Hervey Bay City Council v Wildgrove Pty Ltd
[1999] QPEC 60
•20 December 1999
PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND
CITATION: HERVEY BAY CITY COUNCIL v WILDGROVE PTY LTD & Ors [1999] QPEC 58 PARTIES: HERVEY BAY CITY COUNCIL (Applicant)
WILDGROVE PTY LTD (First Respondent)
GORDON ALFRED HIDES (Second Respondent)
LINDA MERLE HIDES (Third Respondent)FILE NO/S: APPLICATION 3437 OF 1999 DIVISION: PROCEEDING: ORIGINATING COURT: DELIVERED ON: 20 December 1999 DELIVERED AT: Brisbane HEARING DATE: 22 September 1999 JUDGE: Quirk DCJ ORDER: CATCHWORDS: COUNSEL: SOLICITORS:
In this case the Hervey Bay City Council seeks a declaration that the respondents have failed to comply with conditions of approval in respect of access to land described as Lot 8 on RP 892993 County of Cook Parish of Burrum. An enforcement order (as provided for by Division 5 of Part 3 of Chapter 4 of the Integrated Planning Act) is also sought.
The first respondent is the owner of the subject land which has frontage to the Bruce Highway at Howard. The second and third respondents are interested in the first respondent company and occupy the land.
In December of 1993 a combined rezoning and subdivision application was made in respect of a larger parcel seeking:
1. A rezoning from the Rural B zone to the Residential A zone and the Special Facilities (Aquaculture) zone;
2. Approval for the subdivision of the land into 8 allotments, one of which was the subject land.
The section of the highway to which the subject land has frontage is proclaimed as having “limited access”. When the combined application was referred to Queensland Transport, in a letter dated 21st March 1994 the District Manager advised that the Department had no objection to the proposal but added:
“In according with the provisions of the Transport Infrastructure (Roads) Act Queensland Transport’s requirements for access to the subject land are detailed below:-
1.The subject property abuts a limited access road. Such limitation of access makes no allowance for direct access to the Bruce Highway; access being available via East Street
…
4. The existing break in the fence, adjacent to the Bruce Highway, is to be closed permanently”.
The combined application was conditionally approved. The proposed plan of subdivision showed access to Lot 8 from East Street along an access way. Among the conditions of approval were the following:
“C13. A driveway shall be conducted for the full length of the access way to proposed Lot 8 to the following standard:-
(a) A 3m wide gravel pavement not less than 150mm deep and designed in accordance with Council’s standards to carry a design traffic loading of 1 x 104 ESA.
(b) The pavement shall be sealed with a hot sprayed bitumen seal consisting of a prime and two sealed coats.
(c) All associated drainage shall be provided.
(d) A clearance of 1m shall be maintained from the batter point of any excavation or embankment construction to the proposed boundary. The driveway construction shall extend to the proposed channel to be provided in East Street.”
Before me the Council called evidence from Mr Graham John Smith, an officer of the Department of Main Roads and Mr Kevin Wallace Hawkins, an officer of the Council. The second respondent, Gordon Alfred Hides, appeared and gave evidence. An inspection of the subject land was made to assist in a better understanding of the evidence given.
That a driveway through a break in the highway fencing at the frontage of the subject land has been and continues to be used to gain access to the highway was not disputed. Mr Hides in conceding this sought to make the following points:
1. Direct access to the highway provides the easiest (and in his opinion safest) mode of access to the subject land;
2. Access to East Street along the access way is used but difficulties with this route are experienced by larger vehicles and in times of heavy rainfall as a watercourse crosses the route inside the subject land;
3. The cost of overcoming these drainage difficulties would be substantial. Mr Hides disputed the figure of $5,000 estimated by Council witnesses and thought it could be as much as three times that amount. (It has to be said however that an estimate which he produced to support this view appears to contemplate a sealed driveway from his residence to the end of the existing bitumen driveway along the accessway).
4. He has experienced difficulties with the intersection of East Street and the highway.
5. He believes that, at the time of purchasing the property, he was misled as to his prospects of having direct access to the highway approved. He pointed to other properties in the area which enjoyed direct access and claimed:
“The only reason we don’t have highway access is that it was not applied for and granted when the highway was built as the three neighbouring access points were.”
6. He has attempted to bring his difficulties to the attention of political figures but his efforts in this regard have provided him little satisfaction.
While I have some sympathy with the respondents, the ambit of my authority to deal with the matters that have been raised is limited by the court’s statutory jurisdiction.
The approvals that led to the creation of Lot 8 and its accessway from East Street are “continuing approvals” as provided for in Division 6 of Part 1 of Chapter 6 of the Act. By reason of s.6.1.23(2) such continuing approvals (and conditions attached thereto) have effect as if they were comparable approvals given under the Integrated Planning Act.
Section 4.3.3(1) provides:
“A person must not contravene a development approval, including any condition in the approval”.
The gaining of direct access to the highway at the frontage of the subject land is clearly in breach of the relevant conditions of approval in this case and I find that an offence against s.4.3.3(1) of the Act has occurred.
Where such an offence has been established, s.4.3.25 of the Act allows the Court to make an enforcement order. It is accepted that the Court has a discretion in respect of the matter but it is submitted by the Council that:
· The Bruce Highway is part of the national highway and is, at this location, a “limited access road”.
· The highway carries a substantial amount of traffic including a high proportion of heavy vehicles.
· The expressed view of the Department is that continued direct access from the subject land to the highway is unacceptable and detracts from the safe and efficient operation of the highway.
· The respondents were directly involved with the application which led to the conditions of approval that have been breached and were admittedly aware of them.
· Repeated attempts have been made by both the Department and the Council to have the respondents respect the conditions which have been offended.
· While the provision of “all weather” access from the accessway might involve the respondents in some expense, it is not unreasonable in the circumstances that compliance with the conditions should be required.
I believe that there is considerable force in these submissions and that a case for an exercise of discretion in favour of the relief sought by the Council has been made out.
Accordingly I will dispose of the matter as follows:
1. It is declared that the respondents have failed to comply with conditions C22(i) and (ii) of an approval of a combined rezoning and subdivision application issued by the applicant on 3rd May 1994 in respect of land now described as Lot 8 on RP 892993 County of Cook Parish of Burrum and situated at Lot 8 East Street, Howard.
2. It is declared that the respondents have therefore committed a development offence.
3. It is ordered that the respondents forthwith:
(a) Are restrained from gaining access to the Bruce Highway in contravention of condition C22(i) of the Council approval of 3rd May 1994; and
(b) Close the existing break in the fence between Lot 8 and the Bruce Highway in compliance with condition C22(ii) of the Council’s approval of 3rd May 1994.
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