Multispan Australia Pty Ltd v. Brisbane City Council & Anor (No 2)
[2008] QPEC 35
•13 June 2008
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Multispan Australia Pty Ltd v Brisbane City Council & anor (No 2) [2008] QPEC 35
PARTIES:
MULTISPAN AUSTRALIA PTY LTD
(Applicant)
v
BRISBANE CITY COUNCIL
(Respondent)
and
CHIEF EXECUTIVE, DEPARTMENT OF MAIN ROADS
(Co-respondent by election)
FILE NO/S:
1461/07
PROCEEDING:
Appeal
DELIVERED ON:
13 June 2008
DELIVERED AT:
Brisbane
HEARING DATE:
15 May 2008
JUDGE:
Rackemann DCJ
ORDER:
CATCHWORDS:
Relevant period for s 3.5.21 – where concurrency agency required shorter period pursuant to a policy – whether there was a “reasonably identifiable policy” for the purposes of s 3.3.15 – whether shorter period justified in the circumstances
COUNSEL:
Mr M J Connor Solicitor for the appellant
Ms K R Johnston Solicitor for the respondent
Mr W L Cochrane of Counsel for the co-respondent
SOLICITORS:
Connor O’Meara for the appellant
Brisbane City Legal Practice for the respondent
Crown Solicitor for the co-respondent
On 27 February 2008 I gave ex tempore reasons, in which I indicated that this appeal would be allowed, and I adjourned the further hearing of the appeal, to allow the parties an opportunity to reach agreement about the terms of the approval. The applicant/appellant has reached agreement with the Council, but there is an outstanding dispute between it and the co-respondent by election (the DMR), which now falls for determination.
The DMR was a referral agency and provided its response to the development application, by letter dated 7 March 2007. That letter advised that certain conditions were required to be attached to any approval. There is no dispute about those conditions, which relevantly include the following:
“the frontage set-back, as shown on the attached sketch (plan number U15-0021D), along the Beaudesert Road frontage of the site is to be excluded from the proposed development and kept clear of any permanent structures or improvements associated with the development.”
That condition was required on the basis that “Main Roads’ planning indicates that land will be required from the subject property for future road purposes”.
In addition to requiring those conditions, the DMR’s response also required the relevant period (referred to as the “currency period”) for any development permit to be limited to two years from the date of its letter. That compares with the period of four years, starting on the day the approval takes effect, which would otherwise apply pursuant to s 3.5.21 (1)(a) of the IPA. The appellant contends that it should have the benefit of the period as otherwise provided for. The Council, for its part, is also content to allow that period.[1] The DMR however, contends that the currency period should be two years, although it is now prepared for that period to run from the date the approval takes effect, rather than the 7th March 2007, being the date of its letter to the Council.
[1] See Exhibit 10.
This issue was not previously raised by the appellant in the proceedings, but no point was taken about that, save on the question of costs.
It was pointed out, in the course of argument, that there is some ambiguity in the IPA as to whether the stipulation of a shorter currency period, is a condition, such as to attract the reasonable or relevant test under s 3.5.30 of the IPA. The application of s 3.5.30 is not however, determinative of this appeal and the parties did not submit to the contrary.
The appellant submitted that the four year period, as otherwise provided for under the legislation, represents an appropriate period and that there is no sufficient justification for adopting the shorter period contended for by the DMR. In support of its position, it tendered an affidavit from Mr Neil Viney, a consultant traffic engineer who gave evidence at the earlier hearing. Mr Viney deposed that:
“During my investigations and assessments, carried out as part of the original hearing of this matter on 27 February 2008, I did not come across anything that would warrant a reduction in the four year relevant period, as provided for in s 3.5.21 of the Integrated Planning Act 1997, to two years, as proposed by the co-respondent by election.
I have had the opportunity to read the affidavit of Stephen Smaha, sworn 14 May 2008. Nothing in that affidavit caused me to change my view, as expressed in paragraph 2 above.”
Mr Viney was not required for cross-examination.
The DMR did not call evidence from any witness to suggest that the particular circumstances of this case made a two year period appropriate. Rather, it relied upon the application of what was said to be a policy of requiring a two year period for all development permits granted with respect to land, any part of which might later by required for future road purposes. Reference was also made to the provisions of s3.5.21, which, in effect, allow the period to be “rolled forward”, where a later “related approval” is obtained. It was submitted that the period contended for by the DMR was appropriate, given the process for road planning, and also afforded the appellant sufficient opportunity to progress its development.
In support of that approach, counsel for the DMR referred to s 3.3.15 of the IPA, which requires each referral agency, within the limits of its jurisdiction, to assess an application against “the laws that are administered by, and the policies that are reasonably identifiable as policies applied by, the referral agency”. It was contended that the requirement for a two year period was justified by a DMR policy to that effect. It emerged in the course of the argument however, that the DMR’s insistence on a two year currency period is more a practice of one particular section of the DMR, than the application of something which is reasonably identifiable as a policy.
Counsel for the DMR tendered a number of documents. The earliest was the “Metropolitan North Development Assessment Guide”, the first edition of which was apparently created in 1988 ( a revised edition was dated 1993). Mr Smaha’s affidavit says that this document provided for a limit of two years, but did not refer to a particular provision. Section 5 of the document relates to “application approvals”. There is a reference, in clause 5.5.2, to a 2 year period in relation to works the subject of a bonding agreement. That appears to relate to a different situation but, in any event:
· As the preface to the document states, it comprised guidelines, produced by a particular engineer “based on his research and personal experience” and which were intended for “internal use” only “and is not an official department policy document”; and
· Mr Smaha deposes that the document has since been superseded.
The current document is entitled “Guidelines for Assessment of Road Impacts of Development” which, on the face of it, replaced the earlier guidelines and became “effective” on 1 April 2006. I was not referred to any statutory provision pursuant to which these “guidelines” have any particular status. The foreword to the document describes it as a “living document” the purpose of which is “to assist industry to assess the road impacts of their development proposal” and the use of which is “not mandatory”. Its purpose is more particularly described in clause 1.1 which provides, in part, that:
“The guidelines will assist developers to undertake RIA (Road Impact Assessments) where required and ensure assessments are in accordance with an agreed methodology. The guidelines provide sufficient flexibility and discretion to development proponents and Main Roads assessment officers so that RIAs reflect the particular local circumstances of a development proposal.”
Mr Smaha, in his affidavit, pointed to “principle 5” in section 1.4, which provides that development is to be regarded as having no significant impact on the State road system in terms of roadworks, if any mitigation measures required as a result of the development can be accommodated within the first two years of the Main Roads Program of Works (RIP). As Mr Cochrane acknowledged however,[2] that passage is not to point. Mr Smaha also referred to section 8.8, which states that it is normal practice to preserve road corridors as development occurs, but that section says nothing about imposing 2 year currency periods. There is nothing in the guidelines otherwise, to which I was referred, which would require a two year currency period to be imposed on a development permit simply because the permit relates to land, part of which might conceivably be required for future roadworks.[3]
[2] T 21.
[3] T 21-22.
I was also referred to other documents, but to no provision which contains a requirement or a policy that development permits be limited to a currency period of two years. Mr Cochrane conceded that there is no current document of the DMR which asserts a need to apply a two year currency period to a case such as this.[4]
[4] T 23, T 26.
Ultimately, all that could be pointed to, as constituting a “policy”, was Mr Smaha’s evidence that, “I can say from my knowledge that DMR Metropolitan District is in the practice of applying a relevant period of two years in circumstances such as the present”. That evidence does not descend into further detail, including with respect to when the practice was established, under whose authority it was established, whether it is followed in other districts and the “circumstances” in which it is applied. In any event, Mr Smaha’s limited evidence as to the present practice of officers within a particular district does not persuade me that the DMR, as a referral agency, has a “reasonably identifiable” policy, for the purposes of s 3.3.15 of the IPA, which requires a 2 year currency period. Even if it did, the policy could not be applied blindly, without reference to the circumstances of a particular case.
In order to explain the DMR’s position, counsel referred me to a number of other documents including:
· The Road Planning and Design Manual (initial release);
· The Roads Implementation Program (RIP); and
· The Southeast Queensland Infrastructure Plan and Program 2007-2026.
The preface to the Road Planning and Design Manual says that it has been developed to “set the framework for the planning and design of new and upgraded roads in Queensland”. It contains a figure depicting the road planning and construction process, including indicative timing. As that figure demonstrates, the process can take a number of years. Each year, an RIP is prepared, which sets out those projects which have been approved for the next two financial years. The RIP also shows “indicative” projects which may commence thereafter, subject to a re-evaluation of priorities. The figure in the Road Planning and Design Manual shows that the detail design for a project coincides with it becoming an approved project under the RIP.
That the DMR’s road planning is only relatively firm for those projects approved for construction over the next two years, appears to underlie the DMR’s position. It is concerned that its road planning beyond that might change in a way which changes its requirements over the subject site. Mr Smaha’s affidavit attempts to explain things in the following way:
“In setting a two year relevant period on this development application, it will allow DMR to review the current conditions on Beaudesert Road against future planning that can improve the road network and thereby allow increased certainty as to land requirements from the site needed to manage road conditions impacting on safety and efficiency of the State-controlled road network.”
The land requirement, as regards the condition required by the DMR, relates to a possible future resumption, along the Beudesert Road frontage, to facilitate a possible future upgrading of that road (to six lanes) in this locality. I was referred to the Brisbane Urban Corridor Strategy, which is exhibited to a further affidavit of Mr Smaha, and which refers to the need for future capacity improvements along important road-freight corridors, including Beaudesert Road. I was also referred to parts of the current RIP, which includes some projects along the Mt Lindsay arterial.[5] The six laning of Beaudesert Road in the vicinity of the subject site is not however, something which is expressly provided for as an “approved” or “indicative” project under the current RIP. It does not appear to form part of the road planning for the period to 2012.[6]
[5] Including a grade separation of the Acacia Ridge railway crossing and asphalt resurfacing in the sections from Mortimer Street to Algester Road and from Grenard Road to Bradman Street.
[6] T 38, T 41.
Mr Cochrane conceded that the “concept plan” in relation to a possible future upgrading of Beaudesert Road, which formed the basis of the condition requiring development to be set back, is a “longer term” possible project which is not funded and not referred to in any of the planning documents placed before the court. Given the lack of any status of this possible future project, there may well have been an arguable basis for the appellant to resist the imposition of a condition requiring development to be set back, but it has chosen not to dispute that condition. The residual question is whether, having agreed to set back the development, to allow for this longer term future possibility, it should also be subject to a 2 year currency period. I do not think that it should.
The concerns which underlie the DMR’s position are largely speculative.[7] They may be realised if:
· The possible future upgrading of Beaudesert Road, at this location, progresses, even though it is not currently funded or approved;
· The subject approval remains current, but not acted upon, at the time more detailed planning for the upgrade occurs; and
· In planning for the upgrade, the DMR wishes to change its planning in a way which would result in a different or greater land requirement than is accommodated by the set back required at this time.
[7] T 45.
Of course, even if all of those eventualities were to occur, it would not prevent the DMR from acquiring a greater portion of the subject site, although the existence of an existing, but unexercised, approval for development which is inconsistent with the DMR’s preferred land requirement may be relevant to the decision-making process by, for example, increasing acquisition costs. In such circumstances, the DMR would no doubt prefer the approval to have lapsed.
On the other hand, if a shorter currency period encourages the developer to act more quickly on the approval, then the DMR potentially faces the possibility that any changes which it would otherwise have wished to make in the future, will be complicated by the construction of actual development in the meantime.
The DMR’s concerns must also be balanced with the interests of the applicant which, even if motivated to exercise an approval promptly, has an interest in the approval staying alive, to account for contingencies which may result in delay. Mr Weekes, a director of the company which owns the land and appointed the appellant to obtain the development approval, deposed that he is uncertain when the approval will be acted upon. As he deposed, a prudent approach would include obtaining a level of pre-commitment from tenants before exercising the approval. While he has made a number of inquiries, he has no firm commitment from tenants at this point.
It has already been noted that the concerns which underlie the DMR’s position are largely speculative. That is not to say that there will never be circumstances in which a shorter currency period should be stipulated, to address those concerns. In this case however, the concerns relate to a possible future project which has no status at this time. It is not funded and is not reflected in any of the planning documents placed before the court. It presently appears to be well in the future. Further, while it is always theoretically possible for things to change, there is no evidence before the court which deals with the relative likelihood of the set back required by the uncontested condition, being insufficient to accommodate that future project, if it ever eventuates. There is nothing which persuades me that there will be a significant detrimental effect on the DMR’s future planning if the relevant period for the approval is that otherwise provided for in the legislation.
In the circumstances, I am satisfied that it is appropriate not to specify a different period from that provided for by s 3.5.21(1)(a) of the IPA.
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