Neilson v Gold Coast City Council

[2004] QPEC 89

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Neilson v Gold Coast City Council & Anor [2004] QPEC 089

PARTIES:

ROSS NEILSON
Appellant
v
GOLD COAST CITY COUNCIL
Respondent

And

STATE OF QUEENSLAND
Co-respondent by election

FILE NO/S:

482/2004

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

DELIVERED ON:

22 December 2004

DELIVERED AT:

Brisbane

HEARING DATE:

2 December 2004

JUDGE:

Skoien SJDC

ORDER:

Appeal allowed; new conditions substituted

CATCHWORDS:

Contribution by developer to upgrade to State controlled road; whether full cost or bring forward cost appropriate

COUNSEL:

Mr C L Hughes SC for the appellant
Mr E Morzone for the respondent
Mr   Cochrane for the co-respondent

SOLICITORS:

Connor O’Meara Solicitors for the appellant

McDonald Balanda & Associates for the respondent

Crown Law for the co-respondent by election

1. This is an appeal by Neilson against conditions imposed by the Council and by the State of Queensland acting through the Department of Main Roads (“DMR”) on the approval of Neilson’s application for a Development Permit for a material change of use to construct a shopping centre at Bell Place, Mudgeeraba.

1. Neilson and the Council have now agreed on a new condition in lieu of the one which they had disputed, and the Council thereupon took no further part in the appeal which was then restricted to one condition, No. 42, a requirement by DMR that Neilson pay the total cost of an upgrade to an existing roundabout near the development. The right of DMR to apply a condition arises because a relevant road is a State controlled road. See Integrated Planning Act 1997 (“IPA”) s.3.3.16.

The Site

1. The business district of township of Mudgeeraba is just to the west of the Pacific Motorway and most of it is contained within a triangle formed by Railway Street which borders it to the west and the State controlled Link Way, which forms the southern and eastern sites of the triangle.

1. The site, now a paddock, is in the south western corner of the triangle.  Immediately to its east is a stub road called Bell Place.  Across Bell Place to the east of the site is a medical centre.  At the end of Bell Place is an existing shopping complex which contains an Action supermarket.  Bell Place provides access for the Action supermarket delivery vehicles but is also used by some of the motor vehicles driven by shoppers who find it to be a convenient access route to that shopping complex.

1. The Link Way and Railway Street meet at the south western corner of the business district (and the site) at a roundabout.  The roundabout is constructed to carry one lane of traffic only and is of a relatively tight diameter.  It copes with traffic to and from Railway Street and the Link Way as well as that which uses the Gold Coast-Springbrook Road (which joins the roundabout at its south west) to go to or from places further to the south and south west such as Neranwood, Springbrook and Austinville.

The Condition

1. The DMR has imposed a condition which requires Neilson to add an additional lane to the roundabout for the benefit of traffic travelling from the east (the Link Way) to enter the Gold Coast-Springbrook Road.  The cost of that construction is agreed to be of the order of $345,000.

1. Neilson disputes that it should pay the entire cost of the upgrade and has appealed in respect of it, arguing that it should be required only to contribute $39,000 towards the cost of the extra lane, being the “bring forward” cost.  The argument is that in any event, absent the Neilson development, the upgrade would be necessary by 2013 and that the effect of the development is merely to advance that date to 2010.

Expert Evidence

1. Two traffic experts gave evidence, Mr Viney on behalf of Neilson and Mr Williams on behalf of DMR.  So far as their assessments of traffic numbers and flows, present and projected, were concerned I did not think there was any material difference between them.  They accepted the same future year design date (2013), the date at which the roundabout’s capacity should be assessed both with and without the presence of the proposed development.  They agreed that ultimately a two lane roundabout would be needed, or even traffic signals. They did not differ on the nature or cost of the work which would be necessary to upgrade the roundabout.  They agreed that at present the roundabout was coping comfortably.

1. There was a difference in the estimates they made of the percentage of traffic using the roundabout in 2013 which would be generated by the development.  Mr Williams said about 12%; Mr Viney said about 9%.

1. Such projections are of course estimates and not the product of precise mathematics.  No-one suggested to me that it was a critical point but if it is important I thought Mr Viney had a valid point when he said that as a matter of fact some traffic going to or from the proposed development would proceed through the Action car park and not use the roundabout at all.  He did not precisely quantify that traffic, but argued that it supported his estimate of roundabout traffic generated by the Neilson development at a more conservative figure than did Mr Williams.

1. In my view that approach was justified.  There will inevitably be passage of some vehicles between the car parks of the two supermarkets either for perceived speed and convenience (“rat running”) or for the reason that shopping is carried out on the same trip at each supermarket.

1. Another reason given by Mr Viney for his lower figure was his application of industry research that demonstrates that a lower generation rate is the result of an increase in centre size, so that the Neilson development’s contribution to the increase should be looked at conservatively.  That seems to me to be a proper factor to take into account in this assessment.

1. So if there is importance in the difference between Mr Williams’ approximately 12% of Neilson traffic at the roundabout in 2013 and Mr Viney’s approximately 9%, I prefer Mr Viney’s figure.

1. Where the experts differed was whether, by 2013 (absent the Neilson development) traffic, particularly the Link Way traffic, could be accommodated by the existing roundabout.  Mr Viney’s evidence was that it could not, Mr Williams’ evidence was that it could.  This divergence existed although their estimates of the then degree of saturation were similar (Viney 86.8%; Williams 83.4%) and their queue lengths not greatly different (Viney 134 m.; Williams 115 m.).

1. The experts also differed on the effect of the Neilson development on the roundabout capacity at 2013.  Mr Viney’s evidence was that by then the total traffic impact on the roundabout would be excessive and that the date at which the traffic volume would require the upgrade would be 2010.  That upgrade, said Mr Viney, would effectively re-create the same demand on the Link Way aspect of the roundabout (82.3%) which would exist absent the Neilson development by 2013 (86.8%).  Thus, he argued, Neilson should pay merely the bring forward cost of that three year advancement, that is $39,000.

1. Mr Williams’ evidence was that, absent the Neilson development, in 2013 the Link Way aspect of the roundabout would be functioning at 83.4%, which he considered to be acceptable.  However he said that with the development the Link Way aspect of the roundabout would be subject to 98.2% saturation.

1. Mr Williams’ main concern about the degree of saturation of the roundabout in 2013 was not so much related to the delay caused to vehicles but the queue lengths thus created.  On that point I was impressed by the argument of Mr Viney that, adopting Mr Williams’ figures the queue length by 2013 would block entry to Bell Place and by 2016 would positively demand the roundabout upgrade.  This also suggested the necessity to bring forward the upgrade some 3 years.

1. In the upshot I was persuaded that Mr Viney’s predictions were more acceptable.  So on the balance of probability I consider that the effect of the Neilson development will be to bring forward the date on which the roundabout will reasonably need the upgrade from 2013 to 2010.

1. A complicating feature is that DMR at present has no plans to upgrade the roundabout.  It has a rolling five year works programme and that programme does not include this work, nor, it seems, it is under consideration for work in the 10 year design period.

1. That no work is actually planned within the next 5 years is a fact which I accept.  That it is not under contemplation beyond that period is also an accepted fact but that is not to say that it would not occur (absent the Neilson development) in time and even at about 2013.  The projections of the DMR include the likelihood of greatly increased traffic on the Gold Coast-Springbrook Road and the likelihood of upgrades having to be done on single lane sections.  The Link Way-Springbrook Road, at the roundabout, is a one lane section.  This encourages my acceptance of Mr Viney’s evidence that 2013 can be accepted as a reasonably probable upgrade date.  And I have also accepted his evidence that the effect of the Neilson development would be to advance that to 2010 because it would be contributing some 9-12% to the traffic.

Statutory Instruments

1. Section 3.5.30(1) of IPA provides the cardinal principles of the conditions which may lawfully be imposed and is:-

“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.”

1. The Gold Coast Planning Scheme recognises the responsibilities of DMR to plan, construct and maintain State controlled roads and specifically refers to the 5 year works programme.  This is an extract from Traffic Policy 2 of the Planning Scheme:-

“In the event that a specific development proposal requires road works, which are not consistent with Main Roads’ planning intentions, this may require a contribution by the developer may be required to make a contribution towards the cost of providing these road works, within the constraints of the Integrated Planning Act 1997.

A development will be inconsistent with Main Roads’ planning intentions, if the development;

·requires road works which are not planned by Main Roads;

·requires road works of a different scope or location than what is currently planned by Main Roads; or

·brings forward the delivery of planned road works or a component of those road works by one year or more.”

1. DMR has published Guidelines for Assessment of Road Impacts of Development Proposals:-

“The guidelines provide developers with clear, open and accountable advice on the information that Main Roads requires to address road issues.  These information requirements largely reflect the practices and standards of Main Roads that have evolved over many years.”

1. Section 9.3 of the Guidelines (“Determining a Development Proponent’s Contribution”) contains:-

“As a general principle, if Main Roads intended to provide the roadworks at some future date then the developer contribution would normally be based on a ‘bring forward cost’ methodology.
…
If the roadworks are unlikely to have ever been provided in the absence of the development activity, or the estimation of the timing of the roadworks is regarded as too speculative, then the developer would be required to meet the full cost of the roadworks.  Such a  situation would normally arise where roadworks are development-specific and the developer is expected to be the sole beneficiary or cause of the works.  An example is where a development may require special acceleration/deceleration lanes or turning lanes at an existing intersection so that heavy commercial vehicles do not reduce the efficiency of the road system.  In such instances, the full capital cost and any ongoing maintenance of the works would normally be sought from the proponent as a contribution prior to commencement of the development activity.  The proponent will need to calculate the capital cost and maintenance cost of the works (see Sections 9.4 and 9.5).”

The Guidelines

1. First it must be observed that guidelines are what the name suggests, not inflexible rules but statements about usual events or what may generally be expected.  There must sometimes be circumstances which fall outside the scope of guidelines.  I note that even the introductory paragraph of s.9.3 of the guidelines (cited in para [24] above) speaks only of a general principle, even when DMR actually intends to carry out work.

1. This is a case which in my view falls outside the guidelines.  To look at the second cited paragraph of s.9.3, it cannot be said that “the roadworks are unlikely to have ever been provided in the absence of (the Neilson) development”.  The DMR projections clearly point to the necessity, one day, to upgrade sections of the road which include the Link Way-Springbrook Road aspect of the roundabout.  Nor are the roadworks development-specific, as the proffered example demonstrates.  The remaining question is whether “the timing of the roadworks is regarded as too speculative”.

1. I have decided that question in favour of Neilson, and so it follows that under the guidelines the bring forward cost method is appropriate. And it seems to me that the objective facts of this case demonstrate that to be appropriate. To require Neilson, now, to pay the full cost would be to ask it, as the price of its development, to pay now the full cost of an upgrade of a roundabout of which it (through its customers) will be the beneficiary to the extent of merely 9-12%. Can that be consistent with s.3.5.30 of IPA?

1. It is clearly relevant to the Neilson development that it contribute money to the upgrade because its customers will put extra demand on the roundabout (s.3.5.30(1)(a)).  It is also required by the Neilson development because the extra demand will be a consequence of the development (s.3.5.30(1)(b)).  But under s.3.5.30(1)(a), to make the creator of 9-12% of the demand responsible for the full amount of the upgrade cannot be anything but an unreasonable imposition on the development.  And, under s.3.5.30(1)(b), to require that cannot be said to be “reasonably required in respect of the development or the use of the premises as a consequence of the development”.  It is not reasonable that a minor user should be made to pay the whole.  On the other hand, the payment by Neilson of the bring forward amount is a reasonable imposition on the Neilson development because it equates with the consequences of the Neilson development (s.3.5.30(1)(a).  And for the same reason it is reasonably required by the Neilson development.

1. Mr Hughes SC for Neilson, flirted with the proposition that DMR might be required to undertake to apply the money provided by Neilson to the actual works by a specified time, in default of which Neilson ought not be required to provide it.  That was interesting, but primarily he accepted Neilson’s willingness to contribute on the bring-forward principle, and I follow that willingness.

Conclusion

1. The appeal will be allowed and the amended condition 42 set out in exhibit 5 will be substituted for the existing condition.  I will also substitute the amended condition agreed between Neilson and the Council.  I invite the parties to provide a settled order for initialling by me.