Hammercall Pty Ltd v Gold Coast City Council
[2003] QPEC 46
•28 August 2003
PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Hammercall Pty Ltd v. Gold Coast City Council and Anor [2003] QPEC 046
PARTIES:
HAMMERCALL PTY LTD (Appellant)
v.
GOLD COAST CITY COUNCIL (Respondent)And
STATE OF QUEENSLAND (Co-Respondent)FILE NO/S:
12/2003
CITATION:
Hammercall Pty Ltd v. Gold Coast City Council
PARTIES:
HAMMERCALL PTY LTD (Appellant)
v.
GOLD COAST CITY COUNCIL (Respondent)FILE NO/S:
477/2003
DIVISION:
Planning & Environment Court
PROCEEDING:
Developer appeals against conditions
ORIGINATING COURT:
Planning and Environment Court Brisbane
DELIVERED ON:
28 August 2003
DELIVERED AT:
Brisbane
HEARING DATE:
10 –13 June; 4, 5 August 2003
JUDGE:
Robin Q.C., D.C.J.
ORDER:
Appeal dismissed
CATCHWORDS:
“Conditions” appeals by developer – large dedications for road works (some of which would not be accessible from the developer’s remaining land abutting them) required by approval of (a) “development” by way of a refilling and recycling operation in an old quarry, and (b) an 11 unit residential “development” - traffic impacts of development(s) minimal – on the face of things, dedication conditions were an unreasonable imposition on the development(s) – circumstances in which conditions were held “relevant” – conditions held “not unreasonable” where developer was found to have agreed to them as part of a much larger overall project – alleged estoppel from statement of Land Court there was no agreements rejected – other conditions considered - appellant’s application for costs refused
Integrated Planning Act s.3.5.30, s.4.1.23, s.4.1.50(1)
Transport Infrastructure Act 1990, s2(2)
City of Bradford Metropolitan Council v. Secretary of State for the Environment (1986) 53 P& CR 55
DTR Securities Pty Ltd v. Sutherland Shire Council (1993) 79 LGERA 88
Lloyd v. Robinson (1962) 107 CLR 142
Maroochy Shire Council v. Wise (1998) 100 LGERA 311
Port of Melbourne Authority v. Anshun Pty Ltd (1981) 147 CLR 589
Proctor v. Brisbane City Council (1993) 81 LGERA 398
South Coast Oils Pty Ltd v. Look Enterprises Pty Ltd (1988) 1 Qd.R. 680COUNSEL:
Mr A. P. Abaza (Solicitor) for the appellant in both appeals
Mr S. M. Ure for the respondent in both appeals
Mr M. Hinson SC & Mr W. Cochrane for the co-respondent in 12/03SOLICITORS:
A. P. Abaza, Solicitor for the appellant in both appeals
King & Co for the respondent in both appeals
Crown Law for the co-respondent in 12/03
These are two “conditions” appeals brought by a developer. It has developed “Old Burleigh Town” on land southeast of the Andrews Interchange on the Pacific Highway. There may be about 800 (potentially more) residential allotments or equivalent, about half of which are developed already. Appeal 477/2003 relates to conditions in the approval of an Application for Reconfiguration of a Lot (11 Lot Community Title Subdivision) in respect of Lot 710 on SP 137578 in Wyonga Street, Andrews.
Appeal 12/2003 concerns Lot 176 on RP899491, a parcel adjoining Old Burleigh Town to the northwest, located south and west of the Interchange. The development application was a Combined Application for a Material Change of Use (Waste Recycling Facility and Land Fill Operation) and operational works.
The Wyonga Street matter involves appeals against conditions to do with cuts on a steep site and provision of eaves in the 11 houses designed by Mr. Kidd. The greater concern of the appellant, however, concerns the requirement in the conditions proposed by the Council of dedication for road purposes of a corridor some 100 metres wide running north/south across Lot 176 from the Interchange and of other land immediately south of Lot 710 (namely Lot 809). The evident purpose of the latter dedication is to facilitate the realignment and/or widening of Old Coach Road which forms the south-western boundary of Old Burleigh Town, although there has been no access from there to Old Coach Road since the closing of the southern end of Cowell Drive, which was required once Old Burleigh Town had reached a nominated size. Old Coach Road is an inadequate transport link in its present condition. Loss of access to it obliged the developer to satisfy requirements of the Main Roads Department for access to the Interchange and, via the Interchange, to the Pacific Highway and Bermuda Street, which runs north to Ferry Road at Southport.
The obvious point underlying dedication of the corridor crossing Lot 176 is to permit the extension south of the Interchange of Bermuda Street to connect with Old Coach Road and, via it, Tallebudgera Creed Road. From any point of view this is a rational and necessary enhancement of the road system; the issue is whether the appellant has to make a gift of the requisite part(s) of its strategically located site.
Broadly, the appellant contends that it is untenable to relate the dedication requirements in toto to an 11 unit residential development and to relate the 100 metre corridor dedication (which is associated with a further dedication to replace Oyster Creek Drive) to the material change of use and related operational works approved for Lot 176.
The shape of Lot 176 corresponds roughly with the profile of a truncated F1 11 jet fighter or similar aircraft, headed towards Brisbane. The material change of use will be restricted to the nose and cockpit section, except for the associated use of a temporary access road located roughly along the axis of the site. The effect of loss of the corridor area would be to sever a similar sized triangular area at the eastern end of Lot 176, roughly similar in size to the development area proper.
There are no issues regarding the material change of use on Lot 176, although, in other circumstances, there might have been. The principal activities will occur in an area formerly quarried, and will culminate in a land fill operation lasting up to eight years which will reconform the land where there is presently a deep cutting, to create a hill top. The fill is to be demolition materials which builders will pay to have received on the site. A recycling operation will separate out items that can be sold profitably. The separating out may involve activities such as removing reinforcing from concrete. It may be necessary to take away other items that may not be used as fill under the detailed conditions which will apply. The Environmental Protection Agency, as a concurrence agency, has participated in setting those conditions. There is a minor contest regarding the most appropriate formulation of a condition to protect an easement which the respondent Council has running the length of Lot 176; the easement accommodates an important water main and obviously constitutes a constraint on future development of the whole site.
The circumstance which can be relied on as arguably providing a basis for the road dedication condition(s) is the practical necessity for vehicular traffic associated with the new use on Lot 176 and the group housing proposal to access the Andrews Interchange, without which connection with the outside world cannot effectively be had. The additional pressure on the road system from implementation of the appellant’s proposals would be minimal. For the moment, there is a temporary service road known as Oyster Creek Drive connected to the Interchange. It provides access to and from Old Burleigh Town and is located on land the subject of a dedication for road purposes said to be temporary. It is to be replaced by the “proposed Tallebudgera Connection Road” (also called “proposed Bermuda Street Extension”) heading north/south and a “proposed service road” heading southwest to northeast which will intersect the connection road at Old Coach Road at an intersection proposed to be controlled by lights. It and Old Coach Road will contribute one of the two crossing roads, the other (which will have access to the interchange) being a proposed connection road which will link (south/southeast) to Tallebudgera Creek Drive. So far as located on Lot 176, the new roads on the land required to be dedicated present a “wishbone” configuration involving yet another severance of part of Lot 176, at the far south–south-eastern tip.
History of contemplated road dedications – were they agreed?
Treasure and Associates, the appellant’s consulting surveyors, have prepared Standard Format Plan 100091, showing the proposed road dedication and “Lot 276”, being what will remain of Lot 176. The major portion, west of the new Tallebudgera Connection Road contains 17.85 hectares and the tiny south-eastern portion 8842 square metres, the balance (enclosed by the wishbone) containing areas of 3.297 hectares (to the north) and 2.673 hectares (to the south) separated by Oyster Creek Drive which, presumably, the appellant may elect to retain or not to retain. Oyster Creek Drive has the appearance of a short cut connecting the ends of the wishbone. The surveyors transmitted the plan to Weathered Howe, consulting engineers to the appellant, by a letter of 2 September 1997 (Exhibit WJS30 to Mr. Sleep’s statement), another copy being faxed to the Council on 3 October 1997: Exhibit WJS32, which also contains Council’s letter of 10 June 1997 to Weathered Howe of 10 June 1997 advising approval of the application to create a new road and a balance allotment on Lot 176, subject to evidence in writing from the Main Roads Department the proposed road dedication met its requirements.
That some substantial parts of Lot 76 (as it then was), which the appellant purchased about 1974, would be given over to road purposes has been clear for a long time. An information request of Queensland Transport made by its solicitors, Ingwersen & Lansdown, of 14 September 1994, produced the response that:
“There are requirements from the subject property for road purposes generally as indicated on the attached sketch.
The owners and/or prospective owners would be advised to discuss these requirements with the District Office”.
The sketch shows a 100 metre wide swath from the Andrews Interchange “to Tallebudgera Connection Road” and, in addition, elongated triangular areas east and west of the northern end of it to accommodate the “proposed ‘Andrews’ Interchange”. The northern end of the connection, amalgamated with the “triangles” referred to, has been resumed; compensation has been assessed by the Land Court.
By letter of 6 December 1995 (WJS3), the Council agreed to a temporary connection of Old Burleigh Town (then known as Valley Vista Estate) to Old Coach Road on various conditions, including the “connection being limited to 100 lots and … temporary only” and “agreement by the developer to the dedication of land for future road corridors (as highlighted on the attached plan)”. That plan included (as a small part only of the dedication required) both elements of the wishbone configuration referred to elsewhere. Another part (to the south east) is apparently intended to permit the realignment of Old Coach Road by eliminating a curve; it affects Lot 2 on RP 203414 and Lot 133 on WD3798.
Twelve days later, in respect of a specific proposed subdivision from Valley Vista Stage 11, the Council advised approval for 90 freehold allotments. Condition 36 was:
“Compliance with any requirements of the Queensland Department of Transport, including:
A:“Provision of written evidence from Queensland Transport indicating compliance with the Departments conditions under Section 40 of the Transport Infrastructure Act 1994 and Section 134 of the Transport Operations (Passenger Transport) Act 1994”.
B.The requirements may include but are not necessarily limited to the following:
i. Dedication of Land for Transport Infrastructure. (Survey plans showing the new transport reserve are to be submitted, for sealing by Council).
ii. Contributions for External Transport Infrastructure.
iii. Access to Old Coach Road is limited to 100 lots only
iv. Upgrading of Tallebudgera Ck. Road / Old Coach Road intersection in accordance with “AUSTROADS” standards.
v. Construction within the State Controlled Road Reserve is to be carried out in accordance with Queensland Transport approved drawings and specifications.
vi. Provision of Adequate Drainage – maintenance of bunds until all retardation basins are in place.
F.Subdivision plans should not be sealed by Council, or approval given for any new use until all the requirements of Queensland Transport are satisfied.”
At this time, planning was in the embryonic stage. There has been a good deal of relocation of projected roads, which I assess as minor. That things were subject to change is exemplified by the Council’s undertaking to contribute funding, jointly with Queensland Transport, to investigate the route for the extension of Bermuda Street from Andrews to Tallebudgera Creek Drive (WJS5, 12 February 1996). Accordingly, by letter of 27 November 1996 (WJS7), the Council indicated approval of what has become Oyster Creek Drive through Old Burleigh Town on a temporary alignment in the vicinity of the Andrews Interchange:
“… on the understanding that the service road will be realigned to its ultimate location when the Southport-Reedy Creek Drive is extended to the south.”
(The connection of Oyster Creek Drive to the Interchange is unsuitable as a long term design; hence the continuing requirement for a new or “realigned” service road.)
Weathered Howe wrote to the Department of Main Roads on 12 February 1997 (WJS8):
“Further to our meeting of 10 February 1997, at which we presented our compilation of available traffic planning information for the area, we confirm the following:
In order to attenuate the impact of the development on the state controlled road network, we confirm that our Client is prepared to undertake the following items.
We confirm that these items represent the total obligation of our Client in respect to Department of Main Roads requirement for the need of the following allotments included in Schedule A.
Item 1Design and documentation of Tallebudgera Connection Road from the Andrews Interchange to the future signalised intersection with Old Coach road to be completed by 1 March 1997.
Item 2Design and documentation for the Service Road from the Tallebudgera Connection Road to the West Burleigh Interchange, to the boundary of Lot 6 on RP 849875.
Item 3Dedication of land for the Tallebudgera Connection Road Across Lot 76 on RP 215311, not including the lands subject to previous resumption notices.
Item 4Dedication of land for the Service Road through the development
Item 5Construction of the Service Road through the development
Item 6Design and construction of new ramps on the Pacific Highway as shown on the attached drawing, the West Burleigh Interchange which connects to the Service Road Network.
Item 7Design and construction of a temporary Service Road through Lot 76 to the Andrews Interchange including the connection of same to the Andrews Interchange.
It should be noted that the dedication of land and construction of the service road will be effected on a staged basis as required to suit the efficient development of the site.”
Schedule A was:
“Schedule A
Lot 1 on RP 205602
Lot 180 on WD 5414
Lot 506 on RP 861636
Lot 2 on RP 203414
Lot 133 on WD 3796
Lot 505 on RP 861636
Lot 76 on RP 215311
Lot 507 on RP 861636
Lot 1 on RP 167401”
The Department’s response, reproducing “Schedule A” as Attachment A, was WJS9 of 24 February 1997:
“I refer to your letter of 12/2/97 regarding the above matter.
Further to recent discussions (Leonard/Leong), I wish to confirm that agreement, in principle, for the following works to be carried by the Developer, as Main Roads requirements for the properties detailed in Attachment A.
Item 1Design and documentation of Tallebudgera Connection Road from the Andrews Interchange to the future signalised intersection with Old Coach Road to be completed by 1 March 97.
Item 2Design and documentation of the Service Road from the Tallebudgera Connection Road to the West Burleigh Interchange, to the boundary of Lot 6 on RP 849875.
Item 3Dedication of land for the Tallebudgera Connection Road across lot 76 on RP 215311, not including the lands subject to previous resumption notices, by 30 June 1997.
Item 4Dedication of the land required for the ultimate service road alignment through Lot 76 on RP 849875, by 30 June 1997.
Item 5Construction of the Service Road through the development.
Item 6Design and construction of new ramps on the Pacific Highway as shown on the attached drawing, the West Burleigh Interchange which connects to the Service Road Network.
Item 7Design and construction of a temporary Service Road through Lot 76 to the Andrews Interchange including the connection of same to the Andrews Interchange.
Item 8Dedication of land for future Tallebudgera Connection Road Extension between Old Coach Road Intersection and Cowell Road (on eastern side). It is envisaged that the realignment of the road boundary will involve some road closures in favour of the developer as well as road openings. It is expected that the Department will use its best endeavours to facilitate this exchange.
NB.The dedication of land and construction of the service road will be effected on a staged basis, as required, to suit the efficient development of the site.
A copy of this letter has been sent to Gold Coast City Council, for their information.”
There has thus been some tightening up (not carried through in respect of timetabling), but the arrangements previously envisaged are broadly confirmed, with the addition of Item 8 (which is relevant in the appeal relating to the group housing proposal and appears to correspond with the area “to the south east” mentioned above in [12]).
Next came Weathered Howe’s letter of 20 May 1997 to the Council, identifying the wishbone roads and Oyster Creek Drive in connection with the attached application for a subdivision for “road” purposes, clarified in the heading of the letter as “road dedication purposes”. This letter (successfully in the event) requested that subdivision fees not be imposed “as the proposed subdivision is a requirement of approval and will result in the loss of land from the Developer to the State of Queensland”. Council immediately referred the application to the Department of Main Roads for their attention. The circumstances in which both authorities’ requirements became important are summarised in [38]ff, below.
On 2 June 1997, the Department wrote to Weathered Howe (WJS 15):
“I refer to a meeting on 14 May 1997 attended by your Mr Campbell Leonard and officers of this Department in relation to the above matter.
You are requested to confirm in writing your agreement to the following:
1.Main Roads approval to allow traffic to access the Andrews Interchange from the Temporary Service Road at the commissioning of this temporary connection will not be granted until the land for the ultimate service road alignment is dedicated as road reserve. The dedication of this land for the ultimate service road alignment is to be completed by 30 June 1997.
2.The Design and Documentation of the service road in its ultimate position is to be completed by 13th June 1997.
The road reserve boundaries will be determined in conjunction with the proposed bulk earthwork levels provided. Alteration of the bulk earthwork levels may require further land dedication by the Developer.
3.Construction of the service road in its ultimate position is to be at the developer’s cost. The timing of this construction work is to be determined by Main Roads and 12 months notice shall be given to the Developer, prior to work commencing. This work is to be completed within 6 months of commencing work, else construction of the service road may be undertaken by Main Roads and the costs recovered from the Developer.
4.Design and documentation of Tallebudgera Connection Road from the Andrews Interchange to the future signalised intersection with Old Coach Road to be completed by 06 June 1997. (This work was originally to be completed by 1 March 1997).
5.Dedication of land for the Tallebudgera Connection Road across Lot 176 on RP 899491 (previously Lot 76 on RP 215311), not including the land subject to previous resumption notices, by 30 June 1997.
6.It should be noted that once the service road is constructed in its ultimate position, the construction of Tallebudgera Connection Road from Andrews Interchange to the future signalised intersection with Old Coach Road (i.e. the ultimate service road) is to commence. Should Main Roads not be able to complete this northern extension of Tallebudgera Connection Road from Andrews Interchange to the future signalised intersection with Old Coach Road, then the following options are to apply:
a)The Developer may complete this work at his expense.
b)Main Roads will permit the temporary Service Road access to Andrews Interchange to continue until Tallebudgera Connection Road is extended south from Andrews Interchange.”
There has been no written confirmation of Hammercall’s agreement. However, Weathered Howe proceeded as if the letter indicated requirements that had to be satisfied, forwarding the letter and “Plan 271970 highlighting the proposed dedications [the ‘wishbone’]” in a letter to Treasure & Associates Surveyors of 5 June 1997 (WJS17) requesting them to have the boundaries for the dedication established. The Surveyors advised it would be difficult to meet the 30 June 1997 deadline: WJS18. Weathered Howe’s response to the Council’s condition as indicated on 10 June 1997 was to request Main Roads to “draft a response .. in order to enable dedication of the property” (WJS20, fax of 10 June 1997). The response, by which Hammercall has set considerable store, was sent on 16 June 1997, as follows:
“Reference is made to your facsimile transmission dated 10 June 1997.
From the information that has been supplied, it has been assessed that the Queensland Department of Main Roads has no requirements for this application, on the basis that this is a management lot subdivision only and no additional traffic generating lots have been created.
A copy of this letter has been sent to Council for their information.”
The letter is relied on by the appellant as meaning what it literally says, and as telling against the relevance or reasonableness of dedication conditions. In my opinion, the letter should be read in its context, as described by Weathered Howe in the fax, namely that it was generated “in order to enable dedication”. It should also be borne in mind that the Council has its own interest and duty to identify appropriate conditions to include in development approvals.
The next letter from Main Roads, of 26 June 1997, was as follows:
“Reference is to your correspondence dated 21 May 1997 and 11 June 1997 and also to Main Roads’ previous correspondence dated 02 June 1997.
The plans listed below are approved subject to amendments shown in red, and the following conditions:
Drawing No Drawing Title 271970C General Layout and Drawing Index 271971C Type Cross Sections Sheet 1 of 2 271973B Control Line Setout Details 271974B Longitudinal Section – Control Line TC1 271976E Construction Layout Plan – Sheet 1 of 2 271978D Construction Detail Plan – Sheet 1 of 2 271980C Stormwater Drainage Longitudinal Section 271983B Cross Sections Control Line TC 1 Ch80-Ch 120 Sheet 1 of 5 271984B Cross Sections Control Line TC 1 Ch140-Ch 180 Sheet 2 of 5 271985B Cross Sections Control Line TC 1 Ch200-Ch 240 Sheet 3 of 5 271986B Cross Sections Control Line TC 1 Ch260-Ch 280 Sheet 4 of 5 271987B Cross Sections Control Line TC 1 Ch300- Ch320 Sheet 5 of 5 271988C Kerb-End Treatments 271989B Strip Filter Drains 271990B Temporary Service Road – Longitudinal Section 271991C Construction Layout Plan 271992D Construction Detail Plan 271993B Construction Setout and Concrete Pavement Details 271994B Temporary Service Road Cross Sections Ch120-Ch400 Sheet 1 271995B Temporary Service Road Cross Sections Ch260-Ch400 Sheet 2 288568C Traffic Signs and Linemarking 288587 Street Lighting – Temporary Service Road Note: The above plans are approved for the temporary connection only, for subsequent approvals for ultimate works any relevant plans listed above will be required to be resubmitted for approval (with revision as necessary).
·Dedication of the required land for the ultimate service-road as defined by an approved design nominating ultimate bulk earthwork levels, to be completed by 30 June 1997.
·Dedication of the required land for the Tallebudgera Connection Road extension to be completed by June 1997.
·The street lighting is to be installed and operating prior to the opening of the connection to traffic.
Should the above conditions not be met, access to the State-controlled road from the temporary connection road may be denied.
This approval is valid for two (2) years only from the date of this letter. The attached form DC03W01 sets out the conditions of approval for carrying out works within the boundaries of State Controlled Roads. The Engineering Drawings are to be resubmitted for approval should construction not be completed within the two (2) year period to the satisfaction of the Department of Main Roads.” (WJS25 - Mr Sleep’s statement does not appear to include the letters dated 21 May 1997 and 11 June 1997 referred to.)
Matters proceeded, Weathered Howe’s response of 12 August 1997 being:
“Old Burleigh Town
Temporary Service Road Intersection
With Andrews Interchange at Lot 176
RP 899491Further to your letter dated 26 June 1997 we provide the attached draft plans for the Ultimate Road Dedications. We anticipate lodgement of these plans with Council on 22nd August 1997.”
The draft plans enclosed show the wishbone (“Tallebudgera Connection Road” and “New Road”) and Oyster Creek Drive.
The response of the Department of Main Roads to the letter of 12 August 1997 was:
“Gold Coast City
Old Burleigh Town
Temporary Service Rd Intersection with Andrews
Interchange at Lot 176 on RP899491Main Roads is in receipt of your correspondence dated 12 August 1997 including draft plans for the Ultimate Road Dedications numbered SP100091.
As previously advised the road dedication boundaries required are to have been established in relation to road layouts and final bulk earthwork levels previously provided. Any alteration to the bulk earthwork levels or road alignments provided due to final design requirements may necessitate further land Dedication by the developer at no cost to Queensland Department of Main Roads.” (WJS28, 27 August 1997)
The next relevant document was Treasure & Associates letter of 2 September 1997 (WJS30) to Weathered Howe, enclosing a photocopy of Standard Format Plan 100091 showing the proposed road dedication and Lot 276 and indicating:
“In accordance with the Council’s condition we will require a letter from Main Roads Department confirming that the proposed road dedication meets their requirements. Can you please provide the necessary correspondence from Main Roads. We will then lodge the plan with Council for sealing.”
As stated elsewhere, the surveyors on 3 October 1997 sent a copy of their plan to the Council. See [9] above.
The principal of the appellant is Mr. Leslie Cowell. Its case relied heavily on what is “noted” and the “NB” in the correspondence of 12 and 24 February 1997. The following is part of Mr. Cowell’s evidence in chief:
“HIS HONOUR: Well, does that mean you accepted the dedication was going to happen, it was just a question of when?-- No, no, we’ve never ever said we’d dedicate our land, no.
…
The letters we’re looking at-----?-- Yep.----- seem to show a belief that a dedication and construction of what’s called a service road is going to happen?-- Yeah.
But you say that’s not the real position at all because dedication was no more than a possibility, something that might happen but wouldn’t necessarily happen?-- Well, we were to the understanding that you would dedicate two-lane urban if we developed Lot 176. We’re not in any hurry to develop Lot 176.
All right.
MR ABAZA: And would you accept that responsibility as a responsible developer at the time of a formal subdivision of Lot 176?-- That’s correct, yeah.
Because you would need to provide a road work system for people to buy lots; that’s correct, isn’t it?-- That’s correct, yeah.
HIS HONOUR: So, your notion that it would be a two-land road is what you’d expect?-- Two-lane urban is what I’ve been told is that it requires by my traffic engineers at the time of development.
…
-----?-- I though the note meant that you would dedicate on as is required basis under the subdivision as and when you subdivided.
All right. Yes.
MR ABAZA: Just may I take that point up a little bit further. When you see “Tallebudgera Connection” – sorry, yes, the words Tallebudgera Connection Road” do you relate that to what you’ve been shown in Exhibit 24 and that you held up with the contours?-- Yes, yes.
That’s what you understand to be the case?-- Yes.
And that in the event of the subdivision of Lot 176, whether for industrial lots or whether for residential, there will be an obligation on the part of Hammercall to make a dedication which you put at a two-lane urban road or servicing that subdivision?-- That’s correct, yep.”
There is no occasion to impugn Mr. Cowell’s honesty, but I think that he is engaging in an exercise of reconstructing past events, as well as he can, with a considerable admixture of wishful thinking. On the evidence, it was his father, Mr. Eric Cowell, who was the controlling mind of the appellant in 1997 and earlier years. Unfortunately, Mr. Eric Cowell passed away during the first week of the hearing of the appeal.
In rebuttal evidence, the appellant called Mr. Campbell Leonard, the author of most of the Weathered Howe documents. His connection with the firm, relevantly, ceased about August 1997, this placing him in the position of having to refamiliarize himself with documents generated up to that time, several years afterwards. At p.476 of the transcript, Mr. Leonard was asked, by reference to his affidavit:
“Now you say in paragraph 7 that Hammercall did not agree to a dedication, what do you mean by that? How did they manifest that absence of agreement?-- Well, Eric just told me he wasn’t going to do it.
Who told you that?-- Mr. Cowell.
Which Mr. Cowell, Mr. Les-----?-- Eric.
-----Cowell or Mr. Eric Cowell?-- Eric.
Mr. Eric Cowell said he wasn’t going to do it?-- Yes.
Did you convey that to anybody-----?-- No.
The Department of Main roads?-- No.
The Gold Coast City Council?-- No.
Right. So that was something that Mr. Eric Cowell simply said to you?-- Yes.
All right. Now, in paragraph 8 you go on to talk about an infrastructure agreement in 1996 being drafted by you. Do you still have a copy of that? Do you still have a copy of that infrastructure agreement drafted by you?-- No.
What were its contents, do you know? Do you remember?-- I don’t recall.All right. Then in paragraph 9 you go on to say, “As I understood my instructions from Mr. Eric Cowell for Hammercall the company was initially prepared to have Main Roads resume an area for the southern extension of Bermuda Street provided proper compensation was given and that there be access to the western portion of lot 76.”?-- Mmm.
Now, can you tell me, please, those instructions from Mr. Eric Cowell were they in writing or were they oral?-- They were oral.
When were they given?—They were given over a period of time. I can’t recall an exact date.
Was it the usual habit that Mr. Cowell would deal with you orally rather than in writing?-- It happened.
Did he sometimes give instructions in writing or state in writing his attitude towards certain things?-- I don’t recall any written instructions, no.”
In my opinion, the court should proceed on the basis that Weathered Howe had not only ostensible, but actual authority to bind the appellant. It was not prepared to grasp the nettle of contending that, through Weathered Howe, it was implementing some scheme to secure the all-important access from all its land in the area to the Andrews Interchange, by leading the Main Roads Department, which controlled such access, to permit it on the basis of an expectation of road dedications which were never intended to be perfected. The correspondence and plans examined at length above, in my opinion, point strongly to the existence of an agreement as to the basis on which access to the Interchange (which has been provided) would be agreed to by the Department. Mr. Leonard unambiguously represented to the Council there had been an agreement in the introductory paragraph of his letter of 20 May 1997:
“As you might be aware, the agreement between the Developer and the Department of Main Roads requires the Developer to dedicate the area to be used as road reserve for the future construction of the section of the Tallebudgera Road between the Andrews Interchange and Old Coach Road, and the remainder of the proposed service road (along the ultimate alignment). In order to accomplish this, it is necessary to subdivide Lot 176 (as shown on the attached plan).”
Numerous circumstances were prayed in aid of the applicant’s contention there was no agreement, one being the authorities’ failure to insist on compliance with the dedication requirement, said to bespeak acknowledgment it had never been agreed to. There has been no explanation advanced for the sudden loss of interest in pursuing the matter, although commonsense suggests that in terms of roadworks yet to be finally designed and funded, there seemed to be little urgency. As noted above, the statement that “Queensland Department of Main Roads has no requirements for this application” of 16 June 1997 was heavily relied upon, likewise the Main Roads Department’s letter to Weathered Howe of 27 August 1997 (WJS28):
“Main Roads is in receipt of your correspondence dated 12 August 1997 including draft plans for the Ultimate Road Dedications numbered SP 100091.
As previously advised the road dedication boundaries required are to have been established in relation to road layouts and final bulk earthwork levels previously provided. Any alteration to the bulk earthwork levels or road alignments provided due to final design requirements may necessitate further land Dedication by the developer at no cost to Queensland Department of Main Roads.”
Exhibit 72 was tendered by Mr. Abaza, as an example of the changing boundaries of the dedication area: it exhibits a minor variation (to accommodate a roundabout) at the eastern extremity of the wishbone. While I would acknowledge that radical relocation of such boundaries unilaterally may create problems, nothing that has happened or been foreshadowed along these lines dissuades me from the view that an agreement was reached. That experienced people such as Mr. Leonard and those they have negotiated with consider that agreement has been reached may well fortify a court’s conclusion to that effect: see South Coast Oils Pty Ltd v. Look Enterprises Pty Ltd (1988) 1 Qd.R. 680, 685-86, and, on appeal, 695-99.
In the circumstances the natural interpretation of the letter of 20 May 1997 (WJS11) is that it sought approval, and successfully so – see the Council’s letter of 10 June 1997, WJS 19 advising approval four days before - of the subdivision required for dedication of the wishbone. I do not understand it to be contended that the approval was sought only as a preliminary to a road dedication that would occur, if ever, years in the future. Mr. Leonard was adamant the purpose of the application submitted by his letter of 20 May 1997, indicating the proposed use of land previously “quarry” as “road,” to which the Council assigned the file number 555/12/1941-ML1, was to create Oyster Creek Drive “which was registered in Exhibit 3” (p.466 of the transcript). Mr. Ure, for the Council, proceeded to demonstrate convincingly that creation of Oyster Creek Drive, in the sense of subdivision off for purposes of dedication of the requisite land, occurred by registration on 5 June 1997 (the day before the Council approved the application presently being examined) of R.P. 908086. This was achieved pursuant to a different application to Council, identified by File Number 555/12/1941/4A, an indication it was connected with Stage 4A in the overall subdivision development. The suggestion it was “unusual” as opposed to “an impossibility” that registration of a plan of subdivision occurred before the local government approval of the subdivision was unconvincing. The witness (p.474) confessed to confusion because “the dedication didn’t take place and yet the access was granted to the Interchange”. Mr. Abaza’s last throw, on this issue, was to argue that Exhibit 3 (R.P. 908086) related only to Lot 999, a strip of 32 square metres excised from Lot 2 on R.P. 203414 as “Public Use Land (Park & Rec)” – presumably for the purpose of controlling access to Oyster Creek Drive in some way. I do not accept that argument. The plan is entitled “Plan of Lot 999”, but the words immediately following are “Cancelling part of Lot 2 on R.P. 203414 and part of Lot 176 on R.P. 899491 – original Por 76”. No conclusion is open other than that this registered plan excised the relevant part of Oyster Creek Drive from Lot 176. It is immaterial that other parts of Oyster Creek Drive, further to the east, may have got into the public domain other ways.
IPA Provisions about Conditions
The appellant’s case is that the road dedication conditions in issue here offend s.3.5.30 of the Integrated Planning Act (“IPA”) which provides:
“3.5.30 Conditions must be relevant or reasonable
(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.(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.”
There has been a reworking of the language of the former s.6.1(1)(c) of the Local Government (Planning and Environment) Act 1990 considered by the Court of Appeal in Proctor v. Brisbane City Council (1993) 81 LGERA 398 and Maroochy Shire Council v. Wise (1998) 100 LGERA 311, but no party contended (no more would I) that, at least for present purposes, the changed language makes a difference. One notes that relevance and reasonableness are to be measured against the particular “development” (formerly “proposal”) applied for. But for circumstances to do with the “agreement”, the road dedication requirement could not conceivably be held “reasonably required in respect of the development”; the potential impact of each of the separate “developments” on the road system will be tiny. The appellant called expert Town Planning evidence and traffic evidence from Mr. Challenor and Mr. Rytemskild, although their evidence was hardly necessary to support such a commonsense conclusion. There was no contest about the southern extension of Bermuda Street being needed in the public interest; what is lacking is any significant contribution by Hammercall’s present proposals to the need for that southern extension which might justify saddling the company with having to make an expensive contribution to its provision now.
Mere agreement of the parties does not make a “manifestly unreasonable” condition permissible. See the English Court of Appeal decision in City of Bradford Metropolitan Council v. Secretary of State for the Environment (1986) 53 P& CR 55, at 64. So far as subsection (1)(a) is concerned, which, in the circumstances, requires the condition to be both relevant and a “reasonable” imposition on the development, I reject the contention of irrelevance. The propinquity of the areas required to be dedicated to the specific locations of the development(s) proposed gives sufficient nexus in my opinion. The leading authority is Lloyd v. Robinson (1962) 107 CLR 142. There, developers who were progressively subdividing a large area of coastal land in Western Australia were required as a condition of approval of one stage (not the first) of 270 lots to transfer a defined area of 20 acres of land (in addition to 10 acres already provided) to the Crown for park and recreation purposes without payment. On appeal to the Minister, the 20 acres were reduced to 15. Kitto, Menzies and Owen JJ said at 153:
“The assumption may be accepted that the statutory power to annex conditions to an approval of a subdivision does not extend to requiring the setting aside for public recreation of land which is so unrelated to the land to be subdivided, because of remoteness from it or some other circumstance, that there is no real connexion between the provision of the open space and the contemplated development of the area to be subdivided. But in the present case it must not be forgotten that the subdivision for which the respondents sought approval was one of a series by means of which an area, fairly to be considered as a whole, was being gradually carved up and placed on the market; and it was well within the limits of a proper understanding of the Board’s functions under the Act to insist, at appropriate stages in the course of applications for approval to the constituent subdivisions, that open spaces be suitably located within the total ara to satisfy reasonable requirements in respect of the total area. At what stages this should be done, what proportion of open space should be required, and where the open spaces should be, were questions within the discretionary judgment of the Board and, on appeal, of the Minister; and unless they were answered so unreasonably or improperly that the discretion could be said to have miscarried, there could be no ground upon which the courts would have authority to interfere. In the present case it seems to us to be plain that the requirements as to the 10 acres and the 15 acres were entirely relevant to the application for approval, and that being so they cannot be held beyond power on the ground that the land required to be transferred to the Crown lay outside the limits of the particular subdivision immediately proposed.”
The Town Planning Board of Western Australia had a wide power to “affix such conditions as the Board may think fit, which shall be carried out by the owner before the plan is approved by the Board.” The Queensland Court of Appeal decisions have applied Lloyd v. Robinson notwithstanding the differences in statutory language. In Proctor it was said at 403:
“It may be that a condition which is not reasonably required by the subdivision is nevertheless lawful, because relevant. Support for this view may be found in the approach of the High Court…
It may well be that a condition which is in no proper sense of the word ‘required’ by a sub division is nevertheless relevant in the way indicated by the High Court, as falling within the proper limits of a local authority’s functions under the Act, as imposed to maintain proper stands in local development or in some other legitimate sense. For example, a condition relating to the layout of the subdivision roads may not be able to be supported as ‘required’ – reasonably or otherwise – by the subdivision in question, but may be defensible as reasonably imposed in the interests of the rational development of the area in which the subdivision is located.”
The factual circumstances presently are similar to those in Lloyd v Robinson, in that Hammercall is developing a very large site in stages. Its own (that is, Weathered Howe’s) document of 12 February 1997, set out above, proposes what are described as its “total obligation … in respect to Department of Main Roads requirements for the need of the … allotments included in Schedule A.”
It is relevant to interpolate some comments regarding the interrelated roles of the Department of Main Roads and the Council in respect of road matters. The Department’s principal concern is with State-controlled roads. For the moment, the Pacific Highway, which constitutes the north-eastern boundary of the appellant’s land, and the Andrews Interchange in particular are directly the concern of the Department. For the moment the Bermuda Street extension and other road projects are matters for the Council. There seems to be some expectation that the Bermuda Street corridor may at some time become a State-controlled road. One would expect liaison to occur between the Department and the Council. The Department’s situation is specifically referred to in Schedule 2 in the Integrated Planning Regulation 1998, which identifies the Chief Executive administering the Transport Infrastructure Act 1994 as a referral agency. Item 7 is:
| Column 1 | Column 2 | Column 3 | Column 4 |
| Application Involving | Name of referral agency | Type of referral agency | Referral jurisdiction |
| 7. Development on land contiguous to a State-controlled road that is any of the following – (a) a material change of use that is assessable development under a planning scheme; (b) the reconfiguration of a lot (other than a reconfiguration if the total number of lots is not increased and the number of lots abutting the State-controlled road is not increased); (c) operational works that are filling or excavation operations not associated with a material change of use or reconfiguration of a lot. | The chief executive administering the Transport Infrastructure Act 1994 | For a future State-controlled road not defined by route – Advice; or for any other case – Concurrence | The objectives of the Transport Infrastructure Act 1994, section 2(1) and (2)(b) |
Section 2(2)(b)(ii) of the Act identifies as an objective of the Act that “influence can be exercised over the total road network in a way that contributes to overall transport efficiency.” The present circumstances are ones in which either or both of the Department and the Council may appropriately be seeking dedication of land for road purposes as a condition of certain development approvals. Thus, in my opinion, it would not matter if the enthusiasm of one of them for insisting upon the contentious conditions were less than that of the other at the present time.
The Council has clearly indicated that it is likely to pursue the road dedication conditions in any development applications relating to the Schedule A lands from now on. In my opinion, it is justified in doing so, without any necessity arising to establish that any discrete development proposal, considered alone, would justify the conditions. Plainly, as in this appeal, insistence on such a condition would be an “imposition on the development” difficult to support in the absence of Hammercall’s having agreed to it. In the present circumstances, it cannot successfully be argued that there is an “unreasonable imposition”. It was said in the City of Bradford case (loc.cit.) at p.64:
“The fact that the applicant has suggested a condition or consented to its terms is, of course, likely to be powerful evidence that the condition is not unreasonable on the facts, since, as in the case of any commercial transaction, the parties are usually the best judges of what is reasonable. So I do not think there is likely to be any great rush of cases in which the developer obtains planning permission by consenting to a condition, and then appeals successfully against the imposition of the condition to the Secretary of State on the grounds that it is manifestly unreasonable. A successful appeal in such circumstances is likely to be rare.”
In DTR Securities Pty Ltd v. Sutherland Shire Council (1993) 79 LGERA 88, Talbot J held an estoppel arose in favour of the Council against a developer, whereby the developer “by its own action cannot be heard to say that the contribution is not reasonable. If the promise of dedication had not been forthcoming, the evidence shows that the whole of Lot 1 may have remained reserved … for local road or become Reservation (1)(a) Open Space.” As indicated by the headnote, the background was that some years before, DTR had, after its acquisition of certain land, renewed an earlier offer that had been made to the Council to dedicate part of it to the Council for public open space in return for a re-zoning of the balance to residential. The Council had accepted the offer and permitted the re-zoning to go ahead without security the dedication.
Nothing about the required road dedications here is offensive to s.3.5.30 of the Integrated Planning Act.
An additional argument against the conditions was that not only was there a lack of any benefit to Hammercall from the condition (which may be accepted for present purposes), those conditions rather benefit the developer of other lands immediately across Old Coach Road. In Proctor, the Court of Appeal had no qualms about approving in principle a suggested condition favourable to an appellant objector that road access be provided to his land. Their Honours acknowledged (at 403) that “if the desired access was provided that would be a private advantage for the appellant … because no doubt the access could augment the value of his property, but the access would, it must be remembered, be a public, not a private road, and one which persons other than the appellant could use.” It is far from clear that a factual basis for this point of Hammercall’s is made out, since the access planned for the developments on the opposite side of Old Coach Road to the general road network appears to be via the Reedy Creek Interchange, as opposed to the Andrews Interchange.
Another point relied on by the appellant is that the benefit to it of approval of a material change of use for part of Lot 176 for filling purposes advances its situation not at all, because re-fill is consistent with a Council approval of 24 January 1991 for Temporary Quarry (Exhibits 52, 52(A), which was made subject to “site restoration”. That matter does not affect the principle upon which the court proceeds in these appeals, namely that, against the background of a complex of past, current and future development applications for its large site, the appellant committed itself, whenever called upon (rather than when the exigencies of the developments, in its opinion, might call for it), to make the road dedications – there was no demur to the Department’s proposition they should occur by 30 June 1997.
Again, no assistance came from suggestions made that the appellant may be seen as having been harshly dealt with, if comparisons are made with conditions imposed on other developers in the general area, notably some sites on the south side of Old Coach Road.
Reference was made on the appellant’s behalf to a Land Court judgment of 21 December 2000: Re Claim for Compensation – Resumption for Transport purposes – Acquisition of Land Act 1967 – (A98-13) Hammercall Pty Ltd v. Chief Executive, Department of Main Roads. At p. 28 of the reasons, the following appears:
“The respondent seeks to place some reliance upon an unsigned draft agreement offer between the claimant and the respondent in respect of certain infrastructure contributions and uncompleted works in 1996. That draft agreement purports that, in exchange for an offer by the claimant to supply a surety in the form of a bank guarantee to the value of $95,000, the respondent would agree to certain actions. Those actions would be used as offsets against the payment of transport infrastructure contributions ($55,500), and contributions towards upgrading the Tallebudgera Creek Drive – Old Coach Road intersection ($39,500). The actions proposed by the claimant (and purportedly agreed by the respondent), included (among others) construction of the Bermuda Street extension, and construction of the ramps to Andrews Interchange. (Exhibit 30).
Mr. Dick advises that the draft agreement offer was never signed by the claimant, and represents only an attempt by the engineers (on legal advice) to formalise the then protracted negotiations between the parties. However Mr. Jones argues that the claimant would have had to agree to the initial offer being made by Weathered Howe, who were working under instructions. As such, in his opinion, the unsigned agreement should be given some weight as an offer to which the claimant would have been prepared to agree.
While Mr. Jones’ conclusions may have some substance, it must be noted that the agreement was never formalised and, at most, may have merely represented the frustrations being felt by the claimant in seeking resolution of the access problem.”
My understanding is that this statement was said to establish in some way that no agreement was made in 1997. The learned Land Court member was speaking of a different (and earlier) period. If only the infrastructure agreement Mr. Leonard prepared, or something like it, had been finalised, it may be inferred that the road dedication issues would have been resolved in that way. Although Mr. Leonard’s draft document was available in the Land Court (whose file was transmitted to the Registry of the Planning and Environment Court and made available to the parties for their inspection) this court at no time saw the draft; Mr. Leonard said it could not be located. In my opinion, there is no “Anshun” estoppel arising from the Land Court proceedings as contended by the appellant in reliance on Port of Melbourne Authority v. Anshun Pty Ltd (1981) 147 CLR 589.
Uncertainty whether “Bermuda Street extension” will be built
One of the appellant’s objections to the road dedication called for was that the principal road supposedly contemplated is unlikely ever to be constructed. I took Mr. Hinson S.C., who appeared for the State of Queensland in its Main Roads Department guise, to concede that if there were no intention to construct the Bermuda Street extension, merely an attempt to get hold of some of the appellant’s land, for possible use as a bargaining chip later on, the condition for dedication of the relevant land would be insupportable. It was accepted that an engineering challenge exists in respect of the Bermuda Street extension, which may be rather steep, having regard to differences in elevation of the Andrews Interchange and the presently contemplated intersection with Old Coach Road, the level of which Mr. Abaza asserted was unable to be changed, by reason of an agreement made by the authorities with another developer. Mr. Abaza suggested the Bermuda Street extension might be created by a circuitous route from the Andrews Interchange, skirting the appellant’s Lot 176 to the north and west (where it would traverse the Council’s quarry reserves and a site leased out for motor cycle activities). It did not appear that anyone had ever embarked on designing such a road, which would be radically at variance with the generally straight alignment of Ferry Road-Bermuda Street. The evidence is that whatever engineering challenges there are in the “straight through” extension proposed can be met. Those challenges include ensuring there is access to the various severed portions of Lot 176, which will not have direct access (even if they have a frontage) to the Bermuda Street extension – proposed to be a four lane road with some additional bus lanes. Plans have been prepared for what Mr. Abaza called a tunnel under the new wide road (it is more correctly seen as an underpass, given that the new road is designed as an elevated one) which would give such access. Complaint was made about the effect on amenity of such arrangements, since on any view parts of Lot 176 will be overshadowed by elevated roadways, with or without embankments, but the seriousness of those would be of less concern should the zoning of the land remain Commercial Industry. The appellant says that its plans in that regard (the proposal having come from Weathered Howe) were (and so may some of the “road dedication” plans have been) prepared only against the possibility of an industrial subdivision and a sale of Lot 176 to some identified (industrial) purchaser(s). At the moment, the appellant disavows any fixed intention with regard to Lot 176 beyond that included in its material change of use application.
Another aspect of uncertainty about the Bermuda Street extension arose from the Main Roads Department’s letter of 13 January 2003 referring to “low priority” and also “responsibility to investigate the need for the road”. That the Department may still hold and express such attitudes does not, for reason indicated, affect the Council’s or its ability to insist on the agreed road dedication.
Conclusion
Pursuant to s.4.1.50(1) of IPA, it is for Hammercall to establish in each appeal that it should be upheld. Except to the extent that the respondent has made concessions, Hammercall has failed to satisfy the onus upon it.
Costs
Mr. Abaza mounted an argument for costs in favour of his client on the basis that “the respondent and co-respondent have prevailed on the Court to uphold a highly unreasonable condition … vexatiously … unsupported by any evidence from persons who might have knowledge of the facts of the alleged agreement”.I would take this submission to be based on the assumption that the respondent and co-respondent’s submissions in the end did not “prevail”. In the end, they have prevailed, although that is not necessarily fatal to a successful application for costs on the strictly defined bases permitted in s.4.1.23 of the Integrated Planning Act. The criticism of the respondents in keeping away from the witness box persons from their “camp” who might have known more than Mr. Sleep is reflected on the other side by the appellant’s failure to call its surveyor, Mr. Treasure, who might have been able to give some explanation other than the obvious one for the preparation and submission to the authorities of plans in registrable form which, once registered, would have effected the dedications. It was contended that to include in WJS14
“…materials as uplifted from Treasure and Associates as if they were registered plans is vexatious.”
and that
“Exhibiting the draft plan SP1100091 without the marking:
Unregistered – to be amended by revised subdivision design
and without explanation ( c.f. Exhibit 43) is vexatious.”.
That marking was made by Mr. Vine, called in the appellant’s case in rebuttal (p.486) to say he worked for the Department of Main Roads at Nerang in 1998 and made it on 24 April “either ’98 or ‘97”. He said his note was “just to let other people in the Department know that it hadn’t been registered or done at that time.”If this evidence was intended to buttress the “no agreement” argument, it has not achieved its purpose. It is my experience in this jurisdiction that seeking documents from non-parties can often unearth very useful material, as it seems to have done here. I am not persuaded that any misuse was made of the material from the surveyor’s office. The appellant had ample notice of what was done, and, presumably, access to Mr. Craig Treasure to set the record straight, if appropriate.
I am not persuaded that any costs order ought to be made, as sought.
Changes to Conditions that should be made in the appeal
So far as road dedication conditions are concerned, in both appeals, applying Lloyd v. Robinson, and looking at Old Burleigh Town and its surroundings in the longer term, as an overall development (rather than focusing on two discreet development applications), the requirements for road dedications should be upheld. Those can be appropriately formulated as Condition 18 (Appeal 477/2003):
“Dedication, free of cost to Council, of land required for new roads, including Lot 809 on SP 137578 required for road widening purposes to the requirements of the Chief Executive Officer.”
and Condition 3 (in both appeals):
“The applicant shall dedicate, free of cost to Council, land required for the extension of Bermuda Street over the full frontage of Lot 176 RP 8991491 to the requirements of the Chief Executive Officer. Amount of dedication required to be generally in accordance with Weathered Howe drawing Number 271970 Rev.C.”.
Some changes have been made to the ways in which the Council expressed the conditions. The condition as set by the Council referred to “drawing Number 271971 prepared in June 1996 for the Department of Main Roads”. The preceding version makes a necessary correction to refer to the drawing obviously intended, rather than an inappropriate one.
As to the other conditions brought before the court in Appeal 12/2003, it is convenient to set out, with only a couple of minor changes, what Mr. Ure included in his written outline of submissions for the Council in paras. 3-19 inclusive:
“3. Condition 5 provides:
‘The developer is to relocate the existing 450mm trunk water main that traverses the property in accordance with Council’s resolution W95.1207.005’.
4.The condition was originally imposed by Council as the Appellant had proposed two different options for the landfill facility. The first, Option A, envisaged the trunk main easement being maintained, while the second option, Option B, contemplated the trunk main being removed.
5.The appellant has now settled on Option A, and therefore, it has requested the condition be amended to read:
‘The filling proposed in Option A shall not impact upon the existing easement.’
6.Now that it is clear that the trunk main will remain in place, the Council contends that the appropriate condition should read:
‘Filling is prohibited over the existing 450mm trunk water main that traverses the property.’
7.It is difficult to see what objection the Appellant could have to that condition. Pursuant to the easement, the Appellant is not entitled to construct structures upon the easement, and as the court pointed out (at p.266) the use of the word ‘impact’ can give rise to difficulties in interpretation.
8.Further, the inclusion of the expression ‘Option A’ in the condition means that the condition is of necessity not self-contained. One would have to have regard to some other document to interpret the condition. This is an inappropriate approach, as a Development Permit should be a self-contained approval.
9. Condition 9 provides:
‘All activities associated with the operation of the approved use are to be conducted only between the hours of 7am to 6pm Monday to Friday and 9am to 5pm Saturdays.’
10.During the course of the appeal, the parties have agreed that condition 9 should read:
‘All activities associated with the operation of the approved use be conducted only between the hours of 7:00am and 5:00pm Monday to Friday and 7:00am to 3:00pm Saturday and as approved in writing by the Chief Executive Officer at the request of the Appellant.’
11. Condition 24 provides:
‘All earthworks must comply with the Gold Coast City Council’s Land Development Guidelines.”
12.The Appellant suggests that the condition should be amended to read:
‘All earthworks must comply with the Gold Coast City Council Land Development Guidelines with the exception of the quality of fill which must comply, with the EPA licence response attached.”
13. A more appropriate form, it is submitted, is as follows:
“All earthworks (excluding the landfill operation) shall be carried out in accordance with Council’s Land Development Guidelines and AS3798-1996 (Guidelines on Earthworks for Commercial and Residential Developments). All the landfill must comply with the Council’s Land Development Guidelines with the exception of the quality of fill which must comply with the conditions imposed by any current EPA licence.’
14.This amended wording addresses the Appellant’s concerns without compromising Council’s concerns, and makes reference to Standards which must be complied with, with respect to both earthworks and fill.
15. Condition 25 provides:
‘No green waste, wood, plastic or any other material subject to breaking down shall be used for landfill. Only material suitable for earthworks to support future commercial and residential developments shall be used as landfill.’
16.During the progress of the appeal, the parties have agreed that condition 25 should read:
‘No green waste, wood, plastic or other material subject to breaking down shall be used in earthworks or in site preparation.’
17. Condition 28 provides:
‘The earthworks shall be carried out in accordance with AS 3798-1996, ‘Guidelines on Earthworks for Commercial and Residential Developments’. The material shall be placed in layers, watered and compacted to achieve the specified density ratio as monitored in Table 5.1 – Guidelines for Minimum Relative Compaction.’
18. The Appellant suggests the condition be amended to read:
‘Prior to any further Development Application, the Appellant shall undertake a Geotechnical Assessment to ensure the suitability of the site for the proposed use.’
19.As Ms. Tzannes says, it appears the Appellant’s concern in this instance relates to the fact that the condition as contained in the Decision Notice dated 20 December 2002 refers to both general earthworks (eg site preparation) and the landfill operation itself, and is somewhat vague. It is therefore considered reasonable to amend the condition to meet this concern. However, it is recommended in the following provision is more appropriate, as it will result in a condition which is more thorough and certain, but will still address the Appellant’s concerns:
‘Future redevelopment of the landfill areas may be restricted due to the quality and compaction of the amterial in question. Any future redevelopment proposal will require both Council and EPA approval and a key element in the assessment of such proposal will be a Geotechnical Assessment of the landfill site at the time the application is made.’
I find myself in agreement with those submissions, which accurately set out the circumstances. The court thus expresses the view that Conditions 5, 9, 24, 25 and 28 ought to correspond with those suggested in the paragraphs immediately above numbered 6, 10, 13, 16 and 19. To the extent appearing, that reflects agreement of the parties.
Turning to Appeal 477/2003, the appellant’s submissions, apart from the deletion of Conditions 3 and 18 were that Conditions 2(c), 5, 6 and 18 should be deleted and that Condition 4 be amended to read:
“In the design of this development, recognition is to be given to the natural topography in accordance with the schematic earthwork plans submitted by Brad Lees as part of the Applicant’s response to Council’s information requests.”
The condition set by the Council was:
“In the design of this development, recognition is to be given to the natural topography. Cutting and filling is to be kept to an absolute minimum and the subdivision layout should complement the existing topography to heave areas of visual impact in their natural state. Where cutting is considered necessary, the maximum depth of cut should not exceed 0.6 metres without prior approval.”
Mr. Abaza’s submission was as follows:
“5.As to condition 4 of Wonga Street the last sentence of condition is erroneous and must be deleted because: -
*the Guidelines [Ex 58] do not on the proper construction produce such a result;
*it seeks to elevate the provisions of the Guidelines as an expression of policy to a mandatory requirement – which has consistently been held as impermissible: Curtis per Kneipp J 213 D; Vynotas Pty Ltd v. Brisbane City Council [2002] 1 Qd.R. 108 (CA) [13] [16].
6.On an evidentiary basis the opinion of Mr Ryter that Tp 319 he ‘couldn’t support the proposal’ is irrelevant. To adopt Mr Shaw’s QC’s euphemism ‘so what’. Even if it were accepted that the depth of cuts in the built environment could be noticed in an adverse way by persons entering the property, that is not an opinion upon which this Court can act, absent a provision of law upon which such an opinion can be given. To do otherwise would be to substitute or give way to one view of the ‘aesthetic’ over another.
7.The precautionary principle should be applied because there is a danger, were the Court to uphold such a condition as a matter of law, that a new Australian ugliness would quickly enough appear. No houses with elevated position and superior outlook; compare Arnold v GCCC 2002 QPEC [21] and all houses with eaves greater than 600mm are not matters which the Court could endorse in the interest of architectural diversity.”
Once again, it is convenient to rely on Mr Ure’s fuller submissions in relation to the conditions (other than road dedication) relevant in Appeal 477/2003:
“20. Condition 2(c) provides:
‘The roof over all habitable rooms shall include a minimum 600 Mr. and Mrs. Spencer eave.’
21.Mr Kidd, the Appellant’s Architect, and Mr Ryter, the Respondent’s Planner, at the end of the day were not very far apart. Mr Ryter was understandably concerned at the absence of detail that was available to the Council at the time the application was processed.
22.He says, in para 2.5 of his report:
‘It is apparent from the correspondence of Brian Kidd (the Appellant’s architect) to the Appellant’s Solicitor dated 26 May 2003, that careful consideration has been given to the issue of energy efficiency and design for climate, based no the current subdivision layout. This level of detail was not available to the Council at the time the application was processed. It may however, be necessary for the layout of the subdivision to be amended, particularly having regard to the requirements of Condition 4 relevant to the extent of cut and fill required by the current layout. Provided that the same careful consideration is given to the design of houses based on the final subdivision layout, or alternatively that the requirements of Council’s Code are applied to the design of all houses on the allotments created by the reconfiguration, then there would be no need to specifically prescribe eaves with a minimum width of 600mm.’
23.Mr Kidd was confident, having read the Council’s Code, the ‘Energy Conservation (Design for Climate) Code’ that his design achieves the objectives of the Code. That being the case, an appropriate condition would be that:
‘The design of all houses on the allotments comply with the requirements of the Council’s ‘Energy Conservation (Design for Climate) Code’.
24. “Condition 4 provides:
‘In the design of this development, recognition is to be given to the natural topography. Cutting and filling is to be kept to an absolute minimum and the subdivision layout should complement the existing topography to heave areas of visual impact in their natural state. Where cutting is considered necessary, the maximum depth of cut should not exceed 0.6 metres without prior approval.’
25. As Mr Ryter says:
‘3.1 As a general planning principle, it is appropriate to limit the extent of cut and fill required in urban subdivisions. This is particularly the case for small lot housing (generally less than 600 square metres), such as that contemplated by this reconfiguration application. The reason for limitations being placed on the extent of cut and fill required in the case of more intense residential subdivisions is to:
i) Limit the visual amenity impacts of a development when viewed from roads and other areas external to that development; and
ii) To ensure the utility and amenity of the houses proposed for the allotments once they have been created.
3.3 Significantly, the Council has a transitional Planning Scheme Policy, Number 11 – Changes to Ground Level (Policy 11), adopted by the Council on 23 January 1998. Policy 11 is a mater relevant to the assessment of this proposal, and Condition 4. Section 2.0 of the Policy sets out its scope and includes the following:
‘2.0 SCOPE
The provisions of this policy apply to any excavation or filling of sites within the City that will materially change the existing ground level. The policy applies to both private and Council works.’
3.4 The Policy requires that an application is required under the Policy pursuant to Parts 12.26.3 and 16.6 of the Scheme. Part 12.26.3 of the Scheme prescribes that:
‘No person shall fill or change the level of any land without first obtaining the approval of the Council.’
3.5 Section 3.2 of Policy 11 sets out circumstances under which an application is not required to be made pursuant to the Policy and Part 12.26.3 of the Scheme. Some of these exclusions include:
‘(b) Location of fill, construction of a private road, or the creation of cut and fill platform (including lakes and canals,) that results in a batter less than 600mm in height.’
3.7 Condition 4 in requiring an application for cut exceeding .6 metres in height, is simply reflecting Council’s Transitional Planning Scheme Policy. The likely extent of cut and fill required for the proposal in its current configuration can be gleaned from Bradlees ‘Earthworks Schematic’ Drawing, which is reproduced as Figure 2, at page 12 to this report. Houses 6,7 and 8 range in size from 367 square metres to 412 square metres in areas, require cuts of approximately 3 metres in and associated with the understorey double garages proposed for those dwellings. Cuts of 2 to 2.5 metres in height are located adjacent to houses 9, 10 and 11, which range in size from 423 square metres to 441 square metres in area.
3.8 Having regard to the general principles described at the introductory part of my assignment of Condition 4, I find it difficult to support a proposal that has its largest lot on flat land, and 6 of its smaller lots on relatively steep land. In my view, the extent of this cut is unacceptable from an urban design and visual amenity perspective. In this regard, I consider that a refusal of the application by the Council could have been supported on town planning grounds, particularly having regard to the extent of non-compliance with Council’s current Policy, and new Scheme Codes described below. Rather than refuse the application, the Council has chosen to condition an approval in a manner that permits the further assessment of the extent of cut and fill.
3.9 I note that the Council has a Transitional Planning Scheme Policy entitled ‘Land Development Guidelines’. Section 3.2.7(iii) of this Policy is titled ‘Retaining Structures Within Private Property’, and includes the following:
‘Residential, Park Residential and Rural Precincts
Within these areas retaining structures are not desirable to be greater than 1.2 metres in height. Council may approve otherwise on request by formal submission (issue estoppel, cribwall design)’.
3.10Furthermore, the new Scheme includes at Chapter 16, a Code ‘Steep Slopes or Unstable Soils’. Performance Criterion 5, which relates to cut and fill work, is as follows:
‘All cut and fill work must not create a detrimental impact on the slope stability, erosion potential or visual amenity.’
3.11 The acceptable measures at AS5.1.1 provide that:
‘the height of cut and/or fill, whether retained or not, does not exceed:
…………………………………………………..
(b) 1200mm adjoining a residential site.’
3.12 Both the existing Transitional Planning Scheme Policy and the Draft Code seem to indicate that cut and/or fill of up to 1.2 metres in height is generally acceptable in residential areas. This is in my view, an appropriate limit, excepting for exceptional circumstances. It is a limit that has been adopted in other Planning Schemes in Queensland.’
26. Only Mr Ryter has approached this from a broad perspective. Mr Murdoch agreed that he looked at it purely from a structural point of view, and Mr Kidd’s approach was narrower than that of the broad visual amenity consideration of Mr Ryter. Mr Ryter expands his view at T317 as follows:
‘… It will be very obvious from those areas that I just discussed previously that you’re going to have extensive areas of cut and fill. Perhaps, just to explain my position, at the moment all we have are those little cross sections, Your Honour. There has been no demonstration or information provided that talks about how these three metre structures and two and a half metre structures are going to be treated in terms of visual amenity, in terms of landscaping, in terms of the sorts of materials that are going to be provides. And if you look at the condition that’s in dispute it’s asking for a sensitive design of the subdivision and – but, at that time, to provide details that this sort of assessment can be made. The Council hasn’t said, ‘These cuts should be refused’, they’re simply saying, ‘We want to have a careful look at this because visual amenity is important, particularly with the extent of cut you’re talking about.”
27. Condition 4 should be imposed as contended for by Council.”
Mr. Ure’s submissions as to Conditions 2(c) and 4 are accepted. While the views of Mr Kidd and Mr Murdoch are tenable, pressed to choose, I prefer those of Mr Ryter.
The Council no longer contended that Conditions 5 and 6 which provided:
“28. Condition 5 provides:
‘Design and construct 2 lanes on 4 lane earthworks (including associated works) to Council’s ‘Four Lane Road – Urban Classification, from the Andrews Interchange to and including the roundabout, generally as proposed by Weathered Howe (Drawing No. G00066-M-01(A), to the satisfaction of the Chief Executive Officer. Please note that associated works includes stormwater drainage and alterations to and/or realignment of existing water mains.’
29. Condition 6 provides:
‘Remove the temporary section of oyster Creek Drive and design and construct the ultimate (permanent) section of Oyster Creek Drive (including associated works) from the above roundabout to the existing Oyster Creek Drive to a ‘2 Lane Road – Urban’ classification, to the satisfaction of the Chief Executive Officer. Please note that associated works includes stormwater drainage and alterations to and/or realignment of existing water mains.’”
should be retained. The Council submitted (and the Court agrees) that Conditions 5 and 6 should be replaced by one in identical terms to Condition 3 in the other appeal. This represents a considerable success for the appellant in the Appeal 447/2003. Condition 18 should be retained.
The parties will have the opportunity to consider these reasons and formulate appropriate orders giving effect to them, or make other submissions to assist the court in formulating final orders.
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