Australian Retirement Homes Ltd v Pine Rivers Shire Council
[2007] QPEC 85
•19 October 2007
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Australian Retirement Homes Ltd v Pine Rivers Shire Council & Anor [2007] QPEC 085
PARTIES:
AUSTRALIAN RETIREMENT HOMES LTD
Appellantv
PINE RIVERS SHIRE COUNCIL
Respondentand
CHIEF EXECUTIVE OF DEPARTMENT OF MAIN ROADS
Co-RespondentFILE NO/S:
No 954 of 2006
DIVISION:
Planning and Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
Brisbane
DELIVERED ON:
19 October 2007
DELIVERED AT:
Brisbane
HEARING DATE:
23, 24 and 25 May and 7 June 2007 with further references provided on 5 September 2007
JUDGE:
Rackemann DCJ
ORDER:
Adjourn further hearing of appeal to allow parties to agree on terms of an approval.
CATCHWORDS:
COUNSEL:
Mr D R Gore QC, with him Mr B Job for the Appellant
Mr A N Skoien for the Respondent
Ms P Pavey, solicitor, for the Co-Respondent
SOLICITORS:
Deacons for the Appellant
The Shire Solicitor for the Respondent
Crown Law for the Co-Respondent
Introduction
This appeal is against the respondent’s deemed refusal of a development application for a development permit for a material change of use and a preliminary approval for building work, to facilitate the development of a retirement village on a large (a little over 17 hectares) vacant site comprising eight lots, at Dohles Rocks Road, Petrie.
The proposed retirement village envisages 395 dwelling units comprising 303 individual units, 44 apartments and 48 serviced apartments, with communal facilities including a community building, swimming pool, gym, BBQ facilities and associated amenities. The primary vehicular access to the land is from Dohles Rocks Road, near School Road, with a secondary access to the west via Caine Street. The proposed buildings are to be set back from Dohles Rocks Road to accommodate the future widening of that road.
The land is irregularly shaped. It lies to the north and west of an arc of State owned land which was originally acquired for the purposes of a future rail corridor linking Petrie with Kippa-Ring. That strip of land separates the site from a larger parcel of land, generally to the south, under the control of the Amcor Paper Mill. The locality is predominantly residential in nature, with low density residential development dominating the area to the north, west and further to the south. The land forms part of a greenfield area. Community facilities located within a relatively short distance include educational establishments, parks, sporting facilities, churches, the Petrie Railway Station and healthcare facilities[1]. The site is physically suitable for the development proposed, with no significant physical or ecological constraints[2].
[1] Reynolds’ Exhibit 1, para 23
[2] See Exhibit 2A, pA34, para 13
The Council’s attitude towards the development application has fluctuated since the appeal was instituted. At first it indicated that it proposed to support approval of Stages 1 to 7 and 13 of the proposal (being those parts generally in the central and northern parts of the site) subject to conditions[3]. Its then attitude was that it was not in a position to support the other stages, given complications arising from the proposed future road project known as the East Petrie Bypass (EPBP), the planned route for which is shown in public documents as traversing the south western part of the subject site and “… impacts that may arise as a result of the project presently being carried out … regarding the Petrie-Redcliffe multi-media (sic) corridor”. The Council’s position was that it was “not stating that this balance area ought necessarily be refused at this stage” and suggested orders establishing a timetable for the resolution of the issues regarding the balance area. That position is reflected in its letter of 7 December 2006. When agreement was not reached as between the parties on conditions for an approval, the Council changed its position and, by letter dated 12 December 2006 advised that:
“Given that agreement has not been reached on conditions for the partial approval I am now instructed to advise that the Respondent contends that the application ought be refused.”
[3] Exhibit 2B, pp C8-C17, C51
The issues upon which the Council relied at trial were summarised by its counsel as follows:
(a)The proposed development is inappropriate for the subject land because of likely amenity impacts arising from the proximity of the subject land to incompatible uses (notably existing industry uses, existing roads and a proposed transport corridor);
(b)the use of the subject land for the proposed development will inappropriately preclude the use of the subject land for its planned use as service industry land; and
(c)the proposed development would inappropriately interfere with planning for major, planned road and transport improvements for the locality.
The last of these was the primary focus of the hearing.
The Issues
Amenity Impacts of Proximity to Incompatible Uses
The potential for impacts from future road and rail traffic noise (in the corridor to the east of the site) upon the amenity of residents of the proposed retirement village was assessed by Mr King. In summary, his opinion is that appropriate noise control measures could be implemented by either the transport corridor constructing authority, or by the developer of the subject site, such as to avoid unacceptable detrimental acoustic amenity impacts on future residents of the retirement village. I accept his evidence, which was not contradicted by any similarly qualified expert.
Mr King’s evidence was that, to achieve appropriate screening for road traffic noise from the future transport corridor a barrier (which can comprise a barrier fence/earth mound combination) of 2.5 to 3.0 metres would be required in proximity to the eastern boundary of the site. Further, as had been identified in the course of the application, other acoustic barriers would be required to screen noise from Dohles Rocks Road and from Anzac Avenue. Mr King acknowledged that there would be some requirement for barriers between part of the development site and the industrial uses which front Anzac Avenue and the existing residential lands to the west[4].
[4] T120.
Mr Simonic, the town planner called by the Council, raised a concern about reduced amenity by reason of the barriers themselves, especially in narrow parts of the site. As Mr King pointed out however, the use of such barriers is common and can be constructed and landscaped in such a way as to minimise the obtrusiveness of the barriers. I accept that the barriers would not have an unacceptable impact.
Ultimately, counsel for the respondent conceded, in his written outline of submissions, that the respondent was not in a position to maintain that the likely amenity impacts arising from noise (and the need for screening fences to attenuate that noise) are sufficient, in themselves, to warrant refusal of the development application[5]. It was submitted however, that there would likely be some negative impacts which would not be suffered if the proposed development was located elsewhere, leaving the subject site to be used for service industry purposes. That was said to go to the issue of whether or not there were planning grounds sufficient to justify approval of the proposed development despite alleged conflict with the relevant Planning Scheme provisions.
[5]Para 2.1 of the Respondent’s outline of submissions.
Mr King’s evidence satisfies me that the standard of acoustic amenity would be reasonable for those who may choose to reside at the proposed retirement village. I am also satisfied that the measures to achieve that amenity would not themselves have an undue amenity impact.
Conflict with the Planning Schemes – Non Service Industry Use
The application was lodged under the 1998 Transitional Planning Scheme. Accordingly, the appeal is to be decided by reference to that scheme, while giving such weight as is considered appropriate to the 2006 scheme. Whilst the application was made and processed under the IPA, the relevant matters in s 6.1.29(3) apply, and the relevant provisions of the Local Government (Planning and Environment) Act 1990 (the P&E Act), referred to in s 6.1.30, apply in deciding the application and appeal.
The application is one which, under the P&E Act, would have been in the nature of an application for rezoning. Accordingly, s 4.4(5A) of the P&E Act requires that if there is conflict with the Strategic Plan[6], the application must be refused unless there are sufficient planning grounds to justify approval of the application despite that conflict.
[6] or a Development Control Plan.
Under the Transitional Planning Scheme, the site fell within the Urban Areas designation and within the Service Industry Zone. The Urban Areas designation is described, in part, in the following terms in the Strategic Plan:
“These areas are shown coloured pink on the map and designate lands which are either used or intended to be used principally for residential purposes and which will ultimately be serviced with a reticulated water supply and sewerage service. Within the broad areas intended for residential use, other uses such as medium density residential development, local shopping and office facilities, schools, open space, and some community facilities may be permitted if appropriate. Council has zoned some areas within the land designated ‘Urban Area’ as Service Industry and is not prepared to support town planning applications for ‘Service Industry’ developments in the ‘Urban Area’ unless the land is designated appropriately on an existing or future Developmental Control Plan. Other forms of industrial and commercial development will generally not be permitted…”
The development application does not conflict with that provision. Counsel for the respondent submitted that there was a conflict in that land zoned for Service Industry would not be used for that purpose. While the passage discourages applications for Service Industry developments outside of the existing zoned areas[7], it does not expressly or impliedly provide that Service Industry Zoned land within the Urban Areas will not be permitted to be developed for non-industrial purposes. Even if that raised a conflict with the Strategic Plan however, I would be satisfied that there are sufficient planning grounds to warrant approval, for the reasons discussed later.
[7] unless the land is appropriately designated on an existing or future DCP.
The statement of aims, objectives and implementation provisions for the Urban Areas are contained in cl 3(1) of the Strategic Plan. Objective (d) is:
“To facilitate and encourage the provision of a diversity of accommodation types, residential allotment sizes and types of ownership or tenancy.”
The proposal is consistent with that objective.
The implementation provisions to that objective include the following (my underlining):
“(vi) Applications for special forms of residential development such as retirement villages, hospices, residential care units for the intellectually and physically handicapped, crisis centres and special rehabilitation units will be dealt with on their merits by Council according to the provisions of the Town Planning Scheme but it is envisaged that they may be satisfactorily located within urban areas in most situations.”
That implementation provision confirms that retirement villages may be able to be developed within the urban areas “in most situations”.
The only other alleged conflict with the 1998 scheme is with the Table of Zones in Div 3 of Pt 2 and the statement of intent for the zone. The conflict is said to arise because a retirement village is a form of prohibited use in the Service Industry Zone, the intent of which, as the name of the zone suggests, is to provide for activities of an industrial nature which directly serve a residential district.
That a use is a prohibition in the prevailing zone under a Transitional Planning Scheme is not fatal to an application. Under the superseded legislation, it had the consequence that an application for rezoning, rather than for town planning consent, was required. In the context of an application made under the IPA, the prohibition is simply taken to be an expression of policy that the use is inconsistent with the intent of that zone[8]. It does not mean that there is a conflict with the Strategic Plan, nor does it trigger s 4.4(5A) of the P&E Act.
[8] Section 6.1.2(3)
While, by reason of the provisions of the IPA, the fact of a prohibition is taken to be an expression of policy, the consideration of the weight to be attached to that, in this case, should have regard to the fact that, although retirement village development is otherwise contemplated in the Urban Area, it is a prohibited use in almost every zone under the transitional Planning Scheme. The Special Facilities Zone would have been the zone to which the land would most likely have been rezoned under the P&E Act, to accommodate such a use.
It would be erroneous to construe the transitional Planning Scheme, read as a whole, as requiring the Pine Rivers Shire to be bereft of retirement villages. The Planning Scheme contemplates their development within the urban areas, notwithstanding their status as a prohibited purpose of development in almost every zone. They are to be dealt with on their merits. The status of the proposed use as “prohibited development” in the prevailing zone under the Transitional Planning Scheme is relevant, but ought not, in the circumstances, stand in the way of the land being put to a retirement village use.
I accept the evidence of Mr Shimmin that there is a need for development of the type proposed and that demand for independent living units in the future will be particularly strong, with the result that significant development will be required to keep up with the demand[9]. Further, having regard to the fact that such development is prohibited in almost every zone of the Transitional Planning Scheme, there was a planning need, under the Transitional Planning Scheme, to grant an approval to accommodate that need[10].
[9] Ex 7 para 4.5.
[10] In the context of the repealed Act, that would have been expressed as a need to rezone additional land.
It has already been observed that the land is physically suitable for the type of development proposed. While it might not be the only potentially suitable site, I accept that the subject site has the size and locational characteristics which make it an appropriate site for such development[11]. I also accept Mr Reynolds’ view to the effect that, from a general town planning perspective, the use of the subject site for residential, rather than industrial, purposes will be appropriate, given, amongst other things, its compatibility with the existing uses to the west and segregation from the paper mill to the south[12].
[11] T174.
[12] See Ex 1 section 5.4. See also para 128.
I also accept the evidence of Mr Shimmin and Mr Reynolds to the effect that there is no planning need for the subject site to be preserved for service industry purposes, given the availability of industrial land otherwise. It might be noted that the land has not, to date, been used for industrial purposes notwithstanding its zoning. While it was suggested, on behalf of the Council, that the site may be important as a future Service Industry site, given its proximity to residential areas and General Industry zoned land, other industrially zoned land in the vicinity is also reasonably close to residential development and could be developed for both general and service industry purposes[13].
[13] Service industry uses could be developed within both a Service Industry (Column 3A) and General Industry (Column 3A or 3B) zones under the Transitional Planning Scheme and under the current scheme (self assessable or code assessable in each zone – see p4-76 and 4-84).
The application is for a form of development for which there is a need, but which is not specifically or adequately provided for in the zoning provisions. It proposes to realise that development on a site, within the urban areas, which is physically and locationally suitable to address the need, without undue amenity impacts. The application ought, in my view, be approved notwithstanding the zoning under the Transitional Planning Scheme or the alleged conflict with the Strategic Plan.
The current Planning Scheme is a matter of weight only. Conflict with it would not trigger any of the statutory provisions which require refusal in the absence of sufficient grounds for approval. Consideration of that Planning Scheme does not lead me to a different conclusion.
Under the IPA scheme, which commenced on 15 December 2006, the site is located within the Urban Locality and the Service Industry Zone and more particularly the SI-5 and SI-6 sub-precincts. The proposed use is impact assessable in the current zone, as it is in all other zones save for the Urban Village Zone[14]. Generally speaking, the current Planning Scheme carries forward much of what was contained in the Transitional Planning Scheme. Indeed, in his submissions, counsel for the respondent relied upon it as simply “reinforcing” the intention for the subject land to be used for service industry purposes, with land to the south-east being used for general industry and land to the north, west and north-west for residential purposes.
[14] See p4-59.
A number of the provisions of the 2006 Planning Scheme were identified by the Council in its further and better particulars. In that regard:
•DEO 2.2 seeks to maintain a network of multipurpose activity centres. In division 2 of Pt 1 of ch 1 the ‘important aspects of interpretation and broad strategies’ to achieve that outcome include that compatible business and industry activities are co-located and that business and industry land uses maximise the use of available infrastructure and land and are not encroached upon by incompatible land use and development. It should be noted, as Mr Reynolds’ report points out, that clause 2.1 (2) of division 2 of Part 1 of chapter 1 states that “This division does not have a role in development assessment under the Planning Scheme”.
•The overall outcomes for the Urban Locality, insofar as they relate to the business and industry areas[15], include that development maximises the use of available infrastructure and land, consolidates the existing business and industry areas located at, amongst other places, Dohles Rocks Road, supports the role and function of the business and industry areas and that those areas are not encroached upon by incompatible development.
•The overall outcomes sought for the Service Industry Zone[16] include that service trade activities that serve the surrounding residential districts are developed, that development does not significantly detract from the character and amenity of nearby residential areas and that non-residential uses are accommodated in appropriate locations, generally at the periphery of areas zoned Service Industry.
•SO10 and SO11 of the Specific Outcomes for the business and industry areas within the Urban Locality[17] seek the co-location of compatible businesses and industry within the business and industry areas and the development of service trades and industries within the business and industry areas that serve the local area without compromising surrounding residential amenity.
•The specific outcomes for assessable development in the Service Industry Zone provide, in SO2[18], that a retirement village is a form of inconsistent use which is not to be located in the Service Industry Zone, while SO15 and SO16[19] describe the characteristics of consistent development for sub-precincts SI5 and SI6. SO15 contemplates development incorporating industries compatible with the operation of the paper mill and with no direct frontage access to Dohles Rocks Road, while SO16 refers to development which has the character of a small integrated local employment area which provides for the needs of the paper mill or the surrounding local communities, comprises uses/activities such as neighbourhood facilities (other than offices), hardware suppliers, showrooms and home-based businesses and consolidates the service trades area.
[15] See p3-3.
[16] See p3-7.
[17] See p3-10.
[18] See p3-99.
[19] See p3-103.
As was pointed out on behalf of the appellant, there are some other provisions of the current Planning Scheme with which the proposal sits a little more comfortably.
•DEO2.4 promotes residential development and land use which provides housing choices that match the housing needs of the community and maintains high quality living environments.
•The provisions of division 2 of ch 1 Pt 1 referable to that DEO[20] encourage a range of housing options, in appropriate locations, to cater for the accommodation needs of residents through each stage of their lives. While the subject proposal might not be “adjacent” to a centre or railway station (places where retirement villages are encouraged), the proposal would seem to support the overall objective.
•The objective of achieving a diversity of housing options, in appropriate locations, to cater for the accommodation needs of residents throughout each stage of their lives is also reflected in the residential objective (6) of the overall outcomes sought for the Urban Locality[21].
•Clause 2.14(5) of the overall outcomes sought for the Service Industry Zone[22] contemplate non-industrial uses being accommodated, in appropriate locations within, but at the periphery of, that zone. Although the proposal would give the whole of the land over to residential uses, the subject site does fall at the interface of industrial and residential zoned lands.
•Specific Outcome 4 for the Urban Locality contemplates medium density residential uses (which is defined to include retirement villages) being developed in areas zoned Residential B and “other appropriate locations”, including sites in close proximity to centres and community facilities and those within easy walking distance of existing and committed future railway stations or bus facilities, provided the character and amenity of the predominantly detached housing areas and environmental values of the surrounding area are not prejudiced. The subject proposal is in reasonable proximity of facilities (although perhaps not within an easily walkable distance) and would not prejudice the character and amenity of the detached housing area or the environmental values of the surrounding area.
•Specific Outcome 8 contemplates special forms of residential development, including retirement villages, being developed within the Urban Locality.
[20] Page 1-5, but note the earlier qualification about the division not having a role to play in development assessment.
[21] Page 3-3.
[22] Page 3-7.
Mr Simonic saw the use of industrial land for a residential development, to be situated between the lower density residential uses to the west and the General Industry zoned land to the east, as undesirable. I accept however, that the development can proceed in a way which ameliorates incompatibility from an amenity perspective. While the proposal would lead to a loss of some land otherwise available for industrial use, that is not unacceptable, for the reasons already discussed.
In addressing the DEOs, Mr Simonic tended to focus more on what he saw as conflict than on whether the proposal would truly compromise the achievement of relevant DEOs[23]. I am satisfied the proposal would not compromise the maintenance or creation of a network of multipurpose activity centres.
[23] The distinction between conflict and compromise has been discussed in other cases, see e.g. Brown v BCC [2005] QPELR 628 at paras 7-9.
I accept that, under the current Planning Scheme, the subject site is intended to be developed for service industry, rather than retirement village, purposes. I am satisfied however that, in the circumstances, that should not be given decisive weight. The proposal would help to address a need for retirement village development and would do so on a site within the urban locality which, while not planned for that purpose, would otherwise be appropriate. The development would provide a reasonable standard of amenity for its occupants and would be a good neighbour to adjoining development. It would not lead to any significant shortfall of land available for industrial use.
In considering the Planning Scheme provisions I have, to this point, left to one side the provisions relating to transport corridors. That issue is considered below. A consideration of the provisions of the Transitional Planning Scheme and the current Planning Scheme otherwise do not lead me to conclude that the application ought be refused.
Transport Planning
There are prospective transport infrastructure schemes which affect the locality of the site. The Petrie to Kippa-Ring transport corridor occupies the State owned strip of land to the south of the site. It is well established, having been resumed by the Crown some time ago, and is identified in both the 1998 and 2006 Planning Schemes. It was originally intended to be a railway corridor but is now considered in conjunction with a prospective road project known as the Kallangur Bypass. The Kallangur Bypass was itself recognised in the transitional planning scheme. In more recent times the SEQ Regional Plan depicted a “quality public transport route” from Petrie to Redcliffe and the 2006 revision of the SEQ Infrastructure Plan and Program referred to the proposed “Petrie to Redcliffe Multi-Modal Corridor” (PRMMC) as being undertaken in the period to 2026 at an estimated cost of $230 million. There is a current, but incomplete, study in relation to the corridor. It is the responsibility of the State through its agencies, the DMR and Translink. It is not presently contemplated that the corridor as such will directly affect the site. The joint report of the traffic engineers records their agreement that any change of alignment of the corridor is more likely to result in it shifting further south (away from the subject site)[24].
[24]Para 3 Joint Report.
The East Petrie bypass (EPBP) has the potential to impact directly upon the site. Although originally a Council project, it now seems to be the subject of consideration by the State[25] in conjunction with the PRMMC. The EPBP has, for some time, been indicated as being likely to connect to Anzac Avenue (proximate to its intersection with Yebri Street) and thereby affect the southern extremity of the site. That would not be an obstacle to approval of a retirement village for at least that part of the site. Subsequent to the commencement of this appeal, a concept has arisen whereby the EPBP might instead effectively bisect the site so as to connect to Dohles Rocks Road to the north. That concept is inconsistent with the appellant’s plans for the site. It is this proposal which is particularly relied upon by the Council in opposing the retirement village.
[25] T80-81
There is also a proposal to upgrade Dohles Rocks Road, but that was not relied upon as calling for a refusal of the subject application. Mr Beard also acknowledged that some further work is required before conditions of approval could be finalised.
The DMR was a concurrence agency in the application. Its response confirmed that it had assessed the impact of the proposal on the State controlled road network and required conditions of approval to be imposed regarding noise attenuation relating to Anzac Avenue, but nothing more[26]. The DMR subsequently lodged a submission[27] which recommended further conditions, including that the applicant not compromise the land requirement for the EPBP and, to that end, should submit a plan showing a corridor for the by-pass in the south western portion of the site[28]. The Council also sought third party comment from Queensland Transport, but received no response to that request.
[26] Ex 2B pp B201-204.
[27] Ex 2B ppB331-334.
[28] A map was attached to that submission showing the route of the proposed bypass which would have only minor impact on the south-western corner of the site.
After the Council decided to contend that the application should be refused (on grounds including alleged prematurity, given road planning by DMR and Translink for “transport corridors”) it sought to have both the DMR and Translink assist by joining in the appeal. DMR became a party to the appeal, but only on the basis that it did not wish to participate in the appeal other than to maintain the acoustic conditions set out in its concurrence agency response. It took little active role in the hearing of the appeal.
This is not the first time the court has been asked to consider whether to grant approval to a proposal which might be inconsistent with a possible future road. It is not for this court to decide, in the context of an appeal such as this, whether a prospective road proposal should proceed or what form it should take. Those are decisions for the relevant road authorities. The power of the appropriate authority to decide such matters, acquire land as necessary and construct a future road would not be taken away by any development approval granted to the appellant by this court. A development approval for a proposal which conflicts with a future road proposal might however, complicate the decision of the relevant authority and increase the impacts of a road project, particularly if the approval is acted upon prior to any resumption. The likely implementation of an infrastructure project may also reflect adversely on the suitability of a site for a form of development which is inconsistent with that project. The weight to be attributed to a particular future road proposal will vary according to the circumstances. I will briefly traverse some of the cases to which I was referred.
In J R Constructions Pty Ltd v Brisbane City Council (1975) 31 LGRA 261, Byth DCJ said at 263-264:-
“… It is not this Court’s function on this appeal to say where the Council must locate any such new roadway, nor has this Court power to order the Council to resume or acquire land for any such route. On the other hand, the Council ought not delay indefinitely this appellant’s application for subdivision approval until such time as the Council decides whether the north south road link should be through the appeal site or not, or until the Council is ready to allocate funds for such purposes.”
In Kabale Holdings Pty Ltd v Council of the Shire of Albert [1993] QPLR 252, this Court was concerned with the refusal of a subdivision on the grounds that the subject land formed part of a future “Eastern Corridor Transport Route”. The Department of Transport had not yet issued a Notice of Intention to Resume, although negotiations were taking place between the Department and the Appellant for acquisition of the land. In approving the subdivision, the Court found that the route for the corridor had not been decided, there was no evidence that the road would be built, that future resumption was only a possibility, that evidence of resumption was not sufficient for it to become relevant and that it would be impractical to suspend the operation of the approval to permit time for resumption to occur before the approval was acted upon.
In Silverston Pty Ltd v Council of the Shire of Mulgrave & Anor [1993] QPLR 268, the Court was concerned with an application for rezoning and subdivision of land said to be affected by a future realignment of Hardy Road. At page 273 it was said:-
“On all the evidence I am satisfied that the proposal in relation to the realignment of Hardy Road is of not such significance as would warrant a refusal of the proposed subdivision based on the existing alignment of Hardy Road. There is no certainty that part of the eastern section will be required if and when some realignment of Hardy Road is determined by the Respondent. No positive action has been taken by the Respondent to implement any decision to acquire part of the eastern section. Having regard to the circumstances herein, I do not consider that it is practical to suspend an approval for a period. No evidence has been adduced as to when any decision by the Respondent relative to the realignment of Hardy Road may be made or as to when action, if any, may be taken to resume the land for that purpose…”
In Transtate Developments Pty Ltd v Brisbane City Council [1994] QPLR 258 the Court was concerned with an application to rezone land which was opposed on bases which included that it was premature to commit the land to urban development in view of the prospect that it would be required for the southern Brisbane by-pass road. In finding that the application was not premature, the Court observed, at 260:-
“…In relation to the proposed road it is clear… that the Government has not yet made a decision whether or not to proceed with the proposed road or a decision about the route of the road if it does proceed.”
In Summerland Plantations Pty Ltd v Brisbane City Council [1994] QPLR 352 the Court was concerned with an application to subdivide land in a way which took no account of the possible future Moggill pocket arterial road. That project was shown, in the conceptual way, on the Council’s Structure Plan and the Department of Transport had undertaken a deal of planning with respect to it. The department had acquired some land for road purposes in the locality but had yet to take steps to acquire the subject land. Part of the road project was due for completion within the next five years, but it could not be said, with confidence, as to when the project would be taken to the point of the subject site. The Court approved the subject application and a subsequent appeal to the Court of Appeal was unsuccessful.[29]
[29]Summerland Plantations Pty Ltd v Brisbane City Council (1995) 88 LGERA 315
In Stanfield v Gold Coast City Council [1996] QPELR 136 the Court was concerned with a proposed rezoning which was found to be inappropriate having regard to planning for the Nerang Railway Station precinct and a proposed arterial road corridor. The Department of Transport had formally notified the council of a future state controlled road known as the “South East Connector”. While it was not possible to specify the meets and bounds of the land which would be required, pending a study, the drawing showed the South East Connector as crossing the subject land. In relation to the Nerang Railway Station precinct, the station and the railway line were planned to be located on land which had already been acquired, but the evidence was that a bus interchange was certain to go ahead and part of the subject land may well be needed for that interchange. The Court said, at page 137:-
“… I am satisfied that the matters of the South East Connector and the bus interchange are more than mere possibilities and are matters of some importance in the context of future development of the area of which the subject land is a part. It is also clear that the proposed rezoning of the subject land and that the Appellant’s intentions for its development as reflected in the concept plan have not really had any regard to these matters”.
In distinguishing earlier cases, Quirk DCJ drew attention to the distinction between a subdivision application and an application for rezoning. The importance of that distinction was later qualified in Hammercall Pty Ltd v Gold Coast City Council & Ors [2002] QPELR 397.
Hammercall concerned a subdivision application for land, a substantial part of which was affected by government plans to extend the Brisbane to Robina Railway further to the south. The 1995 Strategic Plan for Albert Shire recognised and supported the provision of the rail link. In August 1998 the respondent adopted a draft City Transport Plan which showed the extension in indicative form on relevant maps. Studies and community consultation had been undertaken with respect to the extension. A Draft Impact Assessment Study confirmed that the likely route affected the subject land. The most recent EIS envisaged the extension commencing in 2007 being completed by 2011, subject to decision by Cabinet. The appellant suggested that the application be approved but the operation of the approval be suspended for a period of three years to provide ample time for the rail project to proceed to a point where the subject land was acquired. The Court rejected that submission. At page 400 Quirk DCJ, having observed that such a condition would, in effect, be telling the resuming authority that it would be visited with the practical difficulties arising from development unless it acquired the land within 3 years, said:-
“In my view what the Court should do in a case of this kind is to assess, on the evidence given, the probabilities of what will occur in respect of the subject land and decide how that should be taken into account in dealing with the application before it. On the evidence given in this appeal, and particularly having regard to the volume of work that has been done and its planning (and public money expended in that respect) it would, in my opinion, be irresponsible to find that the rail extension is anything other than a probability”.
…
“I was referred to a number of decided cases where this Court has had to deal with a situation of this kind in the past where there has been a prospect of a requirement of at least part of the subject land for public purposes. It is noted that, in these cases, the applicant was generally found to be in a stronger position where the zoning is in favour of the application rather than a rezoning was required. However I do not believe that these decisions establish any principle that where the land zoning favours an application to subdivide, the prospect of its being used for public purposes must be discounted. Every case depends on its own facts and a more important consideration is the weight of the evidence indicating that a public project is likely to proceed and the extent to which it will affect the subject land”.
In Ridgehaven Retirement Village Pty Ltd v Caloundra City Council & Ors [2004] QPELR 439 the Court was concerned with an appeal against a condition of an approval for a material change of use for a retirement village. The primary dispute related to a condition requiring the submission of an amended Plan of Development depicting a redesign of the development to incorporate the future CAMCOS Rail Link between the north coast rail line and Maroochydore. The appellant argued that the condition was unfair because it would effectively sterilise land until such time as the corridor was resumed which, on the evidence, would be in the period from 2015 to 2020. The appellant proposed a condition which would permit it to proceed with its proposed plan unless resumption occurred within 12 months. Under the appellant’s plan, the site would be fully developed with 250 units many of which would be in the path of the CAMCOS corridor. The consequences for retired residents would be serious in the event of future acquisition after development.
In refusing to adopt the appellant’s proposed condition, Robertson DCJ said at page 449:-
“This Court has no power to oblige the Minister or indeed Council to designate the land. It has no power to compel the State Government to acquire the land. By imposing the proposed condition 2(a), the Court would be ‘attempting to do, indirectly’ that which it has no jurisdiction to do directly; and on this basis as well the Appellant’s argument in relation to the proposed condition 2(a) must fail.
Robertson DCJ had earlier distinguished other cases in the following way:-
“A number of these cases were decided on the basis of a lack of evidence that the relevant community infrastructure would be constructed. This is the case in the decision of Her Honour, Judge O’Sullivan in Kabale. As I have noted, even the Appellant accepts as a fact that the CAMCOS rail corridor will likely be constructed and it will affect its land..”
In Laver v Albert Shire Council [1997] QPELR 94 the Court was concerned with an appeal against two conditions of a rezoning. The conditions related to future road and rail requirements. The proposed railway line was referred to in the 1995 Strategic Plan, the South East Queensland Regional Framework for Growth Management and the Better Cities Program. The then recently passed Local Government (Robina Town Centre Planning Agreement) Amendment Act (1996) also contained provisions for a rail corridor from Robina to Coolangatta. The working paper had shown that the alignment from the town centre to the southern extension of the Robina Town Centre had been finalised as to route. In relation to the subject land, there was no where else for the railway to go in proximity to the railway station because of the constraints of the station, highway and retention basin. The location of the corridor south of the Robina station had been virtually identical in draft plans produced over the previous four years. The court concluded that it “should give considerable weight to the preservation of the likely corridor south from Robina, particularly where its alignment in relation to the subject land has been largely determined”[30].
[30] At p98.
Counsel for the respondent invited the court to accept, that while the timing and funding of the EPBP are somewhat uncertain at this point, there is sufficient certainty about the EPBP and, in particular, that its likely route will bisect the subject site (to connect to Dohles Rocks road), such that the development application ought be refused. Senior counsel for the appellant, on the other hand, submitted that the possible connection relied upon by the Council is too uncertain to warrant refusal of an otherwise meritorious application at this time.
The EPBP was referred to in the Petrie Town Centre DCP 11 under the transitional planning scheme[31]. Section 2.1 of that DCP stated, in part[32]:
[31] Ex 9 Appendix F.
[32] 2.1 (2) (a) see also 2.1 (2) (d), (e).
“The Charrette established that too much traffic has caused Petrie Township to decline as a healthy business centre. Much of the traffic in the town centre is passing through – coming from and going to other places – not intending to stop in Petrie. this is the primary cause for the strangling of the town’s potential… Building a by-pass is a key action in revitalising Petrie Town Centre. The Petrie by-pass is shown on Plan 2.
…..”
Plan 2 depicts the by-pass connecting to Anzac Avenue in the vicinity of Yebri Street. The EPBP is also referred to in other parts of the DCP.
The Council’s Integrated Road Transport Plan was adopted in late 2001. The EPBP was one of the proposed link improvements referred to in that plan. It was again shown as connecting to Anzac Avenue in the vicinity of Yebri Street,[33] apparently reflecting the alignment in DCP11.
[33] Ex 9 para 36.
The Council’s Transport Priority Infrastructure Plan was adopted in late 2005. In that plan the project was assumed to be DMR responsibility and was not included as trunk infrastructure. The EPBP was described as connecting with Narangba Rd, Gympie Rd and Anzac Avenue[34].
[34]Ex 9 paras 38-40.
The EPBP is identified as a future project in Council’s planning scheme policy 25. Again, it is shown in a location which would traverse only a relatively small part of the subject site at the southwest[35].
[35]Ex 1 p51 figure 10.
There is no formal (or even informal) planning document adopted by the Council or any State department or agency which shows the EPBP bisecting the subject site and connecting to Dohles Rocks Road. The Council’s case that this is the likely route, and that there is sufficient certainty about that to make approval of this application premature, relies upon the evidence of Mr Derbyshire.
Mr Derbyshire is a senior engineer in with the Harrison Group which is a consultant to Translink (an agency of Queensland Transport) and the Department of Main Roads (DMR). Last year the State commenced a study to investigate the opportunities for a multi-modal corridor using the preserved rail corridor between Petrie and Redcliffe. Translink is the lead agency for the project, which is considering potential rail options and timing. The DMR is also a partner in the study, which will also review road needs. The “first phase” of the study will involve the preparation of a concept design and Impact Management Plan[36]. That “first phase” is not yet completed. Mr Derbyshire is undertaking the overall project management. His evidence is that the project now also includes “resolving the alignment and land requirements for the EPBP”, given the links between the EPBP and the other elements of infrastructure.
[36]See Ex 24.
Mr Derbyshire’s evidence is that, while a number of options have been considered, preliminary concept plans were developed for options connecting to Anzac Avenue (generally as shown in previous planning) and to Dohles Rocks Road. The Dohles Rocks Road option, with the connection bisecting the subject site is, in his view, the preferable route from a geometric and traffic operational perspective and is the one which the study team is currently pursuing.
The Dohles Rocks Road option, with the connection bisecting the subject site, is a relatively recent concept which is far from a formal recommendation or an adopted proposal. The subject development application was made in June 2005, a year prior to the commencement of the PRMMC study. This appeal commenced in April 2006. On 12 December 2006 the Council offered its reasons for contending that the application ought be refused. Those grounds included that road planning for “major transport corridors through the site” is incomplete. In response to a request for particulars, dated 22 December 2006, the Council notified the appellant’s solicitor, on 1 February this year, that:
“The Council is not certain of the exact location of the major transport corridor however, it is Council’s understanding that the future transport corridor will generally be located to the south and to the east of the subject land without necessarily touching the subject land. There is to be a road connection to Dohles Rocks Road which will be possibly in the centre of stage 1 of the proposed development. With respect to the proposed East Petrie Bypass, Council does not know the final exact location of the proposed bypass.”
On 20 February 2007, the Council nominated Mr Simonic as its sole expert witness and provided further particulars in which it stated that it was unable to name the transport corridor in question, but relied upon discussions with representatives of DMR in January/February 2007 in giving its particulars and held no relevant documentation[37]. It was not until 13 March 2007 that Mr Derbyshire provided the Council with a copy of a drawing showing the Dohles Rocks Road connection. The drawing itself was dated 19 February 2007[38]. It was expressly provided to Council “for the purposes of the Australian Retirement Homes Limited v Pine Rivers Shire Council P&E Appeal No BD 954 of 2006 only” and it was further stated that (emphasis added):
“Because of the status of the Petrie to Redcliffe multimodal corridor joint Translink/DMR project and the preliminary status of the detail on this drawing, the drawing must not be used for any other purpose”[39]
[37] Ex 2A page A27.
[38] Ex 2B page C52.
[39] Ex 2B page C53.
The concept Design and Impact Management Plan, being the ‘first phase’ of the study, is not complete and is not expected to be completed until next year. Mr Derbyshire’s preferred location for the connection of the EPBP has not matured into a published recommendation to the appropriate authorities, far less an adopted proposal and no steps have been taken towards resumption of the subject land. His preference has not yet been subject to a public consultation process, and has not been peer reviewed, beyond the members of the study team. It has not yet been subject to economic and financial assessments to support a business case. It is the current view of a consultant[40] held in the course of preparation of an incomplete plan as a first step towards an ultimate decision by the responsible authorities. While I accept Mr Derbyshire’s genuineness, it is difficult to conclude that the Dohles Rocks Road connection, through the middle of the subject site, has been ‘largely determined’ (to adopt the words used in Laver’s case) or has progressed to the point where it should be given decisive weight in this appeal.
[40] (and/or members of the consultant team).
Mr Derbyshire’s preferred route is not reflected in any published document and is at odds with the Anzac Avenue connection shown conceptually in the previous and existing planning documents. There is no current proposal to create or amend any planning document to reflect it. It has not yet matured into a formal recommendation or an adopted proposal. It does not have the benefit of anything akin to the formal notification which had been given in Stanfield’s case in relation to the South East Connector[41]. Unlike in Hammercall, it is not even the subject of published draft documents (beyond Mr Derbyshire’s release of a drawing for the limited purposes of this case). While Mr Derbyshire presently rejects other options, I am not persuaded that the constraints dictate that the infrastructure must go where Mr Derbyshire currently prefers in any event[42]. As Mr Beard pointed out, there are other options including, but not limited to, the Anzac Avenue connection[43]. I do not consider that the realisation of Mr Derbyshire’s preferred route is, or is yet approaching, a foregone conclusion.
[41] Although, in relation to the bus interchange, it was only stated that part of the land may well be needed.
[42] Cf. Laver’s case.
[43] As Mr Beard pointed out, Mr Derbyshire’s preference has its own issues, in particular in relation to a prospective increased use of School Road – T77.
It was pointed out that the prospective road projects have previously only been shown conceptually and it was said that, in the case of the Kallangur Bypass, local road connections (including possibly at Dohles Rocks Road) ought have been within contemplation. While the road proposals were shown conceptually and are obviously subject to detail design, there is nothing which would have alerted a reader to any proposal for a connection through the middle of the subject site at Dohles Rocks Road.
Mr Beard raised concerns about the reliability of the traffic flow forecasts and the analyses which underpin the work done on the study to date. Mr Derbyshire was questioned about the options considered and was challenged on his bases for preferring the Dohles Rocks Road option. It is not for this court to determine what should be the content of the plan which will ultimately be produced as a result of the project which Mr Derbyshire is project managing. It is also not for this court to usurp the ultimate decision of the road authorities. The evidence of Mr Beard does illustrate however, that Mr Derbyshire’s preference might well be the subject of informed criticism and debate if and when it matures into a published proposal and becomes exposed to the consultation process. I would not presume to speculate, at this time, upon the outcome of such a process.
As Mr Beard said in his report[44]:
“Quite simply, the study has not been completed, it has not been subject to rigorous peer review, it has undergone no public consultation, and it has not been checked and approved by either the State Government or Council, technically or politically. While it is obviously hoped that the study will turn out to be a reliable and comprehensive basis for future road network planning, it has not yet reached that stage of completeness or acceptance.”
[44] Ex 5 p7.
While I appreciate the concern of Mr Derbyshire and the Council to resist a development approval for a retirement village on land the subject of Mr Derbyshire’s preferred route, I am not persuaded that there is sufficient certainty about that preference coming to fruition and I am not prepared to attach decisive weight to it, particularly in light of the stage that it is at and its lack of status at this time. Subject to one qualification, I am satisfied that the appellant has discharged its onus, the appeal should be allowed and the application approved subject to conditions.
It has already been noted that the published documents show the EPBP as traversing part of the southern portion of the subject site. The proposal does not make provision for that. It was submitted, on behalf of the appellant, that while weight should not be placed on Mr Derbyshire’s preferred Dohles Rocks Road connection for the purposes of refusing the development application, the Court could nevertheless have regard to that evidence and the Council’s attitude in the appeal, to conclude that there is now also uncertainty about the prospective Anzac Avenue connection, so that an approval ought be granted for the whole of the proposal, including that which might be affected by the published prospective route.
While there might be scope for such an argument, I am not, at this point, persuaded by it. The EPBP is a relatively long standing prospective project reflected, albeit conceptually, in successive documents. While Mr Beard thought its necessity could be reviewed if the Kallangur Bypass is constructed first, it is a prospective project which remains of relevance. The joint report of Mr Beard and Mr Derbyshire records, as the first point of agreement, that development on the subject site should not compromise the future development of the EPBP. The only published planning for the EPBP assumes a connection at Anzac Avenue in the vicinity of Yebri Street. That is the connection Mr Beard had in mind when joining in that point of agreement. There has, as yet, been no decision taken by the road or planning authorities to abandon that in favour of Mr Derbyshire’s preference for a Dohles Rocks Road connection or indeed any other connection and there is presently no recommendation before the authorities that they do so.
This was not however, the primary focus of the hearing and I am prepared to accede to the appellant’s alternative request that, at this stage, I simply adjourn the further hearing of the appeal to permit the parties to seek to agree on the terms of an approval. This effectively returns the parties to a position akin to that which applied prior to the Council’s change of attitude last December.
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