Australand Holdings Limited v Gold Coast City Council
[2006] QPEC 88
•23 August 2006
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Australand Holdings Limited v Gold Coast City Council and Anor [2006] QPEC 088
PARTIES:
AUSTRALAND HOLDING LIMITED (ACN 008 443 696)
Appellant
V
GOLD COAST CITY COUNCIL
Respondent
And
STATE OF QUEENSLAND
Co-respondent
FILE NO/S:
BD 2657/2005
DIVISION:
Planning and Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
Planning and Environment Court of Queensland
DELIVERED ON:
23 August 2006
DELIVERED AT:
Brisbane
HEARING DATE:
31 May, 1 and 2 June 2006
JUDGE:
Alan Wilson SC, DCJ
ORDER:
CATCHWORDS:
PLANNING LAW – PLANNING AND ENVIRONMENT – conditions of approval – whether local authority may be compelled to accept a condition imposing a public thoroughfare easement
PLANNING LAW – conditions of approval – construction of Planning Policies
Integrated Planning Act 1997 ss 3.5.3, 3.5.4, 3.5.5, 3.5.6 3.5.30, 4.1.52, 4.1.54, 6.1.20, 6.1.31
Land Title Act 1994
Local Government Act 1993
Transport Infrastructure Act 1994
Colless v Brisbane (1984) QPELR 235
Demish Pty Ltd v Brisbane (2001)QPELR 483
Ecovale Pty Ltd v Gold Coast (1997) QPELR 344
Elan Capital Corporation Pty Ltd v Brisbane (1990) QPLR 209
H A Bachrach Pty Ltd v Caboolture (1996)QPELR 312
Harderan v Logan (1989) 1 Qd R 524
Jones Flint & Pike Pty Ltd v Maroochy (1999) QPELR 434
Knox v Brisbane (1975) 31 LGRA 108
Mascotmont Pty Ltd v Bundaberg (1997) QPELR 350
Mayo v Gold Coast (2002) QPELR 452
Reana Development Pty Ltd v Thuringowa [2002] QPLR 56.
Simpson Rayner Surveys v Brisbane (2001)QPELR 231
Wendon Nominees Pty Ltd v Brisbane (1984) QPELR 98COUNSEL:
Mr D Gore QC and Mr T Trotter for the Appellant
Mr M Hinson SC for Respondent
Mr G Wilshier for Co-respondent
SOLICITORS:
Allens Arthur Robinson
King and Company
Crown Law
Australand and the Council cannot agree about some of the conditions which should be attached to approval of a new residential development at Hope Island. The State has no interest in the conditions which remain contentious and its representative, Mr Wilshier, was excused. A number of disputed conditions were resolved during the balance of the hearing and eventually only four fell for adjudication: whether Council can, and should, be compelled to accept an easement over a small part of the development site; whether Australand is entitled to credits against contributions it must pay Council for a boardwalk to be built along a canal frontage; the proper method for calculating Australand’s lawful contribution to certain Council infrastructure charges; and, what conditions should attach for building setbacks, from boundaries, on some proposed new dwellings in the development.
The area being developed is on the northern side of the Oxenford-Southport Road and is part of the second stage in a residential and mixed use estate development called ‘Cova’. It is a portion of the emerging Hope Island resort/residential community which, in the locality, consists of a range of purpose-built residential housing estates interspersed with open space areas, including golf courses; and, newly built canals, constructed in conjunction with existing water courses. The size and complexity of the development means, unsurprisingly, that Australand has sought approvals in stages.
The background to, and history of those approvals is comprehensively set out in the report of a town planner, Mr Peter Priddle[1] and need not for present purposes be repeated. The current dispute, concerning stage 2, initially involved applications for a material change of use (MCU) and reconfiguration of lots (ROL), leading to the development of 44 community titled residential housing allotments with associated common property, parkland and two management lots.
[1] Exhibit 5, pp 2-7
The parcel contains about 3.6 hectares and faces the north eastern alignment of the Oxenford-Hope Island Road at Hope Island, about 500 metres to the north west of its intersection with Broadwater Avenue. Its eastern boundary has a frontage of 155 metres to a canal. The application was lodged in December 2004 but, when no decision had been made by Council by July 2005, Australand appealed to this Court. The matter was listed for hearing in December 2005 but following negotiations between the parties they agreed to an order that Australand’s appeal be allowed and the application approved, subject to conditions. Council provided a package of conditions at the end of February 2006. The majority were agreed between the parties but those which remained an issue prompted this appeal.
At the conclusion of the hearing the parties agreed that a document containing the conditions ‘package’ as at 1 June 2006, which became Exhibit 18, reflected both the conditions about which agreement had been reached, and their respective positions on those which were still in issue. They cover both the MCU, and the ROL.
Building Set-Backs: MCU Condition 2 (iii)
The dispute concerns the plans for dwelling houses on 12 allotments at the north east of the site, facing the canal, and the extent to which they may be built up to lot boundaries. Council takes the position that any construction on and along boundaries should only occur on a limited scale, and with setbacks generally adopted under Brisbane City Plan 2000’s Small Lot Code which, in short, turns its face against too much construction on actual boundary lines.
Australand’s plans do not strictly accord with the provisions of that Code and its architect Mr Peabody proposes to build boundary walls, in some instances, to both side boundaries in a way which, he contended, would allow for greater design flexibility and provide an opportunity to increase the width of habitable spaces, while protecting the privacy and amenity of neighbouring dwellings. In his report (Exhibit 6), illustrated by his drawings (Exhibit 7), and in his oral evidence he advanced persuasive arguments that this variation should be permitted, on the basis that the planned dwellings meet eleven specific criteria which he set out, and explained, in that report.
Mr Ryter, a town planner called for the Council expressed some residual concerns about these proposals but was prepared to defer to Mr Peabody’s architectural expertise[2]. Mr Curtis, an architect and urban designer employed by the Council was called very late in the case and also expressed some concerns about the extent of the variations from the code, but their tenor was not such as to encourage Mr Hinson SC, for the Council, to maintain opposition in his final submissions[3].
[2] T154.1-21
[3] T170.1-3
Mr Peabody’s evidence was persuasive: his criteria appeared to be well thought out and his designs for the dwellings (which he explained, and defended, convincingly) are attractive and interesting. While they do not strictly comply with the Brisbane Small Lot Code, they suit the particular layout of the sub-division lots and will provide good amenity for occupants, while protecting their privacy. Mr Hinson’s concession was, then, entirely appropriate and Mr Peabody’s proposals form a reasonable basis for an appropriate condition.
Method for Calculating Australand’s Contribution for Recreation Facilities Network Infrastructure: ROL Condition 5
This dispute concerns Council’s Policy for Infrastructure (Recreation Facilities Network Developer Contributions). It is called Policy 16, promulgated under Council’s current planning scheme, and it is intended to provide a method for determining what contributions Council will seek from developers ‘…to ensure the timely provision of recreation facilities to accommodate the needs of the city’s growing population …’. The parties agree about the amount of Australand’s contribution under this Policy, but are at odds about the proper method of calculation.
When the hearing began they also disagreed about the timing of the payment of contributions and whether Australand might secure an advantage by early payment, but that dispute was abandoned toward the end of the proceedings[4]. A further subclause in another condition (condition 5) requires that the ultimate calculation take account of any credits to Australand for works associated with a boardwalk but that issue is dealt with separately, later, in the context of the parties’ dispute about condition 45, which concerns the boardwalk.
[4] T169.19-24
The calculations which led to the agreed amount were undertaken by Mr Priddle, a town planner retained by Australand (whose report is Exhibit 5) and Mr Brookfield, a planner employed by Council (Exhibit 12). Each gave oral evidence. Although Mr Brookfield’s initial report was critical of Mr Priddle’s methodology, his opposition largely evaporated during cross-examination and, again, Mr Hinson SC appeared to concede the issue during his oral submissions[5].
[5] T172.50-T173.6
The difference in approach involved, on Mr Priddle’s part, a reckoning using what he called a ‘reconciliation’ method as opposed to Mr Brookfield’s ‘stand alone’ approach. The former is based upon a continuous review of the balance of parkland requirements as the development proceeds through its stages, while the latter approached the calculation on a stage by stage basis. Mr Priddle advanced persuasive reasons to support the good sense, and reasonableness of his approach[6] and, ultimately, Mr Brookfield agreed it was appropriate.[7]. In particular, as I understood Mr Brookfield’s evidence, he had come to entirely accept the critical element of Mr Priddle’s methodology when he said, during cross-examination:
By all means include what the parklands from stages 1 and from stages 2 separately become when brought down in terms of local recreation park[8].
[6] Exhibit 5, para 7.2.15
[7] T149.4-T150.50
[8] T149.6-.8
As Mr Priddle’s evidence persuaded me, the ‘reconciliation’ approach accords with the terms of Policy 16[9]; avoids pitfalls which can arise if the ‘stand alone’ method originally advocated by Mr Brookfield is adopted; and, overall, produces a balanced and satisfactory planning outcome by calculating contributions in a way which takes account of the entire development and not its constituent stages. The draft conditions (Exhibit 18) include Mr Priddle’s calculations as Attachment 1 which is, for these reasons, an appropriate course.
Public Thoroughfare Easement: ROL Condition 1
[9]Exhibit 5, para 7.2.15, pp 16-17, items listed as ‘dot’ points
The reconfiguration plans submitted by Australand show an area located in the south west corner of Stage 2 with a frontage on the Oxenford-Hope Island Road, called Area 2, and various roads within the staged residential subdivision as the subject of planned ‘public thoroughfare’ easements to the Council for public access. Council has no objection to easements over the roads, but resists accepting an easement of that kind in Area 2 and maintains, in short, that it should not and cannot be compelled to do so through the imposition of conditions attached to a reconfiguration approval.
Australand’s plans for the reconfiguration show other park areas (Areas 1 and 3) as dedicated to the Council in fee simple, but Area 2 appears as an ‘easement to GCCC and for public access’. When Council notified its proposed conditions of approval on 28 February 2006 the reference to a public easement in Area 2 was deleted and, later, Council’s solicitors advised that a public easement over that area was rejected, essentially on grounds concerning its utility for public access purposes. Objections of that kind have now been withdrawn, but Council maintains opposition to the imposition of an easement. In the alternative, it submits that if an easement is to be imposed via the conditions package, it should relate only to a pedestrian/cycle path through the area or, at the most, be limited to the area east of some acoustic fencing to be constructed on top of mounds facing the Oxenford-Hope Island Road[10].
[10] T170.10-31
Public thoroughfare easements were introduced in 2005 by the Natural Resources & Other Legislation Amendment Act 2005, affecting changes to the Land Title Act 1994, Local Government Act 1993 and Transport Infrastructure Act 1994 which overcame the common law requirement that an easement must involve a dominant and servient tenement, and made provision, relevant here, for the creation of easements in favour of a local government over which it would then have control, and for which it would be responsible.
The issue in dispute is whether the Court can compel an unwilling Council to accept a condition involving the imposition of an easement of this kind. The question arises in a context where it is not at all uncommon to find easements as a feature of conditions imposed upon developments for a variety of purposes, including access, drainage and open space, some of which place a continuing financial burden upon the local authority[11]; but the question arising here is different, and more fundamental.
[11] Mayo v Gold Coast (2002) QPELR 452; Ecovale Pty Ltd v Gold Coast (1997) QPELR 344, 350; Demish Pty Ltd v Brisbane (2001)QPELR 483; Colless v Brisbane (1984) QPELR 235, 240-241; H A Bachrach Pty Ltd v Caboolture (1996)QPELR 312, 317; Simpson Rayner Surveys v Brisbane (2001)QPELR 231
The Integrated Planning Act 1997 requires that all conditions attaching to a development must be relevant and reasonable[12] and does so in a context which clearly envisages a primary right in the ‘assessment manager’ (usually, the local authority) to consider and decide appropriate conditions, within the parameters of those tests. Nothing in IPA otherwise suggests this Court has power to impose conditions compelling acceptance, by a local authority, of a responsibility involving ongoing expense associated with the control and maintenance of private land, against its will. It is true that in appeal proceedings of this kind the Court has power to substitute its own decision for that of the local authority[13] but that cannot imbue the Court with jurisdiction to compel a local authority to become an occupier of land.
[12] Section 3.5.30
[13] IPA, s 4.1.54 (2) (b), and (3)
Some elements of the arguments advanced by the parties here have arisen before. It has been accepted, for example, that concern whether a local authority would perform its duty to maintain land dedicated for open space was not a bar to the imposition of a condition creating an easement in the local authority’s favour: Mayo v Gold Coast (2002) 123 LGERA 136; and that, in circumstances where intersection road works were a necessary aspect of a development approval but the parties could not agree on their form, the fact the local authority would ultimately become responsible for the intersection was not, again, a bar to the imposition of conditions touching the form of the intersection: Reana Development Pty Ltd v Thuringowa City Council [2002] QPLR 56.
In Reana the development involved a shopping centre and a condition of Council’s approval required access from a nearby street. The appellant argued for access in a different form. The Respondent Council contended, inter alia, that approval should not be given for an intersection which it did not prefer when the intersection would become its permanent responsibility. His Honour Judge Wall QC gave the matter short shrift, saying, at 58:
I should also mention that, in my view, there is no substance in the point taken by Mr Gore QC for the Council that approval should not be given for a form of intersection not preferred by the Council in circumstances where the intersection will in time become the responsibility of Council. I cannot foresee any problems at all for the Council in that situation.
It seems to have been the case, however, that an intersection under the eventual management of (and involving some expenditure by) the local authority was inevitable.
In Jones Flint & Pike Pty Ltd v Maroochy (1999) QPELR 434 this Court was asked to adjudicate conditions touching a dispute about intersection works involving substantial cost. The Appellant alleged the conditions were neither relevant nor reasonable, and submitted an alternative solution. The Respondent Council submitted, inter alia, that it was not just a planning authority but also had a separate function as the relevant road authority and the Court may not have power to review its decisions in that capacity or, at least, should not. His Honour Judge Robin QC, DCJ decided the matter on other grounds but, helpfully, reviewed a number of authorities on the point[14] including, in particular, an authoritative statement by Matthews J in Harderan v Logan (1989) 1 Qd R 524 (Full Court), at 527-28:
[14] Knox v Brisbane (1975) 31 LGRA 108, at 110; Wendon Nominees Pty Ltd v Brisbane (1984) QPELR 98, at 102; Mascotmont Pty Ltd v Bundaberg (1997) QPELR 350, at 352; and, Elan Capital Corporation Pty Ltd v Brisbane (1990) QPLR 209, at 211.
It is important to note that when the act refers relevantly to conditions, it is speaking of conditions which will bind or require performance by an applicant. During the argument in the instant appeal, it was accepted that the local government court is given, by the legislation, no jurisdiction to order the Appellant to carry out road works and, of course, that a person in the position of the Respondent has no right to do so outside his own land. The particular roads affected by the proposed construction were public roads.
What I said in respect of the Court’s power to direct a local authority to do such work is supported by cases referred to which have been decided in the Local Government Court in Knox & Anor v Brisbane City Council (1975) 31 LGRA 108, Byth DCJ came to that conclusion, but it should be noted in passing that in 1975 when Knox v Brisbane City Council was decided, s 20B of the City of Brisbane Town Planning had provisions which recognised the right to fix conditions by agreement between, in that particular case, the Brisbane City Council and the Applicant, and there has been alteration of the provision since 1980.
The conditions which may be annexed to an approval either by a local authority or on appeal by the Local Government Court are, as I said, from the terms of the legislation to be satisfied by an applicant. In Lloyd v Robinson (1962) 107 CLR 142, 154, Kitto, Menzies and Owen JJ, in discussing approvals of the Town Planning Board of Western Australia, and a particular condition annexed to an approval of that board, summarised the position when they said:
If the Board has performed its statutory duty by giving approval to the sub-division subject only to conditions imposed in good faith and not with a view to achieving ends or objects extraneous to the purposes for which the discretion exists the inescapable effect of the Act is that the land owner must decide for himself whether the right to sub-divide will be bought too dearly at the price of complying with the conditions.
The principle has been applied in this Court. In MascotmontPty Ltd v Bundaberg (1997) QPELR 350 His Honour Judge Quirk said, in relation to the respondent Council’s unfavourable attitude towards the appellant’s proposal to link a development to Council’s existing sewerage system, but in a way inconsistent with its broad sewerage strategies:
Fundamentally, the arrangements for sewerage infrastructure in a local authority area is a matter for the elected planning authority … I can understand the Appellant’s frustration at this, particularly as it is prepared to meet any costs associated with the mode of connection of this proposal suggested by its engineer. The difficulty is that the proposed mode of connection, while practicable in an engineering sense, is not one which the Respondent is prepared to accept. There is, for the Appellant, the added difficulty that if I accede to its proposal, I would, in effect, be seeking to direct the Respondent to carry out work external to the site which it is not willing to perform. It is well settled that this would be beyond the Court’s power (Harderan v Logan City Council (1981) 1 Qd R at 524).
Australand has indicated a willingness to relieve Council of the responsibility to maintain Area 2 but, as in Mascotmont, that is not an element which should determine the outcome. Nor is it relevant that Council is prepared to accept public thoroughfare easements in respect of roads, where the Council is, as frequently occurs, in the position of a volunteer (vide Reana, and Harderan). Materially, too, (if a little surprisingly) it seems to be the case that even if an easement were imposed upon the Council, it could relieve itself of the responsibility simply by an instrument of surrender: Land Title Act, s 90 (2) (c).
The creation of a statutory public thoroughfare easement requires an applicant to make land under its control available for a public purpose, and place it under the control of the local authority[15]. Australand says, in short, that it is but a small, additional step to construe the power to impose conditions in a way which places a burden with that consequence upon a local authority, when, as here, that is said to be an appropriate course; but rejection of Australand’s condition does not prevent or inhibit future use of Area 2 for the purposes it proposes; compelling Council to take an easement does not sit comfortably with the principle espoused in Harderan; and, the legislative changes discussed earlier do not appear to affect a statutory alteration of that principle. At a fundamental level, I think the developer’s contentions erroneously attempt to conflate the local authority’s obligations as an assessment manager under IPA with its occasional role as an actual or potential land holder, and occupier.
[15] Local Government Act, s 921A(2)
While the evidence indicates an easement would not be manifestly inappropriate, I am unpersuaded that the Court ought to take that course when the local authority’s opposition to it is expressed in terms that it resists compulsion to become an occupier, and is not unreasonable.
The Cost of a Boardwalk: ROL Condition 45
The final issue is whether Australand is entitled to claim a credit towards recreation facilities contributions for the construction costs of, and the value of land dedicated for, a boardwalk/pathway it intends to build along the canal frontage. Under the form of condition 45 advanced by Australand it is entitled to claim a credit against recreational facilities infrastructure charges for the cost of building the boardwalk. Council’s position is that Australand is not entitled to credits for this purpose or, if it is, should not have them in a way which reflects the actual cost or value of the boardwalk it proposes which, Council alleges, is unnecessarily elaborate and expensive[16].
[16] Council’s planner, Mr Brookfield and Mr Hinson SC both called it ‘gold-plated’ and ‘Rolls Royce’: T174.29
The issue falls to be determined in the context of earlier conditions nos 42, and 43. Under the former, the applicant is required to dedicate a public open space along the foreshore of the canal of varying widths between 4.25 and 8 metres and, under the latter, to design and construct at its own cost a ‘…continuous foreshore pathway comprising a combination of a concrete land based and a concrete suspended slab, pier and beam construction (i.e. boardwalk) along the foreshore (both canal and marina basin). The pathway is to be constructed so as not to detrimentally affect the structural integrity and/or performance of the revetment wall.’
A preliminary question arises: developer contributions are determined by reference to Council’s Policy 16, mentioned previously. That policy originally came into effect in February 2004 (before Australand’s application was lodged) but was later amended, the second version coming into effect on 4 February 2006 after Australand appealed against Council’s deemed refusal[17] .
[17] The first version is in the appeal book, Exhibit 2 Vol 2 Doc 33; the second, Doc 35
It is not in dispute that Policy 16 is properly made under the planning scheme and concerns infrastructure, and is of the kind envisaged by IPA, s 6.1.20. Under s 6.1.31, Council is authorised to impose conditions requiring contribution towards the costs of supplying infrastructure. The section uses language which suggests the policy which will be relevant for that purpose is the one which applies at the time Council is making its decision: s 6.1.31 (1); that was the construction considered more likely, at least on a literal construction of the section itself, by His Honour Judge Robin QC in Hickey Lawyers v Gold Coast (2005) QPELR 597, at 606-7.
Section 6.1.31 does not on its face, however, exclude the operation of either s 3.5.3 which provides that when an assessment manager is deciding an application the exercise should be undertaken by reference to the laws and policies in force at the time the application was made, or s 4.1.52 which requires this Court, when hearing an appeal, to decide it on the same basis (albeit that weight may be given to any new laws and policies the Court considers appropriate); but further analysis shows that other parts of IPA tend to support, for present purposes, the construction advanced in the Hickey Lawyers case[18].
[18] Although in other circumstances other provisions of IPA may further restrict the operation of the section: for example, if the policy in consideration came into effect after the commencement of the decision stage.
Australand’s application was code assessable and s 3.5.4 (2), which identifies the matters against which an application may ‘only’ be assessed, appears to exclude any reference to planning scheme policies. That is in contrast with s 3.5.5 (2), applying when impact assessment is to be undertaken, which specifically requires an assessment manager to have regard to ‘…any other relevant local planning instruments’ (defined, under IPA Schedule 10, to include a planning scheme policy). Other nearby provisions (s 3.5.3, and 3.5.6) re-enforce the conclusion that the absence of any reference to policies in 3.5.4 is deliberate.
That is unsurprising. Code assessable applications are the successors to what were formerly called ‘as of right’ uses, in respect of which there was no general discretion to approve, or refuse, and the clear intention under IPA now is that an application of that kind must be approved if it complies with applicable codes. In contrast, planning scheme policies generally involve the exercise of a discretion and are not intended to be decisive and binding in all cases and, hence, have a role more obviously associated with impact assessment.
This exposition indicates it is the latter form of Policy 16 which should be applied. Clause 6.1 of the February 2006 version authorises contribution credits:
6.1 Contribution Credits
Where Council approves the dedication of land by a developer pertaining to this policy and determines that an allowance will be made for the developer to offset the cost of the dedication against developer contributions, those offsets shall be defined as contribution credits and determined in accordance with this section.
Clauses 6.2 – 6.2.2 contain guidelines and criteria relating to eligibility for credits for recreational facilities. Clause 6.2.2 provides:
6.2.2 Creditable Works
To be eligible for credit on a potential recreation facilities infrastructure charge works must be established or located on land that is creditable in accordance with the requirements of s 6.2.1. Works, items, embellishments or augmentations normally associated with a dedication of a recreation facility have been factored into the contribution rates. Consequently, items listed in table 6.5 and items provided in lieu of those listed in table 6.5 and Council’s land development guidelines do not receive additional credits. Only works not normally associated with a dedication of a recreational facility, such as large jetties or boat ramps, where not provided in lieu of standard works are eligible for additional credit. (emphasis added)
Table 6.5 lists standard works associated with recreational parks, and includes boardwalks. Mr Brookfield, Council’s planner, acknowledged that the construction of a boardwalk goes well beyond that of standard parkland embellishments normally required by Council[19] and, indeed, described the proposed structure as ‘…a Rolls Royce or gold plated variation of GCC’s standard land based requirements’[20], statements which strongly reinforce the conclusion that the proposed works are outside the norm and, therefore, eligible for additional credits in the manner expressed in clause 6.2.2.
[19] Mr Brookfield’s report, Exhibit 12, page 20, para 89 (d)
[20] Exhibit 12, page 14, para 59
In oral submissions Mr Hinson SC, for the Council, contended that the policy implied the exercise of a discretion which, he said, ought to be applied in a way consistent with its objects and purposes – and they did not encompass, or envisage, an extravagant structure of the kind proposed by Australand.
Mr Brookfield took, as I understood his report and evidence, a position in which the credits allowed to Australand for a boardwalk built in compliance with condition 43 would be limited to the land component of the boardwalk and an unobstructed area of its slab which is useable for recreational purposes – i.e., considerably less than the actual cost[21]. Mr Brookfield also claimed that the condition was only inserted by Council in response to imprecations from Australand.
[21]Experts’ Joint Statement: Exhibit 5, p 188 at 189-190
Even if that is so, however, it falls to be considered in the historical context of this stage of the development. The site is located within the Hope Island Local Area Plan which does not, on its face, anticipate broad public areas running the length of the canal frontage but, rather, intermittent public access on a much smaller scale. Nevertheless, Council has required parkland across the whole frontage and, in addition, a form of access along it. At the same time, a boardwalk is entirely consistent both with condition 43, and Policy 16’s associated infrastructure maps which show the proposed waterfront recreational park along the canal, and marina basin[22].
[22] Maps IM 8-4 and 8-5
It does not, in those circumstances, lie comfortably in the mouth of the Council to seek to limit credits for what will, as Mr Brookfield conceded, be a structure providing significant public benefit[23]. That benefit is convincingly made out in Mr Priddle’s report, in the context of other approved development in surrounding stages[24].
[23] Exhibit 12, page 20, para 89 (e).
[24]Exhibit 5, p 29, para 7.2.35
That report and Mr Priddle’s oral evidence were also strongly persuasive that the structure proposed is a good, and appropriate planning resolution of the obligation placed upon Australand by condition 38[25], which makes the developer responsible for ‘… the establishment of all components of the open space/park…’.
[25] Exhibit 5, p 21, para 7.2.20
I am also satisfied this construction fairly accords with the apparent objects and intentions of the Policy. As Mr Priddle said[26], and I accept:
…the disparity between the total land value and construction cost of the pathway and the contribution credit being provided in condition 5 by Council is significant. Such disparity, in my opinion, brings into question the veracity of, particular, planning scheme Policy No. 16 (February 2006) in terms of applicable recreational contribution rates for the Hope Island northern planning zone, which policy shows the intended provision of a continuous, waterfront parkland strip adjoining the Hope Island canal and marina basin. The local component of the contribution rate contained in the policy is far below the likely actual cost of securing the land and providing the appropriate infrastructure embellishments to achieve this policy outcome.
[26]Exhibit 5, para 7.2.29
Any other outcome would not, in my view, constitute a fair balance between Australand’s obligation to design and construct a boardwalk in the manner set out in condition 43, and an appropriate exercise of the discretion arising under Policy 16 in circumstances where, for the reasons set out, the developer is entitled to a reasonable benefit for the extensive, and costly works it will undertake to achieve a significant public benefit.
In summary: MCU conditions touching setbacks are resolved in the appellant’s favour, as is ROL condition 5 (which involves the adoption of Mr Priddle’s method of calculating the contributions); I decline to impose an easement in the manner sought by the appellant in ROL condition 1; but, accept the appellant may claim the cost of the proposed boardwalk, in the manner of its proposed condition 45.
Because the applications filed in the matter do not immediately reflect the issues raised by the arguments run at the hearing, the parties are invited to make submissions about an appropriate form of order and any other remaining matters.
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