Simpson Rayner Surveys v Brisbane City Council

[2000] QPEC 81

PLANNING AND ENVIRONMENT COURT OF

QUEENSLAND

CITATION:	Simpson Rayner Surveys v. Brisbane City Council [2000] QPE 081
PARTIES:	SIMPSON RAYNER SURVEYS Appellant And BRISBANE CITY COUNCIL Respondent
FILE NO/S:	Appeal No D 2646 of 2000
DIVISION:	Planning and Environment
PROCEEDING:
ORIGINATING	Planning and Environment
COURT:
DELIVERED ON:	21 December 2000
DELIVERED AT:	Brisbane
HEARING DATE:	14 November 2000
JUDGE:	Judge Quirk
ORDER:	Appeal dismissed
CATCHWORDS:
COUNSEL:	Mr W.Everson for the appellant Mr T.Trotter for the respondent
SOLICITORS:	Crouch & Lyndon for the appellant Brisbane City Legal Practice for the respondent

1. This appeal is against a condition which was imposed upon an approval of an

   application for reconfiguration of land at Moggill. The land occupies a total area of

   about 23 hectares and is on the southern side of Porter’s Road with frontage to the

   Brisbane River.

2. The existing configuration is, in reality, two allotments of approximately 12.1

   hectares and 11 hectares in area although there are also two subterranean allotments

   on the registered survey plan. The proposal was to reconfigure the existing layout to produce five allotments, the distribution of which can be seen in the plan

   attached to the application (Exhibit 1).

3. Somewhat ironically the matter which is now in dispute, ie., whether riverfront land

   should be dedicated for park purposes, was not an issue when the application was

   submitted. The abovementioned plan showed a proposed park (of two hectares in

   area) separating the allotments from the river.

4. The town planning report which accompanied the application stated (in section 3) –

   “a ten per cent park contribution will be contributed to council along the banks of the Brisbane River, which assists the council with their goal of acquiring a 40 metre open space buffer along the banks of the river”.

   The report added –

   “We believe a park dedication should be given instead of a monetary contribution for several reasons. More importantly it is for community benefit and also it addresses council’s open space requirement for a 40 metre wide strip along the banks of the Brisbane River.”

5. All of this was said in the context of the appellant’s seeking a relaxation (pursuant

   to section 20.2.16A) of s.20.2 of the town plan (in force at the time of the

   application) which provided that in the non-urban zone (in which the subject land

   was included) allotments should be of a minimum size of 10 hectares. The

   allotments identified in the proposal range in size from 3.6 to 6.5 hectares with an

   average of about 4.3 hectares. Section 20.2.1.5(i) allows for a 4 hectare minimum

   where certain criteria are met and although it appears that the council was satisfied

   in respect of these criteria, because some of the lots were of an area of less than 4

   hectares, a further relaxation was called for.

6. Section 20.1.2.6A allows for such further relaxation of the requirements of s.20.2

   relating to minimum areas where –

   “The proposed allotment would have complied with (the relevant requirements) were it not for the dedication of land for road widening or the transfer of land to the Crown for park purposes required as a condition of the subdivision and the council is of the opinion that the size and shape of the proposed allotment is adequate for the proposed use.”

   Had it not been for the proposed dedication for park purposes, the 4 ha. minimum

   could have been attained.

7. The council accepted the propositions put forward in the application and granted its

   approval, part of which was a condition acquiring that the provision of the area of

   park along the river frontage as shown in the application.. However, since the

   approval was granted, the owner of the subject land has been advised by those that

   would market the estate that the value of the allotments that could gain direct river

   frontage would be enhanced considerably if the river front park contribution could

   be deleted from the proposal. This appeal now challenges the condition and seeks a

   “contribution in lieu” in place of it.

8. The owner cannot be criticised for seeking to further his interests, but whether the

   condition should stand must be judged by reference to the relevant law which

   includes the relevant planning provisions. There was some debate as to whether the

   lawfulness of the condition should be judged by reference to s.3.5.30 of the

   Integrated Planning Act or s.6.1 of the Local Government (Planning and

   Environment) Act but, in my opinion, this is not a matter which need be pursued in

   this case because if a condition can be seen to be relevant to and a reasonable

   planning response to a particular proposal, it would be one which the council (and the court) has a discretion to impose whichever of the abovementioned provisions

   applied. For reasons which I will explain, I am satisfied that the disputed condition

   has both those attributes and is one which, in a proper exercise of discretion, should

   be imposed.

9. The approach taken by Mr Dang, the appellant’s town planning consultant, was to

   focus upon the need for park for public use which the additional allotments

   resulting from this proposal would create. He expressed the opinion that:-

   “the surrender of 2.3 hectares of prime riverfront land to the Crown as “park for public use” as the park contribution resulting from three additional allotments is not reasonable or justified given the large allotment size and the nature of broadacre living. The requirement of the condition is not a direct consequence as the result of minor increase in population density”.

10. I believe this is too narrow a view of the matter. The reconfiguration sought is an

    important stage in the progressive development of (and change in land use pattern

    in) the area. As Mr Vann (the council’s town planning consultant) pointed out the

    proposed reconfiguration is likely to be the full extent of redevelopment possible on

    this land for the foreseeable future. It is an opportune time for the council to ensure

    that development occurs in the area in an orderly manner and one which is

    consistent with the strategies spelt out in the relevant planning documents.

11. Both the Town Plan in force at the time of the application and the current City Plan

    (in the Waterways Code) identify the intention (and desirability) of established

    corridors along the Brisbane River for park and recreational use. Importantly the

    land in the part of the site which the dedication is sought is included in the Open

    Space zone in the 1987 town plan.

12. Material put before me indicates that the subject land has not been singled out in

    this context. Comparable land contributions have been sought and obtained in

    similar circumstances in the general area. Mr Vann, in his evidence, explained the

    town planning advantages involved in the strategies found in the relevant planning

    documents.

13. Furthermore, when one takes into account the need for relaxation in respect of lot

    sizes in this case, it is more than apparent on the evidence that the disputed

    condition is both relevant to and a reasonable planning response to this proposal.

14. For the reasons given, I am not satisfied that the onus of showing that the approval

    should stand free of the disputed condition. However, Mr Vann did point out that

    the relevant provisions of legislation and the local planning policy are such that

    only 7 per cent of the land should be dedicated along the riverfront in a location

    generally reflecting the area in the open space zone/parkland area. The approval

    should be amended to reflect this. Save for this minor modification the appeal must

    be dismissed.