Jenkinson P/L v Caloundra City Council

[2002] QPEC 22

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Jenkinson P/L v Caloundra City Council [2002] QPEC 022

PARTIES:

JENKINSON PTY LTD
ACN 076 560 604
Appellant

-v-

CALOUNDRA CITY COUNCIL
Respondent
and
OZ CIVIL PTY LTD
ACN 079 767 838
1^st Co-Respondent by Election
and
HELMSMEAD PTY LTD
ABN 68 051 324 004
2^nd Co-Respondent by Election

FILE NO/S:

70 of 2002

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

Brisbane

DELIVERED ON:

2 May 2002

DELIVERED AT:

Brisbane

HEARING DATE:

22-24 April, 2002

JUDGE:

Judge Quirk

ORDER:

Appeal allowed

CATCHWORDS:

Integrated Planning Act 1997; Chapter 5 Parts 1&2

COUNSEL:

Mr C.Hughes SC for the appellant
Mr S.Ure for the respondent
Mr N. Lyons, Corporate Lawyer, appeared for the 1^st Co-Respondent
Mr P. Marquinie, Company Director, appeared for the 2^nd Co-Respondent

SOLICITORS:

Connor O’Meara for the appellant
Phillips Fox for the respondent

1. This appeal is against the respondent’s refusal of an application for necessary Development Approvals for the establishment of a “relocatable home park” (as that term is defined) on land on the western outskirts of Caloundra.

1. The land occupies an area of 16.52 hectares and has frontage to the eastern side of Sunset Drive.  It is intended that the facility be developed to the highest standards and its design and layout are shown in the material before the court.  As the evidence unfolded no serious issue was made of the internal features of the proposal.

1. After what appeared to be a careful assessment of it, the Council planning officers recommended in favour of a conditional approval of the application.  However, their recommendation was rejected by the Council and the application was refused.  At the hearing of the appeal a number of issues were raised.

Need

1. It was contended that there was no need for the proposal, however little evidence emerged to support this contention.  As Kerri Anne Bonwick, the urban economist engaged by the appellant pointed out, the Caloundra area is one which has, over recent years, experienced strong levels of population growth.  A high proportion of that population is in the older age category (over 55) and incomes are lower than average.  Her studies indicated a strong demand for “affordable housing” and a paucity of supply.  Against this background to suggest that the community’s interests would not be advanced by a facility of this kind is to deny what is obviously the case.

Prematurity

1. In the course of the appeal the Council’s witnesses sought to suggest that the development of this land in the manner proposed was premature.  The basis of the suggestion is tenuous to say the least.  The relevant designation in the Strategic Plan is Urban.  In Development Control Plan No. 3 (that was prepared specifically for this area) the land is shown as being in the “Low Density Residential” designation. 

1. The evidence indicated that essential services including water, sewerage, electricity and telecommunications are available to the site.  Access to the land is by a sealed carriageway and this is a matter which will require closer examination in the course of the judgment.  The commencement of a large residential estate (Iverdale) on an area one allotment removed from the subject land is about to commence.  To argue prematurity in such circumstances is to ignore reality and the Council’s own planning documents.

1. An effort was made to paint a picture of the site’s being unacceptably remote from shopping and other urban facilities.  An examination of the local road system indicates that vehicles presently need to travel via Sunset Drive and Sugarbag Road for a number of kilometres to gain access to shopping.  All of this will however change with the completion of the link between Kalana Road and the east-west leg of Sunset Drive which the Iverdale appeal is conditioned to construct.

1. I regret to have to say that the Council’s case, initially at least, was somewhat less than open with the court in regard to this matter.  The Council’s legal representatives were instructed to present a case which suggested that the construction of the link was by no means certain or at best, its timing was unsure.  It was argued that to allow the development to proceed would be premature in the absence of a better knowledge of the availability of this connection.

1. However, a representative of Iverdale was before the court and (considerably more helpfully) informed the court that preliminary works’ approvals for the first stage of Iverdale were already in place and that there was confidence that the link would be completed in about 20 weeks time.  In those circumstances the probabilities are clearly that the link will be in place well before the development commences and that there is no sensible basis for a suggestion that the land is unacceptably remote.

1. As something of a fallback position, the respondent argued that a condition of approval should be imposed in this case to prevent commencement of the development until the link is in place.  Such a condition would be justified only if access to the site other than via the link was unacceptable.  On the evidence this is not the case.  Distances from the site to shopping may be substantial but no greater than with many other established residential areas west of Caloundra.  While the link will improve the position considerably, I am not persuaded that the imposition of such a condition is justified in the circumstances.

Leapfrogging

1. As part of the “prematurity” argument, it was said that the development of this site would constitute “leapfrogging”.  Somewhat selectively, attention was drawn to Implementation Objective (c) of Objective 1(e) of the Strategic Plan which provides:

“Council will not support applications for the rezoning of land where the development would constitute a ‘leapfrog’ effect, or which does not consider the future development or provision of infrastructure, including community facilities on continuous parcels of land”.

1. Such provisions must be read sensibly and in context.  The Implementation Objectives are but a function of the principal objective which is “to ensure that urban growth occurs progressively and in a manner with the efficient provision of infrastructure”.  The purpose of the objective is better understood by reading all of these Implementation Objectives e.g. (b) which provides:

“Council will not support applications for rezonings to provide for urban development in areas not capable of being serviced with appropriate standards of infrastructure or which would inhibit the efficient provision of water supply and sewerage to other properties”.

1. The planning strategy that is inherent in this objective is not that parcels of land should not develop until an adjoining parcel is in a developed state but that the spread of development over the urban area should not be random in a way that precludes the provision of essential services (such as water supply and sewerage) in an orderly and efficient way.  Such a problem does not arise in this case.

1. The only “infrastructure” complaint of any substance seemed to relate to the absence of a continuous line of formed footpath with kerbing and channelling from the subject land to the more established urban areas.  This is not unusual or necessarily undesirable.  While fully established urban areas might be expected to display these attributes, I accept the evidence of Professor Brannock (the appellant’s town planning consultant) that there is no real planning harm in this taking place progressively along the frontages of the individual parcels as they develop.

1. While on the matter of kerbing and channelling I should refer to s. 4 of the Planning Scheme in which “particular use controls” are set out.  Section 4.16 deals with Relocatable Home Parks.  As Professor Brannock’s careful analysis demonstrates, with one possible exception, this proposal complies with all of the relevant requirements of s.4.16.  The questionable matter is found in s.16(2)(b) which provides:

“Land may not be used for a Relocatable Home Park unless:

.....

(b)roads to which the site has access have a reserve width of at least 20 metres, are fully constructed with kerb and channel and bitumen paving, and are capable of accommodating any projected increase in traffic generated by the development”.

1. Construing this provision in a strict and literal way might lead one to a conclusion that, before a relocatable home park is established, an uninterrupted length of sealed, kerbed and channelled road must be in place to perhaps the Central Business District.  The unreality of such a suggestion takes little time to become evident.  There would be few opportunities for a development of this kind in Caloundra that would be capable of meeting such a test and certainly not any site where land could be such as to make it suitable for “affordable housing”. 

1. In construing provisions of this kind a realistic and sensible approach is called for.  The planning rationale for such a requirement is arguably to prevent the establishment of such facilities in remote areas where urban development is unlikely to be seen in the foreseeable future.  This is not such an area.  All of the formal planning documents envisage its development for urban purposes within the life of the Scheme.  I was informed in the course of the hearing that this Scheme’s life has not much longer to run. 

1. The evidence also indicates factually that urban development is now reaching into this area.  With it will (if the planning authority does its job) come the usual urban standards which include the establishment of kerb and channel and formed footpaths as each parcel develops.

1. It is also to be remembered that under the regime of the Integrated Planning Act, schemes may no longer prohibit any particular form of development and each case must be assessed on its merits.  I have no difficulty in finding that, even if in a technical sense, this proposal offends s.4.16(2) there are ample planning reasons for overlooking the matter.

Acceptability in a Social Planning Sense

1. Somewhat curious evidence came from Ms Elliott, a social planner called by the Council.  On the one hand she was ready to concede that Caloundra does have a need to provide affordable housing for older people.  So much was recognized in the Caloundra Community Plan to which she contributed.  However, Ms Elliott went on to suggest that the level of infrastructure for older people in Caloundra was limited and to establish this facility would impose stress on these already strained services.

1. If she is correct, wider planning questions arise and it may be that the attention of government at State or local authority level is called for.  On the evidence given I feel that these problems would not be solved by refusing this application which would contribute positively to the needs of older and less affluent members of society.

Flooding

1. The proposal seeks to extend its residential elements beyond the Q100 Floodline to a small extent.  The only expert engineering evidence on the matter came from Mr Winders, an experienced consultant.  It was his view, which was persuasively explained, that the Q100 level in this area has been very conservatively fixed and the minor amount of fill which would here be involved would have a negligible impact on the area’s hydrology.  I accept his evidence.  It was sought, through the Council’s planning consultant, Mr Ryter, to argue that there was some planning justification for disallowing this intrusion beyond the Q100 Flood Level.  It was suggested that the Scheme indicated that the area beyond the Q 100 Level should retain a rural character.  The argument however overlooks the fact that the proposal already provides and extensive landscaped area separating its residential elements from the truly rural area of the flood plain.  I find that this argument lacks any real merit.

The Road System

1. It was only in this area that the debate gained any substance.  I had the advantage of the evidence of two very experienced traffic engineering consultants whose opinions I have always found to be worthy of respect.  The difference in their views really came down to timing and the matter of contribution to a general upgrading of the area’s road system. 

1. Mr Brameld, the appellant’s consultant, pointed out that the present pavement width of 5 metres (in Sunset Drive as it fronts the subject land) should be extended to 6 metres over a length of 500 metres from the subject land to the east-west section which will carry the Iverdale traffic to the Kalana Road link.  He explained that, if this is done, the road system will have a capacity well within which traffic likely to be generated by the development will fall.

1. Mr Eppell, the Council’s consultant, did not disagree with this but believed that presently acceptable urban standards would call for a 7 metre pavement.  He was also concerned that, as urban development occurred progressively, equitable contributions should be made to the necessary overall upgrading of the area’s road system.

1. The logic and fairness of what he said is plain enough.  However, the matter has been complicated by what has occurred in the past.  The evidence indicated that, to date, developments (particularly along Sunset Drive) have contributed to some road upgrading along their frontages with the result that the standard of construction is anything but uniform.  These developments include some quite substantial residential development.

1. Further complications have arisen in that Iverdale has assumed responsibility for the Kalana Road link which will be a sealed two lane carriageway.  Traffic from this proposal will be well within its capacity and although the possibility of further widening of the link in the future is entertained, as Mr Eppell explained, this will be necessary only when this road assumes a role of nearly sub-arterial status (which will occur when Parklands Boulevard is constructed through the Iverdale Estate to link with the arterial road system). 

1. Mr Eppell carried out an exercise in which he identified elements of a general upgrading of the area’s road system and in which traffic from this proposal might be involved.  He estimated (in quantitative terms) the level of usage of these elements of that traffic.  His view was that contributions should be assessed on that basis.

1. As I have said, I do not question the fairness of his approach but the difficulty is that, of the elements identified by Mr Eppell, it is factually the case that money extracted from the appellant could not be allocated to all of the relevant works.  I refer principally to the Kalana Road link the responsibility for which is with Iverdale. 

1. The consequence of this is that any contribution assessed on Mr Eppell’s suggestion would involve “double dipping”.  He pointed out that this could be avoided by allocating the money to other works but, at this point, we are getting into difficulties with the provisions of the legislation which govern the legality of Conditions of Approval.

1. Matters of this kind have always been a source of difficulty for responsible local authorities and this court.  Balancing equity and the requirements of relevant legislation regarding conditions has not been easy.  The Integrated Planning Act has addressed the problem in Parts 1 and 2 of Chapter 5 under which contributions towards infrastructure items will be regulated.  In Caloundra the relevant arrangements are not yet in place.

1. Mr Eppell conceded that his approach was but one option and was reasonable enough to admit that the option put forward by Mr Brameld was another.  In the end result I have opted for the latter’s suggestions.  I am satisfied, on his evidence, that for the moment a 6 metre pavement width to Sunset Drive along the 500 metre length identified by him will be sufficient.  Fully acceptable urban standards will no doubt be achieved when further urban development reaches into this area. 

1. I have considered the suggestion made by Mr Lyons (the representative of Iverdale) that there should be some contribution towards the upgrading of the next intersection to the east where Sunset Drive again turns to the south.  The evidence was that, with the completion of the link, “rat running” along this section of Sunset Drive will occur and is undesirable.  There was some considerable confusion about the Council’s position on this but, in any event, having regard to the legislative provisions limiting the imposition of conditions, I am unable to find, on the evidence, the necessary connection between traffic originating from this proposal and this problem. 

1. On the whole of the evidence I have no difficulty of finding that the onus of showing that the proposal is one which should be approved has been discharged.  Accordingly the appeal will be allowed and the application conditionally approved.  I will adopt the conditions formulated by the Council’s officers and which appear at Exhibit 9, page 262 subject to the following modifications.

1.          A deletion of Condition 2 which disallowed 14 relocatable home sites at or

below RL 3.13 metres AHD;

2.          The consequential amendments to the number of carparking spaces in

Condition 3;

3.          Amendment to Condition 11 by deleting RL 3.8 and replacing it with RL

3.45;

4.          The deletion of Conditions 14 and 15 and their replacement with Conditions

of Approval recommended by Mr Brameld in Exhibit 3 at page 26.  It is

noted that the appellant is prepared to accept the contribution of $8,750

towards future upgrading of the Sugarbag/Sunset Drive intersection and

sections of Sunset Drive between Kalana Road and Sugarbag Road.

5.          Condition 43 is to be modified by the addition of the following words:

“Payment of headworks may be paid pro rata in accordance with the granting of approval for operational works.” 

6.In the section headed “Advice to Applicant” sub-paragraph (d) the period of two years is amended to four years.