Keenbill Pty Ltd v Redland Shire Council

[2001] QPEC 4

PLANNING AND ENVIRONMENT COURT

OF QUEENSLAND

CITATION:	Keenbill Pty Ltd v Redland Shire Council [2001] QPE 004
PARTIES:	KEENBILL PTY LTD Applicant v REDLAND SHIRE COUNCIL Respondent
FILE NO/S:	4029 of 2000
DIVISION:	Planning and Environment
PROCEEDING:	Submitter appeal
ORIGINATING
COURT:
DELIVERED ON:	7 February, 2001
DELIVERED AT:	Brisbane
HEARING DATE:	18 January, 2001
JUDGE:	Judge Quirk
ORDER:	Application dismissed
CATCHWORDS:
COUNSEL:	Mr. M Hinson SC for the Applicant Mr. R Litster for the Respondent
SOLICITORS:	Flower & Hart for the Applicant Deacons for the Respondent

1. In this matter an application has been made pursuant to s. 3.5.33 of the Integrated

   Planning Act to cancel certain conditions that were imposed upon an approval of an

   application to reconfigure (and develop for residential use) land at Wellington

   Point.

2. The Council’s approval, given in October 1998, was the subject of an appeal by

   submitters. The matter was resolved and a consent order allowing the development

   application was made by the court in April 1999.

3. In this application cancellation of Condition B 11 and B 14, which were part of the

   court order, was sought. The conditions were in these terms:

   “B 11: Prior to Council being required to sign and seal a plan of survey for the reconfiguration of allotments, the applicants shall contribute to the Road Works Infrastructure Charge the sum of $3023 per allotment for 16 lots in accordance with Council’s minute of EP and D Committee dated 19th May 1998 ‘Infrastructure Charges related to Specific Planning Intent 1’.

   B 14: The area indicated as park on Drawing No. 10611/04 shall be dedicated to the State free of cost for town planning purposes. In substitution of the full land dedication as per Council’s policy not being provided a pro rata contribution commensurate with the number of allotments shall be provided (calculated to be $30,290.00 and subject to variation as per current rates and policies at the time of payment.”

4. The basis of the application is that important changes have occurred to the

   Council’s planning strategies for the area in which the subject land is located. It is

   submitted that these changes have effectively removed the basis upon which the

   conditions in question were imposed.

5. An unusual feature of the case is that the development that was the subject of the

   original application has in fact taken place. The contributions referred to in the

   conditions have been paid and the relevant plans of subdivision have been sealed.

   As well as the cancellation of the conditions, declaratory (and consequential) relief

   has been sought which, in effect, will require the Council to refund the

   contributions that have been paid.

6. In its contention that circumstances have changed sufficiently to justify cancellation

   of these conditions, the applicant drew attention to “Specific Planning Intent No. 1”

   which was adopted on 17 December 1997 and is found as Document 5 in Volume 1

   of Exhibit 1.

7. The Specfic Planning Intent had, as its stated goal:

   “To provide conceptual principles for the integrated development of land between Main Road, Starkey Street, Plumer Street and the future transport corridor which provide for residential subdivision but incorporate elements consistent with the creation of a distinct visual character for the area, as required by the draft Redland Shire Strategic Plan”.

   Attention focussed upon clauses 3.7 and 3.8 of this document which provided:

   “3.7 Development shall make a monetary contribution on a per allotment or dwelling unit basis (or an equivalent basis in the case of non-residential development) to the cost of acquiring at fair market value, the land required for the central public open space and drainage reserve.

3.8 Development shall make a monetary contribution on a per allotment or dwelling unit basis (or an equivalent basis in the case of non-residential development) to the cost of land and works external for road, intersection, drainage, water supply and sewerage works required to enable development to occur in accordance with this concept plan.”

1. A new “Special Planning Intent No. 1” was adopted in August of 2000 and reflects

   a revision of the Council’s planning strategy for the area. The document is found as

   Document 6 in Volume 2 of Exhibit 1. As the preamble indicates, it has become

   apparent to the Council that:

   “Ongoing urbanization, especially evident through the creep of residential form, will severely impact on the perception of a series of separate urban communities in the Redland Shire. The Community

   Vision for Redland Shire incorporates statements such as: integral role in the separation of the Wellington Point Community with surrounding areas. Additionally, the area has significant scenic visual and landscape qualities that contribute to performing the role of ‘separation’.

   ‘the Shire’s separate communities will retain their separate character
   and identity’

   Subsequently this area has experienced significant pressures for urban expansion that has resulted in previous decisions not necessarily upholding the original intent”.

2. The new planning strategy moves away from residential development of this

   precinct and, instead, looks for “uses of a non-residential type that contribute in a

   substantial manner to retaining an open as opposed to a built up character for the

   area”. This is explained in detail in the implementation requirements that are found

   in Part 5 of the document.

3. As I have indicated the applicant’s case for a cancellation of the conditions in

   question depends largely on the proposal that the new Special Planning Intent No. 1

   has removed the justification for these conditions.

4. The applicant’s argument was further developed by reference to the principle that

   moneys paid to a planning authority pursuant to a condition imposed upon a

   development approval impressed with a trust requiring expenditure of those moneys

   for the purpose for which the contribution was sought (Rockdale Municipal Council

   v Tandel Corporation Pty Ltd (1975) 34 LGERA 196 at 206; Bathurst City Council

   v PWC Properties Pty Ltd (1998) 195 CLR 566 at 580 and 582-583).

5. The premise upon which the applicant’s argument was based was stated (in senior

   counsel’s submissions) in this way.

   “The Council holds the contributions paid to it on trust for the purpose of spending the money on the purpose for which it was paid. That trust has failed, because the Council no longer intends to acquire the open space and drainage reserve or to carry out the external roadworks. Upon the failure of the primary purpose of the trust, there arises a secondary trust to repay the money to the developer (Barclays Bank Ltd v Quistclose Investments Ltd (1970) AC 567”.

6. The Council’s response to this argument was that the appellant’s major contention

   went too far and that the evidence fell well short of establishing that any relevant

   trust had failed because the Council no longer intends to acquire the open space and

   drainage reserve and to carry out external roadworks. On the evidence given it is a

   submission that I am prepared to accept.

7. As Condition B11 indicates, the contribution in respect of the “Roadworks

   Infrastructure Charge” was assessed in accordance with an Infrastructure Charges

   Policy for the precinct governed by Special Planning Intent No. 1. This document

   is before the Court as Exhibit 8 although it appears to be incorrectly dated as 19

   August 1997 whereas it was accepted that the relevant resolution was on 19 May

   1998.

8. As can be seen from the document, residential development of the area was

   generally envisaged and contributions were quantified on the basis of 241 dwellings

   being developed in the precinct (excluding the lots facing Plumer Street). The 15

   lots which were part of this development and do not front Plumer Street would have

   been a component of this quantification process.

9. One has to accept that the mode of quantification in the Infrastructure Charges

   Policy as it related to roadworks contributions is no longer entirely reflective of the reality of what is likely to occur in as much as all of the residential allotments upon

   which the calculations were based are unlikely to be developed.

10. However, as Mr Appleton (the manager of Assessment Services in the Engineering

    area) explained it, it is not envisaged that further development of the precinct will

    not occur and such development will necessarily call for external roadworks and

    intersection improvements to provide appropriate access to the precinct. He pointed

    out that some of the precinct had already been developed for residential use and this

    included the subject land and another parcel adjacent to Starkey Street.

    Contributions assessed on a proportionate basis have been made in respect of these

    developments.

11. Although the changes that have been made to the Special Planning Intent for the

    precinct discourages further residential development, other forms of development

    have not been ruled out. The nature of this development is discussed in Clause

    5.1.2 of the new Special Planning Intent and, in Clause 5.1.3 it is stated that: “Hours of operation and the nature of the volume of vehicle traffic generated, machinery used and omissions of noise, odours, light, dust, smoke and the light would be required to be limited to levels compatible with the maintenance of surrounding residential amenity, comfort and safety”.

    On that basis further development with traffic generation rates comparable to that generated by residential use should not be regarded as being improbable.

12. Accordingly the basis on which the contributions were quantified in this case have

    not been shown to be disproportionate to the demands of the likely development

    scenario for the precinct. The likelihood of the failure of the purpose of the relevant

    trust has not therefore been demonstrated.

13. As to Condition B14 it is to be noted that the wording of the condition makes no

    specific reference to Clause 3.7 of the superceded Special Planning Intent. The new

    Special Planning Intent, while envisaging a change in the form of development in

    the area which it covers does not indicate any abandonment of an intent to acquire

    and use an area (comparable to that shown in the drawing which was part of the

    superceded Special Planning Intent) for open space and drainage purposes. This

    intent is consistent with the Strategic Plan where Special Protection Areas and

    allied designations are shown at this location. The circumstances shown do not rule

    out the application of the contribution made to the acquisition of part of this area.

14. The evidence before the court indicates that, in quantifying the contributions sought

    for park and open space purposes, it was recognized that an area of land at the

    eastern end of the subject land was dedicated for park purposes. This area fell short

    of the park contribution referred to in s 5.6 of the Local Government (Planning and

    Environment) Act by a factor of 22.4 per cent.

15. Mr Edwards (the Land Development Service Manager for the Council) explained

    that the contribution sought in this case was quantified by applying this factor to the

    contribution of $3,500 per allotment routinely sought by Council pursuant to its

    policy (Parks Requirements and New Subdivisions) adopted by Council 1994 and

    applied consistently since that time.

16. The importance of this fact is that irrespective of the changes that have occurred in

    Special Planning Intent No. 1, the contribution that would be sought if a

    comparable application was made in respect of the subject land today would not be

    any different.

17. Furthermore it is to be noted that the new Special Planning Intent provides

    expressly in Clause 5.2.12 (which relates to existing approvals in the area):

    “Development shall make a contribution by dedication or monetary value on a per allotment or dwelling unit basis (or an equivalent basis in the case of non residential development) to the cost of providing the land required for public open space and drainage reserve normally required under the Planning Scheme and policies of the Redland Shire”.

18. Additionally there is no real basis for any suggestion that the contribution made,

    even if not applied to acquisition of land in the area designated for park purposes in

    the precinct could not be used for the maintenance and/or improvement of that part

    of the subject land dedicated for park purposes. Such application of these moneys

    would not, as I see it, necessarily give rise to a failure of the trust that would call for

    any refund of the contribution made.

19. The considerations to which I have referred are, in my belief, relevant to the

    determination of this application made under s. 3.5.33 and constitute sufficient

    reason to refuse the application for cancellation of the conditions in question.

20. The respondent raised certain technical objections to my granting the relief sought.

    It was pointed out that s.3.5.33 requires in (3):

    “If the person is not the owner of the land to which the approval

    attaches, the request must contain the owner’s consent”.

    It was pointed out, that of the lots not fronting Plumer Street, two have

    already been sold to other parties. Had everything else been in the

    applicant’s favour it might have been possible to delay the granting of any

    relief until evidence of the consent of these parties had been obtained.

21. The other point taken related to s.4.1.22(2) and it was submitted that, in this case, in

    effect, an order amending a development approval was being sought and there was

    no suggestion of fraud present. This subsection has caused the court considerable

    difficulty and while I doubt that the orders sought pursuant to s.3.5.33 are really

    “orders about a declaration” as contemplated by s.4.1.22(1), I do not believe that

    this application is an appropriate occasion to embark upon further consideration of

    these provisions.

22. The application is refused.