D G Robertson Holdings Pty Ltd v Douglas Shire Council

[2000] QPEC 41

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:	D G Robertson Holdings Pty Ltd v Douglas Shire Council [2000] QPE 041
PARTIES:	D G ROBERTSON HOLDINGS PTY LTD ACN 010 515 769    Appellant And DOUGLAS SHIRE COUNCIL   Respondent
FILE NO/S:	5113 of 1999
DIVISION:	Planning and Environment Court
PROCEEDING:
ORIGINATING COURT:
DELIVERED ON:	28th June 2000
DELIVERED AT:	Brisbane
HEARING DATE:
JUDGE:	Quirk
ORDER:
CATCHWORDS:
COUNSEL:
SOLICITORS:

1. This Appeal relates to certain conditions imposed upon a development approval for land at the corner of Port Douglas Road and the Captain Cook Highway.  The land occupies an area of 1.49 hectares and is part of a larger parcel which was, in 1986, included in “Special Facilities” zoning.  The plan of development which was part of that zoning approval was before the court.  

1. In the current town planning scheme which was gazetted in 1996, the subject land was included in an “Special Facilities (Information Centre, tea rooms, shopping centre and speciality shops with a gross floor area of 2,000 square metres) zone.

1. The approved development is consistent with that zoning being for a supermarket and one speciality shop.  The layout can be seen from material placed before the court and, for the purposes of deciding the appeal, it is not necessary to go into any detail about it.

1. It is accepted that the application made for approval of this development required for a “Code Assessment” which was done. A number of conditions of approval were imposed. Although no appeal was lodged initially against the imposition of these conditions, the applicant made a subsequent application to change and/or cancel certain of those conditions under section 3.5.33 of the Integrated Planning Act. 

1. This appeal is against part of the Council’s response to that application and is in respect of only some of the conditions of approval.  I will deal with each of these in turn.

Landscaping

1. The first of the disputed conditions relates to landscaping.  The condition, which the Council declined to modify is as follows:

“5. The landscaping layout indicated in the drawings titled Landscape Plan-Planting dated 6 December 1999 and titled Landscape Plan – Irrigation dated 24 August 1999 and prepared by Hortulus Landscape Design, are approved by Council, except for the following amendments to be made prior to building approval:-

(a)        the plant schedule needs to be expended to provide trees planted on      the basis of one tree per 1.5m² of area to be subject to screen planting, and the screen planting areas along the Captain Cook Highway and Port Douglas Road frontages of the land be an average of 4m wide, and a minimum width of 3m;

(b)        the trees to be included in the expanded plant schedule are not to be ground cover, but are to be species that grow from low to medium height;

(c)        the “viewing window” located at the truncation in the south western corner of the side is to be closed up with plantings in line with (a) and (b) above; and

(d)          no screen plantings are to be ground pruned.”

1. The importance of proper landscaping of development at this corner (a significant entry point to the town) is not in question.  The need to provide such landscaping is identified in the original plan of development.  Revised landscaping plans have been prepared on the appellant’s behalf and have been accepted by the council.  An elaborate irrigation system has been designed and, as the project is nearing completion, is (as I understand the evidence) in place.  Mr Pike, the council officer responsible for these matters gave evidence of his satisfaction with the approved landscaping plan prepared by Lenny’s Landscaping which was before the court as Exhibit 5.

1. The controversy in respect of this condition appeared to diminish as the evidence unfolded.  The appellant’s town planning consultant, Mr McInnes, was concerned at information he had of council’s possible intention to extensively landscape within the road reserve at the intersection.  This, he feared, could lead to an unnecessary and unprofitable “doubling up” of landscaping effort.  Although such an idea appears to have been floated at one point, the evidence does not show that it went any further than that.  The reality appears to be that, with the results of the landscaping contemplated by this condition, additional work by the council would not be called for.

1. There was concern about sub-paragraph (a) of the condition.  The accepted plan does not appear to indicate a result which would achieve an average landscaping depth of 4m.  An average of 3m would be more in keeping with what is shown.  The appellant accepts this.  The accepted plan also deals with the matters raised in sub-paragraphs (b) and (c).  I see no reason to depart from it.

1. A final matter arose in respect of sub-paragraph (d).  The rather absolute wording of which seemed to stand in the way of routine pruning which the vegetation’s well-being might call for.  I understand concerns that the intended screening effect of the planned landscaping should not be reduced by indiscriminate pruning, but the condition might be worded better. 

1. I find that condition 5 should be amended to read:

“5.        The landscaping layout indicated in the drawings and before the court as Exhibit 5.  The landscaping is to be maintained in accordance with that shown in the plan.  Although such pruning as is required to properly maintain the landscaping may be carried out, its screening effect shall not be thereby diminished particularly in respect of foliage capable of being ground pruned.”      

Underground electricity lines.

1. The second of the disputed conditions related to the location underground of electricity supply.  The condition imposed was in these terms:

“10(a)    The supply of electricity for the proposed development is required by Council to be underground in order to preserve the amenity of the locality, with all road frontage and on-site electricity supplies to be underground

10(b)     The electricity transmission line that abuts the subject land along the Captain Cook Highway and the intersection truncation frontages, is to be located underground.”

1. Sub-paragraph (a) is not contentious and indeed the work has been done.  All electricity lines within the site are underground.  The dispute is in respect of sub-paragraph (b) which calls for the location underground of a section of high voltage line external to the site and across its frontage.  Its location is shown in a plan amended to the statement of Mr Bowes (Exhibit 6).  It is that section of the line which runs between pole R8 and pole R10. 

1. With modern development standards underground location of electricity lines is the norm rather than the exception.  The reasons for this are both aesthetic and functional and were explained in evidence in the appeal without any real disagreement about the matter.  Evidence was given that the council has consistently sought this with a new development and there is reference to such a requirement in the town planning scheme.

1. In dealing with matters of this kind conditions imposed must be consistent with the provisions of section 3.5.30 of the Integrated Planning Act which require that:

“(1)       a condition must -   

(a)be relevant to, but not an unreasonable imposition on, the development; or

(b)       be reasonably required in respect of the development.         

(2)Sub-section (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.”

1. Essentially the appellant’s case is that, however worthy might be the objective of locating underground electricity lines in the Port Douglas area, it is not a reasonable imposition upon the approval of this development to require the underground location of lines external to the site.  These are more part of the general electricity reticulation system than being specific to the use of this site.

1. On the other hand, it cannot be disputed that the supply of electricity to the site necessarily involves a reticulation system external to the site.  The fact that the section of line with which we are concerned may also carry electricity to other sites does not alter this.  It cannot therefore be said that the presence of the reticulated system along the site’s frontage is irrelevant to the proposed use. 

1. The importance of the visual appearance of this site in a developed state had already been emphasised.   If overhead lines are to remain in place in this position the benefits of underground location within the site and the considerable landscaping effort that is intended would, in my view of the evidence, be substantially eroded.  I am satisfied that the location underground of this section of the overhead line is relevant to and not an unreasonable imposition upon the development of the subject land which will settle, to a large extent, the future appearance of this important corner.

1. I would not rule out this condition.

Footpath/bikeway

1. The third condition in dispute related to the provision along the frontage of the land of a combined footpath and bikeway.  The terms of the condition are:

“12.      The applicant shall construct a two (2) metre wide footpath/bikeway within the Captain Cook Highway and Port Douglas Road reserves along the frontage of the land, designed and aligned to link to the existing footpath to the satisfaction of the Director Engineering Services.”

1. Mr McInnes was concerned that such a footpath/bikeway would be “going nowhere” as it would be unlikely that cyclists would wish to move beyond Port Douglas Road into the Captain Cook Highway which he saw as a relatively hostile environment for bicycle riders.  He pointed out that the main hirer of cycles in the town required, as a term of any agreement with its customers, that cycles not be taken onto the highway. 

1. Mr Hardy, the council’s town planner, painted a somewhat different picture.  His evidence was that bicycles are widely used in Port Douglas and nearby centres which included the town of Mossman.  He said that cyclists did move between the two towns and that his has been recognised in a Shire Bikeway Strategy prepared by consultants Maunsell McIntyre and adopted on 28 July 1999.

1. In the strategy a link between Port Douglas and Mossman was identified as a “future strategic link” (section 5.7).  The study believes that a transport corridor including “a valuable bikeway link” be provided and goes on to show a proposed bikeway network to be implemented as growth and development occurs.  One section of this network passes along Port Douglas Road in front of the subject land and meets another section passing along the highway.

1. The probability appears to be that among those attracted to the development will be cyclists.  That the development should provide (along its frontage) a section of an overall network from which it will draw benefit is not, in my view, unreasonable. 

1. I would not rule out this condition.

Bonding

1. The last of the disputed conditions relates to bonding.  It provides:

“13.      The guarantee and satisfactory completion of parking, access, loading, landscaping and required external works and to ensure maintenance of landscaping to reach the required stage of screening, the applicant shall lodge with /council a Cash Bond or Guarantee to the value of $50,000 such Guarantee to be in a format considered satisfactory by the Manager Planning Serves.  The Bond or Guarantee shall be lodged within 14 days of Building Approval in relation to this Development Permit and the Council may call up the Guarantee to complete all or any part of the works mentioned herein to its satisfaction, should the applicant fail to do so.  At the completion of each of the works mentioned, proportion of the Bond or Guarantee which relates to the completed works shall be released by Council.”

1. The initial concern was that this condition (in an earlier draft) did not contain a “sunset provision” ie., it did not make clear when the bonding would be released.  A revision of the wording of the condition has made matters clearer and the breakup of the elements of the works (and the bonding attributable to those elements) has been given.  As I understand the evidence the bulk of the works has been completed and bonding in respect of those matters will soon be released.

1. Further clarification in respect of landscape maintenance is called for.  It is now accepted that the maintenance period for completed landscape works should be 12 months.  That part of the bond which should be attributed to all landscaping matters was $15,000.  There was no direct evidence as to how this should be apportioned but I was informed that the total landscaping bill will be in the order of 6 figures.  It is appreciated that once the landscaping (and irrigation) is established, the likelihood of the council’s having to resort to the bond is not great.  Doing the best I can I will rule that the condition should provide that:

“The Bonding referred to in the condition will contain an element of $7,500 for landscaping maintenance which will be released after a period of 12 months if the landscaping is satisfactorily maintained during that time.”

1. Accordingly the appeal should be allowed on the limited basis that conditions 5 and 13 be amended as indicated in this judgment.  Perhaps a draft order to give effect to this could be submitted to me for initialling.