Intrapac Parkridge Pty Ltd v Logan City Council
[2014] QPEC 48
•29 August 2014
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
CITATION:
Intrapac Parkridge Pty Ltd v Logan City Council & Anor [2014] QPEC 48
PARTIES:
INTRAPAC PARKRIDGE PTY LTD
(ACN 122 303 495)
(Appellant)
and
LOGAN CITY COUNCIL
(Respondent)
and
AUSTRALAND INDUSTRIAL NO. 72 PTY LTD
(ACN 106 214 966)
(Co-Respondent)
FILE NO/S:
BD 3550 of 2012
PROCEEDING:
Appeal
ORIGINATING COURT:
Planning and Environment Court of Queensland
DELIVERED ON:
29 August 2014
DELIVERED AT:
Brisbane
HEARING DATE:
2-4 April 2014, with supplementary submissions and exhibit received 26 May 2014
JUDGE:
Rackemann DCJ
ORDER:
The conditions will be varied in accordance with paragraph 47 of these reasons. The appeal is adjourned to permit the parties to formulate the terms of the order.
CATCHWORDS:
PLANNING AND ENVIRONMENT – submitter appeal – where Council approved an application to facilitate a residential estate – where approval was subject to conditions concerning the dedication and construction of a road which would give access to the submitter’s land – where conditions required the road within stages 1 and 2, but the co-respondent asserts that does not mean that ‘Stage 2’ has to be the second stage developed – whether conditions requiring the dedication and construction of the road during the early stages of the development are lawful and ought be imposed in the exercise of discretion
COUNSEL:
D O’Brien QC and K Wylie for the appellant
B Job for the respondent
M Williamson for the co-respondent
SOLICITORS:
Gantt Legal for the appellant
Corrs Chambers Westgarth for the respondent
McCullough Robertson for the co-respondent
Introduction
This appeal relates to the approval of the co-respondent’s (Australand) development application for:
(a) a preliminary approval (for a material change of use) varying the effect of the planning scheme; and
(b) a development permit for the reconfiguration of a lot.
The development approval is to facilitate the development of a ‘greenfield’ site at Park Ridge for a residential estate which is also to include a local centre, park/environmental reserve areas and a bio-retention basin. That development is intended to be effected in stages. The preliminary approval relates to the whole of the site. The development permit for reconfiguration relates to Stage 1 only.
The site has an area of some 23.57ha. It has a 10m frontage to Chambers Flat Road to the east, a 620m frontage to East Beaumont Road to the south, and a 90m frontage to Lindenthal Road to the west. The site forms an elongated east-west linear site, with primary access from East-Beaumont Road, which is currently unsealed.
The appeal was set down to be heard together with two other submitter appeals, by Allgreen Qld Pty Ltd (Allgreen) and by Claremont Holdings Pty Ltd (Claremont) respectively. The Allgreen and Claremont appeals were resolved upon a minor change being made to the proposal. This appeal was pursued by Intrapac Park Ridge Pty Ltd (Intrapac), which owns land to the immediate north that it also wishes to develop for residential purposes.
Although the appeal is by an adverse submitter, it is common ground that Australand’s development application can be approved, subject to appropriate conditions, including, relevantly, conditions requiring the dedication and construction, through Australand’s site, of a north-south road linking East Beaumont Road (on the southern boundary of Australand’s site) to the northern boundary of Australand’s site. That road is to be aligned so as to provide the first section of a planned new major road (UA2), that is ultimately to extend further north and south, as provided for in the planning scheme. The conditions of approval also require Australand to design and construct East Beaumont Road frontage to the site and between the frontage and Chambers Flat Road to the east, as a major urban collector road.
The provision of that part of UA2 through Australand’s site will provide the Australand development with access (externally to the site) to/from East-Beaumont Road. It will also provide access (internally) to/from various elements of the proposed road network within the Australand development. It would also advantage Intrapac’s proposal to develop its land, by giving it a point of access at the northern boundary of the Australand site, through to East-Beaumont Road. The controversy was as to the timing for the required dedication and construction of UA2 to the northern boundary of the Australand site.
Australand finds itself in dispute not just with Intrapac but also with the Council. Whilst it did not appeal against the conditions imposed by the Council (and entered into an infrastructure agreement with it), there is an argument as to what those conditions require, or should require (if they are to be changed).
Intrapac’s position is that Australand should be required to:
(i) dedicate the UA2 land on its site during the first stage of its development; and
(ii) construct that part of UA2 on the Australand site in the earlier stages of development, logically completing it in the second stage.
The Council’s position is that:
(i) the part of UA2 that falls within Stage 1 of the proposed development should be dedicated and constructed during that stage; and
(ii) the remaining part of UA2 should be both dedicated and constructed as part of the second stage of the development.
Accordingly, both the Council and Intrapac wish to see this connection dedicated and constructed to the northern boundary of the Australand site by the end of the second stage of the development. Indeed the Council asserts that this is what the conditions of approval, against which Australand did not appeal, and the infrastructure agreement, both envisage.
The conditions of the preliminary approval include the following:
‘6.1. Dedicate to the state, at no cost to Council, prior to the submission to the Council for compliance assessment of a Subdivision Plan for Stage 1 of the development, the following land as road reserve:
…
6.1.2. 30.0 metre wide strip of land extending from East Beaumont Road, generally in accordance with the alignment of the UA2 road identified in the Development Code (Map 4 – Access and Mobility).
…
6.2. Dedicate to the state, at no cost to Council, prior to the submission to the Council for compliance assessment of a Subdivision Plan for Stage 2 of the development, the following land as road reserve:
6.2.1. a 24.0 metre wide strip of land extending from dedicated 30.0 metre wide strip of land to be dedicated (as stated in Condition 6.1.2) up to the northern boundary of the site where the centreline of the road is to be on the same alignment as the property boundary between Lot 1 on SP195178 and Lot 12 on RP82892.
…
Urban Arterial Road
10.2 Design and construct the road described as UA2 on approved Map 4 – Access and Mobility to an Urban Arterial standard, up to the northern side boundary prior to the submission to the Council for compliance assessment of a Subdivision Plan for Stage 2 of the development.’
Lot 12 on RP82892 is the Intrapac site. Lot 1 on SP195178 is the Claremont site.
As one would expect, the conditions of the reconfiguration approval for Stage 1 include those requiring dedication and construction within that stage.
The approved plans of development[1] included Map 6 – Indicative Ultimate Layout. The plan, as approved, had been amended by the Council to include the completion of the UA2 road to the northern boundary of the Australand site as ‘part of Stage 2.,’ rather than as part of Stage 7 as originally proposed.
[1]see condition 4.1.
Condition 5 of the preliminary approval referred to an infrastructure agreement between Australand and the Council. That agreement provides not just for monetary contributions, but for work and land contributions set out in Schedule 2 which include, relevantly, the following:
Column 1 Item | Column 2 Infrastructure Contribution | Column 3 Specification of the Infrastructure Contribution | Column 4 Timing of the Infrastructure Contribution | Column 5 Party responsible for the Infrastructure Contribution | Column 6 Other requirements |
| 1.2 | Work Contribution for road transport infrastructure for a Major Urban Collector Road. | The Work Contribution for the road transport infrastructure is to comprise the provision of a 24.0 metre wide (15.0 metre carriageway) Major Urban Collector Road comprising a total area of 6,840m2 in the location shown in red and in accordance with the cross sections identified on Drawing No. K005-AA001826-A in Schedule 4. | Before the Approval of a Plan of Subdivision for each relevant stage of the Proposed Development that is adjacent to or requires access to that road. The full extent of works between East Beaumont Road and the northern boundary of the site to Lot 1 on SP195178 and Lot 12 on RP82892 must be complete prior to the submissions to the Council for compliance assessment of a Subdivision Plan for Stage 2 of the development | Proponent | This Infrastructure Contribution is subject to an Infrastructure Offset. |
| 1.3 | Land Contribution for road transport infrastructure for a Major Urban Collector Road | The Land Contribution for the road transport infrastructure is to comprise the dedication of land to the Council for road purposes of a minimum width of 24.0 metres comprising a total area of 6,840m2 for a Major Urban Collector Road in the location shown in red on Drawing No. K005-AA001826-A in Schedule 4. | Subdivision Plan for Stage 2 of the development | Proponent | This Infrastructure Contribution is subject to an Infrastructure Offset. |
The respondent concedes that on drawing K005-AA001826-A Stage 2 does not extend to the northern boundary of the Australand site, but points out that the provisions of item 1.2 above require construction to that point to be completed prior to compliance assessment for Stage 2. It was submitted, on behalf of the Council, that:[2]
‘That is, if Drawing K004-AA001826-A was considered to identify the stages referred to in the development obligations in the Infrastructure Agreement, the Stage 2 depicted on the Drawing should be construed as identifying what the second stage in sequence was to be. In that event the development obligations in Items 1.2 and 1.3 of the Agreement would require the dedication and construction of the road within the designated Stage 2 and, in addition, its extension to the northern boundary. That, it will be recalled corresponds with the amendment in red which was made to Map 6 as part of the development approval.’
[2]Supplementary Submissions paragraph 6.
Subsequently to the institution of the appeal, there has been a change to the plan of layout for the development. The change is of no great moment for present purposes. Relevantly, it shows that part UA2 which is within the Australand site as within Stages 1 and 2 of the development.
Notwithstanding the above, Australand contends that neither the conditions nor the infrastructure agreement require, or should require, it to dedicate and construct UA2 to its northern boundary by the completion of the second stage of its development. It points out that the approved Map 6 was an indicative layout and that a note on it stated, ‘This concept plan is subject to change upon lodgement of a development application.’ More fundamentally however, it asserts that the stage numbers mean nothing about sequencing. The fact that the stages were described by numbers, starting with 1, did not, it was submitted, obligate it to follow that numbering when sequencing its development and that it would therefore be wrong to assume that Stage 2 will be the second stage.
Accordingly, it was submitted that Australand, whilst obligated to complete dedication and construction to its northern boundary by the end of constructing ‘Stage 2,’ might do so, if it so chose, after constructing other stages. So far as sequencing is concerned, the stages might well have been called the ‘lion stage,’ ‘tiger stage,’ ‘monkey stage’ etc. as have been numbered in the way they were. Had the Council wished to require dedication and construction early in the development of the Australand site, then it should have, on Australand’s approach, been alive to the difference between a condition which refers to the ‘second stage’ and one which refers to ‘Stage 2.’
The case was conducted on the basis that Stage 1 (for which a development permit was sought at the same time as the preliminary approval for the whole of the site and which provides the primary access to East-Beaumont Road for the Australand development and is to provide lots not just for residential development, but also for the local centre and a park/environmental reserve) would be developed first. Indeed Counsel for Australand, when questioned about whether the development might commence elsewhere responded:[3]
‘So it’s not true to say we’re starting left – east, west, north – stage 1, that has been the first stage that my client has elected to commence. He has a reconfiguration of a lot approval for that which is yet to take effect, and it will deliver.
[3]T3-66, see also T1-3 L45.
The consequences of Australand’s position is that, whilst it is content to start at Stage 1 and dedicate and construct part of UA2 as part of that stage, it could deny the opportunity of land to the north, including Intrapac’s land, to link into the proposed connection at the northern boundary for as long as it chose to delay constructing Stage 2. On the other hand, the consequence of the position for which the Council and Intrapac contends would be to give Intrapac the benefit of linking into the infrastructure provided by Australand at an early stage, in order to undertake a competitive residential subdivision. There are obvious commercial implications.
The town planners, in their first joint report, suggested what they described as a ‘reasonable compromise,’ which would have involved some sharing of cost/responsibility including in relation to the construction of East Beaumont Road. Negotiations between the parties, however, failed to resolve the matter and so the appeal falls for determination by the Court.
The Council takes issue with Australand’s construction of the conditions and the infrastructure agreement. It is, however, unnecessary for me to rule on those matters of construction, since no party asserted that the Court was bound to adopt the wording of the current conditions. Further, my conclusion in this case is not dependent on those construction issues and would not vary whichever way they were resolved.
The power to approve a development application includes the power to do so subject to conditions[4]. That power is expressed in general terms, but is subject to the constraints of s 406 of the Sustainable Planning Act (SPA), which relevantly provides:
[4]Section 324(1).
‘406 Conditions must be relevant and reasonable
(1)A condition imposed on development or work requiring compliance assessment must—
(a) be relevant to, but not an unreasonable imposition on the development or work, or use of premises as a consequence of the development or work; or
(b) be reasonably required in relation to the development or work, or use of premises as a consequence of the development or work.’
There is, of course, no requirement for an assessment manager or, on appeal, the Court to impose each and every condition which might pass one of the above tests. There is a relatively broad residual discretion as to what lawful conditions to impose on the approval at hand[5]. That discretion, whilst broad, must be exercised for a proper planning purpose and not for any ulterior purpose. A planning purpose is one that implements a planning policy whose scope is ascertained by reference to the legislation that confers planning functions on the relevant authority[6]. In the case of the SPA, the assessment manager’s decision, including a decision to approve subject to conditions, must be based on the assessment of the application under Division 2 of Part 5.[7] That includes assessment by reference to the planning scheme.
[5]Australian Retirement Homes Ltd v Pine Rivers Shire Council [2009] QPEC 92.
[6]Western Australian Planning Commission v Tamwood Holdings Pty Ltd (2004) 221 CLR 30 per McHugh J at para 70 and per Gummow and Hayne JJ at para 93.
[7]Section 324(2).
The co-respondent submits that the conditions contended for by the appellant and by the Council are unlawful or, in the alternative, ought not be imposed as a matter of discretion. It advances a common set of reasons for each of those contentions. It was submitted that:[8]
‘…this appeal is an attempt by the Appellant, ably assisted by the Council, to force Australand to provide access to its land at no cost and at a time which is convenient to the Appellant’s commercial interests. This is occurring in circumstances where this has nothing to do with UA2 and there is no traffic engineering imperative or planning imperative warranting this course. It is merely a matter of commercial reward.’
[8]Written submissions paragraph 49.
Both the Australand and Intrapac sites fall within the area covered by the Park Ridge Structure Plan (PRSP) pursuant to the planning scheme. The PRSP map[9] reveals an intention for the broader area, east of Clarke Road (of which the Australand and Intrapac sites form a part), to be developed generally for low density residential development. It also shows a proposed new road (UA2) running through the Australand site and ultimately linking Koplick Road further to the south and Bumstead Road further to the north. That road is shown as part of the ‘trunk road network’ and is obviously an important element in the realisation of the development intentions for the area.
[9]Exhibit 1 page 11.
Section 2.1.5 of the planning scheme contains the Desired Environmental Outcomes for the Park Ridge Structure Plan area. Section 2.1.5(1)(b)(ii) (which is set out later) has the effect of requiring provision for infrastructure. Section 2.1.5(5) provides:
“Infrastructure - Development in the Park Ridge structure plan area provides the infrastructure required to service the development in accordance with the infrastructure networks specified on Map 2.1.5 (Park Ridge Structure Plan) and the Priority Infrastructure Plan.”
It was also pointed out that Specific Outcome O15 of the Reconfiguring a Lot Code requires development to provide road transport infrastructure which not only services the development but also integrates with the existing and planned road transport infrastructure. The probable solution to that Specific Outcome refers to development providing road transport infrastructure that complies with, amongst other things, the requirements for a road in a structure plan map. Specific Outcome 16 of the same code requires development to provide an overall road network which, amongst other things, provides appropriate external connections to adjacent premises.
Having regard to Australand’s development proposal, in the context of the planning intentions for development of the area, it is both lawful (as satisfying at least s 406(1)(a) of the SPA) and appropriate to impose conditions to provide for that part of UA2 which traverses the Australand site and which will be used for access to and within the Australand site as well as, ultimately, for the orderly development of the broader area in accordance with the intentions of the PRSP. This much is uncontroversial. Indeed, the written submissions of behalf of Australand include the following:
“21.In a practical sense, the conditions require UA2 to be constructed and dedicated to the Council in two parts. It will be constructed to a standard that is not required by the subject development, which is an obvious public benefit.
22.The co-respondent is entirely satisfied with this arrangement.”
Of relevance to the timing issue is the PRSP sequencing plan map 2.1.5B. It shows the area north of Park Ridge Road as within a 0 to 15 year timeframe, whilst the area south of Park Ridge Road (including the Australand and Intrapac sites) as within a 15 to 20 year timeframe. Australand contends that, in light of that development sequencing, it should not have to provide for the connection of the new road to its northern boundary at an early stage. Indeed, on its approach and given that the life of Australand’s preliminary approval, pursuant to condition 2.1, is to 15 years, set against the development sequence for the broader area of 15 to 20 years and a lack of evident immediate development pressure beyond the Intrapac site, it would be acceptable if UA2 to its northern boundary were not provided until the very last stage.
That submission is not without its difficulties. First it assumes that the link to the northern boundary of the Australand site will be secured by the conditions for which it contends and delivered within the 15 year life of the preliminary approval even if the development of Stage 2 is deferred. The fact that the preliminary approval facilitates development to occur over a period of 15 years does not necessarily mean that the whole of the intended development will inevitably be achieved, or achieved within that timeframe. It is not unknown for a developer to fail to exercise development rights conferred by an approval in full or to fail to do so within the life of the initial approval.
Further, it is inappropriate to focus upon the 15 to 20 year timeframe indicated on map 2.1.5B in isolation from other relevant provisions of the planning scheme. In that regard s 2.1.5(1) provides as follows:
‘(1)Integrated and orderly development of the Park Ridge structure plan area–The Park Ridge structure plan area is developed in accordance with–
(a)the integrated and orderly pattern of land use and infrastructure networks specified on Map 2.1.5A (Park Ridge Structure Plan); and
(b)the sequence of development in the Park Ridge structure plan area:
(i)specified on Map 2.1.5B (Park Ridge Structure Plan Sequencing Map); or.
(ii)specified on a plan for the structure plan area, approved by the local government, which –
(A)provides for the orderly and efficient provision and integration of land use and infrastructure; and
(B)ensures development is of a scale, form and intensity intended for the locality in which the development is located; and
(C)provides appropriate links and relationships with the surrounding area; and
(D)provides appropriate interfaces and between land uses; and
(E)protects the residential locality; and
(F)supports employment areas and is in accordance with the retail hierarchy; and
(G)protects and enhances the green space network; and
(H)supports transport infrastructure; and
(I)ensures the integrated provision of all infrastructure, including the pedestrian and cycle way network, stormwater drainage network, parks network, public transport, road network, and open space network; and;
(c)a finalised State infrastructure agreement if required by the State government; and
(d)a finalised local infrastructure agreement if required by the local government.’
The relevant planning strategy may be broadly summarised as follows:
1. the PRSP area is to be developed;
2. development is to occur in an integrated and orderly pattern of land use and infrastructure networks specified on Map 2.1.5A, and
3. the sequence of development is to occur either as specified on Map 2.1.5B or pursuant to s 2.1.5(1)(b)(ii).
The relevant provisions do not provide that development in this part of the structure plan area is to be postponed until 15 to 20 years time. Development in advance of that timeframe is contemplated and provided for in s 2.1.5(1)(b)(ii). Indeed it is that provision upon which Australand relies to justify its own development commencing at this time, instead of the timeframe depicted in map 2.1.5B.
It was submitted, for the Council that, in those circumstances, it is illogical that development of the Australand site could be delivered ‘ahead of schedule’ but that UA2 (or, more correctly, that part within the Australand site) can simply be deferred at Australand’s whim. In the course of oral submissions, Counsel for the respondent submitted that it was not orderly development if ‘an individual land owner can come along and say, well I’m going to turn up 15 years earlier and grab my own little suburb here and the rest of the world can go jump’ and further that:
‘It seems to me to be a complete disconnect to say that a developer can come along and say I am here, I’m developing in accordance with the structure plan requirements of the scheme except I’m 15 early and I want my residential lots, but in terms of the infrastructure that’s planned, that’s just going to have to wait and everyone is going to have to wait.’
It was submitted, for Intrapac, that:
‘33. The fundamental position of the appellant is that by not requiring early dedication an construction of UA2, development in accordance with the respondent’s Park Ridge structure plan area would be unduly compromised because:
(a)Development to the north of the subject site, which relies upon UA2 to access their land, could only occur at the will of Australand, a direct commercial competitor of all of those land owners, not just Intrapac; and
(b)The ability would be lost, to the detriment of the community, for other developers to step in and construct part or all of the UA2 at no expense of the Council, should the co-respondent fail to do so, or fail to complete development of its land.’
Australand’s development will be the first new residential estate in a locality planned to be developed for such purposes in an integrated and orderly way. The Australand site is clearly not intended, by the planning scheme, to be an isolated island of residential development. The timely establishment of appropriate infrastructure and appropriate links and relationships with the surrounding area will only serve to support achievement of the planning scheme’s intentions for the broader area. The achievement of those intentions, in advance of the 15 to 20 year timeframe shown on Map 2.1.5B, is contemplated and provided for. The imposition of lawful conditions directed at the opportunity for that to occur are for a proper planning purpose.
As Mr Gary White, a town planner, pointed out in the first joint report of the town planners, the non-provision of UA2 (leaving to one side the nature of the provision) early in the development process interferes with the materialisation of orderly development of other land envisaged for development by the structure plan.[10] It potentially postpones orderly development for an indefinite period.
[10]Exhibit 2, page 17.
It was pointed out that, at present, Intrapac is the only other developer which apparently wishes to link into UA2 at the northern boundary of Australand’s site at this time. In the absence of some alteration to the planned alignment of UA2, Intrapac’s development could only provide for half the width of the next section of UA2. That half width could be used to provide a local access road to the Intrapac site until such time as the adjoining Claremont land is developed. That was the basis for Australand’s contention that the matter at issue has nothing to do with the provision of UA2. The matters referred to do not however, mean that the opportunity presented by the provision (leaving to one side the distinction between dedication and construction) of the first part of UA2 should not be offered or might not be taken up by others (including in addition to Intrapac) in an orderly way over time. As Counsel for Australand acknowledged[11], the Australand development (if linked) presents an opportunity for further orderly development to occur.
[11]T3-70 L5.
The town planner engaged by Australand, (Mr Ben Slack) acknowledged that: [12]
‘good planning practice dictates (amongst other things) that proposed development should allow for connectivity to surrounding land, promote the creation of communities and not preclude the eventual development of surrounding land.’
Those elements of ‘good planning practice’ are reflected in the planning scheme provisions already referred to.
[12]JER paragraph 6.2.1.
Mr Slack also however, opined that ‘good planning practice’ does not require the provision of infrastructure at the first stage of development. He considered that the ‘staging’ of UA2 connection does not “necessarily” compromise commencement of development of the adjoining Intrapac site as a standalone parcel, pending the UA2 connection. That opinion relied upon the potential (earlier put forward by Intrapac to the Council) of accessing its land via a new connection to Chambers Flat Road to the east, pending provision of an access point to UA2. Such a connection however:
(a) is not provided for in the PRSP;
(b) would involve the inefficient development of infrastructure which would become redundant upon the UA2 connection;
(c) would, for the reasons explained by Mr Holsworth, be undesirable from a traffic engineering perspective, because it would result in two relatively significant intersections on Chambers Flat Road, only 300 metres apart;
(d) would provide only partial development opportunity for Intrapac’s land, and no access to other land north of Australand’s development;
(e) would not connect the future residents of the Intrapac development to the Australand development (including the planned local centre) site. That is hardly consistent with maximising either community interaction or the accessibility to community facilities (which are part of the desired environmental outcomes for the planning scheme area generally[13]);
(f) is not currently supported by the Council.
[13]See s 2.1.4(1)(d) and (e).
As Mr Slack acknowledged, if (as I am satisfied is probable) access cannot acceptably be gained by Intrapac from Chambers Flat Road, then access will be compromised until such time as UA2 provides a point of connection.[14] On the position advocated by Australand, it would potentially be able to stall the development by Intrapac (and potentially by others) for as long as it chose to delay Stage 2 of its development.
[14]JER paragraph 6.2.1.
It was submitted, for Australand, that whilst some might think it better that the link be provided at an early stage, the position for which it contends is acceptable and ought therefore be adopted. Counsel for Australand put it as[15]
‘A difference between orderly planning and more orderly planning.’
[15]T3-70.
The Court has often recognised that a development application, formulated and submitted by an applicant, should be assessed on its merits, to determine whether it is acceptable, regardless of whether it would theoretically be possible for the applicant to formulate an even better proposal. In this case however, whilst the appellant contended that the Australand development would be unacceptable without the conditions for which it contends, the Court is concerned not so much with questions of approval or refusal, but with what conditions ought to be imposed upon the approval of the application.
Moreover, having regard to the provisions of the Planning Scheme, the approval ought make provision for appropriate infrastructure as well as links and relationships between Australand’s development and the surrounding area in a way which is consistent with the realisation of the development intentions for the area in accordance with the PRSP. Insofar as timing is concerned, the commencement of development in this area by Australand provides the opportunity for further orderly development to occur in a timely way.
I do not regard it as either desirable, appropriate or even acceptable in the circumstances to formulate conditions in such a way as to leave uncertainty about this part of the UA2 corridor and to permit development of the Australand site, in advance of the 15 to 20 year timeframe in the Sequencing Map (in reliance on s 2.1.5(1)(b)(ii)), while also permitting Australand, at its discretion, to delay facilitating the link to its northern boundary in circumstances where that carries the real prospect (and, indeed, likelihood) of delaying the orderly development of other land in the locality pursuant to s 2.1.5(1)(b)(ii).
That can, in my view, be appropriately addressed by conditions which require:
(i) dedication of the entire UA2 land through the Australand site to the northern boundary and construction of that part within Stage 1 when the approval is first acted upon (i.e. at the first stage, being Stage 1); and
(ii) construction of the balance, when Australand constructs Stage 2 (whether or not that is the second stage).
The effect would be to require dedication at the outset, so that the corridor is secured, the opportunity for orderly development of other land in the locality is not unnecessarily postponed by reason of Australand potentially not having proceeded with Stage 2, and that such development has the opportunity to appropriately ‘link’ with the Australand development. The construction of Stage 2 (or that part of UA2 within Stage 2) is not necessary to achieve that. This might mean that, for example, Intrapac constructs that part of the UA2 through Stage 2 of the Australand site in order to get access if that part, although dedicated, has not yet been constructed by Australand.
I am satisfied that the above conditions are relevant for the purposes of s 406(1)(a) of the SPA, would not constitute an unreasonable imposition on the development, would be for a proper planning purpose and are appropriate in the exercise of discretion. Relative to the position for which Australand contends, they bring forward the dedication, whilst raising the prospect that some other developer (if not the Council) might complete the construction of that part of UA2 which is within Stage 2. Australand might consequently lose the potential to delay competing development, but that commercial consideration ought not drive the conditions of approval and does not render the conditions an unreasonable imposition on its development.
There was an unpersuasive and somewhat sorry attempt by the traffic engineer engaged by Australand (Mr Stephen Williams) to contend that conditions which facilitate access through the Australand site, along UA2, early in the development process would be unreasonable from the traffic perspective. That was said to be so because the use of that access by other development might result in more than 100 lots using this part of UA2 earlier than would otherwise be the case, triggering the need for Australand to consider the need for providing secondary access (for emergency situations) at an earlier stage than might otherwise be the case. This would, Mr Williams said in his individual report:
‘…be a significant imposition on the subject land that is borne out of the need to deal with impacts associated with other development proposals and not impacts associated with the proposal itself.’
It is regrettable that, if this was a significant concern, Mr Williams did not mention it, in any specific way, in the joint report of the experts. In the joint report he contented himself with saying (relevantly):
‘Further, Mr Williams notes his concerns that any such requirement to alter the development sequence would in fact be likely to have an adverse impact on the development itself in terms of timing of the development and the associated infrastructure provision, which would represent an unreasonable imposition on the subject development.’
The emergency access concern was shown, in the course of the cross-examination of Mr Williams and in Mr Holsworth’s evidence, to have little force. Mr Williams conceded that the 100 lot trigger was for a more detailed assessment rather than for a requirement for emergency access. No such detailed assessment appeared in his individual report. Mr Holsworth, in his evidence:
(a) produced the relevant Queensland streets extract, and noted that it applied to the final development form, and was not designed to be applied on a stage by stage basis during development of a greenfield site;
(b) stated that fire or flooding risks were unlikely, and that the only real risk to the subject area was a road being blocked due to a traffic accident;
(c) stated that the likelihood of such a risk occurring during initial development was low, as there would be relatively fewer road users in early stages of development;
(d) noted that the consequences of such risk crystallising was also low, as if there were a road blockage the affected road users could simply wait until the road is cleared; and
(e) stated that acceptance of this residual risk is reasonable during the development stages of each of the Intrapac and Australand Development, given the longer term development plan provides for multiple access points.’
It is unnecessary to examine this issue any further. Understandably, counsel for Australand, in the course of oral submissions, said in relation to this:[16]
‘I’m not going to trouble your Honour with submissions on that point because even if they were accepted at their highest I can’t sensibly suggest they constitute a basis for saying it’s unreasonable imposition.’
[16]T3-70.
The conditions which I have indicated would not otherwise constitute an unreasonable imposition on the Australand development and are appropriate in the exercise of discretion.
Conclusion
For the reasons stated, the conditions of approval will be varied in accordance with paragraph 47 of these reasons. I will give the parties an opportunity to agree on the precise terms of the order.
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