Peter Mills Holding P/L v Gold Coast City Council

[2001] QPEC 37

PLANNING AND ENVIRONMENT COURT OF

QUEENSLAND

CITATION:	Peter Mills Holding P/L v Gold Coast City Council & Anor [2001] QPE 037
PARTIES:	PETER MILLS PROPERTY DEVELOPMENT PTY LTD Appellant v GOLD COAST CITY COUNCIL Respondent and GEOFFREY RUSSELL & ORS Respondents by Election
FILE NO:	63 of 1997
DIVISION:	Planning and Environment
PROCEEDING:	Submitter appeal
ORIGINATING	Southport
COURT:
DELIVERED ON:	1 June 2001
DELIVERED AT:	Brisbane
HEARING DATE:	14 and 15 May 2001
JUDGE:	Judge Quirk
ORDER:	Appeal allowed
CATCHWORDS:
COUNSEL:	Mr W.Cochrane for the appellant Mr J Haydon for the respondent Mr C McGrath for the respndents by election Mr G Russell appeared on his own behalf
SOLICITORS:	O’Keefe Mahoney Bennett for the appellant Corrs Chambers Westgarth for the respondent Spains Solicitors for the respondents by election Mr G Russell appeared on his own behalf

1. This appeal was lodged against the respondent’s refusal of an application (made in

   May of 1997) for the rezoning of land in the Gilston area from the Future Urban to

   the Residential A Zone.

2. The land has frontage to Gilston Road and occupies an area of 5.224 hectares. In

   comparison to other parcels in this area which have been the subject of

   development applications, it is not large.

3. The proposal before the Court indicates an intended reconfiguration of the land into

   forty-two residential allotments ranging in size from 610 to 1124 square metres.

   Approximately 21 per cent of the site is to be used for park and public open space

   including an area resulting from a 20 metre setback from Gilston Road. Internal

   roads are to include a through road connecting Gilston Road to probable

   development of the area to the east.

4. Although the respondent Council initially refused the application, negotiations have

   led to a compromise. The Council is now not opposed to the rezoning going ahead

   on the basis of a conditional approval the form of which is found in a draft order

   placed before the Court in section 5 of Exhibit 1 (at page 12).

5. A number of submitters had elected to be joined as respondents to the appeal and

   appeared at the hearing. Mr Russell conducted his own case and the others were

   represented by counsel. The respondents by election were not prepared to accept

   the proposed conditional approval and raised a number of matters which they asked

   the Court to consider.

6. By the end of the day the matters really in dispute had resolved themselves into two

   issues which were;

(1)	Whether the approval would lead to unreasonable
interference with the flow path of a natural watercourse that
crossed the subject land;
(2)	Whether the conditions of approval sought adequate
contribution to the costs of roadworks external to the site.

1. The first of these matters was one about which Mr Russell (who lives in an

   attractive park residential setting on the opposite side of Gilston Road) is

   particularly concerned. The watercourse in question crosses Gilston Road from the

   subject land by way of a culvert and then flows in an uncontrolled manner across

   Mr Russell’s property. Mr Russell told me that, at times of heavy rainfall, a

   considerable body of water flows across his land.

2. The draft order makes reference to a drawing number SK 138B which includes an

   indicative subdivisional layout. The drawing also shows contours which identify,

   in a general way, the path of the watercourse with which we are concerned. There

   is no doubt that, if the subdivision was to follow this indicative plan, parts of some

   of the proposed allotments and roadways would intrude upon the existing

   watercourse and two dams presently on the site would have to go. The respondents

   by election expressed concern that development in that form might adversely

   impact upon the role which the existing watercourse plays in the areas stormwater

   regime.

3. It has to be appreciated however that the draft order does not “set in stone” the form

   of subdivision that will ultimately occur. The real consequence of the order will be

   the amendment of the transitional planning scheme to include the subject land in the Residential A Zone. Future reconfiguration of the land will require a further

   application.

4. It is true that Proposed Condition 4 (provides)

   “Any application to reconfigure the land to be rezoned to the

   Residential A Zone is to provide the following elements:

(a) the design is to incorporate appropriate provision for the designation and management of the overland flow path indicatively identified on Plan 99024/1 and dated 6th April 2000”.

Condition 10 must also be noted and it provides:

“The appellant shall submit to Council prior to commencement of any works on the lands, detailed management plans addressing the following:

...

(c)	stormwater management; and
(d)	hydraulic characteristics

Such plans must be prepared by appropriately qualified professional persons and be approved by the Chief Executive Officer or delegate prior to the commencement of any works on the lands. The terms of such plan must be complied with by the appellant.”

1. The practical result of this is that, prior to any subdivision works taking place, it

   will need to be demonstrated that adequate attention has been given to stormwater

   management and (importantly in the context of this appeal) that satisfactory flow

   rates of stormwater will occur at the point where stormwater leaves the subject land.

2. In the course of the hearing I had the benefit of evidence from the appellant’s

   consulting civil engineer, Mr Lees who was confident that appropriate engineering

   design and treatment of stormwater flow was achievable and this evidence was not

   seriously contradicted. The appellant’s town planning consultant Mr Bell also dealt

   with the matter.

3. Having considered this evidence I am satisfied that these concerns should not stand

   in the way of a rezoning approval at this point. I am also satisfied that such an

   approval should not (as was advocated by the respondents by election) be burdened

   with a condition that there will be no works carried out within the existing flow

   path of the watercourse.

4. The second matter raised by the respondents by election related to the adequacy of

   the contribution to external roadworks sought by Proposed Condition 15. The

   respondent by elections’ point was that an inadequate contribution to these works

   would constitute an unfair impost upon the city’s ratepayers.

5. In respect of this issue the appellant called evidence from Mr Olsen who, in a

   detailed and carefully explained consideration of the matter offered the opinion

   that:

   “The contributions to external road upgrading as agreed between the developer and Council are reasonable and, based on our analysis, would seem to favour the Council”.

   The attack by the respondents by election upon this view relied upon evidence

   from Mr Brameld, an experienced traffic engineering consultant, who appeared in

   response to a subpoena. Council has, on a number of occasions in the past,

   consulted Mr Brameld although he did not have any direct involvement in this

   matter. It emerged that Mr Brameld had been asked to consider the costs that

   might be involved in necessary improvements to Gilston Road but from a much

   wider perspective which took into account future residential development of

   substantially larger parcels in the general area.

6. The consequential costs estimates made and contribution rates established by Mr

   Brameld involved work well beyond what would be called for in respect of this

   proposal and were not really helpful in considering the reasonableness of the

   contribution in this matter. In the end result it seemed to me that Mr Brameld was

   very reluctant to condemn as inadequate the contribution referred to in the Draft

   Order.

7. On the whole of the evidence I accept the views of Mr Olsen and would not

   interfere with the contribution rate that has been accepted by both the appellant and

   the elected planning authority.

8. At one point some reservations were expressed about the adequacy of the buffer

   along Gilston Road. However this was not a matter that was pursued with any real

   vigour and the appropriateness of the proposal in this respect was supported by the

   evidence of the landscape architect Catherine Brouwer which was not seriously

   challenged.

9. On the whole of the evidence I am satisfied that the onus for showing that the

   application is one which should be approved has been discharged and the appeal

   must accordingly be allowed.