Gaven Developments Pty Ltd v. Scenic Rim Regional Council
[2011] QPEC 21
•28 February 2011
[2011] QPEC 21
PLANNING AND ENVIRONMENT COURT
JUDGE ROBIN QC
P & E Appeal No 2747 of 2008
| GAVEN DEVELOPMENTS PTY LTD (ACN 103 951 239) | Appellant |
| and | |
| SCENIC RIM REGIONAL COUNCIL | Respondent |
| and | |
| CHIEF EXECUTIVE, ENVIRONMENTAL PROTECTION AGENCY and CHIEF EXECUTIVE, DEPARTMENT OF MAIN ROADS and TAMBORINE MOUNTAIN PROGRESS ASSOCIATION INC and SAM FOSTER and PHILIP J GIFFARD and ROLAND LINDENMAYER and EVERGREEN CORPORATION PTY LTD | First Co-Respondent by Election Ninth Co-Respondent by Twelfth Co-Respondent by Election Thirteenth Co-Respondent by Election Fourteenth Co-Respondent by Election Eighteenth Co-Respondent by Election One-hundred and forty-fifth Co-Respondent by Election |
BRISBANE
..DATE 28/02/2011
ORDER
CATCHWORDS
Successful appellant developer seeks final order incorporating a development approval with conditions worked out following earlier publication of the court's reasons for allowing appeal - submitters contended order should not be made until final design of a new roundabout from which the development would gain access, when the impacts on nearby owners and generally would be known - final design left to Department of Main Roads - relevance of right of review and appeal under the Transport Infrastructure Act 1994 s 485, s 485B
HIS HONOUR: The Court makes an order in terms of the
initialled draft which perfects the determination described in
reasons which were published to the parties on the 24th of
June last year. The order resolves the development appeal by allowing it and granting a development approval on conditions that have been worked out by the appellant and the State and local government parties. The other parties resisted the making of such an order today; the Council shares their concerns that making a final order now is premature.
What has been contentious today is the arrangements for a
proposed roundabout which is to provide access between the
development site and Main Western Road. Contention as to the
form of that access was a feature of the appeal. It's
somewhat surprising to the Court that matters did not advance
after publication of reasons. The whole notion of access being taken from a new roundabout on the State-controlled road emerged rather late, I understand because of the relevant Development (the 9th Co-Respondent’s) concerns. Paragraph 77 of the reasons indicated the Court's comfort with a situation in which the Department of Transport and Main Roads and its independent expert, Mr Bitzios, were at one with the appellant developer and its traffic expert, Mr Holland, in having confidence that a design for site access via a new roundabout to be constructed could be satisfactorily achieved. Various aspects remained up in the air, including gradients, sight line issues and the need to acquire additional private land on the other side of Main Western Road at the expense of PresCare which had been an active party in the hearing of the appeal. It has now withdrawn - see Exhibit 1 tendered today.
Although as indicated my expectation had been that the
appellant, in the light of the Court's determination in favour
of the development, would embark on more detailed design work,
that has not occurred. Indeed, the Department of Transport
and Main Roads, represented today by Mr Duhig, has in its
concurrence agency conditions indulged the appellant by
removing a requirement that the roundabout access not
compromise a possible future connection between Main Western
Road and Taylor Street or Taylor Lane.
The Taylor Lane/Taylor Street aspect is important to Evergreen Corporation Pty Ltd which was active in the appeal hearing and is represented today by Mr Arthur. It has commercial designated land on the eastern side of Main Western Road opposite the site, and is seriously concerned that its
interests not be prejudiced by an access solution for the
appellant's development. Enhanced arrangements for traffic in Taylor Lane would tend to benefit Evergreen, albeit at the cost of having to provide land to permit widening.
The Department is no longer pressing for such possibility to
be reserved in its revised concurrence agency conditions which appear to represent the only progress, from the Court's point of view, since June last year, but the Department and the appellant retain their confidence that things can be worked out.
The other parties, including the Council, are opposed to the
Court's making an order which constitutes a final development
Approval, but leaves things up in the air to the extent which
the Court concedes it does in respect of this important aspect
of access. The appellant’s approach I take to be that the trouble and cost of designing the roundabout (including determining its final location) should be avoided until the determination that its development be approved is safe from challenge.
The Council is concerned, as it and its expert, Mr Beard, were
at the appeal hearing, about the impact on more general
traffic planning for the locality, which whatever solution
the Department and the appellant might come up with might pose. To date the Council’s planning and minimal, which is rather supportive that traffic concerns in the locality are not assessed as particularly pressing.
Ms Peat, representing the Tamborine Mountain Progress
Association Incorporated, expressed a particular concern about
overland water flow. She is supported by Mr Giffard in this.
An aspect of this concern is that water which may exit the
site would no longer proceed in its present path to the south
of the PresCare lands, but effectively take passage across the
new roundabout further north and directly into PresCare's
property. It was suggested there might be safety concerns for
users of the roundabout in conditions which produce a
large amount of surface water on it. Ms Peat was concerned
that there may be impacts from the roundabout as finally
designed which are beyond the remit of the Department and may
get overlooked.
Mr Lindenmayer supported his two lay colleagues, complaining
that the situation is unsatisfactory while there remains no
detailed design available for scrutiny.
It is the case that impacts on vegetation in the road reserve
and the like, as well as the ones adverted to above, remain unknown. The Court is consciously embracing the unknown to an extent, and conscious that there may be room for criticism of a lack of certainty affecting the Development approval which is encapsulated in the order.
Essentially today the Court takes the same approach which it
did previously. Main Western Road is a State controlled road
under the control of the department. No-one can take access
to adjoining land except on conditions acceptable to the
Department. I expressed during today's hearing a favourable
view of the Department's conduct of its remit. So far as I'm
concerned, there's no reason to hold fears that the Department
will not carry out its statutory responsibilities in an
appropriate way. It's open to anybody to make submissions to
the Department as to what determinations it ought to make in
respect of a roundabout, and not only to the council,
Mr Giffard has been active in indicating requirements that he
thinks ought to go in the concurrence agency conditions but
are not there. Those extend to matters such as lighting of
the roundabout, which, given the location, he, for
understandable reasons, thinks ought to be discrete lighting
which is essentially directed vertically rather than having a
wider spread. Also he raises concerns about serious disruption to movement in the area while the roundabout is under construction. Construction may not be a straightforward exercise. Exhibits 4 and 5 are his submission to the
Department and the negative response which he has recently
received and his reposte to that. In my view he's, in his
Exhibit 6, attempted to relitigate issues that were before the
Court last year. In his submission in respect of the Taylor
Lane aspect, he argues that the prospects of the appellant
attracting to its site medical, pharmaceutical and medical
allied areas have effectively evaporated given the progress on
the other side of the road, and that that removes one of the
favourable features for development and justifies taking a
stricter approach to conditions under which it might proceed.
There has been occasion to confirm in the Court today that as
the concurrence agency conditions in their present form stand
there are avenues for review by and appeal from the Department
by any persons whose interests are affected by its decision.
I refer to section 485 of the Transport Infrastructure Act
1994 and in respect of the appeal following review to section
485B.
A blank date in the conditions in paragraph 2 describing the
date when the appellant entered into an infrastructure
agreement with the Council has been completed by insertion of
today's date, Mr Williamson informing the Court that the
infrastructure agreement has now been signed, in a somewhat
dramatic gesture: it may even have happened in the courtroom.
There was also some discussion instigated by Ms Peat regarding
the requirements for water storage on the development site.
One of the features of development in the locality is that
each site must supply its own water needs. Ms Peat was
concerned to know whether provision in condition 19 for on
site water storage for 300,000 litres was a reference to water
to be retained on the site, or merely to capacity to hold
water which might not be used at all. The answer appears to
be found in the preceding condition which indicates that
action to replenish must be taken whenever water volume drops
below 70,000 litres. The 300,000 litre requirement of
condition 19 is the same as the one mentioned in condition 16
in respect of adverse drainage impacts. Mr Williamson told
the Court that the fire authorities would impose a cumulative
requirement of storage of 280,000 litres for the purposes of
controlling fire.
The submitter parties who appeared hinted that they had been
“rushed on” today. I'm not prepared to delay the matter further. It might be worth noting Mr Williamson's contention that the submitters had no entitlement to be heard in respect of concurrence agency conditions, but his client's been willing to permit that to occur as, indeed, the Court has been, too.
The other matter which was discussed was whether the appeal
period, so far as this Court's decision is concerned, runs from today when orders are pronounced or some earlier day. I'm expressing no view about that. Mr Williamson's contended it's the earlier date.
For the above reasons, the Court's order is as indicated.
THE COURT ADJOURNED AT 12.01 P.M.
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