Mayo v Council of the City of Gold Coast
[2002] QPEC 60
•22 April 2002
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION: Mayo & Anor v Council of the City of Gold Coast [2002] QPEC 060 PARTIES: PHILIP GRANT MAYO AND JEANETTE ALISON MAYO
Appellants
COUNCIL OF THE CITY OF GOLD COAST
Respondent
FILE NO: 910 / 2001 DIVISION: Planning & Environment Court PROCEEDING: Appeal ORIGINATING COURT: Planning & Environment Court, Southport
DELIVERED ON: 22 April 2002 DELIVERED AT: Southport HEARING DATES: 7 & 8 February 2002 JUDGE: Newton DCJ ORDER: Appeal dismissed CATCHWORDS: Local Government – Building Control and Town Planning – Appeal in respect of a development application for a development permit for a reconfiguration of a Lot by subdivision into two lots of land – whether condition requiring dedication of access easement along eastern property boundary to proposed public open space is reasonable and relevant – whether dedication of land along frontage of creek as park/public open space at appellants’ expense is a reasonable and relevant condition of approval – whether submission of a bushfire management plan is appropriate - whether removal of existing pontoon at the appellants’ expense is a reasonable and relevant condition of approval COUNSEL: Mr P G Mayo in person – appellants
Mr W Cochrane – respondentSOLICITORS: Mr P G Mayo in person – appellants
King & Company – respondent
IN THE PLANNING & ENVIRONMENT COURT OF QUEENSLAND
SOUTHPORT No: 910 of 2001
PHILIP GRANT MAYO and JEANETTE ALISON MAYO
Appellants
COUNCIL OF THE CITY OF GOLD COAST
Respondent
REASONS FOR JUDGMENT – NEWTON, DCJ
(Delivered the 22nd day of April 2002)
This is an appeal in respect of a Development Application for a Development Permit for a Reconfiguration of a Lot by subdivision into two lots of land located at 167 Brygon Creek Drive, Upper Coomera, which land is otherwise described as Lot 152 on RP 178829 County of Ward, Parish of Coomera.
The application was dated 12 September 2000 and on 2 February 2000 the respondent Council resolved to approve the application subject to conditions.
Following approval of the application the appellants sought to suspend the appeal period in order to make representations about conditions. Those representations were made and on 2 February 2001 Council officers recommended a change in Condition 1. The decision was communicated to the appellants by letter dated 2 March 2001 and the appellants subsequently brought an appeal which was also filed on 2 March 2001.
The conditions, the subject of this appeal, are conditions 1, 4, 7 and 8. Those conditions relevantly provide as follows:
“Condition 1 - The applicant shall ensure that all development is generally in accordance with Plan No. B633-04 Revision A by B C Currey (Surveys) and dated 8 September 2000 with the following amendment:
(a)The applicant is to dedicate an access easement (3 metres in width), in favour of Council, which runs from Brygon Creek Road along the eastern property boundary down to the public open space.
Condition 4 - Prior to the sealing of survey plan, the applicant shall submit an amended Bushfire Management Plan for the proposed two (2) lot subdivision for approval. The existence of the Bushfire Management Plan is to be noted on each of the proposed lots’ rates card and a copy of the approved plan shall be provided to the property owners of proposed Lots 1 and 2.
Condition 7 - The land shown as park/public open space on the subdivision proposal plan shall be dedicated to the Crown as park at the applicant’s expense.
Condition 8 - The applicant is to remove the existing pontoon located at the southern end of the subject site to the satisfaction of the Chief Executive Officer and at the applicant’s expense.”
In their Notice of Appeal the appellants raised the following objections to those particular conditions:
“Condition 1(a)
(a)That the requirement for an easement is contingent upon the parkland referred to in Condition 7 being dedicated to the Crown by the appellants.
(b)Such an easement would be impractical as due to the slope of the appellants’ land effective access could not be gained to the proposed park.
(c)If an easement is to be granted it is reasonable that it only extend from the southern boundary of the existing park constituted by Lot 16 on RP 903692 County of Ward, Parish of Coomera.
(d)That the dedication of the easement is not relevant as it cannot be used to gain access to the proposed park.
(e)The granting of the easement is not a reasonable request and unduly impacts on the appellants’ use and enjoyment of their property and its value.
(f)If an easement is to be granted to the respondent then the respondent should pay for such easement.
Condition 4
That Condition 4, the Bushfire Management Plan, be waived on the following grounds:
(a)Lot 1 has a large road frontage and cleared ground and only has a low fire risk not requiring a Bushfire Management Plan.
(b)Lot 2, the appellants are able to clear 10 metres from structures including boundary fences, thereby rendering the property low-risk and not in need of a Bushfire Management Plan.
Condition 7
(a)There is no access to the proposed park as there are no areas of Council land abutting the same. Due to the steepness of the appellants’ land in that vicinity, an approximate 40 degree slope, the respondent would not be able to access the area for maintenance including the control of noxious weeds.
(b)The request for the dedication of the park is not relevant to the subdivision and will not benefit members of the public as access is impractical.
(c)The request is unreasonable as it unduly impacts on the appellants’ use and enjoyment of the Land as direct access to Brygon Creek would not be possible.
(d)The request is unreasonable in that it substantially devalues the Land.
(e)The respondent’s attitude is inconsistent as it did not require similar contributions from Lots 47 and 48 on RP 162863 County of Ward, Parish of Coomera when those properties were subdivided along Brygon Creek.
(f)The prospects of the respondent obtaining similar dedications from Lots 146, 147 and 218 on RP 178831 County of Ward, Parish of Coomera and Lots 154 and 155 on RP 178829 County of Ward, Parish of Coomera are [slight] due to the nature of those properties making subdivision impractical.
(g)If the respondent wishes to obtain parks from those properties, or the appellants’ property they could be resumed and proper compensation paid.
(h)The provisions of the Land Act 1994 could not be complied with in that:
(i)Under section 30, the subject park could not be used for the purposes for which it was dedicated nor could it be maintained and effectively managed;
(ii)The Trustee could not effectively perform its functions pursuant to section 46(1) of the Land Act 1994 as it would be unable to manage the Trust Land consistent with achieving the purposes of the Trust;
(iii)The Trustee could not control noxious plants on the Trust Land;
(iv)The Trustee could not exercise the duty of care for the Trust Land; and
(v)The Trustee could not effectively protect and maintain all improvements on the Trust Land.
(i)That the dedication of the proposed park would be contrary to policy number PUX/901/207 of the Land Act 1994 Policies.
(j)That the dedication of the park is not a relevant consideration to a two-lot subdivision taking into account that it cannot be effectively used or managed.
Condition 8
That the respondent waive the provisions of Condition 8 of the Decision Notice:
(a)In that the removal of the existing pontoon unreasonably reduces the applicants’ enjoyment of the Land;
(b)That the removal of the pontoon would devalue the Land.”
The Site and Surrounding Area
The site has an area of 6.302 hectares and comprises a rectangular portion of land located on the southern side of Brygon Creek Drive with a frontage of approximately 100 metres. It is bounded to the north by Brygon Creek Drive and to the south by Brygon Creek.
There is a ridge line running in a north-south direction and sloping steeply down towards the western, eastern and southern boundaries of the site, with the southern portion of the site incorporating the majority of the steep slopes. Much of the site is vegetated with several cleared areas joined by vehicle tracks. The slope varies with flatter areas coinciding with the location of the existing house and other cleared areas on the site. The balance of the site varies from steep to very steep, particularly towards the southern part of the site near Brygon Creek.
Land uses immediately surrounding the site are generally rural residential. Developing residential communities of Upper Coomera are located within the vicinity of the site, with some residential development located to the north-east off Brygon Creek Drive, to the south-west off Reserve Road and to the south-east (south of the Coomera River) off Tamborine-Oxenford Road.
The Evidence of the Appellant
The appellants chose not to seek to adduce any evidence before the Court by way of expert reports. Mr Mayo called, under subpoena, Mr Ian Glew, the manager Statutory Planning for the Gold Coast City Council and Mr Steven McBean, a Subdivisions Environmental Assessment Officer from the Gold Coast City Council. The only other evidence for the appellants was in the form of a 12-page written statement under the hand of Mr Mayo and 39 appendices to that statement which together were admitted as Exhibit 1.
Mr Mayo was extremely critical of a number of Council officers with whom he had dealings in relation to his attempts to gain approval for subdivision. Mr Mayo’s criticisms included rudeness on the part of some Council officers and incompetence on the part of some officers who had reported to Council and whose reports contained inaccuracies and mis-statements of fact. It is not necessary to detail these criticisms, however, I am left with the distinct impression that the respondent, through its officers, could have handled this matter with far greater tact than seems to have been the case. Indeed, it seems at least possible that this matter could have been resolved by the parties without recourse to litigation had a more reasonable and conciliatory approach been adopted.
The Evidence of the Respondent
Evidence was adduced on behalf of the respondent by Mr Perkins, a town planning consultant, Mr Westera, a consulting civil and structural engineer and Mr Friend, a natural resource and bushfire management expert. I shall turn firstly to the evidence of Mr Perkins.
The site is subject to the provisions of the 1995 Albert Shire Planning Scheme including the Albert Corridor Development Control Plan. The proposal was assessed by Mr Perkins against the relevant provisions including:
¨ The Strategic Plan;
¨ The Albert Corridor Development Control Plan;
¨ Zones;
¨ Development requirements; and
¨ Assessment provisions of the Planning Scheme
Shire Image Objective 1, in section 1.3.2 of the Planning Scheme speaks of identifying, maintaining and enhancing elements which constitute and contribute to Shire Image. The objective gives particular significance to riverine strips and water edges. Paragraph 3 of the Implementation Provisions of the Objective states that the Strategic Plan proposes a well-balanced built environment. It is intended that conditions of development will ensure retention and enhancement of elements contributing to Shire Image and local character, including development density, landscaping and the provision of open space.
Environment Objective 8 (section 1.3.3) seeks to link areas of habitat and provide corridors for wildlife movement. This is to be achieved, where possible, both by retaining or planting native vegetation along road, ridge and stream corridors to ensure habitat continuity. The objective is to be implemented primarily through the implementation of objectives for the environment relevant to the preferred dominant land uses.
The protection of existing and future residents and visitors to the Shire from the hazards of bushfires is the subject of Quality of Life, Health and Safety Objective 2 (section 1.3.6). Thus, all subdivision and development is to generally conform with information contained within the background paper to AS3959 Building in Bushfire-Prone Areas: Information and Advice. The Council will use this document when assessing development applications. Where Council considers that a bushfire hazard exists, it will require the submission of a planning report with any subdivision or development application. Such report should include the following details:
(A)Slope and aspect analysis;
(B)Details concerning vegetation type in the subject areas;
(C)An assessment of the bushfire hazard for the subject site;
(D)Details of proposed measures to reduce the risk of bushfires within the subject areas; and
(E)Details of proposed ingress and egress.
The following conditions may be required by Council in respect of subdivision or development approval:
(1)Fire break reserves to be surrendered to the Crown free of cost;
(2)Provision of sufficient water for fire-fighting purposes;
(3)Design of the proposed development so that ingress and egress from the subject site is not prejudiced in the event of fire, including the reduction of cul-de-sac and dead-end lanes which do not have emergency vehicle tracks.
Approval of subdivision or development will not be given in respect of areas with a slope gradient greater than 20 per cent unless it can be demonstrated to the satisfaction of Council that:
(a)the area has no significant hill slope stability problem;
(b)the aspect and vegetation type are such that the type mitigates against bushfire;
(c)the applicant has designed the proposal in such a way that access to and from the areas is not prejudiced in the event of bushfire; and
(d)there is sufficient water for the proposed development for fire-fighting purposes.
The site is located in the Rural PDLU and the Open Space/Open Space Corridor PDLU (at the southern boundary). Accordingly, the provisions of both PDLUs must be considered in an assessment of the proposal.
Rural Objective 3 seeks to ensure that the development of rural areas is consistent with maintaining the desired visual amenity of the Shire. Of some importance is the implementation provision which envisages that in the catchment area of the Coomera River (within which the subject site is located), Council will encourage retention and enhancement of riverine vegetation, especially parallel to roads and at creek crossings. Council will seek to acquire the upper slopes, ridge tops and stream banks in the course of the development process (Rural Objective 3, section 1.4.7.4).
Rural Objective 5 also acknowledges in its implementation provision the ability of Council to seek to retain areas of natural bushland throughout rural areas in the form of pockets and linked corridors by requiring development proposals to provide for open space links, shown on Map 5 of the Strategic Plan – Preferred Dominant Land Uses – and to protect areas identified on Map 2 of the Strategic Plan as important for conservation support. Open space corridors and buffers along creeks should, where possible, be at least 100 metres wide, with public access being provided where appropriate. Where Council requires that land be set aside for any one of these purposes, Council may approve development of the balance area of the land at a higher density to compensate for the setting aside of land for these purposes in accordance with the formula set out in section 16.4 of the Planning Scheme.
The intent of the Open Space PDLU (section 1.4.10) identifies Open Space areas as those parts of the Shire which are generally not intended for building development and which should be left predominantly in either a natural, a rural or a recreational state. This is because of the value of these areas for reasons of ecology, soil conservation, water quality or landscape quality, or because the best use of the area is for recreation. In several areas, land designated for Open Space is shown as indicative corridors where the intention is to retain continuous links of varying width according to local circumstances. The preferred objective is to secure Open Space corridors each side of the identified features, 100 metres wide or a greater width in appropriate cases. However, this will be subject to detailed investigation of existing circumstances including topography, vegetation, flooding and existing land uses. Areas designated Open Space also include flood-prone land unsuitable for development, which provides valuable green open areas buffering and providing visual relief from development, but which may be developed for recreational purposes.
Open Space Objective 1 (section 1.4.10.2) seeks to encourage the development of a major open space network, based on water courses which meets Shire Image and Environment objectives and in particular provides one or more of the following functions:
¨ Linking and buffering conservation reserves;
¨ Linking to open space areas and corridors in adjacent Local Authority
areas;
¨ Linking compatible uses;
¨ Separation of incompatible uses;
¨ Protection of known rare and threatened species;
¨ Provision of wildlife movement corridors;
¨ Inclusion of viable representative samples of all natural conservation
management units;
¨ Includes the flood-plain areas not suitable for development; and
¨ Frame growth in urban areas.
Pursuant to the implementation provisions of Open Space Objective 1, it is intended progressively to acquire, reserve or otherwise protect the elements of a continuous Open Space network throughout the Shire, based on the Open Space and Open Space Corridors shown on Map 5 of the Strategic Plan Preferred Dominant Land Uses. Where appropriate, land will be acquired in the course of the development process. The implementation provisions recognise that most rivers and creeks provide opportunities for linear public access along at least one side, and for continuous canopy cover and wildlife habitat. Accordingly, Council will encourage these links to be retained, created and/or rehabilitated.
It can be seen from the general objectives and implementation criteria that the Strategic Plan recognises the value of riverine strips and native vegetation to Shire Image and the importance of these areas for habitat continuity. The Strategic Plan also recognises bushfire as an important issue to be addressed in the assessment of development applications in areas subject to bushfire hazard (see Rural Objective 6).
I accept that the proposed open space contribution along the southern boundary of the site is consistent with achievement of the Open Space objectives of the Strategic Plan in that it seeks to provide part of an open space network based on a water course, and to assist in protecting an area of landscape quality as well as implementing the open space network identified on Strategic Plan Map 5.
The Rural PDLU encourages low density forms of development and envisages the dedication of land for open space in rural areas including along creeks. As previously noted, the subject site is located within the Coomera River catchment which is one of the catchments where Council acquisition of riverine land as part of the development process is envisaged. The provision of open space is also consistent with Shire Image objectives and desired Shire visual amenity as identified in Rural Objective 4.
The subject site is located in the Albert Corridor Development Control Plan (DCP No. 5). The site is designated as a combination of the Rural and Open Space/Buffer Preferred Dominant Land Uses overlaid by the Landscape Protection PDLU. The Open Space and Landscape Objectives in section 2.6.2.2(2) of the DCP seek:
¨to ensure that breaks are provided within the DCP area at river, creeks and flood plains to define communities, accommodate regional open space objectives and provide an edge urban development;
¨to ensure that development is integrated with and optimises benefits of significant landscape features and vegetation;
¨to provide for a variety of public open spaces and recreation opportunities which serve community needs; and
¨to preserve and enhance natural and rural landscapes between urban settlements.
The role and character of rural areas under the Rural PDLU (section 2.6.4.10) is seen as including and protecting areas intended to be used for rural pursuits. Rural areas may also include land which is flood-prone, physically difficult to develop, has significant environmental value, and/or is relatively remote from urban services.
Open Space and Buffer areas PDLU (section 2.6.4.11) are identified on DCP Map 2. The designation acknowledges both the existing network of open space within the DCP area and sets the framework for the progressive achievement of an expanded system. A central tenet is the conservation of the DCP area’s key environmental assets. Buffer areas are identified along the DCP area’s creek and river systems to provide visual, environmental and flood protection. Buffers are also identified between conflicting land uses and adjacent to the Regional Transport Corridors.
The implementation provisions state that open space and buffer areas shall be obtained wherever possible through the development/rezoning process as conditions of approval and, where necessary, through Council acquisition. Council may, in its assessment of applications for development and/or rezoning of land which contains an area designated as preferred Open Space and Buffers Areas, permit the inclusion of the area of such land in the development site for density calculation purposes.
Section 2.6.6 deals with implementation and sequencing and provides with respect to Public Open Space as follows:
“The establishment of an effective public open space system within the DCP area is central to the sustainability, visual and functional amenity and identity of the DCP area as a whole as well as the respective components therein. In this regard the contribution of open space by developers or acquisition by Council is an important consideration.
(4)Implementation Principles:
(a)This development control plan establishes the broad parameters for the public domain and establishment/reinforcement of a strong open space/buffer network throughout the DCP area.
(b)Council may at its discretion consider the implementation of a scheme of development incentives and bonuses for public open space provision where the parcel of land in question contains environmental, visual or potential recreational assets, particularly where the securing of such an asset in the form of open space entails the dedication/acquisition of land in excess of the standard 10%.”
It is clear that various sections of the DCP, including the objectives, seek corridors of open space adjacent to waterways. Furthermore, the site is within the Open Space Buffer PDLU where the designation acknowledges the existing network of open space within the DCP area and sets the framework for the progressive achievement of an expanded system with an expectation that open space and buffer areas will be obtained where possible as conditions of approval.
While 10% is the maximum statutory required contribution of Open Space, the DCP recognises that a density bonus is an appropriate means of achieving a higher level of open space provision in certain situations. The subdivision of the site for two allotments and a dedication of 10% of the area of the site as park is in accordance with the relevant objectives and implementation statements of the Albert Corridor DCP.
The site is included in the Rural Zone under the Planning Scheme. The intent for this zone states that:
“The Rural Zone includes land for which the planning intent covers a wide range of strategies, which have in common that they intend that the land remain in a rural, natural and/or low density form of development… .” (Section 6.1.1.2).
Section 16.1.9 provides that the minimum areas of allotments in the case of land designated as Rural on Strategic Plan Map 5 is three hectares, provided that the yield of allotments in the subdivision, assessed on the total area of the site, does not exceed one allotment per four hectares. As the total site area is 6.302 ha, no additional allotments can be obtained based on the provisions of 16.1.9 of the Planning Scheme. One of the two proposed allotments is 1.1 ha, which is far less than the prescribed minimum of 3 ha for the Rural Zone. Accordingly, the proposal does not accord with Section 16.1.9(1) of the subdivision requirements for the Rural Zone and a relaxation (as provided for in Section 16.5 of the Planning Scheme) is required.
Section 16.5 states:
“16.5.1 – Notwithstanding the provisions of subsections 16.1 to 16.3 the Council may:-
(2)vary any such provisions where it is considered to be necessary because of special circumstances including-
(a)the particular size, shape, location or topography of existing and proposed allotments;
(b)the particular character of the proposed use intended to be made of the land following subdivision, as set out in the application for approval of the proposed subdivision;
(c)the existing and future amenity of the locality.”
I accept that it would be appropriate to use the discretionary powers under Section 16.5 to approve the proposed subdivision despite conflict with the Rural Zone provisions for minimum allotment size. The discretion in this case has supported an approval of a proposed lot smaller than the 3 ha minimum otherwise applying in the Rural Zone on the basis that the land adjoining Brygon Creek was to be dedicated as open space. Had the open space dedication not formed part of the subdivision application, the subdivision would appropriately have been refused because it would have created an allotment significantly less than the minimum lot size in the Rural Zone.
Section 16.7 of the Planning Scheme deals with contributions for park (e.g. public garden or recreational space) and provides guidance with respect to the dedication of land. Section 16.7.2(1) provides that:
“Where the Council considers that an area of land to be subdivided should be provided for use as public garden or recreation space, the area of land to be provided for such uses shall be…
10%.”
Where the Council considers that an area of land to be subdivided need not be provided for use as public garden or recreational space, it may require the applicant to pay to the Council an amount for each allotment proposed in the plan of subdivision, which amount is to be determined by a local planning policy adopted by Council from time to time.
I note that the plan submitted with the application proposed to dedicate park land in accordance with Section 16.7.2(1) at a rate of 10%. Council required a park dedication in accordance with the planning intent for the site expressed in the Council’s forward planning documents (the Strategic Plan and the Albert Corridor DCP) instead of a monetary contribution. The view expressed by Mr Perkins in this regard was that this was an appropriate exercise of Council’s discretion which will assist in achieving the Council’s strategies for this part of the city.
Of some importance in this case are the provisions relating to general conditions of approval of subdivisions in Section 16.11 of the Planning Scheme:-
“16.11.1 - Without limitation to the rights of the Council to impose reasonable and relevant conditions when granting approval to an application to subdivide land, the following shall be basic general conditions applicable to all approvals for subdivision…
(13)Council will have regard to whether the provisions of the Strategic Plan in relation to environment conservation can be promoted through the imposition of development conditions, and in particular those objectives listed in Table 16.2.
(14)Open space corridors and buffers shall be provided and riparian vegetation maintained along creeks and watercourses to the satisfaction of Council.
(15)Where appropriate, the proposed subdivision layout shall be designed to the satisfaction of Council such that the risk to residents and properties from bushfires is minimised.”
I accept that conditions for open space dedications are an identifiable expectation set out in the Planning Scheme relating to the approval of subdivision applications. In relation to Section 16.11.1(13) such a condition will assist in implementing the following objectives identified in Table 16.2: Environment Objective 8; Open Space Objective 1; and Rural Objectives 3 and 5. The relevant section of the Integrated Planning Act when one has regard to the capacity of the local authority to impose conditions on approvals given to applications for a material change of use is found in Division 6 of Chapter 3. Section 3.5.30 relevantly provides as follows:
“3.5.30 (1) A condition must-
(a) be relevant to, but not an unreasonable imposition on, the development or use of premises as a consequence of the development; or
(b) be reasonably required in respect of the development or use of premises as a consequence of the development.
(2) Subsection (1) applies despite the laws that are administered by, and the policies that are reasonably identifiable as policies applied by, an assessment manager or concurrence agency.”
The Albert Shire Planning Scheme planning documents including the Albert Corridor DCP have identified that the southern portion of the subject site forms part of an open space corridor along the banks of Brygon Creek. With respect to the points identified by the appellants in respect of Condition 1a, the following observations may be made. Firstly, there can be no doubt that an easement is required in relation to the proposed open space dedication. Such easement will enable pedestrian access (but not vehicular access) for maintenance or other purposes. The adjoining site (Lot 16 on RP 903692) has a park area, which is included in the Public Open Space Zone, designated over part of it. I accept that it is logical to provide access along the eastern boundary of the subject site to the proposed open space dedication as this location will also assist in the maintenance of the park land on Lot 16. Eventually a complete corridor is envisaged along Brygon Creek, the proposed park area being one of the first necessary dedications. An easement over the appellants’ land is reasonable in view of the lack of dedicated road access, until such time as additional land is obtained and more suitable dedicated access becomes available. The easement is intended to cover only a relatively small part of the larger allotment of the site and it may be expected that it will be used infrequently. Accordingly, I do not consider that there will be any undue impact on the enjoyment of the site. It is not appropriate to consider property value as part of this appeal. Nor do I consider it necessary to assess compensation in respect of the easement which is a reasonable and relevant condition of approval of the subdivision application. The condition requiring an easement is necessitated because no other suitable access presently exists.
With respect to Condition 7, once the park is under the control of the respondent Council, any maintenance will be its responsibility and not that of the appellants. The proposed open space represents the beginning of a progressive accumulation under the planning documents of a corridor of land along Brygon Creek. I accept generally that there will be no public access to the open space area until further acquisitions are completed. However, this provides no reason to remove the requirement for open space dedication for to do so would prejudice the long-term intent envisaged by the Planning Scheme to acquire a corridor of public open space along the creek. The appellants would have the same rights as any other member of the public to enjoy the public space once the proposed park is under the respondent’s control. There is little assistance to be gained by a comparison with other allotments. Each case must be assessed on a site by site basis. It should not be assumed that Council would be unable or unwilling to deal appropriately with the bushland park dedication in this case. There is no reason why workers with brush cutters and herbicides could not access the dedicated area for the purposes of weed management and fire control. Furthermore, I can see no reason why Council in this case would be unable to work with adjoining owners of the proposed open space area by providing both materials and advice. None of the matters raised by the appellants in this appeal would warrant a conclusion other than the condition requiring dedication of part of the site as park land is both a reasonable and relevant condition of approval. Although there is a suggestion by the appellants that a monetary contribution be made to the respondent Council in lieu of the condition requiring dedication of an easement and open space corridor along Brygon Creek, this would not be envisaged by the forward planning documents or Albert Corridor DCP. Furthermore, were such a contribution to be approved, this would significantly reduce the respondent’s ability to achieve the envisaged open space corridor along Brygon Creek as future subdivisional applications are made.
The evidence of Mr Friend establishes clearly enough that under the Strategic Plan the respondent Council is enabled to request the preparation and submission by the appellants of a fire management plan as part of the development assessment process. I accept that the coverage of a significant area within the site and immediately adjacent to the site with fire susceptible vegetation warrants the production in this case of a suitable fire management plan and that Condition 4 is a reasonable and relevant condition under the circumstances.
So far as Condition 8 of the decision notice is concerned with respect to the removal of the existing pontoon, any reduction of the appellants’ enjoyment of the land must be assessed against the conclusion of Mr Westera, a consulting civil and structural engineer, that the existing pontoon is not structurally adequate for public use and cannot be upgraded, irrespective of the financial issues. It would be irresponsible in the circumstances to agree to the deletion of Condition 8. In my opinion Condition 8 is both reasonable and relevant to the approval of the application and should remain in place. Again, I exclude any consideration of possible impact on land value by requiring the removal of the pontoon. Such consideration would not be a valid town planning ground.
There are not sufficient grounds, in my view, to approve the subdivision without requiring the imposition of the respondent Council’s conditions of approval. The appeal must be dismissed.
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