Higdon Holdings Pty Ltd v Logan City Council

[2006] QPEC 63

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Higdon Holdings Pty Ltd & Ors v Logan City Council [2006] QPEC 063

PARTIES:

HIGDON HOLDINGS PTY LTD
And
JAFFNA HOLDINGS PTY LTD
And
GOLDORB CORPORATION PTY LTD
Applicants
v
LOGAN CITY COUNCIL
Respondent

FILE NO/S:

BD 4660 of 2005

DIVISION:

Planning & Environment

PROCEEDING:

ORIGINATING COURT:

DELIVERED ON:

23 June 2006

DELIVERED AT:

Brisbane

HEARING DATE:

1 June 2006

JUDGE:

Skoien ACJDC

ORDER:

Application allowed; new condition substituted.

CATCHWORDS:

“Request” for alteration to conditions (s.3.5.33(2) of IPA); fencing requirement for relocatable home park.

COUNSEL:

Mr J Curran for applicants

Mr J Houston for respondent

SOLICITORS:

Burns Lawyer for applicants

Corrs Chambers Westgarth for respondent

1. This is an application under s.3.5.33(2) of the Integrated Planning Act 1997 (“IPA”) by owners of Hammond Village situated at Park Ridge, in the city of Logan, to change a condition of a development permit (“the development permit”) granted by the Court by a judgment dated 29 September 1999.

1. The development permit was for a material change of use for a Relocatable Home Park called Hammond Village (for accommodation of residents over the age of 50 years).  The Village covers some 52 acres and has a total of 363 sites.  The total length of the perimeter of the Village is (on my estimate from the plan, exhibit A) of the order of three kilometres.

1. The change sought is to condition 18 of the development permit, which, relevantly, provided:-

   “18       Landscape works shall include:
                …

   ·A two metre high timber screen fence within the site and constructed along the adjoining property boundaries of the site.

   To be complied with prior to the commencement of the use.”

2. Higdon’s application sought that this condition, being the sixth bullet point of condition 18, be deleted and a new condition substituted so as to read:

   “A 2 metre high chain wire fence in lieu of a 2 metre high timber screen fence”,

but at the commencement of the hearing I gave leave to amend that to:-

“A two metre high chain wire, timber or colorbond screen fence within the site and constructed along the adjoining property boundaries of the site excepting the main entrance.”

1. The original development application was made in September 1998.  Submissions were made by or on behalf of 14 people.  Most of them expressed concern about traffic.  One made reference to the proposed boundary fence, but restricted to one specified area.  The Council refused the application and the matter was appealed.  By judgment given on 29 September 1999, apparently by consent, the Court allowed the appeal, subject to conditions.

1. The “request” (as s.33.5.33 puts it) must be made to the “entity that … required the condition to be imposed”, that is the Court. 

1. When this application was filed the City of Logan was subject to a planning scheme which had been gazetted originally in 1997 and amended and consolidated in 1997 (“the 1997 Scheme”). On 17 March 2006 a new planning scheme, prepared under the provisions of the IPA, commenced (“the IPA Scheme”). However the 1997 Scheme is the primarily relevant one. See Acts Interpretation Act 1954, s.20(3), which is applied because of s.14(1) and Schedule 1 of the Statutory Instruments Act 1992.

1. It was submitted by Mr Houston for the Council and not contested by Mr Curran for Higdon that:-

   (a) the change of the condition is sought by way of a request under s.3.5.33 of the IPA, and is not a development application;

   (b) in considering the request, the Court is exercising original jurisdiction conferred by the section (Aqua Blue (Noosa Pty Ltd v Noosa Shire Council (2003) QPELR 52 at paras [20], [21]);

   (c) the decision of the Court does not result in a decision notice, for the purposes of IPA, but simply a decision to change the condition;

   (d) in deciding the request the Court is to take into account the matters it would have had to take into account if the request were a development application and any submissions made about the application under which the condition was originally imposed (s.3.5.33(7));

   (e) it is appropriate for the Court to assess the proposed change to the condition by reference to the principles applicable to the determination of the original application on which the condition sought to be changed was imposed;

   and to these I would add:-

(f) the provisions of the 1997 Scheme are obviously relevant, and

(g) just as on a development application, submissions by interested people would be given weight, so in this proceeding the attitude of people such as residents of the Village is relevant.

1. The requirements of ss.3.5.30 – 3.5.32 are applicable to the consideration of the proposed condition.  In particular, it must be relevant to and not an unreasonable imposition on the development (s.3.5.30(1)(a)).

The Issue

1. Higdon’s consulting surveyor, Mr Somerville has sworn an affidavit which expresses concern that timber or colourbond fences are susceptible to vandalism.  I suppose it is obvious that solid material is more likely to be used by graffiti vandals than chain wire but I also accept that all of the three are susceptible to vandalism in the form of actual physical damage or destruction.

1. The Council has expressed its willingness to allow the boundary fences to be of 2 metre high timber or colorbond screen, according to Higdon’s preference.  So far as I can gather no submitter disagrees with that.  In August 2005 the Council agreed that, if required, a chain wire fence of 2m. height could be used but later withdrew that agreement because it felt it had misunderstood the attitude of the residents.  I place no weight on the Council’s earlier agreement.

1. What Higdon actually seeks in this application took a while to discover.  The evidence of Mr Hammond (Higdon’s director) supplemented by his markings on the plan exhibit A is that (by my scaling) Higdon has built about 1.5 km of colorbond fence.  In one section, the southern boundary, that colorbond fence is supplemented by a “back-up” 2m. high chain wire fence topped with a strand of barbed wire.  A lengthy section (about 400m) along the eastern boundary has along it what is described as an “old wood fence”, and there is a similar distance extending from that fence towards the south west which has no fence at all.  There is a further unfenced section of about 200m. along Lindenthal Road which is the length of boundary to which, as I finally discovered, Higdon’s request relates.

1. Leaving aside the Lindenthal Road section, I am not at all sure whether the fencing which now stands accords with the condition which was imposed and which has persisted till now.  But no enforcement proceedings have been taken and I am not asked to undertake them.

1. So, although the application (whether as amended or originally) does not spell it out, I am simply concerned with the Lindenthal Road section and as I said at the conclusion of the submissions:

   “The real issue is in the context of fences which are kilometres long and largely built, whether a variation of about 300 metres to build chain wire, top strand of barbed wire, is minor or not.”

2. While on reflection it is not strictly a case of deciding whether the alteration is minor, what I said, I think, encapsulated the essential issue, that is whether Higdon has shown that the proposed new condition in its application to the Lindenthal Road section of the perimeter of the Village is reasonable in the circumstances and has not offended any principle of the 1997 Scheme.  In any event, neither counsel challenged what I said.

1. The evidence on behalf of the Council emphasised the relevance of the 1997 Scheme, specifically Local Planning Policy No 18 (Relocatable Home Parks) (“the Policy”).  The relevant section, 2.2, of the Policy proscribes “a significant change in the streetscape character of the locality” and it also requires landscaping to provide visual amenity for residents to present an “attractive streetscape character”.

1. Higdon’s material contained photographs of a number of developments, residential and otherwise, in the general area of the Village in which chain wire fencing has been used.  Photographs of the chain wire fence which Higdon has actually built in one section do not seem to me to be offensive to the Policy’s attempts to preserve streetscape.  No particular streetscape character along Lindenthal Road was identified on the hearing.

1. The Lindenthal Road frontage has a 7m buffer between the individual house sites and the proposed fence.  Condition 17 requires landscaping in such buffer areas and Higdon proposes to train bougainvillea over the chain wire fence if one is permitted there.  It is notorious that the visual effect of this can be very attractive and it is also well known that bougainvillea is very thorny and provides an effective barrier in itself.

1. The Council argues that there are residents who are opposed to this application.  Two residents, Mr Dawson and Mr Martin in affidavits, express doubt about the security offered by a chain wire fence, saying that it could be breached by wire cutters.  I accept that a determined thief could do that but someone as determined as that could also overcome a 2m high wooden or colorbond fence simply by scaling it.  A chain wire fence topped by barbed wire would be harder to scale.  In fact, while the letters from residents of the Village exhibited to Mr Dawson’s affidavit express concerns about security, the emphasis in those letters is on the fact that the entrances to the Village do not have lockable gates.  They do not express a view on the comparative effectiveness of the difference types of fencing materials.

1. On the other hand an exhibit to an affidavit of Mr Hammond exhibits names, addresses and signatures of 53 residents who support the chain wire/barbed wire/bougainvillea fence.  It is true that is strictly hearsay but I consider the document can be looked at as being in the nature of submissions to a development application, to which attention is regularly given by Councils and by this Court.  And see para [8(d)] above.  I adopt a similar approach to the letters exhibited to Mr Dawson’s affidavit to which I have referred.

1. There was also some discussion abut the effect of flooding in a drain over which the proposed fence would pass.  Whatever type that fence should be, flooding would have to be taken into account.  It is in any case an engineering problem to which, no doubt, an engineering solution is available.

1. So I see no reason why the condition sought by Higdon should be regarded as other than relevant and reasonable.  However, the application having been restricted to the length of frontage of Lindenthal Road, the condition should be expressed to reflect that.

Conclusion

1. The application is allowed.  I invite the parties to prepare a draft order.