DMHP Pty Ltd v Whitsunday Shire Council

[2007] QPEC 127

[2007] QPEC 127

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

No 2162 of 2006

DMHP PTY LTD	Appellant
and
WHITSUNDAY SHIRE COUNCIL	Respondent
BRISBANE ..DATE 11/09/2007
ORDER

CATCHWORDS: Integrated Planning Act 1997 s 3.5.30 -
circumstances in which a condition that sealing of a plan of
survey await actual provision of power to a subdivision by
Ergon (rather than conclusion of an agreement in that regard)
was held unreasonable
HIS HONOUR: This is an appeal against the Council's refusal

1

of a development application for a development permit for
reconfiguration of a Lot (27 Lots and common property) and

material change of use (18 detached residential dwellings and 9 dual occupancy) in respect of land described as part of Lot 43 on SP 152078 Parish of Conway which is located in the Shire	10
of Whitsunday.
On the 23rd of May this year Judge Rackemann made an order for
notification by the Council of its proposed conditions "Upon
the parties by their legal representatives having indicated	20
that they will consent to an order allowing the appeal subject to conditions." Other directions were given.
The stage has been reached after a good deal of difficulty,
centring on geotechnical aspects that only one condition is	30
contentious and that is the Council's proposal, "9.2 A
Certificate of Compliance must be provided from the relevant electricity authority certifying that electricity supply has been provided to all Lots prior to sealing the final plan of survey."	40
The difficulty created for the appellant by that condition is,
it seems to me, a commercial one. There will be no problem
about providing electricity within the subdivision to all of
the Lots, that being the conventional 240 volt supply.	50

The problem relates to provision by an appropriate high voltage line leading to a sub-station of electricity supply from the grid. There is only a short connection to the 2 ORDER 60

1

planned sub-station, across land outside the estate, to be

completed.

The appellant's concern is that the constructing and/or

operating authority, Ergon, will not be anxious to order its	10
priorities in the Shire (where demand for its facilities is burgeoning) so as to provide the requisite high voltage connection at an early date well in advance of there being an actual tenant for power by paying customers.
20
The proposed subdivision will complete a very large multistage
development which has, on the uncontested evidence, proceeded
without problems so far. In earlier stages, the Council has
been prepared to seal the plan of subdivision on the basis of
agreements being in place for the provision of electricity.	30
There has typically been a delay of months, perhaps a minimum
of two, up to 12 months before power is actually required on
individual lots; within that period, the efforts of the
appellant, with or without the support from lot owners, have	40
produced an outcome acceptable in practice.
The Council have become apprehensive that purchasers of lots
in such circumstances may be frustrated because of the
unavailability of power as early as they might need it to get	50

houses constructed.
11092007 D.1 T(1)20/LBM20(BNE) M/T BRIS11 (Robin DCJ) 3 ORDER 60

That is something that might have happened in previous stages	1
of the development, although the burden of the evidence before the Court is that the appellant and its purchasers have been lucky.

10

Mr Joughin's statement in paragraph 4 gives the detail of what happened in respect of what I take to be the appellant's most recent "offer for network connection services" from Ergon - which in the event performed some six months after the agreed completion date.

20

I accept from Mr Button that purchasers in other developments have actually been frustrated in getting timely access to power and have complained to the Council. It has the proper concern to order matters in its area in the best interests of

30

the present and future population and has reached the view
that more should be required than the mere signing of
agreements, whose intended benefits may not be realised in

practice in a timely way.

40

I will note here a decision of the English Court of Appeal,
Western Fish Products Limited v. Penwith District Council
(1978) 77 LGR (especially 185 at 214) - a case which I had
occasion to acknowledge in Adam v. Gold Coast City Council

[2007] QPEC 025 at paragraph [17]. The passage quoted points

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out in a useful way the important role of local government in
ensuring that for developments of the present kind
arrangements (which, in the English case, concerned water,
11092007 T(1)21/DR(BNE) M/T BRIS11 (Robin DCJ) 4 ORDER 60

effluent and highways) are implemented according to an orderly	1
timetable in which everyone can have confidence.
Clause 7.2.9 of the Council's planning scheme, which goes back to 2000 and is about to be replaced by an IPA-ised scheme

10

which went on public display today after obtaining ministerial

approval, deals with this topic and provides as follows:

"7.2.9 Other Public Utilities

Objective: To ensure subdivided land is adequately serviced

with electricity and telephone in a timely, cost-effective,	20
coordinated and efficient manner, and is adequately street lighted and signed.

Performance Criteria Acceptable Solutions

(a) Electricity and telephone (a) (i) Arrangements agreed

with particular suppliers of

services provided in conformity with	these services for the
the cost-effective performance	provision of electricity
measures of particular electricity	(where required in accordance 30
and telephone service suppliers,	with the Act), and telephone
including (where applicable and	services to each allotment,
possible) such provision coordinated	and evidence of such agreement
in common trenching in order to	submitted to the Council.
minimise construction costs for underground services.	(ii) Such arrangements including

(b) Street lighting and signs provision for underground

provided in accordance with the	electricity services where required under this planning
Council's requirements to ensure the	scheme, or any Council
safety of both vehicles and	planning scheme policy or
pedestrians, and to facilitate	guideline. 40
access and movement

(b) Arrangements agreed with the
Council for the provision of street
lighting and street signs, including
lighting for urban subdivisions at the

following locations:

• intersections

• cul-de-sac heads,	50
• bends,
• pedestrian crossings,
• elsewhere as required by the	Council

5 ORDER 60

11092007 T(1)21/DR(BNE) M/T BRIS11 (Robin DCJ)

I accept from Mr Button, who has been in his office as the	1
Council's manager of planning and assessment since February this year, that going back for a year or more the Council has in most, if not all, cases insisted on a condition in terms of 9.2. It is a strong thing for an assessment manager to

10

determine that a solution declared acceptable in its current
planning scheme is inadequate.

It is accepted by Mr Trotter that, notwithstanding the way in which the condition came to be formulated, his client bears

20

the onus, in particular the onus of establishing for purposes
of section 3.5.30 of the Integrated Planning Act 1997, which

provides as follows:

"3.5.30 Conditions must be relevant or reasonable

30

(1) A condition must -

(a) be relevant to, but not an unreasonable

imposition on, the development or use of
premises as a consequence of the development;
or

(b) be reasonably required in respect of the

development or use of premises as a consequence

of the development.

40

(2) Subsection (1) applies despite the laws that are administered by, and the policies that are reasonably identifiable as policies applied by, an assessment
manager or concurrence agency."

that the condition is either not relevant or is unreasonable. Mr Trotter does not seek to establish the former but contends

50

that he has established the latter by reference to the
acceptable solutions indicated in 7.2.9 by whose terms
agreements as opposed to the actual installation of facilities
will suffice.
11092007 T(1)21/DR(BNE) M/T BRIS11 (Robin DCJ) 6 ORDER 60

Over the last year or so the Council has taken a different	1
approach. It's by a very narrow margin which I might say owes a lot to the appellant's good record in the past in getting power to its purchasers when needed that I have concluded that in the particular circumstances of this final stage of the

10

appellant's development the condition is unreasonable.

Mr Button has been frank about the Council's approach that it is proper that if there are delays in the provision of power it is preferable for the appellant to bear them than for the

20

purchasers to bear them.

There is no doubt much to be said for a proposition that in the Shire of Whitsunday in modern conditions, purchasers would expect to be provided with access to electric power on

30

completion of their purchases - completion which will
presumably be delayed some considerable period from the
contract dates until the plan is sealed. I think, however,
that enough remains of the old doctrine of "purchaser beware"

to suggest that purchasers of the appellant's lots are likely

40

to be careful enough to inform themselves of the circumstances
and may appropriately bear the risk in which the Court's

decision might involve them rather the appellant bearing.

I ought to note the background circumstances, which the

50

appellant's witnesses said they were not aware of, that the approvals including authority (to build to those in the category of purchasers from the appellant) which are either 11092007 T(1)22/MEB(BNE) M/T BRIS11 (Robin DCJ) 7 ORDER 60

issued immediately upon sealing of the plan or issued at an	1
earlier stage but subject to sealing of the plan. That, as I understand it, is something which had actually happened on occasions. The history of this appeal may mean that many of the appellant's purchasers are provided with the geotechnical

10

information that might be required for their own development
applications as a result of the appellant's efforts in the

appeal.

I propose to take up the proposal for an alternative condition

20

9.2 set out in Connor O'Meara's letter of the 21st of August 2007 Exhibit 1 but varied to take up Mr Milne's offer in his statement to provide some additional assurance that matters
will progress expeditiously in a favourable way on the ground.

Mr Milne made the suggestion that the appellant could be

30

required to apply to the relevant authority, Ergon, for power
forthwith upon the development approval becoming effective. I
think that is sensible. I have also, on my own initiative,
introduced the idea of a timeframe - an indicative timeframe

at least - being extracted from Ergon so that there is a

40

target date extant for whatever comfort that might give
purchasers or intending purchasers and the Council which may
yet find itself fending off complaints by them. So I propose
and invite the parties to comment on a condition 9.2 as

follows:

50

Prior to sealing of the plan of survey there must be provided to the Council:

8 ORDER 60

11092007 T(1)23/IK(BNE) M/T BRIS11 (Robin DCJ)

(a) Evidence of an application made to Ergon forthwith 1

upon the development approval becoming effective making of an agreement with Ergon on acceptable
(that is on the day of the Planning and Environment

10

terms as soon as practicable thereafter for the
provision of high voltage electricity supply to the
site within a time frame set out in such agreement

or signed "offer for network connection services".

20

(b) Certification from an Ergon rated contractor that

connections for all low voltage electricity supply

already exists to each lot.

It is anticipated that the parties will now be able to agree

30

on a suitable form of order to conclude the appeal. There

will be liberty to apply.

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9 ORDER 60