Sarina Shire Council v. Kilcor Properties Pty Ltd

[2007] QPEC 118

[2007] QPEC 118

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 3065 of 2007

SARINA SHIRE COUNCIL  Applicant

and

KILCOR PROPERTIES PTY LTD  Respondent

BRISBANE

..31/10/2007

ORDER

Catchwords
Interim enforcement order for provision of a traffic management plan considered "appropriate" - road safety concerns arose when use of respondent's site for a new supermarket-based shopping centre commenced (contrary to the requirements of the negotiated decision notice) before development condition requiring new roadworks were complied with.

HIS HONOUR:  The Court is acting somewhat peremptorily in this matter in making an order in terms of the draft which I have initialled which provides as follows:

1. The respondent complete all works necessary to comply with conditions 26 and 28 of the Council's negotiated decision notice dated 26 June 2007 for land situated at 4-20 Broad Street, Sarina more particularly described as Lot 2 on SP189036, by 4.00 pm on 28 November 2007 in the sequence depicted in the Broad Street Works Program dated 18 October 2007, which is attached and marked "A".

2.The respondent complete all works necessary to comply with condition 5 of the Department of Main Roads' referral agency response dated 30 January 2006 for land situated at 4-20 Broad Street, Sarina more particularly described as 2 on SP189036, by 4.00 pm on 28 November 2007 in the sequence depicted in the Broad Street Works Program dated 18 October 2007, which is attached hereto and marked "A".

3.By 4.00 pm on 31 October 2007, the respondent prepare and submit to the applicant for its consideration a traffic management plan of the kind exemplified in attachment "B" dealing with the manner in which the current use of the land situated at 4-20 Broad Street, Sarina more particularly described as 2 on SP189036 for the purpose of a Commercial Premises - Shopping Centre and its impact on the road network (in particular access to and the operation of Broad Street and Brewers Road, and the intersection of Broad Street and the Bruce Highway, Sarina) will be managed by the Respondent prior to the completion of the works required by paragraphs 1 and 2.

4.By 4.00 pm on 1 November 2007, the applicant advise the respondent, in writing, whether the traffic management plan prepared in accordance with paragraph 3:

(a) is acceptable to the applicant; or

(b) is acceptable to the applicant, subject to conditions which are to be expressly stated in the response to the applicant.

5.The respondent comply with the traffic management plan prepared in accordance with paragraph 3 and any conditions notified by the applicant in accordance with paragraph 4 until the:

(a) completion of the works required by paragraphs 1 and 2 to the satisfaction of the applicant; or

(b) upon earlier order of the Court.

6.Liberty to apply.

7.The matter be listed for review at 9.15 am on Friday, 2 November 2007.

There are good reasons for doing so, on the basis that there are public safety concerns. On the 24th of this month the Council filed an application seeking an enforcement order. The hearing date in the Court has been delayed until today when, somewhat to the surprise of the respondent, it meets an oral application by the Council for an interim enforcement order under section 4.3.24 of the Integrated Planning Act 1997. That gives the Court an extremely wide discretion to make the interim order if satisfied that would be "appropriate".

The respondent is the developer of a new shopping centre in Broad Street, Sarina.   Although the negotiated decision notice issued as recently as 26th of June 2007 the shopping centre authorized by it, anchored by a Woolworths supermarket, is now trading.  This has occurred without the completion of roadworks required to accommodate the expected heavy use generated by the shopping centre which were required by the conditions of development approval.  They have their genesis in large measure in requirements of the Department of Main Roads whose interest arises from the proximity of the development to the Bruce Highway in Sarina.

Both Broad Street and Brewers Road connect with the Bruce Highway.  Queuing lengths are such that it is easy for the Court to be satisfied that serious concerns about the smooth operation of the highway arise at least until the works required by the condition are completed.  The Council was aware that they had not been.  Apparently some time last month the Council, rather than insist on strict compliance with the approval conditions in relation to matters such as the certificate of classification authorised the commencement of the use.  The Council may have come to regret that indulgence because matters have not proceeded in the way that was contemplated.

The Council has got from the respondent or its consultant a time tabling schedule indicating when the roadworks ought to be completed and wishes to hold the respondent to that.

In addition, it requires the preparation of a traffic management plan to control traffic in the area until completion of the roadworks required by the negotiated decision notice.  There has been at the Court's invitation a good deal of evidence or assertion from the Bar table.  The respondent's failure to have roadworks done may well owe something to the design of new drainage works in the area which are to be provided by the respondent or its associates as successful tenderer to the Council.  The wisdom of coordinating the drainage works with roadworks in a practical sense seems obvious.

Mr O'Brien for the respondent tells the Court that there are already multiple traffic management plans in actual operation, one being to control traffic while the drainage works are undertaken.  That happens to be the document which has become attachment B to the draft order, at my suggestion.  It will run out, according to its terms, on Friday afternoon.

Mr O'Brien, in the interests of his client, is not prepared to consent to the Court's making any order today before he, the solicitors and the client have had the ordinary opportunity to consider things.   I suppose there is a concern that the making of an order has the implication that his client has failed to do things which it should have done. 

So far as things appear today that would appear to be a true proposition, but I am acutely aware that there might be some elements of injustice to the respondent in uttering it.

Mr O'Brien's suggestion is that the matter be adjourned until tomorrow to allow time to his client.  In the circumstances I cannot see the point in that.  That the respondent ought to comply with the development conditions which were to be completed before the use commenced seems self-evident.  That some arrangements ought to be made to control traffic associated with the shopping centre use seems obvious.

These matters ought to be kept under review, and indeed Mr Williamson's draft order supplied on behalf of the Council contemplates exactly that, with a review to occur on Friday by which time, if things run according to plan, the Council ought to have indicated its attitude to the traffic management plan required by close of business today.

If the assistance of the Court is necessary tomorrow, the Court will be available, but it might be possible to avoid that hearing.

Another concern expressed by Mr O'Brien is that the order makes no allowance for a force majeure interfering with achievement of the time table.  I would have thought it went without saying that matters genuinely beyond his client's control do not embarrass it.  This is only an interim enforcement order which can be reviewed at any time.

It may well be that come Friday a nominally interim order may be made which resolves the whole situation but for the moment there will be just an order in terms of the initialled draft.

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HIS HONOUR:  I have written in, in paragraph 3, after "traffic management plan" in line 2 "of the kind exemplified in attachment B" and attachment B is just the two operative pages.

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