed to warn motorists of the crossings and the rules of priority. For vehicles travelling west from the Mt Lindesay Highway towards the land, a typical creek crossing treatment would involve, for a crossing with a widened shoulder on the departure (western) side, a "one lane" sign about 100-110 m east of the crossing, a "no overtaking or passing" sign about 20-30 m east of the crossing, and chevron hazard signs either side of the pavement on the eastern side of the crossing. For vehicles travelling east from the land towards the Mt Lindesay Highway, signage for a typical creek crossing treatment would involve, for a crossing with a widened shoulder on the western side, a "one lane" sign about 150-160 m west of the crossing, a sign warning of the "give way" sign ahead about 100-110 m west of the crossing, the widened shoulder on the left hand approach to the crossing with a "give way" sign at its end about 20-30 m before the crossing, and chevron hazard signs either side of the pavement on the western side of the crossing.

[192] Other signage for Tamrookum Creek Road was also proposed, advising of a speed limit of 60 kph along Tamrookum Creek Road and warning of various hazards along the road, including stock warning signage, kangaroo warning signage, crest warning signage, cattle grid warning signage with hazard markers, and side road junction warning signage.

[193] Harris and the Council agreed that the proposed conditions of approval should be amended to require that the proposed roadworks and signage for the crossings and elsewhere along Tamrookum Creek Road should be undertaken within 12 months of the proposed development being approved, in accordance with a schedule of works to be agreed by the traffic experts.

[194] As with the intersection issue, the traffic experts had agreed that, with the proposed roadworks and signage being undertaken, an increase in the number of vehicles using Tamrookum Creek Road could be acceptable, but they had disagreed as to the quantum of the increase in traffic that would be acceptable. Mr Douglas considered that an increase of 40 vehicles per day would be acceptable, while Mr Beard considered that more than 25 vehicles per day would be significant. In oral evidence at the hearing, however, Mr Beard accepted that an increase in the number of vehicles travelling on Tamrookum Creek Road of 15 to 20 would be acceptable and that it would not be reasonable to refuse approval to the proposed development with a traffic generation at that level.

[195] The agreed reduction in the number of vehicles visiting the land per day to 20, therefore, fell within both Mr Douglas' and Mr Beard's threshold of acceptable increase in traffic flow along Tamrookum Creek Road. On this basis, both traffic experts agreed that the proposed development could be approved on conditions capping the number of vehicles per day to 20 and requiring the undertaking of the proposed road works and signage along Tamrookum Creek Road within 12 months of approval being granted.

[196] The acceptability of the likely increase in traffic flow generated by the proposed development along Tamrookum Creek Road is supported by other factors.

[197] First, the Council, as the road authority with responsibility for Tamrookum Creek Road, has agreed that the proposed development can be approved on conditions capping the number of vehicles per day to 20 and requiring the undertaking of the proposed roadworks and signage along Tamrookum Creek Road within 12 months.

[198] Secondly, Tamrookum Creek Road does not have a record of crash incidents. Mr Douglas undertook a significant analysis of Tamrookum Creek Road and its history but was not aware of any crash history or safety issues, including as a result of the previous operation of the land by Meebunn-bia.

[199] Thirdly, the peak traffic generated by the proposed development generally would occur at different times to the peak traffic movements that normally occur on Tamrookum Creek Road. Arriving customers to the land would generally arrive after the morning peak on weekdays and weekends and departing customers would depart the land in the afternoon during a relatively quiet traffic period for Tamrookum Creek Road. This means that traffic generated by the proposed development would be unlikely to cause inconvenience or difficulty to the current users of Tamrookum Creek Road at the times when that road is traditionally at its busiest.

[200] Fourthly, traffic generated by the proposed development will only use Tamrookum Creek Road during daylight hours. A proposed condition of approval is that check-in and check-out will be limited to the hours of 7 am to 6 pm each day. This will prevent use by customers of Tamrookum Creek Road outside of these hours and avoid use at night when driving conditions may be more hazardous and may cause disturbance by noise or headlight glare.

[201] Fifthly, as with the intersection issue, the impacts of the traffic generated by the proposed development along Tamrookum Creek Road should be considered on the reasonable assumption that motorists will comply with the road rules and obey the road signage along Tamrookum Creek Road. This includes adhering to the 60 kph speed limit, giving way at crossings as directed, not overtaking or passing at crossings where directed not to do so, adjusting their driving according to the warning signage, and generally driving to the road conditions.

[202] Sixthly, the proposed conditions of approval include requirements for notification of customers with respect to use of Tamrookum Creek Road. Visitation of the land is to be by booking only. At the time of booking, customers are to be advised of the requirement to arrive and depart during the hours of 7 am and 6 pm each day, the requirement to provide the names and contact details of all persons staying with the vehicle, the requirement to provide a legible photocopy of the driver's licence and vehicle registration number, the fact that irresponsible driving behaviour on site or on nearby roads will result in that person being asked to leave the land and may result in future entry being refused, and the provision of a map of the land and surrounds, including how to access the land from the Mt Lindesay Highway. A complaints register is to be established and maintained. These conditions of approval increase the likelihood that customers will drive along Tamrookum Creek Road in accordance with the road rules and road signage, and in a safe and responsible manner.

[203] I find, therefore, that the proposed development, if the number of vehicles visiting the land per day is capped at 20, the proposed roadworks and signage along Tamrookum Creek Road are undertaken, and the other traffic management measures required by the proposed conditions of approval are implemented, will not cause unacceptable impacts on the performance or safety of Tamrookum Creek Road or on the use by current users of Tamrookum Creek Road.

[204] Harris and the Council called experts on town planning, Mr Buckley and Mr Ovenden respectively. The town planning experts conferred and produced two joint expert reports. The first joint expert report dated 3 December 2013 addressed the development as originally proposed in the development application while the second joint expert report dated 19 March 2014 addressed the changed development application. Mr Ovenden also prepared an individual trial report dated 28 March 2014. Both town planning experts also gave oral evidence at the hearing.

[205] In the second joint expert report, the town planning experts agreed that the changes to the application were meaningful and addressed the issues raised by Mr Ovenden in the first joint expert report regarding character, amenity and impacts. Mr Buckley said that the changes to the application only further aligned the proposed development, or strengthened its compliance, with the planning scheme provisions.

[206] Mr Ovenden said that the changed application had substantially reduced the original development's widespread impacts to rural lifestyle, character and amenity by removing the monthly competition events and the annual King of the Rim four wheel driving competition and by proposing limits to the nature of vehicles accessing the land and the number of vehicles permitted on the land. Mr Ovenden considered that, if the various experts on other issues reached agreement through their joint expert reports (which they did), the impacts associated with the changed development were within acceptable limits and could be addressed through the implementation of management plans and conditions of approval. Mr Buckley agreed.

[207] As a consequence, after Harris changed the proposed development, the only town planning issue that remained was whether the traffic generated by the proposed development (as modified) would have unacceptable amenity impacts.

[208] Mr Ovenden explained, in the second joint expert report and his individual trial report, the town planning dimension to the issue of traffic along Tamrookum Creek Road:

"The single lane access road, shared by the existing rural lifestyle and rural production uses, intensifies the contrast and potential conflict in uses (existing and that proposed in this application) by focussing one of the main points of contact between the uses. Consequently, it is a repeated theme in virtually all of the objecting submissions and further reflected in the statements to the Court by local residents, including that of Mr Barbagallo (18 March 2014), in which they detail their numerous and varied encounters and traffic conflicts on the road during the period of the proposal's unlawful operation. The site is one of the last properties on Tamrookum Creek Road, which means that impacts associated with the road use affect each resident and use along the length of the road. Therefore, the proposed location maximises the distribution of impacts."

[209] However, Mr Ovenden acknowledged in the second joint expert report that his concerns about the adverse amenity impacts and conflicts with the planning scheme provisions would largely fall away if the traffic engineers reached agreement on an appropriate level of upgrading of Tamrookum Creek Road and measures to address safety for customers of the proposed development using that road in conjunction with existing rural users.

[210] Mr Buckley agreed that the opinions of the traffic engineers would be material but he observed that the residents' objections were to a more intense proposal. The scale of the current amended development was one where any on-site impacts can be adequately contained, and access to and from the land, also at a reduced scale, should be capable of not interfering with the broad hectare farming in the locality, albeit with upgrading of the road at various places along the corridor.

[211] As earlier noted, at the hearing, Harris and the Council reached agreement that the number of vehicles visiting the land per day should be further reduced to 20, thereby reducing the potential impacts of traffic on the amenity of the surrounding area and existing road users, and that the agreed roadworks and signage along Tamrookum Creek Road should be undertaken within 12 months of the date of approval. The traffic engineers reached agreement that, with that reduced number of vehicles and the undertaking of the roadworks and signage proposed, there would not be unacceptable traffic or safety impacts from the proposed development (as modified).

[212] The town planning experts then agreed that, in these circumstances, there would be no unacceptable amenity impacts. Mr Ovenden expressly stated in oral evidence that the proposed development amended in the terms agreed allayed any town planning concerns he had with respect to approval of the changed application, and that he supported the grant of approval to the proposed development in its current amended form.

[213] The acceptability of the amenity impacts of the likely increased traffic from the proposed development along Tamrookum Creek Road is supported by other factors.

[214] First, the amenity of a locality and the reasonable expectations of its inhabitants are informed by the applicable planning instruments and the uses permitted under the current planning controls.

[215] The concept of "amenity" is defined in the planning scheme (in Sch 1, Pt 3, s 1.3) to mean "the physical, social and aesthetic elements of the environment that increases the desirability of the relevant part of the Shire to its community or the marketability of the relevant part of the Shire to the public." The planning scheme uses this concept of amenity in its various Desired Environmental Outcomes; Overall Outcomes and Specific Outcomes for the Rural Zone in the Rural Zone Code; and Overall Outcomes for a Camping Ground in the Camping Ground Use Code.

[216] The concept of the amenity of a neighbourhood is wide and flexible. Some aspects of amenity are practical and tangible. Examples include traffic generation, noise, nuisance, appearance, and the way of life in the neighbourhood. Other aspects of amenity are intangible and subjective. They include the standard or class of the neighbourhood and the reasonable expectations of a neighbourhood: Broad v Brisbane City Council (1986) 2 Qd R 317 at 320. Amenity may embrace the effect of a place on the senses and the resident's perception of the neighbourhood. Knowing the use to which a particular site is, or may be, put may affect a resident's perception of amenity: Broad v Brisbane City Council at 326; Novak v Woodville City Corporation (1990) 70 LGRA 233 at 236; Telstra Corp Ltd v Hornsby Shire Council [2006] NSWLEC 133; (2006) 67 NSWLR 256; (2006) 146 LGERA 10 at [190].

[217] The reasonable expectations of residents of the neighbourhood are informed by the current planning controls in the planning scheme: Gorman v Brisbane City Council [2004] QPELR 29 at 32 [18]; Acland Pastoral Co Pty Ltd v Rosalie Shire Council [2007] QCA 444; [2008] QPELR 324 at 348-349 [40]; Gillion Pty Ltd v Scenic Rim Regional Council [2013] QPEC 15 at [159], [160]. Residents must be taken to expect that land in the locality will be put to one of the uses to which that land may be put as of right and may be put to one of the uses permitted with the consent of the local authority under the planning scheme: Bell v Noosa Shire Council [1983] QPLR 311 at 313; Crane v Brisbane City Council [2004] QPELR 1 at 7 [48].

[218] In this case, the relevant part of the Shire is the Countryside Precinct in the Rural Zone under the planning scheme. The land proposed to be developed, and the land surrounding that land and along Tamrookum Creek Road, fall within this zone and precinct. The uses proposed by Harris of camping ground and outdoor sports, recreation and entertainment are specified as Consistent Development in the Countryside Precinct of the Rural Zone. Residents along Tamrookum Creek Road, the community of the relevant part of the Shire, are to be taken to have a reasonable expectation that uses that are Consistent Development in the Countryside Precinct may be permitted with consent under the planning scheme and that the carrying out of those permitted uses may adversely affect them. This knowledge affects the residents' reasonable expectations of the amenity of the neighbourhood, and hence what would be reasonable impacts on that amenity.

[219] In the case of Harris' proposed development (as modified), the residents must be taken to have reasonably expected that land along Tamrookum Creek Road, including Harris' land, may be approved for the Consistent Development of camping ground and outdoor sports, recreation and entertainment, as well as that the carrying out of those uses (if approved) would generate traffic on Tamrookum Creek Road that would cause amenity impacts.

[220] Secondly, whilst the community responses to the proposed development as set out in the submissions can be taken into account, there needs to be an evaluation of the reasonableness of the claimed perceptions of adverse effect on the amenity of the neighbourhood. An evaluation of reasonableness involves the identification of evidence that can be objectively assessed to ascertain whether it supports a factual finding of an adverse effect on the amenity of the neighbourhood. A resident's view, "where it appears to be purely subjectively based, with no suggested justification in objective, observable likely consequences of the establishment of the proposed use", is not necessarily to be disregarded, but it may be accorded "little weight". Ordinarily, preference would be given to "views from residents which find justification in specific, concrete, likely effects of the proposed development": Broad v Brisbane City Council at 325. A fear or concern without rational or justified foundation is not a matter which, by itself, can be considered as an amenity or social impact: Telstra Corp Ltd v Hornsby Shire Council at [193]-[195].

[221] In this case, the residents have expressed, in their submissions made with respect to the original development application and in their lay statements tendered at the hearing, concerns as to the likely impacts of the traffic that might be generated by the proposed development. Mr Halpin expressed these concerns in his submission on the development application, his witness statement to the court and his oral evidence at the hearing.

[222] However, these views suffered in two respects. First, they were based on the traffic generated by the previous use of the land by the Scenic Rim Adventure Park (without approval) and on the uses that were proposed in the original development application. Both of these uses were of a much larger scale, were more intensive, and generated much greater traffic volumes, than the changed development which capped the number of vehicles visiting the land to 20 and required the undertaking of roadworks and signage along Tamrookum Creek Road to improve the functioning and safety of the road. Secondly, the residents' views were not supported by the expert evidence of the traffic engineers or by the views of the responsible road authorities (DTMR and the Council), and lacked justification in specific, concrete, likely effects of the proposed development (as modified).

[223] I find, therefore, that the proposed development, with the number of vehicles capped at 20, the undertaking of the roadworks and installation of the signage along Tamrookum Creek Road, and the implementation of the other traffic management measures proposed in the conditions of approval, will not have an unacceptable impact on the amenity of the neighbourhood or its residents.

Finality, certainty and enforceability of conditions

[224] One of the co-respondents by election, Mr Barbagallo, raised in his opening submissions the issue of whether the proposed conditions of approval were uncertain and enforceable. Subsequently, on 3 April 2014, after the draft conditions were further amended to reduce the vehicle numbers and to set a 12 month time frame within which the roadworks and signage were to be undertaken, Mr Barbagallo changed his position to no longer oppose the grant of approval to the changed development subject to the proposed conditions. However, the other co-respondent by election, Mr Halpin, adopted this issue and contended that the amended conditions of approval still lacked finality, certainty and enforceability.

[225] At the outset, it should be noted that there is no common law principle that an exercise of statutory power, such as the grant of an approval on conditions, must be final and certain in order to be valid: see King Gee Clothing Company Pty Ltd v Commonwealth [1945] HCA 23; (1945) 71 CLR 184 at 194-195; Cann's Pty Ltd v The Commonwealth [1946] HCA 5; (1946) 71 CLR 210 at 227-228; Qiu v Minister for Immigration and Ethnic Affairs (1994) 55 FCR 439 at 447; and Winn v Director-General of National Parks and Wildlife [2001] NSWCA 17; (2001) 130 LGERA 508 at [12].

[226] Rather, a condition of approval will only be invalid, by lacking finality or certainty, if it falls outside the class of conditions which the statute expressly or impliedly permits: Winn v Director-General of National Parks and Wildlife at [12]-[15], [34]-[36]; Warehouse Group (Australia) Pty Ltd v Woolworths Ltd [2005] NSWCA 269; (2005) 141 LGERA 376 at [89]; Kindimindi Investments Pty Ltd v Lane Cove Council [2006] NSWCA 23; (2006) 143 LGERA 277 at [55], [57]; GPT Re Ltd v Wollongong City Council [2006] NSWLEC 303; (2006) 151 LGERA 116 at [90] (appeal dismissed sub nom Belmorgan Property Development Pty Ltd v GPT Re Ltd [2007] NSWCA 171; (2007) 153 LGERA 450); Hurstville City Council v Renaldo Plus 3 Pty Ltd [2006] NSWCA 248 at [89]-[90]; Ulan Coal Mines Ltd v Minister for Planning [2008] NSWLEC 185; (2008) 160 LGERA 20 at [50]; and Botany Bay City Council v Saab Corp Pty Ltd (2011) 183 LGERA 228 at [82]-[84]. Where a condition of approval does fall outside what the statute permits, the proposed approval is not an approval under the statute at all (assuming the condition is not severable).

[227] Sections 345 to 347 of SPA specify expressly the conditions that may be imposed and the conditions that cannot be imposed. However, conditions need also to meet criteria inherent or implied in the statutory provisions by which the power to impose conditions is created: Television Corporation Ltd v The Commonwealth of Australia [1963] HCA 30; (1963) 109 CLR 59 at 71, 75, 80 and 83. Depending on the statute, these may include criteria of finality and certainty. Conditions may need to meet these inherent criteria in order to be a proper exercise of the power to approve an application subject to conditions.

[228] The exercise of the power under s 324(1) of SPA is an act of law that represents the final disposition of the development application: the application (in whole or part) must be approved unconditionally, or approved conditionally, or refused. The grant of approval subject to a condition which lacks finality or certainty may cause the approval not to be a final disposition of the development application, and, assuming the condition is not severable, not an approval under the statute at all: Corporation of the City of Unley v Claude Neon Ltd (1983) 32 SASR 329 at 332; Mison v Randwick Municipal Council (1991) 23 NSWLR 734 at 739; Caloundra City Council v Pelican Links Pty Ltd [2004] QPEC 52 at [47]-[51].

[229] A condition will lack finality if it leaves open the possibility that development carried out in accordance with the approval and the condition would be significantly different from the development for which the application was made (Mison v Randwick Municipal Council at 737; Scott v Wollongong City Council (1992) 75 LGRA 112 at 118), or it leaves for later decision an important aspect of the development and the decision on that aspect in the future could alter the development in a fundamental way (McBain v Clifton Shire Council [1996] 2 Qd R 493 at 496-497, 503; Caloundra City Council v Pelican Links Pty Ltd at [51]). An approval subject to such a condition lacking finality is not a final disposition of the application and hence is not a proper exercise of the power under s 324(1)(b) of SPA to approve the application subject to conditions.

[230] Mere ambiguity or uncertainty in the meaning of words in a condition of approval does not necessarily lead to invalidity of the condition. Whether or not uncertainty will give rise to invalidity depends on the different question of whether the condition of approval alleged to be uncertain complies with the statutory limits imposed on the power of the approval authority: Hurstville City Council v Renaldo Plus 3 Pty Ltd at [89].

[231] Courts try to avoid uncertainty by adopting a construction which gives statutory instruments and statutory approvals and conditions of approval, practical effect: see, for example, Westfield Management Ltd v Perpetual Trustee Company Ltd [2006] NSWCA 245 at [36] - [40] (special leave to appeal was refused but with a qualification on the proper approach to construction of conditions: Westfield Management Ltd v Perpetual Trustee Company Ltd [2007] HCA Trans 367 (1 August 2007), at 23); Anderson v Minister for Infrastructure Planning and Natural Resources (2006) 151 LGERA 229 at [82]; and Ulan Coal Mines Ltd v Minister for Planning at [66]. However, if the meaning of a condition of approval is unascertainable, according to the usual rules of construction and the principles of interpretation, it falls outside the statutory limits imposed upon the power of the decision-maker: Cann's Pty Ltd v The Commonwealth [1946] HCA 5; (1946) 71 CLR 210 at 227; Ulan Coal Mines Ltd v Minister for Planning at [50]; and Botany Bay City Council v Saab Corp Pty Ltd at [75], [82]-[84]. Such an uncertain condition is not a condition able to be imposed under the statute.

[232] Questions of degree are always involved in determining whether a condition is sufficiently lacking in finality or certainty so as to be outside power: Transport Action Group Against Motorways Inc v Roads & Traffic Authority [1999] NSWCA 196; (1999) 46 NSWLR 598; (1999) 104 LGERA 133 at [117].

[233] Retention of practicable flexibility, leaving matters of detail for later determination, and delegation of supervision of some stage or aspect of the development, may all be desirable and be in accordance with the statutory scheme and within the statutory limits of the power being exercised: see Scott v Wollongong City Council at 118; Transport Action Group Against Motorways Inc v Roads & Traffic Authority at [117]-[122]; Kindimindi Investments Pty Ltd v Lane Cove Council at [55]; Hurstville City Council v Renaldo Plus 3 Pty Ltd at [89]; and Ulan Coal Mines Ltd v Minister for Planning at [78].

[234] Difficulty in the enforceability of a condition of approval does not necessarily lead to the invalidity of the condition. A condition that is extremely difficult to enforce may nevertheless be one falling within the class of conditions that the statute expressly or impliedly permits to be imposed on an approval. However, although a condition that is extremely difficult to enforce may be within power, it may be undesirable to grant an approval subject to such a condition: Larsen v Green & Caboolture Shire Council [1980] QPLR 64 at 71 and see also Gillott v Hornsby Shire Council (1965) 10 LGRA 285 at 290.

[235] In the present case, none of the proposed conditions of approval fall outside the class of conditions which SPA expressly or impliedly permits to be imposed on a development permit. The proposed conditions meet the express statutory tests in ss 345 to 347 of SPA. They also do not offend principles of finality or certainty that may be inherent or implied in the statutory provisions by which the power to impose conditions is created.

[236] The conditions do not lack finality, either by leaving open the possibility that the development as approved will be a significantly different development from that in respect of which application was made or by postponing a decision about any important aspect of the development, which decision on that aspect could alter the development in a fundamental way.

[237] The conditions requiring the preparation and the submission to and approval by the Council of various management plans, and the carrying out of the development in accordance with the approved management plans, do not cause the approval to lack finality. None of the conditions requiring management plans are capable of resulting in any change to the core purpose of the development or offend the principle of finality. Courts have recognised that the principle of finality is not contravened merely because an approval condition requires a management plan to address some issue: see Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd [1996] NSWSC 348; (1996) 91 LGERA 31 at 68-69, 94-96; Transport Action Group Against Motorways Inc v Roads & Traffic Authority at [117]-[122].

[238] Conditions requiring management plans to address various issues implement an adaptive management approach. An adaptive management approach is a proper approach to deal with uncertainty as to potential impacts: Telstra Corp Ltd v Hornsby Shire Council at [162]-[165]; Ulan Coal Mines Ltd v Minister for Planning at [99]; Rivers SOS Inc v Minister for Planning [2009] NSWLEC 213; (2009) 178 LGERA 347 at [131]; Newcastle & Hunter Valley Speleological Society Inc v Upper Hunter Shire Council & Stoneco Pty Ltd [2010] NSWLEC 48 at [181]-[185].

[239] None of the proposed conditions of approval in this case are so uncertain as to be unintelligible and hence outside power. They are stated in clear and certain language that may be readily understood by those on whom they will operate.

[240] Finally, I do not accept that the proposed conditions of approval would be impossible or extremely difficult to enforce. The cap on the number of customer vehicles per day able to be on the land at any one time will be able to be enforced. The conditions of approval are mutually reinforcing. Visitation of the land is to be by booking only. A record will therefore be kept of the number of customer vehicles booked. This record is able to be checked by the Council. The applicant is also required to pay to the Council $3.00 for each customer vehicle accessing the land, paid on a quarterly basis. The levy is to be used by the Council for the purposes of maintaining Tamrookum Creek Road. This condition is another means by which a record will be kept of the number of customer vehicles accessing the land. The Council will be able to monitor the number of customer vehicles per day through the levies paid. Customers are required to check-in on arrival and check-out on departure, allowing correlation between customer bookings and customer visitation.

[241] The proposed conditions will improve the likelihood of safe and responsible driving by customers along Tamrookum Creek Road, and driving in accordance with the road rules and signage. The condition that visitation of the land for the approved use is to be by booking only enables customers to be advised about how to access the land from the Mount Lindesay Highway and the road conditions of Tamrookum Creek Road, the restriction on the hours of arrival and departure, the requirement to provide the names and contact details of all persons staying with a vehicle as well as a photocopy of the driver's licence and vehicle registration number, and the fact that irresponsible driving behaviour on nearby roads, including Tamrookum Creek Road, will result in the person being asked to leave the land and may result in future entry being refused. Customers will, therefore, be given information to enable safe and responsible driving but also will be warned of the consequences of unsafe and irresponsible driving.

[242] The establishment and maintenance of a complaints register empowers other road users to lodge a complaint about unsafe or irresponsible driving by customers. Recording of customers' vehicle registration numbers and drivers' licences, as well as names and contact details of persons in the cars, permits tracing of complaints to the persons involved and the taking of appropriate action. The complaints register can be inspected by the Council.

[243] Together, the conditions establish an appropriate and enforceable regime for regulating customer vehicle use of Tamrookum Creek Road.

[244] Finally, it is not reasonable to assume that Harris will not comply with these conditions of approval: Seabridge Pty Ltd t/as Clutha Creek Sands v Council of the Shire of Beaudesert [2000] QPEC 95; [2001] QPELR 191 at 195 [18].

[245] For the foregoing reasons, the development proposed in the changed development application, if carried out in accordance with the proposed conditions of approval, will not have unacceptable impacts in terms of bushfire, flooding, water quality, acoustic and air quality, traffic or town planning including amenity. It is, therefore, appropriate for the court to set aside the Council's decision refusing the application and replace it with a decision to approve all of the application subject to conditions.

[246] The conditions should include the proposed conditions of approval (as agreed by Harris and the Council on 4 April 2014), amended as recommended by the experts (as recorded earlier in the judgment), together with the conditions required by the concurrence agency and recommended by the advice agencies insofar as, and in a form that, is applicable to the development as proposed in the changed development application.

Decision to approve not in conflict with planning scheme

[247] Section 326(1)(b) of SPA requires that a decision determining a development application not be in conflict with a relevant instrument, such as the planning scheme. A determination of whether there is a breach of this requirement involves the identification of the decision, the identification of some part or parts of a planning scheme with which the decision might be said to be in conflict, and a decision whether the former conflicts with the latter. Only if such a determination has been made is it necessary to consider whether there are sufficient grounds to justify the decision: Woolworths Ltd v Maryborough City Council (No 2) at 286 [23]; Lockyer Valley Regional Council v Westlink Pty Ltd (2011) at 72 [16].

[248] In the present case, the relevant decision is a decision to approve all of the changed application subject to the conditions I have identified. The next step is to identify the parts of the planning scheme with which that decision might conflict. The Council had originally identified, in its grounds for refusal dated 26 March 2014, the provisions of the planning scheme with which the Council contended that a decision to approve the development as then proposed would conflict. I have referred to these provisions earlier in the judgment. After Harris and the Council reached agreement on amendment of the proposed conditions to reduce the number of customer vehicles per day able to be on the land at any one time, amongst other matters, the Council no longer contended that a decision to approve the changed application on those amended conditions would conflict with any of the identified provisions of the planning scheme. Nevertheless, Mr Halpin still maintained that there would be a conflict with those provisions. Mr Halpin did not identify any other provisions of the planning scheme with which a decision to approve the changed application on the agreed conditions would conflict.

[249] I find that a decision to approve the changed application on the conditions I have identified would not, in fact, conflict with any of those previously identified provisions of the planning scheme. The conflict was originally said to arise by reason of the unacceptable impacts the traffic generated by the proposed development would have on Tamrookum Creek Road and its intersection with the Mt Lindesay Highway, and on the amenity of the surrounding area.

[250] For the reasons I have given earlier in the judgment, I find that the changed development, if the number of customer vehicles visiting the land per day is capped at 20, the proposed roadworks and signage along Tamrookum Creek Road are undertaken within 12 months of approval being granted, and the traffic management and other measures in the proposed conditions of approval are implemented:

• is of a scale, form and intensity appropriate for the locality;

• is consistent with the reasonable expectations of residents in the rural zone;

• is compatible with existing and adjoining rural uses;

• will not have any unacceptable adverse impacts (including impacts on efficiency and safety) on Tamrookum Creek Road, the intersection of Mt Lindesay Highway and Tamrookum Creek Road, or the road transport network generally;

• will minimise risk, nuisance and impacts to people and property in the surrounding area; and

• will not have any unacceptable adverse impacts on the existing rural character, sense of place, or amenity of the surrounding area.

[251] In these circumstances, I find that a decision to approve the development on the conditions I have identified will not conflict with:

(a) the Desired Environmental Outcomes DEO(1)(a) - Environment or DEO(2)(g), (h) and (l) - Economic;

(c) Overall Outcomes of the Rural Zone Code OO1, OO3, OO6, OO22 or OO51;

(d) Specific Outcomes of the Rural Zone Code SO2, SO22, SO32, SO43, SO44, SO45 or SO47;

(e) Specific Outcomes of the Camping Ground Use Code SO5 or SO14; and

(f) Overall Outcome (b) for Sports Recreation and Entertainment of the Recreation Use Code.

[252] In circumstances where there is no conflict with the planning scheme, it is not necessary to consider whether there are sufficient grounds to justify the decision despite the conflict. I record, however, that Harris called evidence from Mr Duane, an economist, who concluded in a report dated 20 March 2014 that "there is a clear and overwhelming level of economic and community need" for the proposed development. In addition to this need, Harris submitted that the grounds justifying a decision to approve the development, if there were to have been a conflict with the planning scheme, included:

• the proposed development would provide recreational choice for the region and for particular groups;

• the proposed development would facilitate driver safety training;

• the proposed development would stimulate economic development through tourism and employment;

• the proposed development would cause improvement to the existing on-site vegetation;

• the proposed development would result in improvements to local road infrastructure;

• bushfire protection measures will be implemented which, in combination, will provide a safer outcome than currently exists or has been maintained under previous ownership;

• the proposed development would result in better outcomes than presently exists in respect of weed management, thereby resulting in a lower bushfire risk for the locality;

• the proposed development would have an absence of unacceptable amenity impacts; and

• the proposed development would proactively encourage safe four wheel driving activities outside of national and State parks.

[253] As I have found that there is no conflict with the planning scheme, it is unnecessary to determine whether these grounds are matters of public interest (within the definition of "grounds" in the Dictionary in Sch 3 of SPA) or would be sufficient to justify a decision to approve the changed development on the conditions identified.

[254] I have determined that Harris has 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 Harris' changed application subject to the conditions I have identified. It is appropriate to adjourn the hearing to allow the parties to discuss and endeavour to agree on the conditions package.

1. Adjourn the hearing of the appeal to 10.00am on 29 April 2014.

2. Direct the parties to file agreed conditions of approval or, failing agreement, to file their competing versions of the conditions of approval, by 24 April 2014.