Keith L Noble & Sons Pty Ltd v Caboolture Shire Council & Anor
[2009] QPEC 49
•10 May 2009
PLANNING & ENVIRONMENT COURT OF QUEENSLAND
CITATION:
Keith L Noble & Sons Pty Ltd v Caboolture Shire Council & Anor [2009] QPEC 049
PARTIES:
KEITH L NOBLE & SONS PTY LTD (ACN 001 900 401)
(Appellant)
v
CABOOLTURE SHIRE COUNCIL
(Respondent)
and
CHIEF EXECUTIVE, DEPARTMENT OF MAIN ROADS
(Co-Respondent by Election)
FILE NO/S:
3736 of 2006
DIVISION:
Appellate
PROCEEDING:
Appeal
ORIGINATING COURT:
Planning & Environment Court
DELIVERED ON:
10 June 2009
DELIVERED AT:
Brisbane
HEARING DATE:
20 and 21 May 2009
JUDGE:
Robin QC DCJ
ORDER:
Appeal allowed, conditions of approval to be worked out
CATCHWORDS:
Integrated Planning Act 1997 s 3.5.13, s 3.5.30, s 4.1.52(2)(a)
Developer appeal against Council’s deemed refusal of application under superseded planning scheme to reconfigure two adjoining 2 hectare lots with frontage to a State-controlled road into 11 or 12 residential allotments – Department of Main Roads required a condition that access to that road be by a side street half a kilometre away separated from the site by undeveloped similar lots in separate private ownership – traffic issues included whether proposal was premature given the state of the local road network (and planning for its future), whether the condition was supportable, whether the traffic arrangements now proposed were acceptable in the long term or temporarily (if “temporary” for how long they might prevail) – site in “buffer area” precinct of Local Residential Zone – planning issue of weight to be given to the new planning scheme which specified a “probable solution” of minimum lot sizes of 8,000m2 for achieving the specific outcomes of mitigating mutual impacts of residential and nearby industrial development – at time of application the minimum was 3,000m2 .
COUNSEL:
J Haydon for the Appellant
J Houston for the Respondent
M Hinson SC for the Co-Respondent
SOLICITORS:
Bain Gasteen Lawyers for the Appellant
McCullough Robertson Lawyers for the Respondent
Crown Law for the Co-Respondent
This appeal by a developer against a deemed refusal of a development application as presented to the court gives rise to a planning issue and a traffic or roads issue. The appellant’s site comprises two adjoining parcels, each of two hectares, whose frontage is to the southern side of Deception Bay Road, Deception Bay. This is a road controlled by the Department of Main Roads, which as a concurrence agency in respect of the relevant development application has insisted that “there shall be no direct access to Deception Bay Road. All access is to be via the future street network from Krause Street.” The Council was obliged to incorporate such a requirement as a condition if it decided to approve the proposed development. It was common ground that the court is not so bound, being entitled to assess proposed conditions for their relevance and reasonableness, while having regard to the Department’s expertise and status as the entity charged with supervision and control of the State road system. The Chief Executive’s counsel, Mr Hinson SC, began succinct written submissions by identifying relevant provisions:
“2.Under Schedule 2 Table 2 item 2 of the IPA, the co-respondent’s referral jurisdiction is described as the purposes of the Transport Infrastructure Act 1994. Those purposes, in s.2 of the TIA, are relevantly as follows:-
“2 Objectives of this Act
(1) The overall objective of this Act is, consistent with the objectives of the Transport Planning and Coordination Act1994, to provide a regime that allows for and encourages effective integrated planning and efficient management of a system of transport infrastructure.
(2) In particular, the objectives of this Act are—
(a) …
(b) for roads—to establish a regime under which—
(i) a system of roads of national and State significance can be effectively planned and efficiently managed; and
(ii) influence can be exercised over the total road network in a way that contributes to overall transport efficiency; and
(iii) account is taken of the need to provide adequate levels of safety, and community access to the road network; and
…”
3.The co-respondent directed the Council as assessment manager (see s.3.3.18(1)(a) of IPA) to impose conditions on any approval of the application, including a condition that there be no direct access to Deception Bay Road and that all access be via the future street network from Krause Road: see Ex 7 pp.l7 and 14. The reason given for the condition (s.3.3.18(8) of IPA) was that by minimising the number of points of access to the State-controlled road network, safety and efficiency are maximised.”
The development proposal was to create from Lots 7 & 8 on RP133847 (Nos. 181-191 & 193-199 Deception Bay Road, respectively) 12 rural residential lots. The two lots each have a frontage of some 88 metres to Deception Bay Road and presently (typical of the 14 or so similar lots in a line with frontages to this part of the road) a single driveway affording access. It may be that in one case or more the driveway is divided into an entry and an exit. Traffic conditions are nowadays such that uncontrolled access to many roads in the State-controlled system is undesirable. In the development application, it was proposed to collect all traffic generated from the site in a single new road entering Deception Bay Road at right angles from the south. This was envisaged as terminating in a cul-de-sac. At one time it was envisaged that the road could be provided on Lot 11 SL812096, specifically on a narrow branch of it that runs from Deception Bay Road along the western boundary of the site. The balance of Lot 11 (which exceeds 8 hectares) meanders in zig zag fashion behind all of the 14 “two-hectare” blocks mentioned, the easternmost of which, with a frontage also to Krause Road, has been subdivided into six blocks. While Lot 11 gives the appearance of a road reserve it is in fact State land of which the local council is trustee for the purpose of local government, sub-purpose of vegetation buffer zone. It represents the northern extremity of an extensive buffer zone (impressively vegetated) separating other land uses from the large Narangba industrial estate, a kilometre or thereabouts to the south. The Council will not (assuming that it could) allow use of Lot 11 for road purposes in aid of the proposed development. While there is no sign at the moment of access being taken along it to or from Deception Bay Road, that is a possibility, which should be included in any exercise of counting up “points of access”.
The development application was lodged on 29 November 2005, shortly before the current planning scheme for the area commenced on 12 December 2005. What then became “the superseded planning scheme” had originally been gazetted on 12 March 1988. A change in planning arrangements for the site occurred in December 2005 when it was assigned to the Buffer Area or precinct of the Rural Residential Zone. The difference was to put an end to the acceptability of 3,000m2 allotments (still available in the precinct designated Park Residential) and replace that with a minimum allotment size of 8,000m2 as the “probable solution” for purposes of achieving the “specific outcomes” required under the reconfiguring a lot code which include:
Table 7.18
Reconfiguring a Lot Code (Part 7 Division 16)
Column 1
Specific outcomes
Column 2
Probable solutions
SO7
(a) Lots have an appropriate area and dimensions for the establishment of uses consistent with the purpose of the relevant zone and for the siting of:
(i) required buildings and structures;
(ii) associated vehicular access;
(iii) parking and manoeuvring;
(iv) effective circulation;
(v) landscaping; and
(vi) any necessary buffering.
(b) For the Rural Residential Zone, the minimum lot size achieves the following:
(i) for land located within the 'Buffer Areas Precinct' the impact of other land uses on rural residential development is minimised and the impact of the rural residential development on sensitive environmental and rural areas is minimised;
(ii) for land located within the 'Park Residential Precinct' the development provides for rural residential style living on land that is of a sufficient size to ensure environmental considerations have not been compromised and that adequate land is available for both effluent disposal and private recreation purposes;
(iii) for land located within the 'Restricted Precinct' the existing size and shape of lots is maintained;
(iv) for land located within the 'Transition Precinct' the existing size and shape of lots is maintained for possible future residential development.
(c) A variety of lot sizes is provided for within each residential and rural residential development and the creation of residential areas comprising solely of lots with sizes close to or at the minimum permitted area is avoided.
Note: Refer to the maps in Schedule 6 for the Rural Residential Zone precincts.
S7.1
Lot areas and dimensions are in accordance with Table 7.21.S7.2
Lots contain a diameter circle in accordance with Table 7.21.
An issue before the court is whether there is conflict between the proposal and the new planning scheme, focussing on the increase in minimum allotment sizes desired. Lot sizes were not relevantly affected by the adoption of the Rural Residential Development Control Plan No. 2, for land in the general locality south of Deception Bay Road as rural residential buffer areas.
Section 4.1.52(2)(a) of the Integrated Planning Act 1997 (IPA) provides that the court must decide the appeal based on the laws and policies applying when the application was made, but may give weight to any new laws and policies the court considers appropriate. In this context, as one would expect, the Council, represented by Mr Houston, relies upon the extensive dissemination of the future planning arrangements well before the lodging of the application. In this appeal, little turns on that. It has always been part of the system to permit property owners to take advantage of planning laws as they exist from time to time. It does not count against a developer that it may apply “at the death” of an old planning scheme. That observation is not to deny the court’s entitlement to have regard to replacement arrangements.
To counter thoughts that (a) the buffer arrangements in the 2005 Planning Scheme had not been taken seriously by the Council (or, perhaps, had been applied in a way which indicates that a separation of 750 metres from industrial uses is regarded as sufficient) by reference to Council approvals of developments to the east for multiple dwellings and a childcare centre which the appellant’s planner, Mr Gaskell, relied on, and that (b) closer settlement of the locality including the site can be anticipated, Mr Houston established that a review of the planning scheme undertaken last year confirmed arrangements in respect of the site and the buffer area precinct generally. I agree with Mr Houston that the Council is the planning authority, rather than the court, which ought to eschew any pronouncement in this appeal that would emasculate the provisions regarding the buffer area precinct. He is correct to say that a determination that there is no conflict, if it could be invoked as a precedent, would go far to set at nought the current planning arrangements for buffer areas south of Deception Bay Road. Mr Gaskell’s views based on Council decisions (which may or may not have been wise, and were condemned by its erstwhile planner, Mr Ryter) represent conclusions of his and (as he freely conceded) were not expert scientifically-based views as to what buffer arrangements might be appropriate to protect industrial uses and residential uses against adverse or unwelcome impacts generated by the other. The court has no idea how the boundaries shown on DCP Map 9 in relation to buffer areas, carried over into the 2005 Planning Scheme, were arrived at. The court has no idea, for example, whether in scientific terms, a more extensive buffer might have been desirable (but rejected for practical reasons), whether Deception Bay Road was identified as a northern boundary for reasons of convenience or whether some smaller extent of separation from the industrial estate was appropriate, but extended to the road (in order to avoid uncertainty as to the precise location of some limiting line in an “overlay” on particular parcels of land).
Another area of uncertainty, given the way in which the appeal was conducted and the extent of disclosure, is what the Council’s planning is (to the extent that any has been done) for the future road system south of Deception Bay Road. This is a matter of enormous moment to the appellant, if its development is contingent upon access to the lots being available via Krause Street, which is some half-a-kilometre east of the site and separated from it by half-a-dozen deep lots 80 or 90 metres wide in separate private ownership.
The present circumstances are a good example of the difficulties of a system in which development occurs only at the whim of private owners; master planning of road networks has limited effect and realisation of grand schemes may be held up, perhaps forever, if anticipated adjacent development never occurs. Exhibit 12 is a marked-up copy of the local street directory indicating the recent history and likely future of the road system south of Deception Bay Road and west of Lipscombe Road. There have been four prongs of development, two from Lipscombe Road (Baylink Avenue, leading to a self-contained circuit with Imboon Street running through the middle of it) and Shayne Avenue (ending until recently in two cul-de-sacs). One of those cul-de-sacs now links with another short section of what the street directory identifies as Shayne Avenue; it is part of a larger arrangement of cul-de-sacs or dead-end streets gaining access to Deception Bay Road by Tallagon Court. The recent connection (said to be provided by sacrifice of an allotment) gives the larger conglomeration access to major roads. Further west and a similar distance along Deception Bay Road is Krause Street which gives access to five other streets presently cut off from the outside world otherwise. One of those is designated Shayne Avenue; the street directory optimistically predicts a link with the Tallagon Court portion of the eponymous thoroughfare. Two additional future connections and some other future internal roads are shown. There is nothing extending to the west from Krause Street to give the appellant any encouragement. It has engaged Mr Beard as its Traffic Consultant.
Mr Beard has advised abandonment of previous proposals for a road into the site from Deception Bay Road terminating in a cul-de-sac within the site and another version in which the road would sweep to the eastern boundary to provide a means of connection with some future road that might link with Krause Street. Mr Beard’s proposal now is for construction of a “T”-shaped road system, the stem connecting with Deception Bay Road, the top bar extending to both eastern and western boundaries roughly across the middle of the site, facilitating extension west and east towards Krause Street. This solution may be seen as obvious and virtually bound to be suitable from the point of view of long-term planning of a road system in the location (subject to suitability of the Deception Bay Road connection). Judge Wilson’s order of 24 April 2009 allowed the appeal to proceed on the basis of Mr Beard’s drawing. This change brings with it a reduction in the yield of lots from 12 to 11.
Save for traffic issues involving Deception Bay Road, when the appeal was heard, there was no argument presented against the approval of the proposal before the court on the basis of assessment against the superseded planning scheme.
There has been a high level of cooperation among Mr Beard and traffic consultants engaged by the Council (Mr R Holland) and the Department (Mr Eppell). As well as reporting jointly, they have prepared individual reports and all gave evidence. They did so concurrently, in a process which appeared to work well and which undoubtedly saved some time. The others did not share Mr Beard’s optimism that a road system would develop incrementally west of Krause Street to replicate what has happened to the east, because more intensive residential development is permitted (and happening) to the east. So far as subdivision west of Krause Street is concerned, under the new planning scheme, it is unlikely that developments of less than 8,000m2 will be created, meaning two for each 2 hectare parcel. The corner block at Krause Street itself appears to have been subdivided already, yielding six 3,000m2 blocks with Krause Street frontages with the “2 hectare” parcel to the west having a portion extending to Krause Street to accommodate a road off that street to the west. That will presumably eventuate at some time, but no one knows when, or when that future road might be extended across intervening properties before one reaches the site. There was mention of possible industrial uses for all of this “buffer area” land, but that is mere speculation. Also, it is speculation whether more intensive subdivision than two per present lot will eventuate. It may be thought more likely that this is what the future will bring, but the court cannot proceed on that basis. It is reasonable to anticipate the limited subdivision envisaged as a probable solution.
The circumstances are not ones in which people are either unwilling or forbidden to reside in the buffer area. It was accepted that the Southeast Queensland Regional Plan leaves planning of this area to the Council; it is not one of those locations in which the regional plan forbids subdivision into allotments less than 10,000m2 or where it requires provision of new residential allotments to accommodate Southeast Queensland’s burgeoning population; there may be other pressures on the Council to play its part in this exercise.
This topic of speculation relates to but one of the areas of uncertainty about the future should the development go ahead, bearing upon the likely duration of access for 9 additional households located within the site having access (centrally) to Deception Bay Road. Another topic concerns what will happen with Deception Bay Road, presently a two lane road, with one lane for travel in each direction. The road reserve is 60 metres; plans are to widen the road to four lanes (two in each direction separated by a median) with the possibility of a third lane in each direction in the future. The priority project for the road in current scheduling is a new bridge across the Bruce Highway. Mr Eppell, who was best placed to express a view, considered that the duplication could not be expected until 2014 or thereabouts.
The Department’s intentions were communicated to the Council by letter of 26 June 2007 as follows:
“As you would be aware, the Department of Main Roads is progressing with planning and preliminary design for the upgrade of Deception Bay Road from the Bruce Highway to Lipscombe Road. This project involves upgrading this section of Deception Bay Road to four-lanes, with future provision for six-lanes, various safety improvements and providing for pedestrian, cycle and public transport needs. It is proposed that the existing carriageway be utilised as the future eastbound carriageway, with the new westbound carriageway located on the southern side of the existing road.
It is noted that on the southern side of Deception Bay Road between Priest Road and Tallagon Court, the majority of existing properties fronting Deception Bay Road are zoned rural residential and enjoy direct access to Deception Bay Road. Further and as currently being experienced, Main Roads expects the development of the undeveloped properties in this vicinity to continue.
To assist Council regarding the future development of properties fronting Deception Bay Road and to ensure Main Roads’ interests in this vicinity are preserved, Main Roads provides the following advice:
· As development progresses, it is our intention to permit future access to Deception Bay Road via controlled points only; all movement access at Zammit Street, Warroo Drive and Priest Road intersections with left in / left out access at Krause Street and Tallagon Court intersections.
· A structure plan be developed by Council (or those nominated by Council) indicating the road layout to facilitate the future orderly development of the undeveloped properties in this vicinity. This plan is to indicate future access locations onto Deception Bay Road, as identified above, and is to have the approval of Main Roads.
· Any structure plan developed is not to utilise the State-controlled road reserve for any service road configuration. An initial road network is suggested to service properties along this frontage with connections to Deception Bay Road at any locations identified above.
· In the short term, direct access to Deception Bay Road will be maintained until a suitable road network has been established as part of the development of these properties.”
Exhibit 14 is an enlarged version of a diagrammatic representation reproduced in the exhibits showing the movements proposed to be allowed at signalised intersections, essentially all movements with U-turns permitted. The major intersection is the one in the east, with Park Road (north) side and Lipscomb Road (south) side. The westernmost is at Priests Road, the others are at Zammit Street (next from the west) and Warroo Drive, further east. Only the Park Road-Lipscombe Road intersection has a leg to the south. The four roads running north divide Deception Bay Road roughly into thirds. Warroo Drive is equidistant from Krause Street and Tallagon Court. The paucity of connections to the south offering full turns will have much to do with the Narangba Industrial Estate and the expectation that the resident population there will not be large, except perhaps at the Lipscombe Road end. Mr Eppell was surprised to note the fine print endorsements “U Turns Permitted” and opined that the Department may well give further thought to that. U-turn possibilities are important to Mr Beard’s opinion that the development proposal is feasible from a transport perspective, notwithstanding the inevitability that when Deception Bay Road converts to four lanes, right hand turns in or out of the site will be precluded; one needs facilities to make U-turns reasonably close by for access restricted to left-in left-out to be acceptable. On present indications such facilities will be available.
The point of unanimity for the traffic experts was the desirability of an extension of Zammit Street to the south. This would provide an ideal way of collecting traffic to the south. No public entity being inclined to pay for the cost of acquiring the necessary private land, a Zammit Street extension will have to await emergence of a suitable development proposal involving the requisite land. Zammit Street is within a couple of hundred metres of the site.
Mr Beard proposes as access arrangements for the proposal what is called a Channelised Right Turn Treatment with a Short Term Slot [CHR(S)] as illustrated in Figure 13.59 in Chapter 13 of the Department’s Road Planning and Design Manual (Exhibit 16). This would formalise, indeed upgrade, for the benefit of nine additional households, the access presently enjoyed by two on the site via their individual driveways. While Mr Holland adverted to dangerous situations that might be created by drivers wishing to execute a right hand turn who lost patience waiting for breaks in the traffic, no safety issue was raised; the difficulties suggested were in terms of reducing the efficiency of Deception Bay Road.
Mr Hinson, for the Department, characterised the proposal as “premature”, the desirable road network not being in place. Prematurity is an established basis for refusing approval to a development, as in Adam v Gold Coast City Council [2007] QPELR 379, which concerned unavailability for the time being of any possibility of access to the Council’s sewerage infrastructure. The outcome was not that the developer’s appeal be dismissed; by Council’s good graces, the court was invited to adjourn the appeal to await completion of its infrastructure planning. A prematurity objection prevailed in Newcastle Guarantee Corporation Pty Ltd v Brisbane City Council [2006] QPELR 176 which was based on traffic considerations. The court endorsed the Council’s refusal of a 46 lot residential subdivision. Access arrangements proposed to be temporary, awaiting realisation of another proposed development in the locality which might never happen (to provide a satisfactory long-term access to main roads), were rejected on the basis that an unacceptable access proposal should not be permitted simply because it is temporary. At 178 Senior Judge Skoien accepted the question for him was one of degree:
“If the bad features of the proposal are minor or if there are pressing arguments in favour of the development proceeding an undesirable access might be permitted on a temporary basis and that permission would more easily be granted if the temporary period were finite and short. Here the period is not finite and is unlikely to be short. No pressing arguments in favour of the subdivision … were established by the evidence. So it boils down to a consideration of the extent to which the southern access is unacceptable.”
That access involved the travelling of significant extra distance through residential streets where pedestrians and cyclists (including children) would be expected to be on the road. His Honour thought that the extra time drivers needed to take would create a likelihood of some speeding, creating concerns of traffic safety, which are absent here.
It is odd to be facing a “prematurity” argument in respect of reconfiguration of four hectares with a long frontage to an established road such as Deception Bay Road, where there are two driveways currently. In a sense, the appellant’s problem is that its proposal comes too late; had it been made before the Department developed its understandable and proper concerns about limiting access to the road, the developer might have faced no problem.
This is not a situation in which the appellant lives to fight for its proposal another day, as in Adam. Here, if the development application fails, the appellant’s reasonable expectation of gaining approval for 12 or 11 3,000m2 allotments ends. That is of some significance, in my view. The undesirable aspects of the access arrangements proposed for the 11 households are of a far lower order than those troubled by Senior Judge Skoien. Their impact on efficiency will be limited, the experts say, to one trip per hour per household at peak hours. That the arrangements will prove temporary is as uncertain as in Newcastle Guarantee Corporation. But they are acceptable, in general terms. In that case, reference was made to the Minister acting, when the time came and opportunity arose, to close the “temporary” access. His Honour was doubtful that the Minister would so act. I have no such qualms here, but one may speculate that, should all, most or even some of the eleven “2 hectare” parcels remaining be subdivided into two 8,000m2 residential allotments (as the current planning scheme allows), if not more, smaller allotments, then the phasing out of existing driveways entering Deception Bay Road and the collection of all traffic on the new access road the appellant now proposes to create might be welcomed by the Department, and perhaps to the extent of contemplating that the appellant’s new road became acceptable as a permanent access to the south generally.
It was common ground that, ignoring what the Minister might do, the Council would have an entitlement to control the traffic using the appellant’s new road, to the extent of blocking it off to users other than (say) pedestrians and cyclists: that would not amount to “closing” the road. Against the possibility of something eventuating along those lines, Mr Holland recommended that a turning bulb be required at the entrance to the proposed subdivision, as well as one at each end of the top of Mr Beard’s “T”, for the purpose of affording safe turning possibilities to large vehicles, garbage trucks in particular, which ought not be reversing in residential streets. The evidence was that the additional space required in each of the three locations was of the order of 20m x 4m, which could easily be provided without reducing lot sizes below 3,000m2. Apart from the opening to Deception Bay Road, where the turning bulb ought to be permanent, the court would be content to see something in the nature of easement rights in favour of the Council which the Council could surrender if the particular road were extended further west or further east, as the case may be.
The remaining issue in respect of access concerns Mr Beard’s advocacy of a CHR(S) treatment of the intersection, as illustrated for a two lane Rural Road Exhibit 16. This would provide the appellant’s allotments with right hand turn possibilities, in and out, which would not survive the widening of Deception Bay Road to four lanes; duplication of the road at that stage would limit all movements on the southern side to left-in left-out. While I am persuaded by Mr Beard’s advocacy on behalf of the access he proposes for the immediate future against the opposition of Mr Holland and Mr Eppell, the latter’s reservations about the availability of U-turns nearby having been overcome, I think that a limitation from the start to left-in left-out is a preferable solution; it is feasible for residents of the site and will limit the impacts on Deception Bay Road traffic. The CHR(S) treatment would require work on Deception Bay Road by way of pavement widening and lane marking, over and above what might be needed to accommodate left hand turns; even accepting that the appellant would have to pay, the extra disruption to traffic during the construction and the possible longer term impact on efficiency are factors telling against Mr Beard’s approach.
In its road and traffic aspect, this is not an appeal of the kind frequently encountered against a condition requiring a developer to do works or make financial contributions to an extent claimed to be excessive. No condition has been set, to this point, but it is clear what condition the Department seeks, in the event that the reconfiguration wins approval. That condition is effectively in contest. It is an unusual one in that it stymies the reconfiguration in the circumstances: for the foreseeable future, it is tantamount to a refusal. In Patrick & Hansen Pty Ltd v Thuringowa Shire Council [1998] QPELR 307, while the Council submitted that determination of an application to subdivide was premature before studies being conducted by it and the Main Roads Department identified the general road network that should be put in place for the area, the court took the view that the internal road system proposed and the particular road likely to cater for through traffic, whatever the external road system might be, were inadequate. The appeal against deemed refusal of an application for a 15 stage residential subdivision was dismissed. Summerland Plantations Pty Ltd v Brisbane City Council [1994] QPLR 352 was distinguished. There, an appeal against the deemed refusal of an application to subdivide 77.82 hectares into 63 allotments with 10% park provision was allowed. The Council sought a redesign of the subdivision which would substantially reduce the lot yield to permit and facilitate the establishment of a future arterial road whose location was the subject of a “rather indefinite indication” in the Structure Plan. Judge Quirk said at 354:
“To establish the basis for such a restriction one would need to go outside the Town Plan to another statutory authority to ascertain exactly what its intentions were. Furthermore it would be, at any time, quite open to that statutory authority to alter its requirements without any reference to the Town Plan (and the statutory controls over the Plan’s amendment) or to those who might be thereby affected.
In saying this I am not intending any adverse reflection at all upon the Department of Transport. Future planning of the kind here relevant (and the allocation of necessary funds) must be anything but an easy task. It is certainly not for this Court to offer any instruction to the Department as it how its duties should be discharged.
The fact remains however that the legislative arrangements for the acquisition of privately owned land for purposes of the kind with which the Department is concerned are found in the Acquisition of Land Act 1967-1992. …to accept the Respondent’s argument in this case and to require the Appellant to subdivide his land in a manner that would facilitate future acquisition of part of it for the arterial road would have an obviously negative effect on the Appellant’s entitlement to compensation under the Act.
I accept the argument that to require a subdivisional layout which would properly take into account the future construction of the arterial road would be, in reality, to impose a condition on the approval to subdivide the land. Section 6.1, of the Act requires that the planning authority, in dealing with an application to subdivide land, is not to
‘subject its approval of that application to a condition that is not relevant or reasonably required in respect of the proposal to which to application relates, notwithstanding the provisions for a planning scheme’.
To make provision for the allocation of land for the future arterial road is not something that would be, on any view of the evidence, ‘reasonably required’…”
The present matter has some similarity to Summerland Plantations. Accepting that the Department’s planning is fairly well advanced here, there is uncertainty affecting timing and scheduling (there is a possibility that there may be changes in the arrangements indicated in the letter of June 2007, but the court should not speculate about them). The Council’s planning for future roads under its jurisdiction is unknown, but Mr Beard’s proposal represents a good start, which is highly unlikely to compromise anything the Council may devise.
Here, I do not think the Department’s proposed condition is supportable under s 3.5.30(1) of the IPA. The impacts of traffic from the site being collected on the new road proposed and linked with Deception Bay Road will be negligible measured against traffic volumes there. As I understand things, the anticipated new traffic is to be treated as half moving east, half moving west. Safety may even be promoted by use of a single access link which is an obvious road rather than the existing multiple driveways, sight of which is obscured by the impressive large trees which are a feature of the road reserve at present. It would be a relevant and reasonable condition (which I consider should form part of any approval) that the layout include dedication of roads to facilitate connections as early as practicable to Krause Street and also in the opposite direction.
There is no point in devising conditions unless the proposal is to be approved. As indicated, the further obstacle to approval is asserted conflict with the new planning scheme.
Mr Houston, for the Council, relies on the width of the court’s discretion to give appropriate weight to new laws and policies, citing Hervey Bay City Council v BGM Projects Pty Ltd (2007) 154 LGERA 330; [2007] QCA 298, at [54]. He submitted that “considerable weight” should be given to the current planning scheme by reference to Lewiac Pty Ltd v Gold Coast City Council [1996] 2 Qd R 266, at 270-271[1], Edgarange Pty Ltd v BCC & Ors [2002] QPELR 183 at [7]-[10][2], Donald Thallon Surveys Pty Ltd v Brisbane City Council [2002] QPELR 418 at [3][3] and Mooloolah Commercial Pty Ltd v Caloundra City Council [2005] QPELR 648 at [35][4]. It is convenient to reproduce part of his written submission which begins with a quotation from the report of the appellant’s planning expert, Mr Gaskell:
[1]The Court of Appeal confirmed the applicability of the Coty principle. The appellant developer sought to change to 10 storeys for part of its 29.4 hectare site a height restriction of 6 established in an earlier rezoning. For years the Council supported the 6 storey limit, which was continued in its draft strategic plan (and supported by expert evidence). Recognising that it might be possible to give too much weight to such factors, Thomas J said at 271: “Unless some recognition is given to this factor it would be possible to sabotage any scheme by a single development inconsistent with it … one high-rise building in an area planned for low building profile is a good example”.
[2]A proposal lodged 4 months before City Plan 2000 came in for 56 residential allotments (39 below 500m2 ) on land zoned Particular Development (Educational Establishment) was rejected. Both City Plan and its predecessor emphasised the importance of minimising adverse mutual impacts of residential uses and industry, and the need to protect the latter. The new 2000m2 limit on allotment size was seen as a compromise. Scientific evidence (confirming complaints) supported separation of uses in the general locality. Under the Coty principle, weight was given to a draft Local Plan, as well as to City Plan, given the conclusion that “the proposed, dense development is too close to the industrial areas, particularly the Caltex refinery”, it would probably have been rejected under the old Town Plan, which “it is necessary to decide the appeal on the basis of”: see [10].
[3]Quirk DCJ said that City Plan 2000 might attract considerable weight in assessing an application made only 3 days before it came into effect “if it was a matter determinative of the appeal” – which it was not; City Plan did no more than make the proposal impact assessable, “generally inappropriate”. The proposal conflicted with it and the superseded planning scheme, but was approved.
[4]The unsuccessful developer applicant for a hotel on land designated or zoned residential had sought to have boundaries delineating uses varied, but the Council persisted with the existing arrangements in City Plan 2004, which Robertson DCJ accorded significance. There was conflict with both planning schemes.
“38. The current planning scheme provisions relevant to the assessment of the proposal identified two main planning outcomes:
· The need for buffering or separation between rural residential lots and existing proposed industrial development; and
· Minimising the impact of other land uses on rural residential lots by limiting the number of additional lots (larger minimum lot sizes of 8,000m2).
19.Mr Gaskell acknowledges the following conflict with the Current Planning Scheme:-
(a)Reconfiguration of a Lot Code:-
(i) Probable Solution 7.1;
(ii) Specific Outcome SO7 for the Rural Residential Zone;
(b)Specific Outcome SO2;
(c)the definition of “Buffer Area” in s2.3 (Definitions in Part 2 Interpretation); and
(d)the purpose of the Rural Residential Zone Code.
20.The relevant provisions with which Mr Gaskell acknowledges conflict are:-
Reconfiguration of a Lot Code
Probable Solution S7.1 The minimum allotment sizes are contained in Table 7.2.1 of the Reconfiguration of a Lot Code.
…
Specific Outcome SO7(b) for the Rural Residential Zone, the minimum lot size achieves the following:
(i) For land located within the ‘Buffer Areas Precinct’ the impact of other land uses on rural residential development is minimised.
…
Specific Outcome SO2 “Buffering that is adequate to ameliorate both current and future impacts of industrial development is provided:
(a)to separate new residential and rural residential lots from areas of existing and proposed industrial development; and
(b)to separate new industrial lots from areas of existing and proposed residential and rural residential development.
…
Buffer Area (Rural Residential) Buffer areas minimise the impact from other land uses on rural residential development and minimise the impact form rural residential development on sensitive environmental areas.
Purpose of the Rural Residential Code (vii) Adequate buffers exist to minimise the adverse impact of rural and other non-residential activities.
21.There is a disagreement between the planners as to whether the differences are major or minor.
Extent of the [conflict]
23.In summary, the extent of conflict with the Current Planning Scheme is the difference in lot sizes – approximately 3,000m2 as proposed, compared to a minimum of 8,000m2 under the Current Planning Scheme. The difference is between 11 lots, as now proposed, and 4 lots, as might be realisable (at least on the basis of area) under the Current Planning Scheme.”
Mr Houston instanced Heran Building Group v Logan City Council [2002] QPELR 303 and Engwirda v Mackay City Council [2008] QPEC 78 as examples of the court taking seriously planning scheme stipulations as to minimum lot sizes. Each required consideration only of the applicable planning scheme; neither involved a reduction in lot sizes in a current scheme from those permitted by a superseded planning scheme under which a development application was made. Both decisions emphasise that the Council, not the court, is the planning authority, as does Grosser v Council of the City of Gold Coast (2001) 117 LGERA 153 at [38]:
“It would be quite inappropriate for this Court to deal with an individual application…in a way which might be considered as determinative of some wider question…to allow this appeal would be to “cut across” in quite an acceptable manner, a planning strategy which has been adopted by the Planning Authority and publicly exhibited for community consent.”
I accept that this court ought to be very careful before pronouncing a determination that there is no conflict between the proposal and current planning scheme (or only minimal conflict) which might be sought to be used as a general pronouncement at some time in the future. The conflict is essentially as identified by Mr Houston in his paragraph 23, except that, as Mr Haydon pointed out, there is some flexibility in respect of the “minimum of 8,000m2”. That area appears in Table 7.21 Allotment sizes and dimensions, which for “minimum area” in Rural Residential stipulates 8,000m2 for Buffer Area, 3,000m2 for Park Residential, “No further subdivision” for Restricted Area and 2 hectares for Transition. Those stipulations are not a mandatory requirement, rather “Probable solutions” for achieving the Specific Outcomes identified in Table 7.18 for the Reconfiguring a Lot Code. Section 7.61 in Division 16 – Reconfiguring a Lot, provides that:
“The specific outcomes sought for Reconfiguring a Lot Code are included in Column 1 of Table 7.18. Probable Solutions for code assessable development are included in Column 2 of Table 7.18.”
In the introduction to the planning scheme one finds (page 5):
“1.15 Probable Solutions for code assessable development
A probable solution for a specific outcome provides a guide for achieving that outcome in whole or in part, and does not limit the assessment manager’s discretion under the IPA to impose conditions on a development approval.”
The preceding section (1.14) proclaims that the planning scheme seeks to achieve outcomes in levels shown in Figure 1.2:
Although the language may not be as explicit as that in some other planning schemes in making it clear that “acceptable”, “probable” and like “solutions” are not the only way of satisfying desired or specific outcomes or performance criteria, I agree with counsel that the effect is the same. This is likely to be a matter of surprise to those who assume that “acceptable solutions” and the like set out in applicable parts of planning schemes limit the development that might occur next door; they do no more than give a developer who complies a clear run. The question to be asked here focuses on the relevant specific outcome which for the Buffer Areas Precinct is that “the impact of other land uses on rural residential development is minimised and the impact of the rural residential development on sensitive environmental and rural areas is minimised”. One can imagine that, depending on the circumstances, it might be acceptable to have a lot or lots smaller than 8,000m2, especially if other lots are made larger, to compensate.
Perhaps unnecessarily, the planning experts in their joint report embark on the familiar exercise of exploring whether there exist “sufficient grounds” to justify a decision to approve the proposal despite conflict, as referred to in s 3.5.13(3) in IPA. The relevant section of the planners’ joint report begins as follows:
“Conflict with the Current Planning Scheme
36.RR The conflict with the current planning scheme is a major conflict, given that the minimum allotment size proposed is less than half that intended by the Shire Plan. There are insufficient grounds to support approval of the application having regard to the level of conflict with the Shire Plan.
37.JG The conflict with the current planning scheme is a minor conflict and there are sufficient grounds for approval, having regard to the purpose of the code, and the SEQ Regional Plan. The sufficient grounds include:
·The distance between the subject site and the industry to the south of approximately 900 metres providing a sufficient buffer;
·The immediate proximity (within approximately 60 metres) of Residential A Zoned land across Deception Bay Road;
·The proposed 3,000m2 allotments do not cut across the intent of the current planning scheme;
·The proposal does not prejudice development consistent with the current planning scheme. In fact, the proposed access arrangements facilitates development in accordance with the planning scheme;
·Recent Council reviews of the planning scheme have not used stronger planning scheme measures to prevent further intensification of residential use in this locality;
·Council’s current planning scheme has intensified residential use in this locality by changing the Rural Residential Zone and Specific Rural Zone (in the superseded planning scheme) to the Residential A Zone; and
·In light of the above factors, the public interest is protected through the provision of a sufficient buffer and the proposal not prejudicing future development options consistent with the current planning scheme.
38.RR IPA defines “grounds” as follows:
“1Grounds means matters of public interest.
2Grounds does not include the personal circumstances of an applicant, owner or interested party.”
In this context matters raised by JG above do not constitute sufficient grounds to approve the application having regard to the level of conflict with the current planning scheme.
39.RR The proposal will cut across the intent of the current planning scheme because it proposes a density more than double that intended in the subject locality.
40.JG The proposed 3,000m2 subdivision for the subject land does not cut across the intent of the current planning scheme to buffer residential uses from industry, and provides an appropriate transition between Residential A Zoned land (north of Deception Bay Road) and the Open Space buffer area and industry, and provides an appropriate transition between Residential A Zoned land (north of Deception Bay Road) and the Open Space buffer area and industry to the south of the subject land.
41.RR Given that the Shire Plan increases the minimum lot size in Buffer Areas from 3,000m2 to 8,000m2, in the case of the subject land because of its proximity to industrial areas, the proposal conflicts with the following Overall Outcome for the Rural Residential Zone:
“(vii) Adequate buffers exist to minimise the adverse impact of rural and other non-residential activities.”
42.RR Clearly the method by which the current planning scheme minimises potential impacts is by limiting the intensity of rural residential development in the subject locality. Council has adopted a precautionary approach whereby further rural residential development is not precluded, but rather minimised.
43.Whilst the Regional Plan includes the subject land within the Urban footprint the description of the Urban Footprint includes the following statements:
Inclusion of land in the Urban Footprint does not imply that all such claims can be developed for urban purposes. The Urban Footprint includes some way not available or appropriate to develop…”
There is little point in attempting to characterise the conflict as “minor” or “major”, terms which are not used in the IPA in this connection. On one approach, even if the conflict is major in respect of the site, it is clearly minor if one looks at the relevant Buffer Area Precinct south of Deception Bay Road as a whole: the development that would result from implementation of the proposal is consistent with other pockets of similarly intensive development (and some closer development) nearby. Mr Haydon established that the quoted definition of “grounds” in Schedule 10 was inserted there too late to apply to the appellant’s application.
Mr Houston sought to discount Mr Gaskell’s suggested “grounds”. To the extent that Council approvals (in particular the childcare centre) might suggest a 900m buffer is sufficient, it was submitted, consistently with Mr Ryter’s opinion, that multiple wrongs do not make a right. That is correct; while regrettable development approvals may create resentment and feelings of unfairness in other developers not similarly favoured, they do not show what the planning scheme means. The nearby Residential Zoning was dismissed as “historical”, it was said to be unremarkable that a main road is used as a line of demarcation for different land uses. In reliance on Grosser (at 166), Kentbrock Pty Ltd v Gold Coast City Council [2003] QPELR 587 at [35] and Palyaris v Gold Coast City Council [2004] QPELR 162, at [40] and [41], it was submitted that the lack of negative impacts does not qualify as a “ground”. I do not agree with (assuming that I correctly understand) the Council’s argument that there is no basis for the assertion that the proposed access arrangements facilitate development in accordance with the planning scheme. Mr Hinson’s written submission was to the effect that the layout now proposed from Mr Beard “is a feasible and attractive option (based on normal traffic design principles) for a satisfactory overall access plan for the 12 allotments on the southern side of Deception Bay Road”; with that I agree. I count this as a positive ground supporting the proposal and, assuming that “grounds” in s 3.5.13 (as distinct from “planning grounds” as used to be required for the purposes of s 3.5.14(2)(b)) are not limited by the new Schedule 10 definition, but are to be understood according to normal parlance, I think there are grounds related to the appellant’s legitimate expectations and entitlements as an applicant under the superseded planning scheme.
My inclination is to hold that there are arguably “sufficient grounds” notwithstanding the conflict which does arise with the current planning scheme in my view (since to hold to the contrary would effectively emasculate the new arrangements for the buffer area precinct in this locality, contrary to the planning authority’s clear desire to no longer permit lots as small as 3,000m2), so that a putative new development application for the same proposal under the current planning scheme could with justification be approved (although the case would be easier to make with appropriate scientific support). It is not necessary to go so far, as, in the circumstances, I am disinclined to give the current planning scheme significant weight. It is difficult to develop too much concern about the proposal cutting across it to the extent that anything sought by the new planning scheme is frustrated. We are looking at matters of principle, rather than anything being compromised in the practical world. The new planning scheme may envisage reconfiguration with an 8,000m2 per block minimum size, but it allows that there may be other ways of achieving the relevant Specific Outcome. The planning scheme does not seek to outlaw residential use of land in a buffer area precinct, an increase from 2 to 11 in a number of residences on the particular 4 hectare site will have little impact on the intent to limit the mutual impacts of rural residential and industrial uses. That the development application was made under the 1988 planning scheme makes the appellant’s case strong.
The conclusion is that the appeal ought to be allowed on conditions to be devised after further consideration by the parties, but to include, consistently with the foregoing, Mr Beard’s proposal minus the CHR(S) aspect, plus the three turning bulbs identified.
2
1