Hammercall P/L v Council of the City of Gold Coast

[2002] QPEC 11

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:	Hammercall P/L v Council of the City of Gold Coast [2002] QPEC 011
PARTIES:	HAMMERCALL PTY LTD (ACN 002 663 587) Appellant -v- COUNCIL OF THE CITY OF GOLD COAST Respondent and STATE OF QUEENSLAND First Co-Respondent and NITA CUNNINGHAM, MINISTER FOR LOCAL GOVERNMENT AND PLANNING Second Co-Respondent
FILE NO/S:	4531 of 2001
DIVISION:	Planning and Environment
PROCEEDING:	Appeal
ORIGINATING COURT:	Brisbane
DELIVERED ON:	18 March 2002
DELIVERED AT:	Brisbane
HEARING DATE:	11-12 December, 2001
JUDGE:	Judge Quirk
ORDER:	Appeal dismissed
CATCHWORDS:	Integrated Planning Act 1997; ss 3.3.1.6, 3.3.18(3), 6.1.30(3) Local Government (Planning and Environment) Act;s 5.1(3) Transport Infrastructure Act; s 148
COUNSEL:	Mr D. Gore QC & Mr B.Cronin for the appellant Mr S.Ure for the respondent Mr J.Douglas QC & Mr R.Jones for the co-respondents
SOLICITORS:	Gall Standfield & Smith for the appellant King & Co. for the respondent Crown Solicitor for the co-respondents

1. This appeal focuses on a fairly narrow issue and is somewhat unusual in that the facts of the matter are not seriously in dispute.  What must be decided, against the background of these facts, is whether it would be appropriate to grant approval to a reconfiguration of the subject land at this time.

1. The matter relates to an application which was made in respect of land adjoining the Pacific Highway at Andrews which is a little to the south-west of Burleigh.  The site occupies an area of 15.5 hectares.  The reconfiguration is intended to achieve 43 allotments with dedications being made for park purposes and drainage reserves.

1. The land is included in the Commercial Industry Zone and the proposal is consistent with that Zone’s objectives.  Other than the issue that was central to the dispute between the parties, there would appear to be no town planning on other grounds that would stand in the way of the proposal.  The determinative issue in the appeal relates to government plans to extend the Brisbane to Robina railway further to the south and the fact that a substantial part of the subject land is affected by those plans as they now stand.

1. The subject application was lodged in June of 2000.  The Department of Main Roads was a “concurrence agency” within the meaning of the Integrated Planning Act and in September of 2000, apparently in accordance with s. 3.3.1.6 of the Act, required that the Council refuse the application on two grounds. The first ground related to access from the Pacific Highway and this has been overcome by modifications that have been made to the proposal as first submitted.  These have no bearing on the determination of this appeal.

1. The second of those grounds was worded in this way:

“The application, as submitted, appears to conflict with the requirements of the future Southern Gold Coast-Tweed Rail Corridor as provided on Queensland Transport Southern Gold Coast Tweed Corridor Study Figure 4 and is also indicated on the Burleigh Local Area Public Transport Plan Map 5.7 in the Gold Coast City Transport Plan 1998”.

1. Following the modification of the proposal the Department noted that the highway difficulties had been attended to but added:

“Notwithstanding the above the Department has concerns that the subject property is potentially directly affected by the proposed Robina to Coolangatta rail extension. Accordingly and pursuant to s. 3.3.18(3) of the Integrated Planning Act 1997, the Council is advised to include a requirement that the applicant obtain the approval of Queensland Transport with respect to this application”.

1. On 24^th August 2001, the Council resolved to refuse to approve the application on the following grounds:

“1.The subject site is identified in the Gold Coast City Transport Plan as being directly affected by the proposed Robina to Coolangatta rail extension. 

2.Council acknowledges the advice given by Queensland Transport in that the subject site is potentially directly affected by the proposed rail extension and, as such, all or part of the property may be directly affected”.

This appeal is against that decision.

1. There was no dispute that the extension of the rail link from Robina to Coolangatta is a project of considerable community significance.  The 1995 Strategic Plan for the Albert Shire recognized and supported the provision of a rail link from Brisbane to Robina and the possibility of its extension to New South Wales.  In August 1998 the Council adopted a draft City Transport Plan one of the key strategies of which was :

“The extension to existing Gold Coast rail line to a major public transport interchange at Coolangatta Airport”.

The extension was shown in indicative form on the relevant maps.

1. A number of studies by professional consultants and a good deal of community consultation has been undertaken in respect of the proposed extension.  The history of the matter was given in detail in the evidence of Mr Dwyer, the principal manager of the Department of Transport Planning-South East Queensland Branch.  At the time of the hearing of the appeal, the most recent development appears to have been a draft impact assessment study prepared by PPK Environment and Infrastructure (Exhibit 9).  The likely route of the railway is indicated and it is clear that it affects the subject land.  The extent to which it does is illustrated in the report of Mr Ryter the respondent’s town planning consultant (Exhibit 10) at Figure 13.  The excision of the land indicated as being required for resumption would clearly frustrate the proposed reconfiguration of the subject land. 

1. The most recent EIS envisages the rail extension commencing in 2007 and being completed in 2011.  Cost estimates appear to be well advanced as are plans for land acquisition.  Mr Casey was however careful to say that the Department had not yet completed its review of the draft report or put it before the Government for any decision. The final timetabling of the proposal is a matter for Cabinet. 

1. None of this was really in dispute.  There was some discussion about the economics of the proposal but I accept the evidence given on behalf of the respondent and co-respondents that its public benefit will not be measured in terms of its profitability as a railway but will be reflected in the wider community benefits that will flow from its establishment.

1. The case advanced on the appellant’s behalf was essentially that “as a matter of timing” it would be unfair to restrict development of the subject land in a manner otherwise consistent with the formal planning instruments when it cannot be said with any degree of certainty when acquisition of part of the subject land will take place for the purposes of providing the railway extension. 

1. The suggestion was put forward that the application should be approved but the operation of the approval be suspended for a period of three years which would be ample time for the rail project (if it is decided that it should proceed) to progress to a point where the subject land is acquired.  This would certainly be so if the timetable envisaged by the PPK report was implemented. 

1. I am sympathetic with the appellant’s position and the reasonableness of the suggestion of a suspended approval has, in a practical sense, a good deal to commend it.  It could possibly be, as was suggested by senior counsel for the appellant, that the timetable now envisaged is not followed and the project could experience further delays because of indecision or some other reason. 

1. I have considered these submissions but have concluded that I should not adopt the appellant’s suggestion.  This court is primarily concerned with town planning matters and its responsibilities are set out in the Integrated Planning Act.  It is not concerned with legislative provisions governing the acquisition of land.  To accept the appellant’s suggestion would, in reality, appear to be protecting the appellant from a potentially unfair situation by setting a timetable in respect of matters which are not the court’s concern.  In reality what the court would be saying to the relevant authorities is:

“If you don’t acquire this land within three years you are going to be faced with a situation where it has gone into subdivision with all the practical difficulties to which that would give rise”.

1. 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.

1. Section 5.1(3) of the repealed Act (which must be considered pursuant to s. 6.1.30(3) of the Integrated Planning Act) provides that where an application to subdivide land is being examined, there a number of matters which must be considered.  Among those matters is:

“(u)Such other matters, having regard to the nature of the application, as are relevant”.   

If it is in the community’s interests that part of the land be used for public purposes, (subject of course to legislative provisions governing its acquisition) whether it should be further developed in a manner which would add difficulties to its acquisition is a consideration relevant to a case of this kind. If it is necessary , this proposition is reinforced by the provisions of s. 148 of the Transport Infrastructure Act but I emphasize that my decision in this appeal does not rely upon that provision .

1. 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 when a rezoning was required.  However I do not believe that these decisions establish any principle that where the land’s 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.

1. In this appeal the evidence that the rail extension will proceed is strong as it is in respect of the manner in which the subject land will be affected.  I am satisfied that it is a case where the public interest outweighs that of the appellant.  For these reasons I find that the onus of showing that the application is one that should be approved has not been discharged and the appeal will accordingly be dismissed.