Ridgehaven Retirement Village Pty Ltd v Caloundra City Council
[2004] QPEC 2
•13 February 2004
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Ridgehaven Retirement Village v Caloundra City Council & Ors [2004] QPEC 002
PARTIES:
RIDGEHAVEN RETIREMENT VILLAGE PTY LTD
(Appellant)
ANDCALOUNDRA CITY COUNCIL
(Respondent)
ANDSTATE OF QUEENSLAND
(Co-Respondent)
ANDNITA CUNNINGHAM, MINISTER FOR LOCAL GOVERNMENT AND PLANNING
(Second Co-Respondent)FILE NO/S:
37 of 2003
DIVISION:
PROCEEDING:
Appeal
ORIGINATING COURT:
Planning and Environment Court of Queensland, Maroochydore
DELIVERED ON:
13 February 2004
DELIVERED AT:
Maroochydore
HEARING DATE:
2-5 February 2004
JUDGE:
Judge J.M. Robertson
ORDER:
This appeal is allowed to the limited extent of removing from Conditions 2(a) and 36 in Council’s decision notice dated 16 July 2003 the words “and pedestrian/cycle corridors”. Otherwise the appeal confined to Conditions 2(a), 36 and 27 is dismissed. I will permit the parties 7 days to formulate amended conditions in light of these reasons if they see fit.
CATCHWORDS:
LOCAL GOVERNMENT – Relevance and reasonableness of conditions imposed to protect proposed rail corridor through subject land; importance of rail corridor to wider community.
PLANNING AND ENVIRONMENT COURT – powers of Court in relation to issues of designation under Integrated Planning Act for community infrastructure; whether Court can use conditions power to achieve indirectly what it cannot achieve directly.
COMPENSATION – consideration of hardship provisions under s2.6.19 of Integrated Planning Act, timelines of acquisition and issues of fairness.
Cases:
Attorney-General (N.S.W) v Homebush Flour Mills Limited (1937) 56 CLR 390
Brisbane Wharves & Wooldumping Pty Ltd & Ors v Brisbane City Council & Ors [1994] QPLR 1
Cardwell Shire Council v King Ranch Australia Pty Ltd (1984) 88 ALJR 386
Con Contarino v Sydney City Council (1967) 13 LGRA 332
Deputy Federal Commissioner of Taxation (N.S.W) v W.R. Moran Pty Ltd (1939) 61 CLR 735
Director of Buildings & Lands v Shun Fung Iron Works (1995) 2 AC 11Edgar Pty Ltd v Brisbane City Council & Ors [2002] QPELR 183
Halkava Pty Ltd v Warringah Shire Council (1970) 19 LGRA 182
Hammercall Pty Ltd v Gold Coast City Council [2002] QPELR 397.
Harderan Pty Ltd v Logan City Council [1989] 1 Qd R 524
Huon Investments Pty Ltd v Port Stephens Shire Council (1972) 25 LGRA 287
Hymix Industries Pty Ltd & Anor v Alberton Investments Pty Ltd [2002] QPELR 116
Jenkinson Pty Ltd v Caloundra City Council [2002] QPELR 527
Kabale Holdings Pty Ltd v Council of the Shire of Albert (1993) QPELR 252
Kebale Holdings Pty Ltd v Chief Executive, Department of Transport [1997-1998] 18 QLCR 166
Laver v Albert Shire Council [1997] QPELR 94
Listville Pty Ltd v Laidley Shire Council (1996) QPELR 378Lloyd v Robinson (1962) 107 CLR 142
Northern Beaches Developments Pty Ltd v Mackay City Council [1999] QPELR 389
Proctor v Brisbane City Council [1994] QPELR 309
Silverston Pty Ltd v Council of the Shire of Mulgrace & Anor [1993] QPLR 268
Standfield v Gold Coast City Council [1996] QPELR 136
Summerland Plantations Ltd v Brisbane City Council (1994) QPLR 352 and (on appeal) [1995] QCA 474Wise v Maroochy Shire Council (1999) 2 Qd. R 566
Legislation:
Acquisition of Land Act 1967, ss.12(5), 20
Integrated Planning Act 1997, ss. 1.2.1, 1.2.2, 1.2.3, 1.3.3, 2.6.8, 2.6.17, 2.6.19, 2.6.22, 3.5.30, 4.1.23, 4.1.27, 4.1.35, 4.1.50,
Local Government (Planning and Environment) Act 1990,
s6.1 (1) (c) (repealed)
State Development and Public Works Organisation Act 1971, s.29A
Transport Operations (Passenger Transport) Act 1994, s.145COUNSEL:
Mr C. Hughes SC (for the appellant)
Mr J. Houston (for the respondent)
Mr D. Gore QC and Mr R Jones (for the co-respondents)
SOLICITORS:
P&E Law (for the appellant)
Corrs Chambers Westgarth Lawyers (for the respondent)
Crown Law (for the co-respondents)
Introduction and Background to Appeal
In September 1997 the Minister for Transport and Main Roads made public a number of options being considered by Government for a possible rail link between the North Coast rail line and Maroochydore. These options had been identified as part of a study commissioned by Government and included corridor options linking Kawana and Caloundra. The Caboolture/Maroochydore Corridor Study was given the acronym CAMCOS.
On the 10 July 1998 Meraton Pty Ltd applied to the Caloundra City Council (the Council) for a material change of use of land at Lot 2, RP 140492, Kalana Road, Currimundi (the land), as a retirement village. Meraton Pty Ltd later changed its name to Ridgehaven Retirement Village Pty Ltd, the appellant in these proceedings.
On the 24 July 1998, the Council advised Queensland Transport of the application, because the land was affected by one of the options under consideration in CAMCOS. On 4 August 1998, QT wrote to the Council advising that the development application should be refused as one of the identified public transport corridors in CAMCOS overlapped the land. The appellant was not informed of QT’s advice.
On the 7 August 1998, the Council forwarded an information request under IDAS to the appellant, which did not refer to CAMCOS. In September 1998, the Stage 2 Corridor option assessment report was released identifying preferred narrowed corridors from a range of options. On 23 November 1998 QT wrote to the appellant (as part of a process of informing all affected landowners) advising that the site had been identified as being potentially affected by one of the identified CAMCOS corridors.
Stage 3 of the CAMCOS procedure commenced in December 1998 and included corridor selection. Mr Graeme Krisanski, Consultant Traffic/Transportation Engineer, as principal at the time of Ove Arup Consulting Engineers, was project manager of the Arup team which undertook CAMCOS and he gave evidence in the appeal on behalf of the co-respondent.
In January 1999 a submission was made to Ove Arup on behalf of the appellant.
On 13 April 1999 the Council’s senior planning officer’s report recommended refusal of the development on grounds generally relating to drainage and the effect on CAMCOS of such a development. The appellant made representations which led to the report being withdrawn from the agenda of Council’s general meeting, to enable the appellant further time to address Council’s concerns.
Over the following years, the Council and the appellant continued to negotiate, particularly in relation to drainage issues, and various extensions of the decision period under IPA were negotiated.
On 9 September 1999 a draft CAMCOS impact assessment study report was released for public consultation. On 17 September 1999, QT wrote to the appellant advising it that the property remained affected by the proposed final alignment of the corridor.
The final CAMCOS impact assessment study was released in February 2001. It identified the land as being affected by the corridor. On 22 March 2001, the Council wrote to Mr Tate, the appellant’s consultant engineer, advising that its officers were unable to recommend approval of the development application because the site was substantially affected by the proposed transport corridor as recommended in the CAMCOS report. On 20 April 2001, QT advised the Council, in response to a Council letter, that it would support the development application subject to conditions which included dedication of land on the site for a proposed railway station, corridor alignment and park and ride facility; and provision of pedestrian and cycle access to the station from surrounding areas.
During this period the appellant (and/or experts on its behalf) met with QT; and there was correspondence between the appellant and QT relating to issues such as alignment and elevation of the proposed rail line. Negotiations continued between Council and the appellant regarding the drainage issue in particular.
On 20 May 2003, Mr Dillon on behalf of the appellant requested Council to decide the application, and on 10 July 2003 Council approved the application subject to conditions and issued its decision notice on 16 July 2003.
The Appeal
The appeal was filed on 14 August 2003. The notice of appeal impugned a number of conditions, but many of the issues raised were resolved between the parties, and as a result of the Court ordered expert conclaves. Only three conditions remain under appeal, namely 2(a) and, consequentially 36, and 27.
Condition 2(a) in the Decision Notice is in these terms:
“2. within 60 business days of the approval taking effect, or at the same time as lodgement of the application for Operational Works, whichever occurs first, the applicant shall submit an amended plan of development for Council’s endorsement, depicting the following changes:
(a) a redesign of the development to incorporate the future CAMCOS alignment, station, park and ride facility and pedestrian/cycle corridors in accordance with plan prepared by Queensland Transport and included at Attachment 7 of Report Number 20030624.KP.1 from the Senior Planner, Katrina Patey dated 24 June 2003;”
Condition 36 (a):
“36 within 60 business days of the approval taking effect the applicant shall submit an amended landscape master plan for Council’s endorsement, depicting the following changes:
(a) a redesign of the development to incorporate the future CAMCOS alignment, station, park and ride facility and pedestrian/cycle corridors in accordance with plan prepared by Queensland Transport and included at Attachment 7 of Report Number 20030624.KP.1 from the Senior Planner, Katrina Patey dated 24 June 2003;”
Condition 27:
“27 dwelling units are to be designed and constructed to mitigate the impacts of noise, from the future public rail corridor planned to be constructed on and through the site, to the satisfaction of the Manager, Growth Management Unit Caloundra City Council. The acoustic treatments of dwelling units are to be based upon the advice provided by a suitably qualified and experienced person. The approved acoustic treatments are to be detailed on any building plans lodged for approval pursuant to the Building Act 1975;”
As a result of the conclave between the acoustic experts for the Council, (Mr Hillock), and the appellant, (Mr Kamst), agreement was reached between Council and the appellant as to the acceptable maximum internal noise level for dwellings erected on the site, and Council will therefore support an amended Condition 27 in these terms:
“dwelling units are to be designed and constructed to achieve a design maximum internal noise level of 50dB(A), taking into account the future CAMCOS alignment, station, park and ride facility and pedestrian/cycle corridors planned to be constructed on and through the site, and should be capable of sustaining such a design maximum internal noise level during both the development and use of the future CAMCOS alignment, station, park and ride facility and pedestrian/cycle corridors.
Within 60 business days of the approval taking effect, or at the same time as lodgement of the application for Operational Works, whichever occurs first, the applicant shall submit, for approval by Council, a detailed report by an acoustic engineer detailing how the required design maximum internal noise level shall be achieved.
The approved acoustic treatments are to be detailed on any building plans lodged for approval pursuant to the Building Act 1975”. (taken from page 6 of Mr Perkins’ report – exhibit 14)
The issue still in dispute relates to the timing of the acoustical mitigation measures required to achieve the acceptable maximum internal noise level of 50 dB(A), and who should bear the cost. The experts have agreed generally on design measures that could be incorporated at the time of construction; but Mr Kamst is of the opinion that the dwellings can be retrofitted to meet acoustic standards at the time the rail line and station are actually erected. Mr Hillock is strongly opposed to retrofitting.
The second outstanding issue is the requirement within Condition 2(a) for the re-design of the development to include pedestrian/cycle corridors from the East.
By far the most contentious issue is the remaining part of Condition 2(a) requiring re-design to incorporate the CAMCOS requirements.
As a result of negotiations, Mr Tate on behalf of the appellant has produced a re-design (exhibit 2), which does incorporate the future CAMCOS requirements. Mr Krisanski has no engineering objections to that re-design. Council has not finally approved exhibit 2, because it was produced so late, however Mr Houston made it clear on behalf of his client that the new design is very close to what is required. It is the appellant’s approach to Condition 2(a) that has occupied most of the time during the hearing.
The Issue of Timing
The appellant’s argument in a nutshell is that it is unfair that it should be denied the use of the 2.21Ha of its land to be resumed for rail purposes, in circumstances in which the State Government (i.e. QT) has refused to proceed under the provisions in IPA relating to designation of land for community infrastructure purposes, and has refused to acquire the land under the hardship provisions referred to in IPA. As a result, the land will be sterilised until such time as the corridor will be resumed which, on the evidence of Mr Dwyer, will be no earlier than 2015 and maybe as late as 2020. To this end, the appellant’s case is that the Court, using the conditions power it has under IPA, should allow the appeal to the extent of amending Condition 2(a) to read as follows:
“Proposed Condition 2(a)
Unless the Co-respondent serves a Notice of Intention to Resume on the Applicant within 45 business days of the approval taking effect, and completes the acquisition under that Notice of Intention to Resume within 12 months of the approval taking effect, the applicant shall proceed with the development generally in accordance with Rod Tate & Partners Pty Ltd drawing titled plan of development drawing number C 1937/98/P6c Amendment C and dated 02/04/03.
Alternatively, if the Co-respondent serves a Notice of Intention to Resume on the Applicant within 45 business days of the approval taking effect and completes the acquisition under that Notice of Intention to Resume within 12 months of the approval taking effect, then the Applicant shall proceed with development generally in accordance with layout plan drawing number C 1937/01/P 21g dated 02/02/04 by Tate Professional Engineers Pty Ltd.”
The drawing referred to in the second paragraph is exhibit 2, and the earlier drawing contains 250 dwelling unit and ignores the CAMCOS requirements completely.
If the Court imposed such a condition, in practical terms it would compel the Minister to acquire the land within 12 months, and failing that, the land will be developed without regard to the CAMCOS requirements.
The Council and both co-respondents strongly oppose the imposition of such a condition, both on town planning and legal grounds.
The Issues Examined
Exhibit 9 is a copy of the final CAMCOS report. The Study was commissioned by the State Government and was prepared in accordance with the administrative procedures under s.29A of the State Development and Public Works Organisation Act 1971. Under that section, QT was designated as the responsible authority on behalf of the Minister. On 2 April 2001 State Cabinet agreed to implement key recommendations from the CAMCOS study.
The report is replete with references to the need to protect the route immediately by designation of the corridor under IPA, and the need to appropriately compensate affected land owners.
The report contains a graphic of the implementation plan in Table 16.3. Mr Dwyer from QT, who is intimately involved with the CAMCOS process, acknowledged in evidence (with appropriate disclaimers) that the construction of the rail from Beerwah to Caloundra could be completed by 2015, so that site would not be directly affected until after that date.
It appears to be a fundamental premise of the report that acquisition of land to protect the route would occur early in the process. Part of Annexure CD22 to Mr Dwyer’s statement (exhibit 12) is a Land Ownership Map 890/114 which depicts the present status of corridor protection. According to Mr Dwyer, the CAMCOS corridor will require approximately 158 hectares of land of which 116 hectares (or 75%) is now either state or local government controlled, subject to an infrastructure agreement or other arrangement, or has already been purchased or is under contract. Since 2001, the state government has purchased 4 properties and another is under contract. These are identified in brown in the land ownership map. He says that $4.7 million has been spent on acquiring these properties.
Examples in the report of its emphasis on early acquisition to protect the corridor and/or compensation can be found in the executive summary at page (xi):
“Route protection is required immediately and is likely to occur through designation of the whole corridor under the Integrated Planning Act 1997.”
By reference to a number of properties including the site at 9.4.31:
“Many of the impacts associated with acquiring the land for the corridor would be deemed to have been satisfactorily mitigated through the provision of compensation.
Requests to acquire designated land under hardship can be made under the Integrated Planning Act 1997 once the Minister for Transport designates the corridor.”
And 9.4.4
“This also assumes that these landowners are appropriately compensated for loss of their land.”
Table 16.3 relating to the implementation plan indicates at an early stage in the process:
“Acquire, Protect and Maintain Route (approx $40 m over 10+ years)”
16.5 under the heading “Issues relating to Timing”
“Question: When would the first stages of CAMCOS need to be in place?
Answer: Route protection through designation is required immediately by designation process as set out in Section 2.6.8 of the Integrated Planning Act 1997.”
Mr Dwyer was the responsible officer within QT for preparing a submission to Cabinet consequent upon the release of the report in February 2001. As I have noted Cabinet approved key recommendations in the report on 2 April 2001.
My Dwyer said he became concerned about the designation process as recommended in the report and sought advice from Crown Law. The advice in part was that if the Minister did designate, then the Government may become exposed to hardship claims under s2.6.19 IPA relating to all the land even though the designated land was only part of the particular holding. As I have noted, the CAMCOS report predicts $40m in acquisition costs over 10+ years. According to Mr Dwyer, if the advice he received was correct then the Government’s liability could potentially exceed $1 billion. It was for this reason he says that designation was not the preferred option recommended to Cabinet; rather the recommended course was to use s.145 of the Transport Operations (Passenger Transport) Act 1994 (TOPTA) to which I will refer later. As Mr Dwyer’s submission to Cabinet and Cabinet minutes are privileged, Mr Dwyer’s evidence on this issue could not be tested. Certainly, insofar as it is relevant, there appears to be no reference to acquisition and/or compensation in the press releases which followed Cabinet’s acceptance of the final CAMCOS report. On 11 July 2001, the appellant’s solicitors wrote to QT seeking inter alia to negotiate an acquisition of the whole of the land on the basis of QT’s hardship guidelines. QT responded on 30 July 2001 rejecting that approach. Mr Dwyer who was the author of the letter, made it clear then that it was not QT’s intention to seek dedication of the land without payment of fair compensation. This misconception on the part of the appellant seems to have continued thereafter notwithstanding the clear terms of that letter. Indeed, Mr Dillon in his evidence before the Court seemed to be under the impression that dedication without compensation was still an option until he was reassured by Senior Counsel who appeared for both co-respondents that was not the case.
Mr Dwyer’s evidence is that the approach of QT will be to proceed to acquire land for the corridor some 2-3 years in advance of works being undertaken. This means in reality that acquisition will not occur for many years.
The Competing Arguments
Mr Hughes for the appellant submits that it is an appropriate use of the conditions power in s3.5.30 IPA to impose a condition that accords with the scheme in IPA for the designation by the Minister of land for community infrastructure, and the triggering thereby of the hardship provisions in IPA to which I have earlier referred. He does not contest the proposition that protection of the CAMCOS corridor is an important planning principle which looms large in this appeal, although he still relies faintly on the absence of any reference to the corridor in the current transitional planning scheme for Caloundra City.
His argument, in very simple terms, is that it is appropriate in all the circumstances of this case to impose the condition 2(a) in exhibit 24 to ensure that the State Government will be compelled to act within a determinate time to acquire the land required for the corridor. In his opening, he referred frequently in this context to issues of “fairness” and competing public and private interests in land. Mr Dillon in his evidence described the timelines of compensation as “the equity issue”.
Council for the respondent and co-respondent argue that to impose such a condition would be contrary to a line of authority in this Court dealing with issues of this kind, and contrary to another line of authority in the Queensland Full Court to the effect that this Court should not use the conditions power to achieve indirectly what it is not empowered to do directly under the relevant planning laws.
The Planning Documents
Before undertaking a detailed analysis of the competing arguments, I should refer briefly to the relevance of the planning documents in this case. There is common ground between the parties, and the three town planning experts involved in the appeal, that the CAMCOS corridor is needed from a planning perspective; and all accept the alignment. Although the corridor is not referred to in the gazetted planning schemes, it is provided for in the Draft Caloundra City Plan. Pursuant to IPA, this has recently completed its public display period; and submissions made are under consideration by the Council. In its Notice of Appeal, the case pleaded by the appellant in relation to Condition 2(a) is quite different from the case argued before this Court. No other party objected to this course and nothing turns on it, but because the omission in the planning scheme of any reference to CAMCOS was referred to by Mr Hughes in his submission, it is necessary for me to state that in my view, and consistently with the evidence of Mr Buckley and Mr Perkins, substantial weight should be accorded to the provision for CAMCOS in the Draft Plan: see Silverston Pty Ltd v Council of the Shire of Mulgrace & Anor [1993] QPLR 268 at 270 LJ to 271 LF; and per Brabazon QC DCJ in Edgar Pty Ltd v Brisbane City Council & Ors [2002] QPELR 183 at 195-196.
I agree with the submissions of Mr Gore and Mr Houston that the CAMCOS report, albeit not having the status of a town planning instrument of the Council, nevertheless should be accorded considerable weight and relevance in this case: Brisbane Wharves & Wooldumping Pty Ltd & Ors v Brisbane City Council & Ors [1994] QPLR 1 at 2.
In this context, regard must also be had to s.145 of the Transport Operations (Passenger Transport) Act 1994 (“TOPTA”) which provides that a local government must obtain from the chief executive, Department of Transport written approval if it intends to:
“(a) approve a subdivision, rezoning or development of land, or
(b) …
and the approval or the works or changes would have a significant adverse impact on the provisions of public passenger transport.
Section 145(2) empowers the chief executive to make guidelines to which local governments must have regard in deciding whether an approval of the chief executive is required under subsection (1).
For the purposes of CAMCOS, the guidelines were:
“The chief executives approval is required for all development applications on lots wholly or partly located within the proposed Caboolture-Maroochydore public transport corridor as defined by (a map derived from the draft final impact assessment study)”.
The Council was advised of these guidelines and requested to advise QT early in the assessment period of any relevant applications so that QT could advise of any conditions considered appropriate.
Pursuant to s145(8) of TOPTA, the chief executive must deal with an application for approval within 21 days of him/her receiving that application or “within a longer period notified to the local government by the chief executive within the 21 day period”.
There is no dispute that the Caloundra City Council sought the approval of the chief executive, concerning the development application pursuant to s145 (1) of TOPTA by letter dated 23 March 2001. The letter of the Council was not replied to by QT until 20 April 2001. Accordingly, the 21 day period prescribed pursuant to s145(8) had lapsed. This event however in no way limits the power of the Council to impose the conditions requested by QT: Listville Pty Ltd v Laidley Shire Council (1996) QPELR 378.
The Arguments Analysed
(a)Issues of Fact
There is very little dispute about factual issues. I am satisfied on the evidence of Mr Dwyer in particular that there is a high probability that the CAMCOS corridor will be constructed generally in accordance with the timetable set out in exhibit 9 and in Mr Dwyer’s own evidence. The appellant’s own case as demonstrated now by the production of exhibit 2, albeit reluctantly, strongly supports this conclusion. On the evidence, and bearing in mind Mr Gore’s express assurance to this effect to Mr Dillon, the State of Queensland has no intention of dedicating privately held land along the corridor without compensation. I am satisfied that at some time in the future, probably around 2015, the State will proceed to acquire the land on the site required for CAMCOS and identified in exhibit 2, and will pay fair compensation at the time of acquisition. On the issue of compensation, I agree with Mr Gore that although this part of the land will be sterilised for some years; the balance of the land can be developed now in accordance with Council’s approval. Future acquisition will create a right in the appellant (or the then owner of the land) to compensation: s12(5) Acquisition of Land Act 1967. In accordance with well established authority, compensation is assessed by reference to the market value of the land at the date of acquisition: Acquisition of Land Act 1967, s20, having regard to its highest and best use, and ignoring the scheme (in this case the transport corridor) underlying the acquisition: Director of Buildings & Lands v Shun Fung Iron Works (1995) 2 AC 11; Kebale Holdings Pty Ltd v Chief Executive, Department of Transport [1997-1998] 18 QLCR 166 at 190-191.
The Council has approved the development proposal for the construction of a retirement village. I am not prepared to find on all the evidence that either the Council or the co-respondent by its agent QT acted in a way to delay the approval of the development application, either deliberately or in some way relevant to the issues to be determined by this Court. The CAMCOS issue was a factor which delayed final approval, but it was not the only issue which caused delay. Drainage issues were a live issue between the appellant and Council from late 1999 to early 2003. I have carefully analysed the extensive documentation between the parties set out in the Exhibit Books. The appellant was aware of the possibility of the CAMCOS corridor affecting the land from an early stage. Certainly, QT’s response to Council on the 4 August 1998 was somewhat highhanded and it is probably a pity that QT did not take up Council’s suggestion in its letter of 24 July 1998 to forward its reply to the appellant, but, in my opinion, having regard to the history of dealings between the parties including QT and the appellant thereafter, nothing turns on this. Also, as Mr Houston observes in his written submission, at no time did the appellant act to bring the matter to a head by availing itself of the opportunity to appeal against a “deemed refusal” by the Council. The evidence does not support the appellant’s argument that either QT and/or the Council acted in relation to the CAMCOS issue to delay consideration of the proposal to any extent that would make it relevant to the task confronting this court.
(b)Issues of Law
The starting point is s3.5.30:
“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.
Mr Gore in his final oral submission, referred to the changes in the applicable planning legislation over the years. Under the repealed Act (s6.1(1)(c) Local Government (Planning and Environment) Act) a condition was unlawful if it was “not relevant or reasonably required in respect of the proposal to which the application relates.” In Proctor v Brisbane City Council [1994] QPELR 309 at 313 the Court of Appeal held that section 6.1 (1) (c) contained two alternate tests for validity of a condition –
“It may well be that a condition which is in no proper sense of the word “required” by a subdivision is nevertheless relevant…as falling within the proper limits of a local authority’s functions under the Act, as imposed to maintain proper standards in local development or in some other legitimate sense. For example, a condition relating to the layout of the subdivisional roads may not be able to be supported as “required” – reasonably or otherwise – by the subdivision in question, but may be defensible as reasonably imposed in the interests of the rational development of the area in which the subdivision is located.”
This construction was confirmed in Wise v Maroochy Shire Council [1999] 2 Qd. R 566.
These cases refer back to earlier decisions of the High Court where the test was limited to what is “reasonably required”: Lloyd v Robinson [1962] 107 CLR 142 and Cardwell Shire Council v King Ranch Australia Pty Ltd [1984] 88 ALJR 386. In Cardwell Shire Council (at page 388) it is said,
“..the local authority, in deciding whether a condition is reasonably required by the subdivision, is entitled to take into account the fact of the subdivision and the changes the subdivision is likely to produce…and to impose such conditions as appear to be reasonably required in those circumstances…”
The test in IPA makes only a minor change to the test for lawfulness in section 6.1.1 (c) of the LGPEA, and that is the test now imports a requirement that even “relevant” conditions must not be an unreasonable imposition on the development or use of the premises as a consequence of the development. In Hymix Industries Pty Ltd & Anor v Alberton Investments Pty Ltd [2002] QPELR 116, the Court of Appeal made it clear that whether or not a condition ought to be imposed is a question of fact, and not of law, unless on the evidence available “only one conclusion is open”, namely that a particular condition should, or should not be, imposed[1].
[1] per William J.A at paras [5] and [7]
Mr Gore (and Mr Houston) argue that a condition in terms of Council’s Condition 2(a) is both relevant to (by reference to the importance to the whole Sunshine Coast area of CAMCOS) but not an unreasonable imposition on the development.
Conversely, he argues by reference to a number of decided cases, that the appellant’s amended condition 2(a) falls outside the proper bounds of town planning controls. The authorities in chronological order are Standfield v Gold Coast City Council [1996] QPELR 136; Laver v Albert Shire Council [1997] QPELR 94; Northern Beaches Developments Pty Ltd v Mackay City Council [1999] QPELR 389 and Hammercall Pty Ltd v Gold Coast City Council [2002] QPELR 397. The first (3) cases were appeals involving rezoning applications under the repealed Act. In each case, an applicant’s appeal was dismissed, insofar as the proposal did not make provision for the proposed transport corridor. As Mr Hughes observed, the appellant’s proposal here does make provision for the corridor, but it goes much further in its proposed condition 2(a) to provide as a condition of the development approval a condition that will place pressure on the Co-respondent to proceed within 12 months to acquire the land. In Standfield and Laver, the Court found that the relevant transport corridors were more than mere possibilities; my finding in relation to CAMCOS is even stronger. In Laver, Newton DCJ considered that “considerable weight” should be given to the preservation of the likely corridor, and the proposed condition was “relevant to maintain proper standards in local development of the subject land through which the proposed rail extension is likely to occur”. Significantly, his Honour made this observation against the background of the decision of the Court of Appeal in Proctor.
In Northern Beaches, the appeal was against conditions of approval with some similarity to the present case. Judge Wall Q.C. observed (at page 395) “the conditions….set…parametersfor the inevitable subdivision applications and ensure that the land is provided with and properly serviced by a proper road system” and are “clearly related to the orderly development of the area” taking into account the draft strategic plan.
Hammercall is the most recent decision, and unlike the others, the development proposal was for a subdivision. The Court took the view that, in the circumstances before it, the proposed transport corridor was entitled to greater weight. Judge Quirk said (at 400):
“I was referred to a number of decided cases where this Court has had to deal with a situation of this kind in the past where there has been a prospect of a requirement of at least part of the subject land for public purposes. It is noted that, in these cases, the applicant was generally found to be in a stronger position where the zoning is in favour of the application rather than when a rezoning was required. However, I do not believe that these decisions establish any principle that where the land’s zoning favours an application to subdivide, the prospect of its being used for public purposes must be discounted. Every case depends on its own facts and a more important consideration is the weight of the evidence indicating that a public project is likely to proceed and the extent to which it will affect the subject land”
Mr Hughes correctly referred to a number of distinguishing features including that Hammercall was not concerned with the application of the IPA provisions dealing with the designation of land for community infrastructure. However, the case here from the perspective of the respondents is also not a case dealing with these provisions, because no designation has been made or is in contemplation on the evidence before this Court; and, as well, IPA itself recognises that designation is just one way in which community infrastructure may be identified in a planning scheme: s2.6.17(2)(b).
In my opinion, Hammercall has significant application in this case. In that case, the appellant’s case was that the subdivision should be approved but the approval suspended for a period of three years, to enable the Crown to acquire the land in the meantime. Judge Quirk expressed sympathy for the appellant’s position, and the utility of its suggestion, but ruled that the approach fell outside the proper bounds of town planning controls under IPA. He said (at 15):
“This Court is primarily concerned with town planning matters and its responsibilities are set out in the Integrated Planning Act. It is not concerned with legislative provisions governing the acquisition of land. To accept the Appellant’s suggestion would, in reality, appear to be protecting the Appellant from a potentially unfair situation by setting a timetable in respect of matters which are not the Court’s concern. In reality what the Court would be saying to the relevant authorities is:
“If you don’t acquire this land within three years you are going to be faced with a situation where it has gone into subdivision with all the practical difficulties to which that would give rise”
Adapting his Honour’s words to the circumstances here, if the Court adopted the approach put forward by the appellant, this Court would be saying to the State of Queensland:
“If you don’t acquire this land within 12 months, you are going to be faced with a situation in some years time in which you may have to proceed with acquisition in relation to a fully developed retirement village with all the practical difficulties to which that would give rise.”
The alternative plan put forward in the appellant’s proposed Condition 2(a) will mean that the site would be fully developed with 250 units, many of which will be directly in the path of the CAMCOS corridor. Mr Massey fairly acknowledged that in the event of an acquisition in the future in those circumstances, the consequences for the retired people whose properties would be affected would be serious indeed.
Before considering the alternative line of authority advanced by Mr Hughes, I will deal with his submission concerning the “scheme” of IPA in relation to designation of land for community infrastructure purposes. His argument in part relied on some of the purposes of IPA set out in s1.2.1 IPA and s1.2.2 and s1.2.3. The appeal to this Court is pursuant to s4.1.27 of IPA. Mr Hughes did not seek to establish any link either directly or implied between rights of appeal under s4.1.27 and appeals against decisions on requests to acquire designated land under hardship. IPA makes a clear distinction between the two, even providing for quite different costs outcomes in the case of a successful appeal: see s4.1.23 (4) dealing with successful appeals pursuant to s4.1.35. The designation process is covered by Part 6 of Chapter 2 of IPA. Once land is designated for community infrastructure, the owner may then request the designator to acquire the land on hardship grounds: s2.6.19. There is no power vested in this Court to (a) compel a designator to designate land, or (b) compel a designator to acquire land on hardship grounds. It is only if the designator refuses the request under s2.6.22 (b) that the owner may then appeal to this Court under s4.1.35 and the onus of proof is on the designator to establish that the appeal should be dismissed: s4.1.50 (7) IPA.
I am not satisfied on the evidence here that there has been any departure on the part of any of the respondents from s1.2.3 (1) (a) of IPA relating to the need for the decision-making processes to be accountable and efficient. Hammercall is the only one of the above cases decided under IPA, and the purposes of IPA are relevant. There are other purposes in s1.2.1 and 1.3.3 relating to co-ordination and integration of planning at the local, regional and State level that are relevant in the circumstances of this case.
The cases relied upon by Mr Hughes are Con Contarino v Sydney City Council (1967) 13 LGRA 332 per Hardie J at 333; Huon Investments Pty Ltd v Port Stephens Shire Council (1972) 25 LGRA 287 at 293; Halkava Pty Ltd v Warringah Shire Council (1970) 19 LGRA 182 per Hardie J at 186, Summerland Plantations Ltd v Brisbane City Council (1994) QPLR 352 and (on appeal) [1995] QCA 474; and Kabale Holdings Pty Ltd v Council of the Shire of Albert (1993) QPELR 252.
A number of these cases were decided on the basis of a lack of evidence that the relevant community infrastructure would be constructed. This is the case in the decision of her Honour Judge O’Sullivan in Kabale. As I have noted, even the appellant accepts as a fact that the CAMCOS rail corridor will likely be constructed and it will affect its land. I agree with Mr Gore that the New South Wales cases are of limited persuasive effect given that they were decided in an entirely different planning environment to that mandated by IPA. It is common ground that the cases referred to by Mr Hughes, with the one exception of the Huon Investments case, are the cases referred to by Judge Quirk in Hammercall at page 400 without identification. There is nothing in any of these cases to dissuade me from adopting and applying the observations of Judge Quirk at page 400 paragraphs 15 and 18 to which I have earlier referred. I accept that there is a clear need for retirement village accommodation in Caloundra City; indeed the contrary view was never advanced by the Council in this case; and my view is supported by the findings of Judge Quirk in Jenkinson Pty Ltd v Caloundra City Council [2002] QPELR 527 which concerned an appeal against a development of a relocatable home park on a site on the outskirts of Caloundra very close to the land.
The appellant’s argument in relation to town planning considerations therefore fails in relation to its proposed 2(a).
There is another compelling reason why this Court should not approve a condition in the terms sought by the appellant. In my analysis of the relevant IPA provisions, I have concluded that there is no legislative link between a conditions appeal such as this and an appeal against a refusal by a designator to acquire on hardship grounds. I observed in argument to Mr Hughes that if the legislature had intended such a link, then one would expect to find it clearly stated in the Act.
Mr Gore referred me to long established principle enunciated by the Full Court in Harderan Pty Ltd v Logan City Council [1989] 1 Qd R 524. In that case, a very experienced Local Government Court Judge had imposed a condition on a development approval which indirectly obliged the Council to carry out road works off site. In so doing, he followed a form of practice that had been adopted in the Local Government Court. At page 528, Matthews J (with whom Kelly SPJ and Vasta J agreed) said:
“He was, although, as is accepted, following a form of practice which had been adopted in other cases in the Local Government Court, attempting to do, indirectly, that which he had no jurisdiction to do directly. By analogy, I would adopt what Evatt J said in Deputy Federal Commissioner of Taxation (N.S.W) v W.R. Moran Pty Ltd (1939) 61 CLR 735,793, when after reference to Attorney-General (N.S.W) v Homebush Flour Mills Limited (1937) 56 CLR 390, he said, “ in that case, this Court applied the well-known principle that in relation to constitutional prohibitions binding a legislature, that legislature cannot disobey the prohibition merely by employing an indirect method of achieving exactly the same result.”
This Court has no power to oblige the Minister or indeed Council to designate the land. It has no power to compel the State Government to acquire the land. By imposing the proposed condition 2(a), the Court would be “attempting to do, indirectly”, that which it has no jurisdiction to do directly; and on this basis as well the appellant’s argument in relation to the proposed condition 2(a) must fail.
Other Disputed Conditions
(a) Condition 27
I prefer Mr Hillock’s evidence to Mr Kamst in relation to the proposal to retrofit the dwellings. Indeed, I thought Mr Kamst was only faintly pressing his point on this issue; and it revolved back to the question of fairness. I have already referred to the compensation cases which contain some comfort for the appellant in the event of future acquisition. Mr Massie, in his evidence, said that the additional costs to be paid at the construction phase to achieve an acceptable maximum internal noise level, such as double glazing, double insulation etc. will be passed on to the purchasers of the units.
(b) Pathways/Cycleways
In my view, the town planning evidence about a pathway or cycleway through the development from the East favours the appellant. The appellant has agreed to a condition that will require it to erect a pedestrian pathway along Kalana Road with direct access to the station on the site; and the issue of security in the context of a retirement village persuades me to accept the appellant’s argument on this aspect of Condition 2(a). I am persuaded on the evidence of Mr Dillon in particular and, to some extent, Mr Perkins, that the construction of a public pathway through the retirement village is, on balance, not good planning particularly as here, the upgraded pedestrian way along Kalana Road will provide direct access to the station from the East.
A Side Issue
Exhibit 25 is a collection of correspondence between the appellant’s solicitors and the solicitors for the respondents which was tendered by consent during addresses. In his opening, Mr Hughes flagged a possible argument about the standing of the Co-respondent in the appeal. A resolution of that debate, which is ventilated in this correspondence, was of no practical effect in this appeal, so it was not continued before me. The correspondence was tendered to preserve the appellant’s position on this aspect if that becomes necessary.
Orders
This appeal is allowed to the limited extent of removing from Conditions 2(a) and 36 in Council’s decision notice dated 16 July 2003 the words “and pedestrian/cycle corridors”. Otherwise the appeal confined to Conditions 2(a), 36 and 27 is dismissed. I will permit the parties 7 days to formulate amended conditions in light of these reasons if they see fit.
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