Lyons v Brisbane City Council
[2009] QPEC 102
•21 October 2009
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Lyons v Brisbane City Council & Ors [2009] QPEC 102
PARTIES:
L E and A C LYONS
Appellants
V
BRISBANE CITY COUNCIL
Respondent
and
RICK WRIGHT
Second respondent
and
STATE OF QUEENSLAND AND DEPARTMENT OF MAIN ROADS
Third respondent
FILE NO/S:
BD 563/2009
DIVISION:
Planning and Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
Planning and Environment Court of Queensland, at Brisbane
DELIVERED ON:
21 October 2009
DELIVERED AT:
Brisbane
HEARING DATE:
12, 13 October 2009; written submissions received up to 20 October 2009
JUDGE:
Alan Wilson SC, DCJ
ORDER:
Appeal dismissed
CATCHWORDS:
ENVIRONMENT AND PLANNING – PLANNING LAW – PLANNING SCHEMES – CONSTRUCTION OF PLANNING SCHEMES – SUBDIVISION – where Council approved small subdivision in emerging residential area – where planning scheme contained provisions designed to ensure development would integrate with local infrastructure and possible future development – whether developer required to provide a ‘structure plan’ which made provision for access over land not part of the development, and owned by others – whether conflict with planning scheme – whether compromise of Desired Environmental Outcomes in planning scheme
Integrated Planning Act 1997 s 3.5.14(2), s 4.1.52(2)(b)
Cases considered:
Donaldson v Brisbane City Council [2009] QPEC 58
Wingate Properties Pty Ltd v Brisbane City Council [2001] QPELR 272
COUNSEL:
S M Ure for appellants
B D Job for respondent
J D Houston for second respondent
R D Duhig, solicitor for third respondentSOLICITORS:
King and Company for appellants
Brisbane City Legal Practice for respondent
Herbert Geer for second respondent
Crown Law for third respondent
The second respondent, Mr Wright, received Council approval to subdivide his large parcel of residential land at 31 Gem Road, Kenmore[1] into five smaller allotments. His land is one of eight large adjoining blocks designated under Council’s current planning scheme, CityPlan, as an Emerging Community Area – signifying that the parcels will probably, eventually, be subdivided into smaller allotments like those which surround them, on all sides, in Kenmore.
[1]Lot 22 on RP 80438, containing 1.0375ha.
The appellants own the parcel immediately to the west and say, in short, that plans for access to the new subdivision fail to take proper account of the likely nature of future development on these nearby parcels, including theirs. They focus, in particular, on CityPlan’s expressed intent for Emerging Community Areas which they say requires the preparation of an acceptable neighbourhood ‘Structure Plan’ before development can occur, and say that the access scheme proposed by Mr Wright does not meet CityPlan’s requirements with respect to ‘… coordination, integration with surrounding development, connectivity of movement networks including pedestrian, vehicular and cycle movement networks and permeability of the locality’.[2]
[2]Appellants’ submissions 16 October 2009, paragraph 22.
It is said that Mr Wright’s parcel, situated in the centre of the Emerging Community Area, ‘… has an important role to play in the achievement of coordinated integrated development of the emerging community area’ but his subdivision proposal ‘… ignores this role and is essentially self centred’.[3]
[3]Ibid, paragraphs 23 and 24.
In particular, the appellants claim that the proposal compromises the achievement of Desired Environmental Outcomes (DEOs) relating to Emerging Community Areas, which look to development in an orderly sequence and in accordance with the neighbourhood structure plan; in a sustainable manner involving the integration, among other things, of community infrastructure; that is well planned and integrated with surrounding land uses; that does not impinge on existing or the intended use of adjacent areas, or prejudice future development; and, with respect to roads and other transport corridors, which ensures they are coordinated and interconnected to ensure pedestrian, bike, public transport and private vehicle accessibility between neighbourhoods.[4]
[4]Emerging Community Area DEOs Nos. 2, 3, 5, 6 and 7.
Other particular allegations of conflict with CityPlan refer, in particular, to the purpose of the Structure Planning Code; Performance Criteria P2 of that Code; the purpose of the Subdivision Code, and Performance Criteria P1.3 and P1.4 of that Code; and, Performance Criteria Neighbourhood Design P3 and Movement Network Design P3, P4, and P5 of the Code. Lastly, it is said that proposals for site access at the northern boundary are inappropriate.
During the process of Council assessment of the development application for the subdivision (formally described as a reconfiguration from one lot into five) the applicant provided a Structure Plan, as CityPlan requires. Also during the assessment process, the means of access to the five proposed allotments changed and in its final form one of the lots will have road access via Gem Road, and the other four via Fern Place, a cul de sac abutting the northern corner of the site. Council, and the Department of Main Roads, ultimately accepted that an application accompanied by a Structure Plan showing access of that kind warranted approval, subject to conditions.
The appellants called a town planner, Mr Ryter, and a senior traffic expert, Mr Holland, who both expressed the view that the proposed development and its associated Structure Plan wrongly failed to provide dedicated road connectivity to, or integration with, parcels to both the east and west of subject land, all included in the Emerging Community Area and with an apparent potential for subdivision.
Mr Holland produced a detailed drawing[5] showing a proposed access driveway which, he said, illustrated how the three sites to the east could be developed in a satisfactory manner via an access driveway or roadway running from a parcel to the west of Mr Wright’s land, across two other parcels and his land, and then on to the appellants’ land to the west, to join with a road formation accessing Moggill Road. This scheme, it was contended, would provide a more orderly form of future access to all these parcels.
[5]Exhibit 2A.
It is appropriate to remark, before turning to the detailed provisions of CityPlan, that there is an air of unreality about this evidence and the appellant’s case. That is not to say it is wrong but, rather, that it involves an attempt to regulate unknown future events and, also, an over-reading, as it were, of CityPlan’s provisions concerning Emerging Community Areas.
Those provisions must be read in light of the fact that nothing in the designation actually obliges, or requires owners to develop their land and, if that does happen, it may well occur on a piecemeal basis so that individual applications will have to be considered on their merits at some unknown future time.
An important question, and one which CityPlan incorporates when it raises requirements for things like Structure Plans, must be whether a discrete development could interfere with subsequent development of nearby parcels. Nothing of that kind could be suggested here. No other owner has signified an intention to subdivide in a way which might call for the integration of access plans to achieve orderly development. In light of that circumstance orderly development falls, here, to be considered solely in the particular light of the second co-respondent’s discrete, individual development application.
That application is impact assessable, so Council’s decision could not compromise the achievement of DEOs for the Planning Scheme area or be in conflict with the Scheme, unless there are sufficient supportive planning grounds: Integrated Planning Act 1997 (IPA), s 3.5.14(2). As this is a submitter appeal, the onus lies upon Mr Wright to demonstrate that the development is sufficiently meritorious to warrant approval. In light of the approach taken by the appellants in the case, which primarily involved criticism of the access scheme for the new blocks after subdivision and suggestions for what were said to be preferable plans of access, it is necessary to observe that Mr Wright is not required to prove that no better plan of layout could have been adopted.[6]
[6]Wingate Properties Pty Ltd v Brisbane City Council[2001] QPELR 272; Donaldson v Brisbane City Council [2009] QPEC 58.
The land lies within the Residential Neighbourhoods Element of CityPlan’s Strategic Plan which promotes residential development and looks to provide housing choice, and affordability. In Emerging Community Areas residential development is to be orderly, and well planned. Applications are to be accompanied by a Structure Plan, defined as a plan which generally shows the form, type and density of future development and ‘… includes a neighbourhood structure plan for an emerging community area …’
Another part of CityPlan, the Subdivision Code, also refers to Structure Plans and said (at the time the application was lodged) that they would give physical form to neighbourhoods and illustrate land use, and ‘… ensure that the urban design implications for subdivision are fully examined before subdivision is approved’. The current version of the Code adds that the preparation of a Structure Plan requires ‘… a comprehensive planning approach to the subdivision of land where the major road, open space, pedestrian/bike and public transport networks are identified, servicing and environmental issues are resolved, and land uses and densities allocated’.
For reasons which are well summarised in submissions from Mr Job, for the Council[7], the weight and significance placed upon the Structure Plan by Mr Ryter (and Mr Holland) is undue. Indeed, in light of the particular circumstances affecting this development Council has not adopted any Structure Plan, and was not required to do so.
[7]Submissions on behalf of the respondent Council, 16 October 2009.
First, the general assessment processes in Chapter 3 of CityPlan reveal that, while the scheme identifies processes for the preparation of plans, they do not do so in terms which would compel one here. Secondly, the Emerging Community Area intent does not require the approval of a Structure Plan before development can occur but, merely, that one is prepared; and, while the Structure Planning Code requires a Structure Plan to accompany an application which is impact assessable, for subdivision in the Emerging Community Area, Council has a discretion whether or not to adopt or approve that Plan.
Next, as the submissions go on to point out, Structure Plans may be large and complex or, as here, (where both the site and the proposed subdivision are small and simple) a development application containing nothing more than information which addresses the requirements of the Code can be sufficient to constitute a Structure Plan. The scope and detail of the Plan and the extent to which the Code is applied will, CityPlan says, reflect the size, location and development constraints of the site.
Once these things are appreciated the fact that Council did not impose a development condition requiring approval of a Structure Plan is unsurprising. As these provisions make clear, a plan of that kind is not critical to, or an integral part of, an application for a development permit for a modest proposal on a relatively small site, and one where nearby land does not depend upon the subject land for access. Hence, Council had a discretion as to the extent to which the Code was to be applied. For these reasons Mr Holland was also, with respect, mistaken when he said that the applicant must supply a Structure Plan for the overall area.
Importantly for the assessment process under IPA, conflict between the development proposal and the planning scheme is in these circumstances difficult to plainly identify.
Mr Ryter’s assertion that the proposal did not allow for orderly development rested upon his view that any development on the subject land must provide dedicated road connections to both the east, and the west. His opinion that the proposal failed to meet the purpose of the Structure Planning Code, and its Performance Criteria P1 and P2, rested on that conclusion. P1 only requires, however, that proposals accord with and implement an adopted Structure Plan where one already exists or, alternatively, enable Council to adopt a plan of that kind. Here, Council has said it does not with to adopt a plan. P2 requires that proposals enable ordered and coordinated development, but there is no evidence that land to the east cannot continue to gain access from Gem Road, or that the parcels to the west cannot be satisfactorily accessed from either Margaret Court or, possibly, Moggill Road.
Again, it is appropriate to observe that all new parcels in the proposed subdivision can be appropriately accessed, and the approval is able to be implemented immediately, and no other land depends upon access from Mr Wright’s property; and, that the appellants’ case necessarily involves an assumption (for which there is no evidence) that the owners of other parcels will be willing to apply for and develop their land in the manner which the appellants would prefer and which meets their expert witness’ views about future access to their parcels.
The allegation of conflict between the proposal and the Subdivision Code rests upon Mr Ryter’s opinion that the subject land should provide more connectivity for other parcels. Reference was made to Performance Criteria P1.3 and P1.4 in the 2004 version of the Code, and Neighbourhood Design P3 and Movement Network Design P3, P4 and P5 in the 2008 version. The older criteria do not, however, relate to small subdivision proposals (less than 10 lots) and speak in terms like ‘street networks’ within proposals, which plainly relate to larger developments and have no apparent relevance here. Likewise, the later Code also involves reference to Performance Criteria for road networks, but they too are very generally expressed. It is impossible to discern any conflict between them, and this very small subdivision and its limited, small scale access arrangements.
So far as the compromise of the DEOs is concerned Mr Ryter was not prepared to put it higher than a ‘potential’. It can be seen on closer examination that each of the nominated DEOs is not, in truth, adversely confronted by this proposal.
As to DEO 2, for the reasons already explored it cannot be said that this parcel is not being developed in an orderly sequence, or that its development will prohibit, or impinge upon, the orderly development of other parcels in the future (if and when that occurs). DEO 3 looks to sustainable development but this proposal is plainly integrated with community infrastructure. DEO 5 requires development to be well planned and integrated with surrounding land uses; this proposal has access to both Gem Road and Fern Place. DEO 6 looks, in part, to the intended use of adjacent areas; again, there is no present evidence that any intended use for an adjacent area will be impinged upon. Finally, DEO 7 falls to be considered in light of the small size of the parcel and the subdivision and its existing access to two public roads.
The traffic engineers also focussed upon the form of access proposed for four of the new allotments to and from Fern Place, via an easement. The evidence of the three traffic engineers (Mr Holland, Mr Pekol and Mr McClurg) showed that although parts of the gradient would be steep, the access arrangements struck an appropriate balance between facilitating onsite collection of refuse, and achieving acceptable gradients. That conclusion was supported by a principal engineer in Council’s employ who confirmed that, as it is planned, access would be satisfactory for use by refuse collection trucks.
The focus, in the appellants’ case, upon structure planning is largely irrelevant when, as here, no Structure Plan is sought to be approved. Ultimately, the primary issue is whether the proposal is acceptable having regard to the terms of CityPlan – and not, as the appellants effectively contended, whether a better form of development might exist. Analysis of relevant CityPlan provisions including, in particular, those relied upon by the appellants show that there is not, in truth, anything about this proposal which involves a compromise of the DEOs or conflict with the provisions of CityPlan. For these reasons, the appeal should be dismissed.
There has been a change to the approved plans arising from Mr McClurg’s new drawings of the access easement. The changes involve a concept plan increasing driveway width and relocating a storage bin area and visitor parking bays and reducing the length of a turning bay. All these changes were plainly minor within the meaning of that term when it is used in s 4.1.52(2)(b) of IPA and it is appropriate to make a declaration to that effect. Otherwise, approval should be granted in accordance with the Negotiated Decision Notice with amendments reflecting that minor change (and a change to another condition identified in a mediation agreement in a related appeal, No. 532 of 2009).
1
1