Ajana Park Pty Ltd v Mackay City Council & Anor
[2008] QPEC 26
•2 June 2008
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Ajana Park Pty Ltd v Mackay City Council & Anor [2008] QPEC 26
PARTIES:
AJANA PARK PTY LTD
(Appellant)
v
MACKAY CITY COUNCIL
(Respondent)
and
STATE OF QUEENSLAND
(Co-respondent)
AND
AJANA PARK PTY LTD
(Appellant)
v
MACKAY CITY COUNCIL
(Respondent)
FILE NO/S:
Appeal No. 11 of 2006, Mackay
Appeal No. 12 of 2006, Mackay
DIVISION:
Appellate
PROCEEDING:
Conditions appeals
ORIGINATING COURT:
Townsville
DELIVERED ON:
2 June 2008
DELIVERED AT:
Brisbane
HEARING DATE:
5 February 2008 (Mackay), 10-11 April, 9 May 2008 (Brisbane)
JUDGE:
Robin QC DCJ
ORDER:
Appeals allowed, conditions changed
CATCHWORDS:
Integrated Planning Act 1997 s 3.5.30 – revised concurrence agency conditions requiring construction of external roadworks (road widening and upgrading of roundabout) remote from site where 254 residential lots proposed, but providing the link with Mackay CBD – where all traffic engineers agreed the development should not proceed without arrangements in place to provide the roadworks (not in the 5 year Road Implementation Program) – condition requiring a bare financial contribution unlikely to get the works programmed considered inappropriate
COUNSEL:
Houston for Appellants
Hughes SC for Respondent (Ms Holland on 9 May)
Morzone for Co-respondent
SOLICITORS:
Wilson Ryan Grose for Appellant
S B Wright &Wright and Condie for Respondent
C W Lohe, Crown Solicitor for Co-respondent
These are a developer’s “conditions” appeals under s 4.1.27(1)(b) of the Integrated Planning Act 1997 (IPA) instituted in Townsville as 225 and 226 of 2006. The hearing of them was somewhat fractured, commencing in Mackay, where the site is located, on 5 February 2008, on which date the appellant’s case was opened, some reports and other exhibits were tendered and a view was conducted of the site at Erakala in Mackay and of relevant road infrastructure in the general locality. The parties were not ready for a full hearing at that time; it occurred in Brisbane on 10 and 11 April 2008. By the end of the second afternoon the appellant and the Council had essentially resolved issues between them, the subject of appeal 12 of 2006, issues relating to the widening of Sugarshed Road (to which the site has a long frontage) and to what credit the appellant ought to get against the standard obligation for provision of parkland for excessive provision made by it in earlier development on adjacent, more elevated land. That statement over-simplifies matters, as there were related issues such as the appropriateness of including in the parkland quota certain areas serving a necessary drainage function. Exhibit 41 is a document in the form of a “Decision Notice” setting out what has been agreed between the appellant and the Council; there is no reason why the court should withhold its endorsement in the form of an order in corresponding terms in appeal 12 of 2006, which accordingly will be allowed.
In appeal 11 of 2006, the court learned that the relevant experts engaged by the appellant and by the Department of Main Roads had not yet been successfully prevailed on to meet to attempt to “work out their differences” as to the costing of works which might be adjudged the appellant’s responsibility, the differences being well in excess of a million dollars. Whereas the road works the subject of appeal 12 of 2006 concern a Council road, those in appeal 11 of 2006 concern a more easterly section of Sugarshed Road, which is more correctly described as Maraju-Yakapari Road and, east of the rail line, is controlled by the Department of Main Roads. As a Concurrence Agency in respect of the proposed development, the Department required the following conditions:
“Condition 3
At the Maraju-Yakapari Road / Glenella Road intersection, the applicant shall be responsible for the provision of an additional circulating lane and approaches. In lieu of the physical works, the applicant may contribute the costs of the works to Main Roads. The cost shall be determined by the department.Condition 4
The applicant shall provide at no cost to the department, sealed shoulders and pavement widening to a 9.0m formation width on Maraju-Yakapari Road between Glenella Road Roundabout and the existing Queensland Rail Crossing. Submit detailed design plans and specifications to the department for approval and provide the works prior to construction of the new access to Sugarshed Road.”
(There may have been some confusion in identifying the conditions by number; the foregoing are the subject of the appeal.)
The appellant has for some years been progressively developing a large site of some 200 hectares expected to generate some 423 residential allotments. Approvals obtained in about 1995 led to the development of Sunset Rise Estate (12 lots) said to have access to Mackay Bypass Road (which I take to refer to Sugarshed Road), some of the original lots having been further subdivided into lots of around 2,000 m² (according to Mr Jewell’s report) - and for Ridgewood Downs Estate (23 lots), which has direct access from what is said to be a one kilometre frontage to the Bruce Highway. The appellant is now completing the Settlers Rise Estate, comprised of the following stages:
“Settlers Rise Estate Stage 1 – 46 lots (subdivision completed);
Stage 2 – 21 lots (subdivision completed);Stage 3 – 60 lots;
Stages 4 & 5A – 43 lots;
Stage 5B – 29 lots;
Stage 6 – 27 lots;
Stage 7 – 30 lots;
Stage 8 – 22 lots;
Stage 9 – 24 lots;
Stage 10 – 24 lots;
Stage 11 – 25 lots; and
Stage 12 – 30 lots.”
Stages 1 and 2 have been completed. Appeal 11 of 2006 concerns the Department’s Concurrence Agency conditions notified in the Council’s Decision Notice of 15 May 2006 which attached the impugned conditions to approval of a development application for material change of use, development permit and preliminary approval for reconfiguring a lot from Rural Use to Park Residential Use – Settlers Rise stages 4 to 12. Stage 3 (subject of appeal 12 of 2006) is the key to (because it provides access to them) stages 4 and 5A proceeding.
One trigger for the Department’s involvement was said to be the frontage which the yet to be developed land retains to the Bruce Highway. The Department for years has been concerned to restrict access to the highway, which doubtless explains its involvement with the appellant over the years, throughout which its inclination to refuse to allow Settlers Rise Estate to go ahead has been manifested. It is not simply a matter of limiting access to the Bruce Highway, which, it is accepted, will carry something like a fifth of the traffic generated by the proposed development. Access to Settlers Rise from Mackay CBD (ignoring the highway) involves negotiating the intersection of Glenella Road (called Mackay Bypass Road in the UBD Map, Exhibit 2) and Maraju-Yakapari Road, also known as Sugarshed Road west of the intersection and as Heaths Road (leading to the highway at North Mackay) east of the intersection. The highway affords access to the CBD across the Ron Camm Bridge; Glenella Road, which runs north-south, affords such access across the Hospital Bridge, an inadequate structure being replaced by a new bridge across the Pioneer River further upstream. It was a matter of discussion in the appeal whether that improved link would increase traffic through the intersection[1], which presently comprises a roundabout with a single circulating lane. This is the roundabout referred to in the Department’s condition; the road widening condition relates to the Maraju-Yakapari Road between the intersection and the limit of the Department’s road. By the last instalment of the hearing on 9 May 2008, the Department’s relevant expert, Mr Aprile and the appellant’s, Mr Perkins were able to agree that the length of road to be widened was 1.52 kilometres. The court was informed that a second (and more convincing) trigger for the Department’s involvement is the contemplation of at least 150 new traffic-generating households, although the site is remote from the location of the work called for by the conditions.
[1] Resolved by the experts’ apparent acceptance of the July 2005 report described in [7] below.
The parties’ traffic engineers, Mr Camilleri for the appellant, Mr McClurg for the Council and Mr Beard for the Department, prepared a joint report following upon a meeting late last year. It is convenient to set out the conclusion, which notes some recent history in respect of a contemplated development known as Glenella Estate located closer to the CBD and on the other side of Sugarshed Road:
“It was noted that, by letter dated 26th September 2007, DMR has issued a Concurrence Agency response in respect of a similarly-sized residential development over Lot 3 on SP 185584, a site bounded by Maraju-Yakapari Road, Glenella Road, Fursden Creek and the North Coast railway line. That response required similar upgradings as have been required in proposed conditions 3 and 4 which are in dispute in this appeal.
Points of Agreement
The following points (related to the DMR conditions) have been agreed between all three of the engineers:
1.It was agreed that the existing roundabout is adequate to accommodate existing traffic volumes and some future traffic growth in respect of design, safety and capacity considerations.
2.It was agreed that the section of road in dispute is adequate to accommodate existing traffic volumes and some future traffic growth in respect of capacity considerations, but that the existing road formation is deficient, particularly in respect of the road pavement width and the width of the road shoulders, to the detriment of operational safety.
3.It was agreed that the need for the future upgradings would be generated by base traffic growth, the subject development, and the proposed development of Lot 3 on SP 185584. Mr Camilleri advised his understanding that a possible future Mackay western bypass, (which might include the subject roundabout) could also contribute to the need for the future roundabout and road upgrading as part of base traffic growth. Neither Mr McClurg nor Mr Beard had any knowledge of any contribution which the possible future bypass might make to the need for the upgrading of the roundabout.
4.It was agreed that it would be inappropriate for either the subject development or the development of Lot 3 on SP 185584 to proceed prior to satisfactory arrangements being in place which would ensure the timely upgrading of both the roundabout and the road, generally as proposed by the DMR conditions.
5.It was agreed that, in ideal circumstances, both the subject development and the development of Lot 3 on SP 185584 would make contributions to the cost of these upgradings in amounts proportional to that part of total traffic growth during the next ten years which will be generated by their developments and other traffic increases (ie. background traffic growth or additional traffic due to the Mackay bypass).
6.Taking account of the issues discussed in points 4 and 5 above, it is suggested that a fair resolution of the issues would see the subject development and the development of Lot 3 on SP 185584 each contribute up to approximately 50 percent of the cost of the works, provided both developments are to proceed within the next few years.
7.The right turn prohibition from the proposed northern development access to Sugarshed Road is acceptable on the basis of the proposed intersection form as conditioned by DMR and Council (drawing Mis 9000 A by Ullman & Nolan).
The following points (related to the Council conditions) have been agreed between Mr Camilleri and Mr McClurg:
8.It was agreed that an appropriate development responsibility to upgrading of Sugarshed Road is to widen the roadway along the subject site frontage to a rural sub arterial road standard with 2 x 3.5m lanes plus 2 x 1.0m wide sealed shoulders with associated storm water drains, where the applicant is responsible for the works between the road centreline and the Estate (ie. half road construction).
9.It was agreed that the applicant should provide a 2.5m road reserve widening of Sugarshed Road for the full frontage of the Estate.
10.It was agreed that the application should provide contributions to road upgrading via Trunk Road Infrastructure charges as applicable within the Planning Scheme.”
In my view, the point of agreement numbered 4 is key to the proper determination of appeal 11 of 2006.
A further meeting on 26 February 2008 described subsequent events:
“In particular, copies of the DMR Hospital Bridge Replacement Project report dated July 2005 have been circulated to all engineers. That report predicted that the bridge replacement project would not have significant impact on traffic volumes on Glenella Road north of the Pioneer River, with only increased truck volumes producing small overall traffic volumes increases. The report also noted that, prior to 2025, upgrading of the subject roundabout would be required with or without the project, and that there was long term potential for increased traffic growth in this corridor as traffic diverted away from increasing congestion on the Ron Camm bridge.
Further, Mr Beard:
·Advised that approval of stages 4 & 5 of the Peppermint Grove development (93 lots) required upgrading of the Bald Hills Road intersections with the Bruce Highway and Maraju-Yakapari Road, and a contribution of $76 800 towards the future shoulder sealing on Sugarshed Road between the Glenella Road roundabout and the Queensland Rail level crossing,
·Provided the results of a traffic count undertaken by Connell Wagner on 22nd May 2007 at the roundabout intersection of Sugarshed Road, Glenella Road and Heaths Road; and
·Advised that the Connell Wagner report for the Glenella Estates project estimated design traffic generations through the roundabout of 457 vph during the morning peak hour and 474 vph during the evening peak hour, probably representing approximately 4655 vpd through the roundabout, compared to 3040 vpd estimated by TTM from Ajana Park.
Mr Beard also advised his understanding that, although a Concurrence Agency response incorporating proposed conditions had been issued by DMR in respect of Glenella Estates, the proposed development has not been approved by Council, and may not be approved. Mr McClurg undertook to liaise with his client Council to establish the current status of this application.
Mr McClurg and Mr Camilleri advised that all issues in respect of the Council conditions previously in dispute have been resolved in separate discussions.
Mr Camilleri and Mr McClurg advised that, in their opinion, the subject roundabout would need to be upgraded with or without the subject development between 2009 and 2011. At the time of the meeting, Mr Beard had not undertaken such calculations, but has subsequently advised:
·Based on the 2007 Connell Wagner traffic count, and assuming a uniform, linear 3.0 percent per annum growth rate, the subject roundabout will reach a degree of saturation in excess of the desirable maximum of 0.85 in the evening peak period by 2009. However, this will be consistent with many other major intersections in the network;
·Provision of a 60 metre long left turn lane on the southern approach would allow satisfactory traffic operations at the roundabout (DoS less than 0.85) during both the morning and evening peak periods until approximately 2014, when the provision of 60 metre left turn lanes should also be provided on the northern and southern approaches;[2]
[2] The second reference to the southern approach appears otiose; cf the 40 metre lanes now proposed by Mr Beard in footnote 3 below: para [32].
·The more major works at the intersection to provide for two lanes through the roundabout in the north-to-south and south-to-north directions would not be necessary until beyond 2017;
·While none of these works are in the current DMR Roads Implementation Program (RIP), it may be possible for the staged works described above to be programmed in future RIPs to be undertaken at an appropriate time, subject to normal prioritisation procedures;
·These calculations confirm that substantial development of either Ajana Park or the Glenella Estates projects would necessitate immediate upgrading of the roundabout.
Mr Camilleri advised that he understood that this meeting was required to try to negotiate a reasonable contribution of the Ajana Park development to the required upgrading works in Sugarshed Road, and at the Glenella Road roundabout. Mr Beard advised that it was his opinion that the determination of an appropriate contribution was essentially a commercial negotiation which we could, at best, inform; noting that the Ajana Park development should not proceed until arrangements were in place to ensure the timely upgrading of both the roundabout and the road, as documented as Point of Agreement 4 in the first joint report dated 18 December 2007.
All engineers have prepared estimates of the propositions of anticipated total growth in traffic through the subject roundabout and on Sugarshed Road during the next ten years. However, the range of assumptions which are possible in respect of future development lead to different estimates of the growth generated by the different components. No agreements were reached.
Further, Mr Camilleri advised that the application is for stages 4 – 12 (254 lots), whereas all previous estimates have taken into account the total Settlers Rise development.”
The situation is illustrative of the difficulties that arise in allocating responsibility for external roadworks where multiple developments bode to increase traffic volumes and cases can be made against multiple developers that they ought to contribute by undertaking construction or by monetary contributions in order to relieve the public purse from the burden of having to fund infrastructure to service private developments – amid uncertainty whether any of the developments will actually proceed to the point where the developer actually complies with relevant development conditions. The potential for argument as to whether particular developers have been treated fairly is obviously great. Depending on the circumstances, particular developers may be advantaged by proceeding later rather than earlier, or vice versa. It is accepted that, should the Peppermint Grove developer pay the $76,800 and the present appellant construct the works contemplated, the money should be handed over to the appellant. As to “doubling up” with Glenella Estate, the Department’s stance is now that, east of the railway, where it will form the frontage of Glenella Estate, Sugarshed Road should be widened not just to 9 metres, but to 12 metres, to meet the nationally adopted Austroads Standards, which are more ambitious standards than it would be practical for the Department to meet or insist upon generally. This is not to suggest that, where multiple large developments combine to increase usage, it would be unreasonable to require the developers in combination to provide a more handsome road, one still within accepted standards set by a highly expert body.
The hearing was completed on 9 May 2008. Mr Aprile and Mr Perkins had not been able to reach a common view as to the cost to be attributed to roadworks that might be made the appellant’s responsibility under the Department’s conditions or less onerous conditions that might be set by the court. The appellant’s primary position was that no condition advanced by the Department satisfied either (a) or (b) of s 3.5.30(1) of IPA:
“3.5.30 Conditions must be relevant or reasonable
(1) A condition must—
(a)be relevant to, but not an unreasonable imposition on, the development or use of premises as a consequence of the development; or
(b) be reasonably required in respect of the development or use of premises as a consequence of the development.”
Subsection (2) is:
“Subsection (1) applies despite the laws that are administered by, and the policies that are reasonably identifiable as policies applied by, an assessment manager or concurrence agency.”
The two experts gave evidence together, with questioning broken into discrete issues receiving attention from both of them under questioning by both Mr Morzone and Mr Houston in a process which proved effective, although it increased the area of common ground only to a slight extent. Mr Perkins prepared a summary of the extent of their agreement at a recent meeting out of court (exhibit 39):
“It was agreed that the scope of work generally as described in the estimate schedules provided by Cardno Ullman & Nolan (CU&N) was a reasonable representation of the scope. We clarify this further below:
1. Widening of Maraju-Yakapari (Sugarshed Road)
a)It was agreed that the length of these roadworks be adopted as 1.52km.
b)It was agreed that the adopted pavement thickness be 500mm.
c)The extent of ground surface treatment below the pavement was discussed but not agreed.
d)CU&N are of the opinion that there should be only minimal allowance for service relocation for this work as the work is within the existing road formation where there are no significant service relocations required.
e)The issue in relation to indirect costs was discussed but no agreement reached. CU&N are of the opinion that application of a 40% management reserve is not appropriate.
2. Provision of Second Circulating Lane on the Roundabout
a)It was agreed to further investigate the extent of road embankment required as it was considered that the quantity allowances may be too high. CU&N have further investigated this item of work and are of the opinion that the quantities allowed in the CU&N estimate are sufficient.
b)MR confirmed that the pavement to the existing inside circulating lane which is to remain is:
35mm AC
7mm Primer Seal
150mm Base
300mm Sub-base (Stabilized)The CU&N Estimate is based on:
50mm AC
200mm Base
400mm Sub-base (Unstabilised)
It was agreed that for the purposes of our estimates that these pavements could be considered approx. equivalent.
c)The extent of further ground surface treatment below the above mentioned pavement which is in addition to that allowed in the CU&N estimates was discussed but no agreement reached.
d)There was some discussion relative to the need or otherwise for additional lighting. It was accepted by CU&N that allowance for some additional lighting over and above that currently existing may be appropriate. CU&N have included provision for three additional lights in the CU&N estimates. CU&N are of the opinion that the 9 additional lights proposed by MR is excessive.
e)There was discussion in relation to the extent of subsoil drains. CU&N have reviewed the CU&N quantity estimate and see no reason to amend the quantities for subsoil drains.
f)CU&N disagreed with MR’s methodology for assessing the cost of service relocations. CU&N are of the opinion that the amount of $70,000 included in the estimate for service relocations is a reasonable estimate for service relocations. This work includes the relocation of two power poles (one with a transformer) and possibly some minor protection works to existing underground services.
g)The issue in relation to indirect costs was discussed but no agreement reached. Refer to commends under 1e) above.
3.Provision of Auxiliary Lane on Northern and Southern Approaches
a)CU&N agree with MR that the MR estimate for establishment and provision for traffic needs to be reduced.
b)CU&N see no reason to amend the CU&N estimated quantities for subsoil drains.
c)MR agreed that the extent of embankment allowed by MR may be high.
d)Comments of pavements as for item 2b) above.
e)Refer to item 2d) above in relation to lighting.
f)CU&N and MR are not aware of any service relocations in addition to those referred to in 2f) above. CU&N disagreed with MR’s methodology for assessing the cost of service relocations of 20% of cost of the work and believe this to be too high.
g)Indirect costs – Comments as for 1e) and 2g).
RATES AND INDIRECT COSTS
It was agreed that the significantly higher percentage of indirect costs in the MR estimates and in particular the 40% management reserve together with the significant differential between the cost rates adopted by CU&N and MR are the major areas of difference in the estimates. CU&N advise that, notwithstanding that costs rates have increased significantly in the recent years and are still increasing, CU&N are of the opinion that the rates CU&N have adopted are consistent with current cost rates and that the MR costs rates are excessive.”
For jobs 1, 2 and 3 as identified above, Mr Perkins had originally given cost estimates in exhibits 22, 24 and 23 respectively of $478,518, $718,530 and $322,331, each increased by a 12 percent loading for indirect costs to produce indicative construction costs of $535,940, $804,753 and $361,011. Following discussions with Mr Aprile, he produced revised estimates, exhibits 22A, 24A and 23A using the same allowance for indirect costs to produce estimates of $645,722, $856,273 and $422,655 respectively.
Mr Aprile’s estimates were higher in every case. The original estimate for exhibit 22/22A work at $700,000 per kilometre was reduced by adoption of a length of road to be widened of 1.52 kilometres rather than 1.7 kilometres (which had suggested $1,190,000) – Mr Perkins had originally worked on 1.4 kilometres. Mr Aprile estimated $2,227,000 for the exhibit 24/24A work and $966,684 for the exhibit 23/23A work. His exhibit 37 on page 5 of 6 inadvertently attributes the estimates to the wrong source, as the schedule following page 6 of 6 makes clear.
The differences between the experts, which remained wide at the completion of their oral evidence, are easily enough understood on the basis that they were attempting to place a dollar value on works not merely yet to be done, but also yet to be designed. It is the appellant which, assuming it is to be saddled with any condition in respect of upgrading State-controlled roads, wants to have some clear definition in dollar terms of the full extent of its obligation, passing the risk of the estimate proving inadequate to the Department, which would be responsible for getting the work done. It, in turn, approaches a costing exercise on a cautious basis, so as not to be caught out if the final costs which it will have to bear exceed the estimates relied on. The impetus for the whole exercise is the appellant’s development, absent which the contemplated works could and would, in practical terms, be deferred until background traffic growth and political pressure dictate that something has to be done.
Mr Perkins told the court his approach was to go to the market and obtain quotations from contractors, to which he added “indirect costs” at 12 percent, to cover contingencies. Mr Aprile’s approach, in respect of the widening of Maraju-Yakapari Road, was to adopt a figure based on the rates incorporated in costs estimates for corresponding work in the Department’s Road Implementation Program (RIP), in particular, the Marian-Hampden Road widening to 9.0 metres; he applied a 10 percent inflation to the rate shown in the current RIP to produce his $700,000 per kilometre, which he points out is less than the figure shown in the draft RIP now in preparation. There is said to be an accepted indexation of road construction costs of the order applied, which considerably outstrips the general CPI increases.
(The RIP describes a five year program put out by the Department identifying roadworks to be undertaken by it. Those in the first two years are relatively certain to eventuate; as one moves towards and into the fifth year, there is more uncertainty, less reliable indication of costs, etc. The RIP is reviewed every year and may be changed. No work can be done for which funding is not supplied by authorities. For practical purposes, works not in the RIP are not going to eventuate unless they are independently done. The court has no power to require the Department to do work or to enter into any agreement: Harderan Pty Ltd v Logan City Council [1989] 1 Qd R 524.)
Even for the other works considered (providing a second circulating lane at the roundabout and providing an additional left turning lane on two of the approaches), the two methodologies were rather like ships passing in the night, in the sense that the items being costed did not correspond exactly; also, judgments had to be made regarding quantities and the like. It proved not possible to reconcile the approaches or for the court to be definitive about costings in the circumstances. That observation would apply even if (which I do not propose to do) on some of the major points of difference, the court were to come down on one side or the other or somewhere in the middle. For relocation of services, Mr Perkins adopted his approach of seeking quotations (presumably non-binding), whereas Mr Aprile arrives at higher figures, using some rule of thumb.
The dominating aspect of difference is in Mr Aprile’s applying a percentage for contingencies in multiples of Mr Perkins’ 12 percent. He is applying the Department’s Project Cost Estimating Manual, an extract of which is exhibit 40, in which one may read:
“5.3 Applying Contingencies
The risk treatments that result from the risk management process can be categorised as follows:
·Category 1 – Specific provision in the design or delivery method of the product that overcomes all or part of the risk (that is risk avoidance, risk reduction or risk transfer)
·Category 2 – The retained risk is allocated a contingency allowance that is included in the cost estimate, either as:
othe Principal's contingency amount, and/or
othe District Director’s contingency amount, and/or
oa separate provisional item addressing the risk.
In Category 1, the cost of avoiding, reducing or transferring the risk is provided for in the cost of the work activities for the adopted design and does not appear as a contingency. (It will need to be provided in the contract estimate).
In Category 2, the accepted or residual risk is allocated a contingency allowance that is included in the cost estimate, either:
·as a Principal's contingency amount, or
·a separate provisional item addressing the risk (for example inclusion of a provisional item for removing and replacing unsuitable material, or inclusion of an item for setting up for re-driving of piles).
Total project contingency is the sum of the Category 2 contingencies, unless it is decided that a statistical approach should be applied.
5.4 Quantification of Contingencies
Quantification of contingency allowances for cost estimating items is achieved by applying the risk management processes detailed in AS/NZS 4360:2004.
Because of the uncertain nature of the assessment process, it is difficult to be prescriptive as to how contingency costs should be estimated. Sufficient to say that the estimator and project manager must use their experience and professional judgment to weigh the competing factors to arrive at the “most likely” value. Historical events may be used as a guide.
Where risks are significant and complex, it is recommended that a statistical evaluation method be used. Refer to Section 6 or 7.1.3 for information on the Monte Carlo method.
This area of cost estimating is relatively new to MR and it is appropriate that some guidance is given as to the level of contingencies that will be accepted.
The guidance given by Table 5.1 assumes that the project manager and designers have exercised reasonable care in defining the scope so as not to unduly rely on contingencies. Larger contingency allowances must be justified.
Table 5.1 Expected Contingency Range
Estimate Stage Typical Contingency Range Strategic Estimate 30% to 50% Concept Estimate 30% to 40% Preliminary Design 20% to 30% Detailed Design Estimate 10% to 20%”
Mr Aprile has gone fairly high in the ranges. In Mr Perkins’ view, the Department has failed to use its manual properly, in incorporating contingency allowances under both (rather than one only, as indicated) of the dot points at the end of 5.3. He instanced the way in which unsuitable soils or subsoils (which often require to be removed) were dealt with. Mr Perkins contended that this aspect was specifically dealt with in appropriate ways, such as his accepting provision of a 500 mm thick pavement, rather than the 350 mm one he expected would be adequate. His view was that it was inappropriate to add some generous contingency to that already increased cost. Mr Aprile, who understood the argument, denied that that is what he was doing.
Intriguing as such issues might be, at the end of the day there is no point in the court’s attempting to resolve them. I am firmly of the view that it is inappropriate to attempt to identify a monetary contribution fixing the limit of the appellant’s responsibility for roadworks, which could be done in Neilson v Gold Coast City Council [2005] QPELR 452, where the cost of construction was agreed at $345,000 and the court was able to determine, on the basis of expert estimates, what the proposed development’s percentage contribution to the traffic using the roundabout in question would be. The Department’s Guidelines for Assessment of Road Impacts of Development Proposals considered by Senior Judge Skoien were not given effect to in the result, because they would, by strict application of the Guidelines in the relevant circumstances, have imposed on the development the full costs, whereas its contribution to the traffic was limited to something under 12 percent.
The Guidelines considered by his Honour have been replaced by an expanded, more detailed version (2006) which is exhibit 30. These Guidelines have some statutory recognition in s 3.3.15 of the IPA and in s 4.1.52(2). The new Guidelines provide in Chapter 9 at page 5ff:
“9.3. Consistency between development impact mitigation measures and Main Roads plans
…
Category 1: Consistent with Main Roads plans
The mitigation measures for the development to proceed now are clearly identifiable in the first two year of the RIP.
Category 2: Consistent with Main Roads plans but not timing
There are two possible scenarios:
·The development’s requirements are consistent with the RIP, but the required mitigation measures are not in the first two years of the RIP.
·The development’s requirements are beyond year five (that is, not on the RIP), but consistent with Main Roads planning.
In both scenarios the developer, in consultation with Main Roads, needs to determine whether the mitigation measures required by the development will become a Main Roads priority in the development’s timeframe. Mitigation measures that fall outside Main Roads priorities will not be programmed within the RIP and have no firm finding allocation. This matter should be discussed with Main Roads at an early stage to determine whether Main Roads is in a position to accept the use of the bring-forward methodology (refer to Appendix G).
Category 3:Consistent with Main Roads plans and timing, but scope or scale of works is different
For example, Main Roads has planned an intersection upgrade including a 75 metre right turn slot, but the traffic operation impact assessment for a proposed development indicates a requirement for a 125 metre right turn slot.
Category 4: Inconsistent with Main Roads plans
The mitigation measure requiring roadworks would never have been anticipated or planned, or are so far into the future (beyond 25 years) that they are regarded as highly speculative and uncertain. For example, as a direct result of the proposed development, a low order road link is expected and is inconsistent with the road hierarchy.
In all these categories, where there is a difference between the development requirements and Main Road’s likely provision of future roadworks, it will usually be necessary for the developer to resolve with Main Roads how to mitigate road impacts of the development. This is considered in Chapter 9.4 below.
9.4 Determining a development proponent’s contribution
Generally, if Main Roads intends to provide roadworks at some future date then the developer can use these roadworks to devise mitigation measures for their development impacts. For example, if Main Roads’ first two years of the RIP show an intersection upgrade at some point in the future, then the developer can include these works in their traffic operation assessment as per Chapter 6.
Chapters 9.3 categorises the consistency between Main Roads plans and the development requirements from 1 to 4. This chapter details the developer’s approach to determining their contribution to each category.
Category 1: Consistent with Main Roads plans
The development is regarded as having no significant adverse impact on the SCR network. Therefore, it is unlikely that Main Roads will attach any conditions in the provision of roadworks to the development approval. This does not include site access roadworks and so on, which remain the responsibility of the developer.
Category 2: Consistent with main Roads Plans but not timing
The use of the bring forward methodology (refer Appendix G) maybe an option in either scenario A or B (refer Chapter 9.3). Developers need to discuss with Main Roads whether the development will become a priority. If Main Roads is confident the proposed works will become a Main Roads priority in the time-frame required by the developer, Main Roads may accept a bring forward contribution.
Bring forward is highly unlikely to be acceptable to Main Roads in Scenario B (refer Chapter 9.3) because it is unlikely the proposed roadworks will move into the department’s priorities within the timeframe required by the development. Therefore these roadworks will not be funded by Main Roads.
Where Main Roads is unable to accept a bring forward contribution, the developer and Main Roads need to discuss alternative arrangements for dealing with the development’s road impacts. Main Roads could, for example, enter into an agreement with the proponent on a financing arrangement and/or a traffic management plan that would achieve the desired objectives of both parties.
Category 3: Consistent with Main Roads plans and timing but nature or scale of works is different
Of development impacts require road infrastructure other than that planned or programmed by Main Roads, the developer is required to meet the full capital cost of the inconsistency in the roadworks. For example, if a Main Roads planned intersection upgrade includes a 75 metre right turn slot, but the traffic operation impact assessment for a proposed development indicated a requirement for a 125 metre right turn slot, then the developer is liable for the additional cost of providing the increased 50m length of the right turn slot.
Category 4: Inconsistent with Main Roads plans
If the mitigation measures requirement by the development include roadworks which are unlikely to have ever been provided in the absence of the development activity, or the estimation of the timing of the roadworks is regarded as too speculative, then the developer is required to meet the full cost of the roadworks. An example is where a road link may never be expected to carry large numbers of heavy vehicles because its position in the overall road network hierarchy. In such instances, the full capital cost and any ongoing maintenance of the works would normally be sought from the proponent as a contribution prior to commencement of the development activity. The proponent will need to calculate the capital cost and maintenance cost of the works (see Chapters 9.5 and 9.6).
A developer proponent and Main Roads may enter into an agreement to detail the provision of roadworks or traffic management measure required to mitigate a development’s road impacts. Such agreements may cover the standards required, timing of delivery, scale and scope of infrastructure, funding and the obligations of both parties in regard to such matters as cost variations due to unforseen circumstances.
It is recognised that there may be instances where other road users (current and future) may benefit from roadworks provided on the basis of a contribution from a development proponent. However, it does not necessarily mean that these road users should contribute to the financing of the roadworks, especially if they did not precipitate the timing of provision of those roadworks. There may be instances where planning instruments created under legislation, such as the IPA, allow for the sharing of state-controlled road infrastructure cost by future development within a defined area. In this case, developers may be entitled to seek a refund of their infrastructure cost from subsequent developments as prescribed by the planning instrument.
Where these planning instruments are not adopted by the local government, there may also be practical difficulties in assessing and securing appropriate contribution from other road users. When they have ‘as of right’ access to the affected roads and no effective regime exists for obtaining road user charges on the basis of actual, verifiable road use by specific vehicles.
When determining a development proponent’s contribution, consideration needs to be given to any protocols between Main Roads and local governments which outline funding responsibilities in respect of roads and road reserves.”
Much of that is vague and nebulous, perhaps necessarily so. The third paragraph from the end implicitly acknowledges that an outcome may not be “fair”. As observed elsewhere and as Mr Morzone emphasized, fairness is not expressly a factor in s 3.5.30, although it may well be considered in the context of what is reasonable.
It is clear that in the present circumstances a monetary contribution is going to be inadequate, because, as Mr Morzone’s written submissions put it, in the absence of a full contribution for the construction of those works which all the traffic engineers agree should have their actual completion secured before the development can go ahead, those works will not be built by the Department. In Hammercall Pty Ltd v Gold Coast City Council [2005] QCA 29, Jerrard JA, with the agreement of Cullinane J, indicated the importance, in assessing the validity of conditions under s 3.5.30, of a putative condition’s securing or increasing the probability of construction of roadworks desired, saying:
“[89] The terms of s 3.5.30 necessarily require that conditions must be relevant to the particular development approved to be lawfully required. However, application of the planning principles described by McHugh J in Temwood, relying on Lloyd v Robinson, means that it is sufficient if the condition under consideration is relevant to development (as defined in the IPA) of a larger parcel of land being subdivided or developed in a series of subdivisions or developments. Considering the two applications for development approval here as part of Hammercall’s overall plan, which on completion will have both the parallelogram and the truncated F-111 subdivided into allotments, I consider that the problem for the respondent is that the conditions do not achieve the goal described by Mr Hinson SC. That is, imposition of those conditions does not go far enough to achieve the provision of the preferred and planned for access to the Pacific Highway. The Bermuda Street extension, construction of the future service road and interchange, and widening of Old Coach Road, may not occur for years, if done by the Council. The evidence did not indicate any firm proposal that those works were envisaged as future State controlled roads, which the Department would build. Accordingly, prosecution of these developments by Hammercall, if its appeal fails and it considers the cost to it of those dedications acceptable for either its overall or the specific development under appeal, would not increase the probability of either successful respondent actually constructing any of those works; this is because there would have been so little extra traffic generated by both approved developments. All the imposition of these conditions would achieve would be to cheapen the future cost to either respondent if and when those works were done. The evidence to which this court was directed could not have satisfied the learned trial judge that upholding the conditions would result in the foreseeable future in any identifiable improvement or change in the standard of the road system in the area.
[90] Further, the respondents accepted that even if the decision under appeal was upheld, Hammercall could simply elect not to proceed further with either of the developments applied for, and then no land would be available for these works foreseen as needed nearly 20 years ago, unless the necessary land was resumed from Hammercall, as it could be. Relying on the dedication conditions as a means of acquiring that land for future road works leaves it entirely up to Hammercall whether those ever happen. Imposing dedication requirements alone, without conditions requiring construction of the relevant works, does not sufficiently achieve the goal Mr Hinson SC urges as their justification and relevance.”
It does not follow from Hammercall that the likely efficacy of a condition to achieve construction of necessary roadworks (assuming the relevant development goes ahead) satisfies s 3.5.30. The broader questions about relevance and reasonableness of any condition remain. Although Settlers Rise Estate is to contain 379 lots, and on one approach might be treated as aggregated with the appellant’s earlier adjacent developments, for the court’s purposes, the “development” to which a condition may be attached is limited to no more than 254 lots. It is too late to attach development conditions retrospectively by reference to existing approvals which might have incorporated (but did not incorporate) a condition of the relevant kind. The traffic engineers worked on 254 (Mr Camilleri in exhibit 16 at 4.3, Mr McClurg at 3.3 in exhibit 19 and Mr Beard in paragraph 1 (first and second paragraphs) of exhibit 21).
During the currency of these appeals, the appellant has got separate development approvals for stage 4 and part of stage 5 (stage 5A) so that, as Mr Houston says in his written submissions, “Effectively, therefore, the development application before the Court in this Appeal relates to Stages 5B-12 of the master plan, although it is to be noted that the traffic reports generally treat it as relating to Stages 4-12”. I take it the appellant is content with that approach. Reduction of lot numbers by 43 (see [3] above) would not change the outcome. One of the difficulties the traffic engineers have had to contend with is that traffic counts used as the basis for future projections are old, stemming from 2005 or thereabouts, at a time when the lack of residential development in Settlers Rise Estate meant that there was no contribution from it to traffic volumes. It was not suggested that anything about this aspect led to the traffic engineers’ advancing opinions based on irreconcilable assumptions.
That is not the case in relation to what the future might hold. Mr Cowley, a director of the appellant, gave evidence (which I accept) that the rate of sales in Settlers Rise since they commenced around 2004 has been about 14 per annum. He expects that rate to continue indefinitely. If future events bear him out, there is something to be said for the proposition that the approval the court is asked to issue would lead to Settlers Rise having little impact on increasing traffic volumes, its contribution being hard to separate out from the general background of increasing traffic volumes, said to be a 3 percent linear increase by Mr Beard, a compounding one by the other experts. Mr Camilleri’s approach, focused on ten years from now, leads to an estimate that Settlers Rise stages 4 to 12 would account for eight percent of “traffic growth” at the roundabout ten years from now, 14 percent of traffic growth on Maraju-Yakapari Road (slightly lower percentages being attributed to stages 1-3). What he calls base growth would represent 52 percent and 17 percent respectively. The difficulty is that, in his exercise, he allocates six percent and 10 percent respectively to Peppermint Grove, which has been approved but may not proceed and four and a half times as much (27 percent and 47 percent) to Glenella Estate, which has no approval, and indeed, has not even been the subject of public notification. Its residential component is somewhat larger than Settlers Rise; as envisaged presently, it will incorporate a shopping centre.
Responding to criticism of his factoring in of Glenella Estate as the major contributor to traffic growth at the roundabout and on Maraju-Yakapari Road immediately to the west, Mr Camilleri produced exhibit 27, which ignores any such contribution. Settlers Rise (4-12) on that basis contributes 11 percent and 26 percent of traffic growth to 2018 respectively, base growth being assessed at 71 percent and 31 percent respectively. Assuming Peppermint Grove will go ahead, Mr Camilleri attributes to it 8 percent and 20 percent respectively. Looking at 2025 the base growth proportion declines to 68 percent and 29 percent, Peppermint Grove’s to 6 percent and 20 percent and Settlers Rise (4-12) increases to 18 percent and 40 percent respectively. The only other contributor is Settlers Rise (1-3). Views regarding base growth may legitimately differ. The assumption that Peppermint Grove will proceed may or may not be correct. A further assumption central to Mr Camilleri’s work depends on Mr Cowley’s account of experience in marketing of Settlers Rise to date being projected indefinitely. However, Mr Camilleri has allowed for sales and the resultant generation of traffic at a higher annual rate of 20 lots. On this approach, the contribution of Settlers Rise (4-12) is overshadowed by base growth.
Mr Camilleri joined in the view that neither Settlers Rise nor Glenella Estate should proceed prior to satisfactory traffic arrangements being in place. The upgrade of the roundabout to two lanes and the road widening to the west effectively depend on the Department revising the RIP. Thus at page 72 he opined that the Department may allocate some funds in their forward planning next year. He accepted that the projects, close as they might be already to becoming necessary, were not in the current five year programs, let alone the relatively fixed programs for the first two years. In general terms he acknowledged the statutory framework under which transport infrastructure strategies and a transport coordination plan are formulated by the chief executive and the minister under sections 5 and 6 of the Transport Infrastructure Act 1994 and sections 4 and 5 of the Transport Planning and Coordination Act 1994. He accepted the RIP as “a rolling five year program … of works with firm funding for the first two years and for the following three years … funding allocations indicative of the money that’s required” at page 73, where he suggested that the Department’s having “conditioned the contribution from Peppermint Grove for $76,000 [was] indicating that they may be considering putting it on the program”. Opportunistically, on the following page, he opined that non-payment of the $76,000 in respect of the road widening and there being no more than a draft contract or document about it provided “even more reason that Main Roads may put it on their forward planning, that they’ve got more time to assess the situation and the developments in the area”. He said:
“My solution [i.e. that the condition of approval be payment of a dollar amount scaled by reference to the proportion of estimated traffic growth brought about by the development] is based on a fair contribution from the applicant who also has restricted funds I would assume and doesn’t have a bottomless pit of money sitting there to pay for a significant portion of a road that should already have been upgraded if you look at the guidelines.”
Under the former Guidelines considered in Neilson, applied strictly, Mr Camilleri pointed out that Peppermint Grove, by reason of traffic generated by it causing an exceedence of a threshold “should have been responsible for the total upgrade of Maraju-Yakapari Road” (74 line 48). The contrast between the Department’s stances, including that Peppermint Grove was not required to contribute anything to the upgrade of the roundabout and was asked for $76,000 only for road widening, is striking, but, in my view may be defended on the basis that 254 lots constitutes some multiples of Peppermint Grove’s 93 and, in a practical sense, may be the “straw that breaks the camel’s back”. Alternatively, it may be said that one bad decision does not justify making others. The guidelines (now exhibit 30) have changed, incorporating much more flexibility than their predecessors, which conduced more to “all or nothing” outcomes.
The matter would take on a different complexion if there were some guarantee that sales and consequent appearance of traffic-generating households would be limited to something like Mr Cowley’s predictions. They may well be borne out in practice, but the fact is that the appellant is not offering to accept some condition restricting the rate of production and/or sale of lots. Given conventional currency periods, such a restriction might be seen as undercutting the approval; it would very likely commit the appellant to the trouble, cost and uncertainty of further applications, which may be assessed in the light of future notions of cost recovery and “user pays” in the provision of road infrastructure – likely to be ever more demanding if present trends continue. One can sympathise with Mr Cowley’s experience that, with successive applications, the impositions become ever more onerous.
While I have accepted that Mr Cowley’s experience and prognostications of sales are based on market conditions as he sees them, they may well co-incide with what is convenient or advantageous to the appellant for commercial or fiscal reasons, that would not necessarily apply if conditions changed, for example if undeveloped parts of Settlers Rise were disposed of to a new owner ready and able to produce lots and sell them more rapidly, either to maximise or expedite returns or to avoid losses. Any approval will run with the land and entitle the owner for the time being to follow whatever timetable is judged advantageous. In these circumstances, there is the potential for up to 254 lots (maybe fewer if stages 4 and 5A are taken out of the picture) to be developed and sold very quickly. I prefer, of the traffic engineers’ approaches, Mr Beard’s, which tells the court that on that basis, the proposed development will more than double traffic on Maraju-Yakapari Road, a 101 percent increase based on a count in “Sugarshed Road, West of Glenella Road” or 145 percent based on a count from a different source of “Sugarshed Road, east of Bald Hills Road”; the counts appear to focus on the same stretch of road (Glenella Estate’s frontage). As for the roundabout, the same trips generated by Settlers Rise will produce a 17 percent increase over current traffic volumes without the development.
It is convenient to set out Mr Beard’s summary from exhibit 21:
“The existing pavement width and shoulder width are currently sub-standard relative to Austroads and DMR design guidelines for traffic volumes without the development (currently approximately 5.5 metre sealed pavement with 1.0 metre wide unsealed shoulders). However, the deficiencies will become much more acute with the substantially increased traffic volumes produced by the subject development; and an interim upgrade has been required by the conditions proposed by DMR for the subject development (to a 7.0 metre sealed pavement with 1.0 metre wide unsealed shoulders). To comply with current Austroads standards, the desirable standard for the forecast traffic volumes would be a 7 metre sealed pavement with partially sealed shoulders 2.5 metres wide.
Also, the proposed development will significantly increase total traffic volumes through the roundabout at the intersection of Sugarshed, Heaths and Glenella Roads where upgrading has been required by the disputed conditions of approval. The roundabout currently operates satisfactorily, but the degree of saturation (DoS) of the roundabout will reach the desirable maximum of 0.85 within the next few years with or without the subject development. The subject development will significantly increase the need for upgrading. However, DMR currently has not programmed any upgrading of the roundabout.
Neither the pavement widening and shoulder reconstruction nor the roundabout upgrading is currently on the DMR Roads Implementation Program (RIP).”
Should any of the foregoing be contentious, I record my acceptance of what Mr Beard has said there. It is accepted that there is no inevitability about Austroads or DMR design guidelines leading to inclusion of remedial works in the RIP. Nor is there any guarantee (although there may well be some tendency in practice, depending on the extent on the shortfall to be met from public funds) that receipt of cash contributions pursuant to development conditions will lead to inclusion of works in the RIP.
In those circumstances, the court should endorse Mr Beard’s approach of formulating conditions which, if the development proceeds, will make actual construction of works rendered necessary by the development a realistic possibility. Mr Beard’s conclusions were:
“a.There are deficiencies in the existing local road network, although it currently operates at acceptable levels of safety and congestion.
b.No relevant upgrading are currently programmed, and it cannot be guaranteed that upgrading will occur at a specific time in the future, because of competition for funds allocations with upgrading requirements in other parts of the regional road network.
c.It cannot be assumed that the Glenella Estates development will proceed in a time period relevant to consideration of this Ajana Park development.
d.As agreed in the joint report, because of the magnitude of the impacts of the traffic expected to be generated, it is not appropriate that the subject development proceeds until satisfactory arrangements are in place to ensure that appropriate upgrading works are undertaken in a timely fashion.
e.Taking account of all relevant circumstances, it is recommended that the condition in respect of pavement and shoulder upgrading on Sugarshed Road be retained (except for refunding the Peppermint Grove contribution if and when it is received); but that the condition requiring full upgrading of the roundabout at the intersection of Sugarshed, Glenella and Heaths Road be replaced with a requirement for a partial upgrade only, as described in Section 6.3.2 above.[3]
[3] 6.3.2 Upgrading of Roundabout at Sugarshed, Glenella and Heaths Roads provided:
Apropos widening of Maraju-Yakapari Road, Mr Beard has suggested:
“6.3.1 Upgrading of Sugarshed Road
The Peppermint Grove development has been required to make a cash contribution to this road upgrading, although the contribution has apparently not yet been paid.
The currently proposed upgrading requirement should be seen in the context of:
Design Traffic Pavement Shoulder
Scenario Volume Width Width
Existing 2000 – 3000 vpd 5.5 m 1.0m unsealed
Proposed 5000 – 6000 vpd 7.0 m 1.0m unsealed
(Ajana Park)Ultimate 5000 – 6000 vpd 7.0 m 1.0 m sealed plus
(Austroads Standard) 1.5 m unsealedIn my opinion, the interim upgrading standard proposed, and required to be constructed as a condition of the Ajana Park development approval is appropriate, in the expectation that further upgrading will be undertaken in the future either by DMR or pursuant to other developments.
Further, DMR should agree that, if and when the contribution from the Peppermint Grove development is received, that cash contribution be refunded to Ajana Park.”
To the above should be added a requirement that the widening occur on the northern side of the road, that is the side away from Glenella Estate, which might bear all or part of the burden of widening from the interim 9 metre formation (an increase of 1.5 metres at the appellant’s expense from the existing 7.5 metre formation) to the 12 metres appropriate if Austroad’s standards are to be met, and which seems appropriate if there is to be substantial commercial use. For what it is worth, the future works are likely to be more expensive, to involve more relocation of services and the like.
Just as that widening work is something that can be achieved in practice and with a useful outcome of improving the capacity and safety of the road system to accommodate the proposed development, so is the accompanying proposal for relieving the imminent congestion (which the development will significantly exacerbate) at the roundabout by providing additional exclusive left turn lanes on the northern and southern approaches to identifying work which it is practical to do in respect of which the appellant will have some control. The department will doubtless provide all necessary co-operation in a reasonable way. In both locations, the works left to the remoter future can be practically and reasonably achieved, on the evidence the court has. Any savings that might be available from construction of “interim” and “ultimate” works together will be a bonus. I am impressed with the care Mr Beard has put into devising interim works that would be both of utility and appropriate to charge against the relevant stages of Settlers Rise; it embodies some changes in the works earlier contemplated at the roundabout; see [7] above at footnote 2.
The attraction of the revised conditions does not relieve the court of the requirement to ensure that s 3.5.30 is complied with. Mr Houston submits that the Department’s resiling from its original demands sounds a warning about its disposition to take an unreasonable approach. In the circumstances outlined above, nothing in Neilson, even if it were treated as a binding precedent, would require the court now to adopt an approach along the lines of Mr Camilleri’s. In this connection, it should be noted that Mr McClurg, whose primary focus was on other road works required by the Council further to the west, produced other estimates of the proposed development’s contribution to future traffic growth featuring higher percentages. Given the court’s preference for Mr Beard’s approach, there is little point in the court’s seeking to pronounce upon the aspects where the other experts’ estimates differ.
In principle, it will be difficult to argue, once Mr Beard’s approach of formulating conditions in terms of works, rather than money is accepted, that the road widening condition is irrelevant or unreasonable. If a check in dollar terms should be thought appropriate, as may well be the case (as it could be a strong thing to saddle an acceptable development proposal with disproportionate infrastructure costs, to the extent of destroying its viability), there is no reason for concern here. I doubt that it could ever be the court’s task to look into the profitability of development proposals for their proponents. The court happens to have evidence from Mr Cowley that the appellant’s estimated profit is $50,000 to $60,000 per lot. As Mr Morzone notes in paragraph 44(b) of his written outline, “multiplied by 254 lots, this amounts to $12.5 m - $15 m”. The court has no way of knowing whether costs of the kind in issue in these appeals are borne by the developer or passed on to the purchasers of lots or in some manner shared. The obverse is that, where the public purse provides or subsidises the cost of infrastructure, the court has no idea whether that advantage accrues to developers or people in the community wanting to establish a home. It is not possible for the court to impose any particular outcome.
It is a curiosity that, if Mr Perkins is right about the costs, that is relatively good news for the appellant (otherwise if Mr Aprile is right). In modern conditions, the court, in my opinion, should be careful about endorsing modest estimates of cost, where that may impose on the general public the burden of making up unexpected shortfalls. Taking the approach it does, the court is relieved from having to pronounce an inexpert conclusion regarding costs estimates of work yet to be fully designed.
Whereas the road widening condition does not, in my view, present much difficulty, the situation is less straightforward in respect of the roundabout, given the more limited contribution of the proposed development to increased roundabout traffic. Even Mr Beard goes no higher than 17%. In exhibit 27, Mr Camilleri estimated 18%, it is true, but adopting a 2025 horizon. As Mr Morzone notes in paragraph 48, Mr McClurg, using a design horizon of 2020 (representing 10 years after assumed development completion) assesses that the development would comprise 23% of total growth at the roundabout. If I read exhibits 23A, 24, 24A and 37 correctly, the cost of Mr Beard’s proposal (or something like it) represents up to twice Mr McClurg’s percentage, as a percentage of the estimated cost of full roundabout duplication (I confess to some uncertainty as to what the grander proposal incorporates regarding the roundabout approaches). The dollar amounts are concerning (more so if Mr Aprile is right about them) but, with some hesitation, I find them not unreasonable in the circumstances. It must be remembered that s 3.5.30 is couched in terms of what is relevant and/or reasonable, not in terms of what is fair. It is not the court’s task to attempt to produce some sort of parity vis-a-vis outcomes in the halcyon “Peppermint Grove era” or by reference to the appellant’s own previous development approvals in the locality. It must take the consequences of being the first to enter the field post-Peppermint Grove.
In my judgment, the roundabout condition as now proposed by the co-respondent satisfies the relevant tests of relevance and reasonableness. Onerous conditions which may appear quite disproportionate to the proposed development to which they are attached have been held to satisfy s 3.5.30, as, indeed, but for special circumstances mentioned in the majority judgment, the condition in Hammercall might have done.
Another aspect calling for comment is that the road widening condition is expected to be replicated in any approval for Glenella Estate. This does not mean that, if that development and the subject one both proceed, there will be two developers responsible for carrying out the same work. Whether or not historically the Department contemplated only the bare minimum nine metre formation, its stance now is that approval of Settlers Rise would require a nine metre formation to accommodate the additional traffic that development will generate; if, on top of that, Glenella Estate is developed along the lines presently proposed, there ought to be a 12 metre formation. While adverse comment may be made about the Department changing ground, in my view there are sound reasons, centering on the safety of road users, supporting the stance now taken.
Both appeals will be allowed. The parties are invited to try to agree on a form of order giving effect to Mr Beard’s proposals modified as described in paragraph [33] above in appeal no. 11 of 2006 and a form of order to incorporate exhibit 41 in appeal no. 12 of 2006.
“The performance of this roundabout has been assessed under a number of design traffic loadings and with different upgrading options, using the SIDRA 3.2 package.
Based on estimates of 2008 traffic volume estimates, the results can be summarised as:
| Design Volumes | Intersection Configuration | Roundabout Degree of Saturation (DoS) | |
| Morning Peak Hour | Evening Peak Hour | ||
| Without Ajana Park | Existing | 0.67 | 0.86 |
| With Ajana Park | Existing | 0.82 | 0.98 |
| With Ajana Park | 2 lane southern approach | 0.82 | 0.68 |
| With Ajana Park | 2 lane N & S approaches | 0.47 | 0.68 |
The additional lanes on the northern and southern approaches analysed were 40 metre long exclusive left turn lanes, with 40 metre approach tapers. These approach widenings can be accommodated within existing property boundaries, and would not necessitate any upgrading of the circulating roundabout or the departure lanes at the roundabout.
As such, the interim works recommended would be a minor part of the total roundabout upgrading likely to be necessary in the future, which would be also expected to include:
● Widening of the roundabout circulating roadway from one land to two,
●Widening of the northern and southern departure lanes (from one to two lanes) to allow two lane through movements in the north-south direction,
●Widening of the eastern leg to include a left turn lane, and
●Lengthening of the northern and southern approach lanes recommended in the interim upgrading.
Sketch 1804sk1 attached shows the SIDRA layouts for the intersection:
●As existing,
●An interim upgrading as recommended as a condition of the subject development, and
●As it is likely to be upgraded by DMR or others in the longer term future.
The impact of the subject development during both the morning and evening peak periods can be offset by an interim upgrading (provision of short left turn lanes on the northern and southern approaches). It should be noted that the northern approach is critical during the AM peak hour, while the southern approach is critical during the evening peak hour. These upgrading would not eliminate the need for the longer term upgrading of the roundabout by DMR or pursuant to other developments. It is not practical to undertake lesser works, because the lane lengths proposed are effectively the minimum standard necessary to accommodate queues with 60 km/hour operation on the approaches.
Consequently, it is recommended that the current proposed condition which requires full upgrading of the roundabout should be replaced with a requirement for the interim upgrading described.”
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