McNab Developments Pty Ltd v Toowoomba City Council & Ors
[2008] QPEC 118
•16 December 2008
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
McNab Developments Pty Ltd v Toowoomba City Council & Ors [2008] QPEC 118
PARTIES:
McNAB DEVELOPMENTS PTY LTD
(Appellant)
v
TOOWOOMBA CITY COUNCIL
(Respondent)
and
ANDREW DAVID BECK
(First Co-respondent by Election)
and
SUNSET SUPERBOWL PTY LTD
(Second Co-respondent by Election)
FILE NO/S:
1857 of 2007
DIVISION:
Appellate
PROCEEDING:
Determination of development conditions
ORIGINATING COURT:
Planning & Environment Court
DELIVERED ON:
16 December 2008
DELIVERED AT:
Brisbane
HEARING DATE:
24-26 November 2008 (evidence), written submissions to 4 December 2008
JUDGE:
Robin QC DCJ
ORDER:
Appeal allowed, appellant’s development application approved on conditions
CATCHWORDS:
Integrated Planning Act 1997 s3.5.30, s3.5.32, s4.1.52, s5.2.1 – court required to formulate conditions for a development permit for a shopping centre – issues included whether signalisation of adjacent intersection (currently a roundabout) should occur before commencement of the use and the applicant’s responsibility in that regard – whether a financial contribution to the cost of such work (as opposed to carrying out the actual work) was lawful – whether Main Roads Department and Department of Transport were concurrence agencies under the Integrated Planning Regulation 1998 on the basis of vehicle parking and manoeuvring spaces forming part of the GFA as indicated in the planning scheme definition.
COUNSEL:
Hughes SC and Williamson for McNab Developments Pty Ltd
Ure for Toowoomba City Council
Fynes-Clinton for Sunset Superbowl Pty Ltd and Mr Beck
SOLICITORS:
Connor O’Meara for McNab Developments Pty Ltd
Clayton Utz for Toowoomba City Council
Dean Kath Kohler for Superbowl Pty Ltd and Mr Beck
This appeal was heard earlier in the year with three others instituted by the two co-respondents by election and another company which made common cause with them. The three appeals, against the Council’s refusal to approve a shopping centre development at the corner of Greenwattle Street and South Street, Toowoomba, were dismissed, but the present appellant enjoyed success, to the extent that the court was persuaded that a development permit for its rival shopping centre at the corner of Greenwattle Street and Glenvale Road should be granted rather than the preliminary approval which the Council had considered appropriate; Glenvale Properties Pty Ltd v Toowoomba City Council & Ors [2008] QPELR 609, [2008] QPEC 20. It was common ground that only one of the competing centres should be approved. The parties were given the opportunity to formulate appropriate development conditions. Eventually, the Council and the appellant have reached agreement on all conditions bar one, which requires the appellant to bear the full costs or do the work of installing traffic lights at the intersection where the site is located – work which will involve new lanes being provided and land to accommodate them being acquired. The appellant contends that such a condition (costed for relevant purposes at $1.5 million) is an unreasonable imposition upon the development for purposes of s3.5.30(1)(a) of the Integrated Planning Act 1997 (IPA).
The court has become the assessment manager and bears the responsibility of determining what development conditions are appropriate. As things have developed, the court is without information regarding the suitability of conditions generally, having only such evidence as the parties have presented bearing upon conditions proposed by the Council which the appellant will not accept. In my opinion it is the correct (and only practical) course for the court to accept the judgments made by the responsible local government in the absence of special considerations indicating otherwise. The co-respondents by election are taking a tougher stance than the Council. As the appellant’s written submissions observe, their motivation is unclear. Through their connection with a large site nearby which may be ripe for development, they may well wish to promote an outcome which requires the appellant to fund the construction of infrastructure in the area, particularly the roads, in the expectation that impositions on development of their site may be lessened in consequence. Whether there is any thought of discouraging or delaying the appellant is pure speculation. Those observations do not gainsay the possibility that commercial rivals may sometimes be able to present to the court relevant aspects which the local government has overlooked. The court has to consider the co-respondents’ submissions on their merits.
The co-respondents made reference to the “somewhat confused and unsatisfactory position which arose” in Australian Capital Holdings Pty Ltd v Mackay City Council [2008] QCA 101. There I erred by being persuaded to formally order that the appeal be allowed (some weeks after publication of reasons making it clear that development conditions remained to be determined and that it was possible the exercise could not be satisfactorily carried out), giving directions to lead to a conditions hearing in which affected neighbours (submitters, but not parties in the appeal) could be heard. The submission was that the court in this appeal (by contrast with ACH) is entitled to embark on determining conditions; it was contended that the published reasons leave it open to the court to declare that it is not yet satisfied that “legally certain and practically effective conditions can be imposed…to ensure that impacts from the proposed development are satisfactorily dealt with.” It was accepted that it was open to the appellant to “try again” – presumably, on the basis that it did not now accept the conditions proposed by the co-respondents.
The Council-proposed condition which the appellant disputes is:
| Timing | |
| Provision of Traffic Signals/Intersection Upgrade 40.1 The developer must upgrade and signalise the intersection of Glenvale Road and Greenwattle Street as part of external roadworks for the development. The extent of works must be generally in accordance with the “Proposed Linemarking Plan,” Drawing Number LM2-001, Revision 1, dated August 08, by Rowen Meyer and Associates. 40.2 Where the abovementioned plan conflicts with the required lane and verge widths specified in condition 43, the requirements of condition 43 must take precedence. 40.3 The developer must meet all costs associated with the provision of the intersection works outlined above, including the dedication and/or acquisition of any necessary road reserve, and alteration to existing services, property accesses and the like. | Prior to commencement of the use. |
Although that was presented as the sole proposed condition in dispute, for example, in Mr Ure’s written submissions, I was concerned that the picture may be complicated by Condition 43:
| 43.0 | Intersection Upgrades/Traffic Signals and Access Design 43.1 the intersection of Glenvale Road and Greenwattle Street must be upgraded to provide traffic signals and signalised pedestrian crossings on all approaches. Each approach to the intersection must provide for a through lane in each direction and separate right-turn lanes with adequate storage length. In addition a left-turn lane must be provided from Greenwattle Street (south) into Glenvale Road (west). Traffic signal design shall achieve a minimum of 4 signal displays in all directions (incorporating central medians or a mast arm). The pedestrian crossings are to include audio tactile facilities, twin 100mm conduits around the intersection, 300mm LED displays (if overhead signal displays are used) and a PSC type controller. 43.2 The access to Greenwattle Street must be restricted to left-in/left out manoeuvres only. The access must be provided with a left-turn storage lane and taper, and must enable safe crossing of the access by pedestrians and shopping centre patrons. Such works must include a splitter island at the access to reinforce the turning restrictions, including any necessary line marking, pavement markings and traffic signs. 43.3 The main access to Glenvale Road must include marked right and left turn exit lanes, separated from the entry lane by a raised median. In Glenvale Road, left and right entry turns will be permitted. Linemarking must be provided in Glenvale Road at the signalised intersection for two lanes in each direction, with pavement markings to indicate permitted turning movements. 43.4 Traffic lane widths must be as follows: · 3.7m for kerbside lanes to accommodate a bicycle awareness zone; · 3.0m minimum inner lanes; and · 3.0m turning lanes. 43.5 Footpath widths must be a minimum of 3.0m (desirable minimum 3.5m) and all medians must be a minimum 1.2m wide. 43.6 All existing residential property accesses must be maintained in their existing location, unless a suitable alternative location is approved by Council. 43.7 Access for the existing shopping centre on the north-west of the intersection must be relocated to the western boundary of this site where all turn movements could be retained. In the absence of such a solution, this access shall be maintained in its existing location with turns limited to left in/left out only by the introduction of a centre median on Glenvale Road, unless otherwise approved by Council as part of the detailed design of the intersection. 43.8 The developer must provide, to Council, evidence of negotiations between the developer and the affected driveway owners to confirm that reasonable attempts have been made to achieve the most appropriate compromise in driveway access location/form to accommodate north the intersection works and the site access needs. 43.9 The final traffic lane configuration must be to Council’s satisfaction and shall be supported by design calculations by a Registered Professional Engineer, suitably qualified in traffic engineering. 43.10 The developer will be responsible for any necessary road dedication and/or carriageway widening in Glenvale Road and Greenwattle Street to achieve the required intersection design, as shown generally on the “proposed Linemarking Plan”, Drawing Number Lm2-001, Revision 1, dated August 08, by Rowen Meyer and Associates. Any variation to the desired intersection treatment must be supported by a detailed traffic analysis by a recognised traffic engineer. 43.11 The design of the required traffic signals and line marking must be undertaken by a Registered Professional Engineer, suitably qualified in traffic engineering; 43.12 No stopping zones shall be provided for the extent of the proposed intersection works in both streets, where the available lane width is less than 4.5m | Prior to commencement of the use. |
Evidence was placed before the court indicating the developer’s confidence that it could come to terms with other landowners, in particular with the church located directly across Greenwattle Street for the acquisition of land that would be required to comply with 43.10. Left in uncertainty as to whether the only options under consideration were leaving the intersection as it is (a single lane roundabout) or a signalised intersection, I approached Mr Hughes SC, as the senior counsel involved, to ask him to arrange a mention at a suitable time to resolve the uncertainty. His response was an assurance that, as between him and Mr Ure, the only issue was whether the court considered signalisation was required prior to opening of the shopping centre. In that event the appellant may have to carry out the necessary work or pay the full cost of it – otherwise, an appropriate contribution by reference to the extent to which the development accelerated the requirement for signalisation or other upgrading of the intersection would be calculated. There was no evidence of present day cost of signalisation, which plainly includes acquisition of land, other than the sum of $1.5 million, whose precise components were not identified. I determined to proceed (without persisting with the idea of a mention, which would have been difficult to organise quickly) on the assumption that the alternatives are as mentioned already: do nothing at the intersection or signalise it (thus creating a requirement for acquisition of land for additional lanes for queuing, etc). My understanding may well be faulty, but if the roundabout arrangement were to remain, I had imagined that some improvements might be required to the pedestrian refuges or “splitter islands” before each opening to the intersection, which one would think it reasonable to call on the appellant to construct (if the improvements are necessary), as the shopping centre will be attracting additional pedestrian traffic. Some reconsideration of the “all or nothing” approach may be required.
The time is not far off when the intersection as it presently is will fail in the sense that there will be unacceptable delays for users, in particular drivers. Mr Viney suggests that at peak times (after-school pick-up periods, there being three schools, all likely to grow, within a kilometre or so west of the site) the intersection is under pressure already. Mr Ure quotes the summary of the Council’s traffic expert, Mr McClurg (whose counterparts were Mr Viney for the appellant and Mr Quinn for the co-respondents) in this part of his written submission:
“Using Mr McClurg’s results:
· The existing roundabout fails at approximately 2022 with no development;
· The existing roundabout fails at approximately 2016 with the development.
Using Mr Viney’s results:
· The existing roundabout fails at approximately 2016 with no development;
· The existing roundabout fails at approximately 2014 with the development (this has been identified by Mr Viney, not by interpolation of the above results).
Using Mr Quinn’s results:
· The existing roundabout fails at approximately 2030 with no development (this has been identified my Mr Quinn, not by interpolation of the above results);
· The existing roundabout fails at approximately 2018 with the development.
17. All experts agree that the appropriate planning horizon is 10 years from an anticipated opening date of 2009 (i.e. 2019). It can be seen that all experts agree that the impacts of the proposal will cause the existing intersection to fail within the 10 year planning horizon. Both Mr McClurg and Mr Quinn are of the view that without the development, the intersection will not fail within the 10 year planning horizon.
18. Only Mr Viney offered the opinion that the existing roundabout would fail absent the development within the 10 year planning horizon.”
The experts’ differences are attributable to their views about notes of traffic growth Mr Quinn applies 4% per annum the others 6% but compounded in Mr Viney’s case. The area is obviously growing, and continued growth is expected. The Draft Glenvale Structure Plan discussed in the reasons in Glenvale (supra) at [26] ff confirms as much, and foreshadows upgrading of the intersection (albeit not mentioning signalisation as it does for the one further south in Greenwattle Street, at Alderley Road). The submissions received by the Council during public notification are now available to the Court; strong views may be found there for the view that the intersection is already inadequate, tending to support Mr Viney. The development will increase the pressure on the roundabout.
The alternative means for getting the intersection functioning acceptably were identified as signalisation, associated with provision of additional traffic lanes, and duplication of the roundabout to turn it into a “two-lane” one. The latter alternative had no supporters, being seen as particularly unfriendly to pedestrians. On the other hand, there was debate as to the relative merits, as regards pedestrian safety, of a signalised intersection as against a single-lane roundabout. Signals hold up traffic but they are said to provide security (or a sense of security) for children and for the elderly. The advantage of the single lane roundabout, as regards pedestrian safety, is that the splitter islands mean that pedestrians are called on to deal with only a single line of traffic approaching from the right as they move towards the “island” then from the left as they move away from it. Mr Viney, taken to task by Mr Fynes-Clinton (the suggestion being that he had changed his approach from one acknowledging the superiority of traffic signals for pedestrians to one favouring single-lane roundabouts), produced some persuasive literature from the field. The preference of some elderly and (perhaps the more cautious among) young pedestrians for signalisation was accepted. It does not follow that it is reasonable to require the appellant to provide that facility. Mr Viney was inclined to accept the case for signals where the more timorous categories of pedestrian were likely to be numerous. I am not persuaded that this would be the case at the intersection under consideration. Beneficial as walking is known to be, experience (confirmed by evidence in this and other appeals) confirms that people are unlikely to walk (rather than use a vehicle) for more than 400 metres or so, a fortiori if burdened with bags of shopping. The schools and any existing or proposed facilities for elderly people in the locality are all well beyond a 400 metres cut-off, even one twice that distance.
It can be expected that there will be a considerable increase in pedestrian traffic over that measured to date, which provides little guidance for predicting the contribution, as regards pedestrian numbers, of the development. Mr Fynes-Clinton accused the appellant of trying to have things both ways, describing the development as one which would create a commercial “node” in association with the Glenvale Convenience Centre immediately across Glenvale Road on the north, but now downplaying the amount of pedestrian interaction.
The negative feature of roundabouts (apart from the insecurity which some pedestrians may feel about using them) is, as I understand the evidence, that some users will place themselves or others in jeopardy by refusing to deviate the few metres required to use the splitter islands, will attempt to move in a straight line from the footpath they are leaving to the one opposite. There are arguments against traffic signals from a safety point of view, given the number of conflicting movements. Pedestrians cannot count on vehicles proceeding through an intersection in a straight line; they there must be alert to allow for movements of vehicles which do not, which imposes on them responsibilities not replicated when crossing a roundabout via the splitter island. A factor telling the other way is that some pedestrians (supposedly children and the elderly) may lack the ability (or confidence in their ability) to judge when there is a suitable break in the line of traffic being crossed.
The evidence does not persuade me that signalisation of the intersection before opening of the proposed centre constitutes a reasonable imposition on the development. Its contribution to traffic through the intersection will be modest, on all estimates, no more than 14%.
Mr Viney reminded the court that many towns and cities use roundabout control rather than traffic signals at intersections where there are significant pedestrian flows generated by shopping centres, schools and residential areas, which he said was in accordance with accepted engineering practice. Noosa and Byron Bay are frequently instanced as places favouring roundabouts. In Toowoomba itself, at the intersection of Hume and Stenner Streets is a long-established single lane roundabout with an enormous retail precinct centred on one corner and a host of schools and facilities for the elderly within easy walking distance. By all accounts, this arrangement has operated successfully and safely. It is accepted that this particular roundabout has now reached capacity; the Council has decided to signalise it rather than pursue the possibility of constructing a two lane roundabout – which one would think the sensible decision. That the Hume-Stenner Streets roundabout may now be failing, and that the Glenvale-Greenwattle one is destined to fail at some time in the future is not, in my opinion, a sufficient basis for requiring the appellant to bear sole responsibility for provision of signalisation now when present arrangements will be adequate for some years. Presumably no demand for contribution has been or will be made against other generators of traffic through the intersection, such as the schools and the childcare centre close by in Greenwattle Street (which may well be replicated further south if planning arrangements proposed for the site’s southern neighbour are adopted).
I do not think the development will bring about a situation “where pedestrian volumes are high” which the Department of Main Roads’ Road Planning and Design Manual referred to by Mr Viney nominates as an indication that “serious consideration should be given to the use of an alternative intersection treatment (to a roundabout).
The situation now before the court represents a contrast with that in Ajana Park Pty Ltd v Mackay City Council [2008] QPEC 26 in which three expert traffic engineers were unanimous that a large residential development ought not to be allowed to commence without identified roadworks being actually in place. In the particular circumstances, it was possible to identify particular works which the developer ought to take responsibility for, while being absolved of responsibility for other work, which could be delayed in circumstances where other developers in the area might well have to contribute towards those works. For the limited works which Mr Beard proposed, the developer in Ajana Park was held fully responsible (if it wished to proceed to development). There is an application for leave to appeal to the Court of Appeal. Neilson v Gold Coast City Council [2005] QPELR 452 is much closer to the present situation, in which the court is not persuaded that the roundabout requires upgrading before commencement of the shopping centre use. The roundabout, the experts say, will be adequate for some years yet; signalisation may well be better, but it is unreasonable that the appellant should have to provide it.
Mr Viney has proposed alternative bases upon which the appellant might be called on to contribute to the upgrading which the development will render imperative some years earlier than would otherwise be the case. The first is to “bring forward” the cost of having to convert to traffic signals by two years, said to be $135,000 using the accepted price of $1.5 million in today’s dollars and an 8% cost of capital. The alternative proposed was to take a 2019 design year, when, at the highest of the experts’ estimates (Mr Quinn’s), 14% of the traffic through the intersection would be related to the shopping centre and require the appellant to contribute that percentage, rounded out at $210,000, of the agreed upgrading cost.
A Neilson-type outcome is appropriate here. The $210,000 proposal (which ought to be subject to any increases accruing by the time of actual payment in accordance with the index measuring increases in road construction costs, which I understand is easily identified) ought to be accepted.
The foregoing conclusion is reached notwithstanding some arguments presented by the co-respondents. The first was based on Mr Quinn’s opinion that the Rowen Meyer and Associates designs were inadequate, providing insufficient turning paths for the 19 metre articulated vehicles expected to be using the intersection (whether or not in journeys to or from the site). Mr Fynes-Clinton even suggested that the firm’s work was under some sort of cloud because of a 10% equity in the firm held by the appellant. One consequence would be that additional land acquisitions would be necessary, this increasing the cost otherwise contemplated. Whether or not Rowen Meyers had made appropriate allowances was left uncertain, in which circumstances I would not be prepared to proceed on the assumption that they had not. This aspect comes to be beside the point given that the court is not disposed to identify particular works that ought to be done at this stage, in any event.
Next, as the written submissions set out:
“41.The alternative “contribution” condition proposed by the Appellant is in any event unlawful. IPA, s 3.5.32 provides:-
‘3.5.32 Conditions that can not be imposed
(1) A condition must not-
(a)…(b)for infrastructure to which chapter 5, part 1 applies, require (other than under chapter 5, part 1) –
(i)a monetary payment for the establishment, operating and maintenance costs of the infrastructure; or
(ii)works to be carried out for the infrastructure;…’
42.There is an exception to the application of s 3.5.32(1)(b) under s 6.1.31(2)(b), but that is not relevant here.
43.Chapter 5, part 1 applies to “trunk infrastructure” and “non-trunk infrastructure”. Under relevant Schedule 10 definitions:-
(a)the former is “development infrastructure identified in a priority infrastructure plan as trunk infrastructure”.
(b)the latter is “development infrastructure that is not trunk infrastructure”.
(c)“Development infrastructure” is defined to include:-
(a)land or works, or both land and works for-
(i)…
(ii)transport infrastructure (including roads, vehicle lay-bys, traffic control devices, dedicated public transport corridors, public parking facilities predominantly serving a local area, cycle ways, pathways, ferry terminals and the local function, but not any other function, of State controlled roads);…
44.There is no relevant priority infrastructure plan. Clearly the proposed signalisation works are development infrastructure which is non-trunk infrastructure.
45.Section 5.1.2 is as follows:-
5.1.2Conditions local governments may impose for non-trunk infrastructure
(1)If a local government imposes a condition about non-trunk infrastructure, the condition may only be for supplying infrastructure for 1 or more of the following-
(a)networks internal to the premises;
(b)connecting the premises to external infrastructure networks;
(c)protecting or maintaining the safety or efficiency of the infrastructure network of which the non-trunk infrastructure is a component.
(2) The condition must state-
(a) the infrastructure to be supplied; and
(b) when the infrastructure must be supplied.
46.The signalisation condition falls squarely within s 5.1.2(1)(c). This is not a provision which authorises “contribution”. It authorises conditions “for supplying infrastructure”, being conditions which:-
(a)state the infrastructure to be supplied; and
(b)state when it is to be supplied (by the developer).
47.The section does not by its terms authorise a condition requiring an applicant to pay a sum of money, not being the full cost of supplying the relevant non-trunk infrastructure, on the basis that the Council will fund the balance from sources unknown, and that the Council may or may not supply the infrastructure at some unknown future time, if at all.
48.What s 5.1.2 authorises is conditions requiring developers to supply specified infrastructure, that is, physical infrastructure works, within a specified time. If Parliament had intended the section to authorise money charges reflecting a (partial) contribution towards the costs of infrastructure to be supplied independently of the development approval at some future time of the Council’s choosing (that is, contributions), it would have said so, as it did in s 3.5.32(1)(b), and throughout chapter 5, part 2.
49.Obviously, a condition under s 5.2.1 must satisfy s 3.5.30(1). However, that section is satisfied if there is a sufficient nexus between the development and the works; if that nexus exists, it is not a requirement that the infrastructure be for the sole use of the development.
50.For the reasons given above in the analysis of the evidence on the need for signalisation, proposed Condition 43.1 satisfies s 3.5.30(1). It is thus authorised by s 5.2.1. The applicant’s proposed alternative is not authorised by s 5.2.1, and is therefore an unlawful condition under s 3.5.32(1)(b).”
The court as assessment manager under s 3.5.11(1) of the IPA is now to approve the appellant’s development application “subject to conditions” decided by it. There are controls upon conditions, principally in s 3.5.30:
“3.5.30 Conditions must be relevant or reasonable
(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.”
Section 3.5.31 indicates some conditions that may be imposed, s 3.5.32 some that may not be. The latter comes under the heading “Conditions that can not be imposed”, which heading, by the Acts Interpretation Act forms part of the statute. I would construe s 3.5.32 as not precluding a condition which a developer agrees to or invites. In Hammercall Pty Ltd v Gold Coast City Council [2005] QCA 29, the developer of a complex project had agreed to a dedication of land for road purposes in a general way, but disputed imposition of a condition requiring the dedication for the first time in a development approval to an approval for a miniscule aspect of the overall development. The majority view in the Court of Appeal (see paragraph 96) was that since the dedication was not apt in the circumstances to result in construction of the envisaged road, the imposition “is not relevant to, and for that reason, not a reasonable imposition upon (the) development.” Where (as here) relevance is conceded, I adhere to the view that the developer’s agreement is a significant factor (albeit not automatically controlling) in determining the reasonableness issue: cf City of Bradford Metropolitan Council v Security of State for Environment (1986) 53 P&CR 55 at 64. It is an odd use of language to regard a condition proposed by the developer as “imposed” on the development or an “imposition” on it. I am attracted by Mr Ure’s submission that a condition requiring contribution to the upgraded intersection (whether it be the one propounded by the Council or the one propounded by the appellant) can properly be characterised as a condition for “supplying infrastructure” within s 5.1.2(1), that it is an inappropriately narrow construction to limit the condition to the provision of the whole infrastructure in specie. Some reliance was placed on the Explanatory Memorandum apropos subsection (2) where it was said that the section “generally” envisages developers constructing the specified infrastructure. Common sense and common experience indicate that there will be many cases where from any point of view a developer’s obligation ought to be limited to some portion of work necessitated by the development and where (unlike the special circumstances in Ajana Park) it is not feasible to identify or separate out specific works from a greater whole to be done. The solution surely cannot be that no contribution in cash or kind can be required; cf s 1.2.3(1)(d).
There has been no argument about this, but it occurs to me that recourse might be available under s 3.5.31(1)(c), whereby a condition may require compliance with an infrastructure agreement relating to the land which (by subsection (2)) would be taken to comply with s 3.5.30. It seems strange that the definition of “infrastructure agreement” in s 5.2.1 does not refer to s 3.5.31, which does not appear in the long list of sections in s 5.2.1. Whether or not chapter 5 part 2 applies, I would think that an “infrastructure agreement” could be entered into here, indeed, treated as a pre-requisite to the court’s making the orders now sought by the appellant.
Verges
Mr Quinn’s opinion was that the Council’s proposals for the treatment of the intersection were sub-standard not only as regards “swept path” issues, but also in failing to insist upon standard verge (i.e. footpath) width which, on current standards, with a 60km/h speed limit applying, ought to be 4.5 metres. The acquisition of private land in a developed area would be required. It was submitted that, without any assurance of the relevant private owners’ cooperation or the Council’s willingness to compulsorily acquire, the court ought not to grant a development permit. In this regard, and in others, the co-respondents’ case was castigated by the appellant as a “counsel of perfection”, something which the court has repeatedly stated it will not insist upon. Were this a “greenfields” situation, the court may be likely to insist upon best practice according to current guidelines (which here impose standards well in excess of what exists throughout Queensland without adverse consequences or generating concerns). I do not think the objection that interference with existing property arrangements, even if they only affect front gardens, ought to be lightly disregarded. The benefits of generous verges by way of providing road users with enhanced opportunities to manoeuvre and enhanced sight lines for observing what is going on should not be overstated. As is well known, footpaths are often compromised in this regard by the presence there of trees, signage and other road hardware, power poles, and the like. While the outcomes contended for by Mr Quinn may be desirable, the court is satisfied that those contended for by the Council would be reasonable, and acceptable.
It ought not to be overlooked that the proposed development makes substantial contributions to the road network independently of the Council’s contentious proposal (which, ultimately, the court rejects) by way of dedication for road widening purposes of substantial areas of frontage along both Greenwattle Street and Glenvale Road.
Jurisdictional issue
The co-respondents raised only at the stage of Mr Fynes-Clinton’s written closing submissions a jurisdictional issue based on evidence “at the conditions hearing (that) the gross floor area of the proposed McNab building on all levels, including basement carpark is in the order of 11,000m2.” Under the Integrated Planning Regulation 1998 Schedule 2 Table 3 Item 3 and Schedule 5 Item 9, the Main Roads Department is a concurrence agency where development is for a shopping centre exceeding 8,000m2 of GFA for that purpose (the submission notes that the former Toowoomba City was in “LGA Population 1” – see Schedule 6 of the Regulation). By Schedule 2, Table 3, Item 14 at Schedule 13C (fourth row) of the Regulation, Queensland Transport is a concurrence agency for development for “retail or commercial purposes” exceeding 10,000m2 new or extended GFA for that purpose. GFA is defined in Schedule 14 as “gross floor area for a development application.” The development application was not referred to either department. In principle, the cutting out of a concurrence agency is a serious matter. Everyone has been proceeding under the assumption that gross floor area excluded parking (basement or otherwise) and that the proposal involved something not too far in excess of 5,000m2 GFA. The planning scheme contains an administrative definition:
“Gross Floor Area means the total floor area of a building measured from the outside of external walls or the centre of a common wall and includes areas under a roof where there are no external walls or only some external walls. It includes uncovered decks, balconies and pergolas.
It does not include temporary structures such as tents, stalls or umbrellas.
For the purposes only of calculating car parking rates, Gross Floor Area excludes:
· Areas used for building services (such as air-conditioning, lifts, power supply, etc.), stairs, public conveniences, public malls and arcades;
· Areas used for the parking, loading or manoeuvring of vehicles; and
· Balconies, pergolas and uncovered decks that are not used for business activities such as a dining area.”
The figure used as the development application and court proceedings progressed has been the one identified for the purpose only of calculating carparking rates. I do not know whether the planning scheme contains any other concepts such as gross lettable area which the parties may have had in mind, although using the more common expression gross floor area. The appellant and the Council both object to the court entertaining this point, which has never been identified as an issue in the appeal, as, in accordance with accepted practice in the court, it ought to have been. There may well be room for argument whether as Mr Fynes-Clinton contends, the Schedule 14 definition of “development application” picks up local planning scheme definitions. That would not necessarily be the case. One might expect that the State would define matters of State interest rather than leave it to the vagaries of disparate local planning schemes. An issue of this kind arose in Semour CBD Pty Ltd v Noosa Shire Council [2002] QPELR 226; [2002] QPELR 473; [2003] QPELR 258 where the outcome was that a definition in the planning scheme of gross floor area was not intended to be generally overridden by a definition in the IPA (e.g. IPA s5.4.4(5)) excluding areas associated with parking, loading and manoeuvring of motor vehicles. One would expect the Regulation to take the same approach, it being the amount of retail or commercial facilities that would attract the concern of the departments potentially involved rather than the amount of parking proposed (a major component of the trigger relied on for referral being appropriate).
I would regard the prospects of success of the “jurisdictional point” as so slim that the appropriate course is to decline to entertain it. The appellant understands it is at risk, its reply submission being that the co-respondents should either:
(a) bring an application to amend the disputed issues in this appeal (which would be opposed); or
(b) commence an originating application.
Impacts on neighbours
The next set of issues raised by the co-respondents related to impacts of the proposed development on “neighbours”, specifically those on the opposite side of Glenvale Road. An offer has been made by the appellant (the co-respondents say in an ineffective or insincere way) to provide fences along the front boundaries, which I assumed related to attenuating light nuisance from vehicles exiting the site, although they may also have had a noise attenuation aspect. To this point, there has been little interest in any fence, but at least one of the offerees has expressed interest in the offer being kept open, to see how things turn out. It is contended that Council’s proposed Condition 17:
| 17.0 | Acoustic Mitigation – Site Based Management Plan 17.1 A Site Based Noise Management Plan (SBNMP) must be submitted and approved by Manager Development Assessment Urban, prior to the commencement of the use. The SBNMP must address the following matters: 17.1.1 Control measures for routine operations to minimise the likelihood of noise nuisance; · Time, date, name and contact details of complainant; · Reason for complaint (issue); · Investigation undertaken; · Conclusions formed; · Actions taken to resolve complaint and mitigate nuisance; 17.2 A copy of the register of complaints must be provided to the Manager, Development Assessment urban at the following times: 17.2.1 Six (6) months after the commencement of the use; and | The SBNMP must be submitted and approved prior to the commencement of the use. Reporting must be provided at regular periods as specified in Condition 18.2, following the commencement of the use |
lacks finality, that objective tests ought to be provided for evaluation of complaints in terms of “fixed noise criteria…which trigger a requirement to take action if they are exceeded.” Noise related concerns (by contrast with those that would have arisen on the co-respondents’ site from the proposal designed for it) are not of such concern to the court that they would dictate refusing a development permit in the absence of some iron clad condition. Here, I think it is reasonable to anticipate a certain amount of goodwill; also, I would expect that steps could be taken against a site operator who brazenly flouted Condition 17. It ought to be noted that it is but one of the conditions dealing with acoustic matters, that others severely restrict the hours when heavy vehicles may enter or leave the site. The present circumstances are very different from ACH Holdings in which the court was in genuine uncertainty as to whether conditions could be devised to protect appropriately the amenity of residents of long standing whose premises stood to be dominated by a shopping centre anchored by a large supermarket which was also to have free standing fast food outlets and sell fuel to the public; one of the residences would be surrounded on three sides by the proposed development. Here, the proposed development is separated by Glenvale Road from the properties whose amenity is of concern. Earlier in the year the court expressed (and it retains) confidence that suitable conditions could be formulated; those now proposed by the Council appear to be appropriate.
There is a special concern for the Glenvale Convenience Centre, immediately across the road from the proposal. The court took some comfort at the hearing of the appeal from the knowledge that a buyer with knowledge of the preliminary approval granted by the Council, and of the applicant’s appeal, had deemed it commercially expedient to go ahead. The court now has a statement of evidence from Mr Trikam, representing the purchaser. He said he did not know at the time of the purchase that traffic signals were to be installed at the intersection of Glenvale Road and Greenwattle Streets or that he would be requested to move the main access for the Glenvale Convenience Plus Centre or that access to it would be affected by the proposed shopping centre across the road. Whether or not traffic signals eventuate is a matter for the Council, and not the court, given the view I have taken. It is likely that the intersection will be signalised, the only role of the appellant’s development being possibly to advance that by a few years. For the moment, Mr Trikam is not required to move the main access for his centre (from Glenvale Road). Mr Viney’s photographs of congestion at the present roundabout indicate that one of the causes of it is drivers wishing to make a right hand turn into the shopping centre. If traffic signals are installed, the queuing of east bound vehicles in front of the centre will compromise patrons’ ability to avail themselves of that access. The difficulties I’ve been mentioning would be alleviated slightly if the driveway were located further west, where the steepness of the terrain means that it is likely Mr Trikam will lose a couple of carparking spaces. he says “in the vicinity of 3-4” and fears that this will place him in breach of the conditions of his use. I agree with the appellant’s submission that it is absurd to contemplate that legal problems would ensue, as things will presumably be done with the approval of the Council. The loss of car spaces will, however, inhibit or reduce the ability of customers to get to the Centre conveniently. Mr Trikam will have to decide whether, in the hope of preserving for the customers ability to enter or leave by right hand turns, he is prepared to forego some car spaces. Like any property owner, he is entitled to access to Glenvale Road, but has no redress if that is restricted to left-in, left-out which, on my view of the evidence, is a restriction that will inevitably be imposed before too long, whether the appellant’s development goes ahead or not (and, probably, wherever on Glenvale Road the access is located). I do not think it is reasonable or practicable to require of the appellant any more than persistence with its offer to pay the costs of relocating that access to the west. Mr Trikam’s difficulties are not a sufficient basis for refusing a development permit.
The applicant seeks that the court permit it to proceed in the appeal notwithstanding changes to the development as proposed, pertinent changes being those from what was publicly notified. The relevant section of the IPA is s 4.1.52(2)(b). Mr Schomburgk’s affidavit sworn on 24 November 2008 identifies the two tranches of changes, which have to be considered in their aggregate effect:
“7.The changes between the public notification plans and the trial plans can be summarised as follows:
(a)the ramp to the basement car park was relocated from the western edge of the site in an easterly direction;
(b)in the basement car park, the travelator lobby was relocated;
(c)the building setback from the southern boundary was increased to 6 metres;
(d)a 2 metre wide landscaping buffer to the northern boundary was added;
(e)a dedicated truck turning area was added to enhance patron safety and in response to advice received from Neil Viney;
(f)the bus stop was relocated from Glenvale Road to Greenwattle Street;
(g)the external walkway to the amenities was deleted to address patron safety concerns;
(h)there was a small reduction in the gross floor area of the shopping centre;
(i)MRV loading bays were added.
8.The changes between the trial plans and the November 2008 plans can be summarised as follows:
(a)a second access to the basement car park was added which facilitates access to the car park direct from the Greenwattle Street access, where before patrons would have been required to circulate to the northern end of the site in order to access the basement car park. I understand that this change was supported by advice from Mr Neil Viney, who considered that this new arrangement facilitated better and more efficient circulation on the site;
(b)the amenities were relocated;
(c)the pedestrian ramp and stairs from Greenwattle Street were repositioned to allow a 2 metre wide landscape buffer to the boundary alignment;
(d)hard and soft landscape intent has been shown on the plans, including footpaths;
(e)the supermarket loading dock has been enclosed by a roofed/wall structure, which I note was agreed between the acoustic experts for the Council and McNab in their joint meeting;
(f)any references to signage on the drawings have been deleted;
(g)the pedestrian access from Glenvale Road has been relocated approximately 6 metres west and an additional pedestrian crossing has been shown in the car park near the designated drop off area;
(h)an indicative path is shown in the neighbouring park;
(i)the building level has been lowered by 500mm;
(j)there has been some adjustment to the car parks in the basement to accommodate the second entry to the basement car park;
(k)trolley bays have been relocated in the basement car park;
(l)the gross floor area of the supermarket has been increased from 3,100m2 to 3,235m2, an increase of 135m2;
(m)the gross floor area of the specialty retail shops has decreased from 1,947m2 to 1,915m2, a decrease of 32m2;
(n)the overall gross floor area of the retail component has increased from 5,047m2 to 5,150m2 – an increase of 103m2 which represents an increase of 2.04% from the trial plans;
(o)the number of carparking spaces in the basement has increased from 132 to 135 spaces, an increase of 3 spaces. The number of carparking spaces at ground level remains the same at 133 spaces.
9.Whilst accepting that ultimately the question of whether the change to the plans of development is a “minor change” or otherwise is a matter for the Court, in my opinion the changes are minor as:
(a)The changes do not involve the addition of any new land uses, nor the deletion of any previously proposed land uses;
(b)The changes do not involve any appreciable increase in gross floor area (2% increase);
(c)The changed plans do not require referral to any additional referral agencies;
(d)The changed plans do not change the level of assessment of the proposal;
(e)Apart from the indicative path shown in the adjacent parkland, all the changes are internal within the site;
(f)No new ingress or egress points to external streets are proposed, and no previously proposed ingress or egress points are to be deleted.
(g)The changes are predominantly required to satisfy Council’s proposed conditions of approval and/or are required to comply with the agreed advice of other experts (eg enclosing the loading dock).”
Notwithstanding that the Schedule 10 definition of “minor change” may not have to be referred to for purposes of s 4.1.52 (Papas v Brisbane City Council [2003] QPELR), Mr Schomburgk went on to opine that the changes were not likely to cause a person to object to the proposal who did not object to the publicly notified version. His affidavit exhibits the submissions (132 pages of them); I agree with his opinion. (It is interesting that the submissions express concern about the inadequacy of the existing roundabout intersection and congestion at it, rather supporting Mr Viney’s view that it will not be too long before the intersection “fails”, even without the development.) In my view, on any reasonable approach, what is now proposed represents “minor change”. The relocation of features within the site appears to represent an improvement in every case, as does the facility to enter directly into the basement from Greenwattle Road; this will reduce vehicle movements around the building and at ground level. The reduction in building level by half-a-metre reduces visual impacts. I am prepared to accept the increase in GFA as described as minor in the circumstances. Mr Fynes-Clinton urged the court to be careful about assessing the changes, urging particular attention to enclosure of the supermarket loading dock, which will create “a new undercover built form of about 300m2 of floor area in place of what was advertised as an uncovered open area.” It is correct to identify this as the most concerning change. The feature is located well back from Glenvale Road. Otherwise, it would be seen only from the public land in the west from which it is separated by a landscaping strip proposed to be planted with screening vegetation. The change will ameliorate impacts there would otherwise have been from the site and sound of trucks and unloading activities. The court is prepared to declare the changes as described by Mr Schomburgk minor.
The parties should be able to prepare a suitable draft order incorporating a “conditions package” which will resolve the appeal on the basis of the views set out above.
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