Smith and Smith v Maroochy Shire Council

[2003] QPEC 65

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Smith & Smith  v Maroochy Shire Council & Anor [2003] QPEC 065

PARTIES:

Graham Wallace SMITH & Anne Maree SMITH

Appellants

against

Maroochy Shire Council  Respondent

And

J.H & S.J McDonald  Co-Respondents

FILE NO/S:

20 of 2003

DIVISION:

Planning and Environment

PROCEEDING:

Appeal

ORIGINATING COURT:

District Court

DELIVERED ON:

12^th December 2003

DELIVERED AT:

Maroochydore

HEARING DATE:

4^th November 2003

JUDGE:

K.S Dodds DCJ

ORDER:

THE APPEAL IS ALLOWED

CATCHWORDS:

ENVIRONMENT & PLANNING – ENVIRONMENTAL PLANNING – RECONFIGURATION APPLICATION – APPEAL – submitter appeal against development approval for reconfiguration of rural residential land – appellant owner of adjoining rural residential land - wh co- respondent’s development should be conditioned requiring road dedication for future access to appellants land – section 3.5.30 Integrated Planning Act 1997

COUNSEL:

Mr W. Everson for the Appellant
Mr A.N Skoien for the Respondent
Mr D.C Fahl for the Co-Respondent

SOLICITORS:

Windsor Craig for the Appellant
Legal Services for the Respondent
P & E Law for the Co-Respondent

1. This is a submitter appeal by G.W and A.M Smith (Smith) against a development approval for reconfiguration of land for a major rural residential subdivision (McDonald’s land) in Maroochy Shire.

1. Smith does not contend the approval should be overturned, rather that it should be conditioned that there be provided in McDonald’s land a 14 metre wide road dedication (in proposed lot 18 on its western side) “to provide future access to lot 7 RP838069 in the north”. Lot 7 is Smith’s land (Smith’s land).

1. The area of McDonald’s land is 40.491 hectare. The applicant was J.H & S.J McDonald (McDonald). Development approval was sought from the respondent (Maroochy) to reconfigure it to 28 rural residential lots ranging in size from 6 290 m² to 16 200 m² with an average of 9 092 m².

1. Both McDonald’s land and Smith’s land are included in the same sustainable rural residential precinct 12 in Maroochy Plan 2000.

1. Smith’s land contains 6.943 hectares. Its southern boundary and part of McDonald’s northern boundary are contiguous. On its eastern, northern and western sides it is bounded by general rural lands precinct 11 in Maroochy Plan 2000.

1. McDonald bears the onus of establishing the appeal should be dismissed.

1. The grounds of the appeal were:

• Smith’s land was in the same

“sustainable rural residential precinct 12 as McDonald’s land but was bounded on its other three sides by precinct 11, general rural lands. Maroochy Plan 2000 code for reconfiguring lots, element 1.1 neighbourhood design, performance criteria P12, requires that ‘the layout is integrated with surrounding urban environment, complements existing attractive street scapes and provides for shared use of public facilities via adjoining communities”;

• Maroochy’s decision to delete the access dedication was in conflict with the town planning and traffic engineering staff recommendations;

• McDonald was informed at pre-lodgement meetings that the proposed layout needed to make allowance for future access to adjoining allotments especially sites that have the potential for rural residential development. Provision was made for an access dedication in preliminary layouts but deleted from the final development plan lodged for approval.

1. McDonald’s application for reconfiguration was lodged in November 2001. Prior to that, on 23^rd August 2000, surveyors for McDonald sought a pre-lodgement meeting. One of the matters on which they sought input was whether, if there was a reconfiguration, there would be a request to supply access to Smith’s land and another smaller block of land, with which Smith’s land shared a portion of its eastern boundary, lot 6 on RP 838069 (lot 6). At a meeting held on the 1^st September 2001 involving McDonald, Maroochy and others, Maroochy advised there was a need to investigate the connection to adjoining land, also in the sustainable rural residential precinct because “this property holds the key for the proper development of this area and council will seek to achieve the appropriate connecting roads, a concept plan will be necessary”. A traffic engineer at the meeting advised that

“the street running through the proposed allotments will function as a rural residential minor collector street. Further access to lots adjoining the site would be obtained from this connection. The lot layout needs to make allowance for future access to adjoining allotments and sites that have potential for rural residential development.”

1. A report of the planning and development committee of Maroochy of the 21^st of August 2002 about the application said that “it is reasonable to expect the applicant to provide sufficient connectivity to the rural residential allotment to the north”. It recommended the proposed development be approved with relevant and reasonable conditions. It recommended the decision notice require approved plans for the development “provide a 14 metre wide road dedication through lot 18 on its western site to provide future access to” Smith’s land. 

1. On the 11^th of September 2002 a meeting took place between Maroochy and McDonald’s surveyors. Following that representations were made by those surveyors in a letter to Maroochy dated the 19^th September 2002. Regarding access to Smith’s land it was submitted, firstly that the condition would create a rat run through the existing access which Smith’s land had to Malones Road and any road constructed on the proposed road dedication. Secondly it was submitted that it was not reasonable to fix McDonald with the burden of the solution to access to Smith’s land.

1. There were further meetings of the town planning committee of Maroochy. Council planning staff maintained their position that the condition requiring the road dedication should remain.

1. McDonald’s application was approved at a meeting of Maroochy on the 4^th December 2002, decision notice dated 6^th December 2002. Following this representations were made to Maroochy which were considered by Maroochy on the 19^th February 2003. A negotiated decision notice was then issued. There was no requirement for a road dedication through McDonald’s land to Smith’s land.

1. Both McDonald’s land and Smith’s land lie a short distance to the north of Maroochydore Road and to the east of the Bruce Highway. Maroochydore Road provides bitumenised access to Nambour and Maroochydore and to the Bruce Highway via a major roundabout a short distance to the west.

1. Access to Smith’s land at present is along a 575 metre or thereabouts easement from Malones Road. Lot 4 RP227856 in precinct 11 general rural lands (lot 4) is the burdened land. Lot 4 lies immediately to the east of lot 6 which lies immediately to the east of Smith’s land. The easement also provides access from Malones Road to lot 6. The easement runs adjacent to the southern boundary of Lot 4 and provides access to the southern portion of Lot 6 and Smith’s land.  

1. Use of the easement from Smith’s land to proceed to Maroochydore Road requires either a left or right turn into Malones Road. Malones Road is bitumened. Whichever turn is taken, Malones Road leads to Eudlo Flats Road. Eudlo Flats Road is subject to localised flooding, has a corrugated gravel surface, is four to five metres wide in localised areas and contains a number of partially blind bends and loose gravel shoulders. Travel directly to Maroochydore Road on Eudlo Flats Road involves travel on gravel surface. An alternative route to Maroochydore Road is to turn from Eudlo Flats Road into bitumenised Rafting Ground Road and then turn right again into bitumenised Titree Road which leads to Maroochydore Road. The latter is a slightly longer journey than the former, but involves a lesser distance on Eudlo Flats Road. To travel to Smith’s land from Maroochydore involves a right turn across approaching traffic in Maroochydore Road. There is some provision in Maroochydore Road for such a turn into Titree Road but not into Eudlo Flats Road.

1. Presently access to McDonald’s land is to its western boundary from Kentish Road. Kentish Road is partially gravelled and is accessed from Kiel Mountain Road which in turn is accessed from the Bruce Highway. To the south of McDonald’s land is Glenfinnan Court which services a developed rural residential subdivision. At its northern most point it terminates at McDonald’s southern boundary. It is good bitmen road. It is accessed from bitumenised Stark Lane which has access to Maroochydore Road. There is provision in Maroochydore Road for traffic turning into Stark Lane.

1. Constructed access to McDonald’s reconfigured land is to be from Glenfinnan Court. Glenfinnan Court will extend into McDonald’s land and become one of two internal roads. Although it is proposed to wind through McDonald’s land to service the proposed lots, its general direction is north and then west where there is to be a dedication of land for future connection to Kentish Road. Another internal road is to form a T-junction with the extended Glenfinnan Court about half way through McDonald’s land and proceed west to a cul-de-sac. The road dedication Smith wants is from the southern boundary of Smith’s land in a southerly direction to the cul-de-sac.

1. On a comparison of access to Maroochydore Road via Malones Road or via Glenfinnan Court and Stark Lane the latter is the superior option. It is more or less direct, on good bitumen road with provision in Maroochydore Road for traffic turning into Stark Lane. If Smith’s land were to have access to Maroochydore Road through McDonald’s land as proposed, the travel distance would be a little over 1.6km. Smith’s present access through the easement to Malones Road and Eudlo Flats Road is a little over 1.6km.

1. Under Maroochy Plan 2000 the intent for sustainable rural residential lands, precinct 12 is for land therein to remain predominantly used for rural residential purposes in ways that are sustainable in terms of the areas environmental values and physical capacities.

1. Maroochy Plan 2000, Volume 4, contains a code for reconfiguring lots. Its purpose  amongst other things is to provide for “well designed lot reconfiguration layouts such that each proposal is consistent with the desired character of the precinct in which the development site is situated.”

1. A major rural subdivision under the code is “any lot reconfigured for rural residential purposes on a site with more than 20 hectares of land and requiring the construction of a new road which is not a Major Collector Street or higher order road.”

1. Element 1.1 of the Code is for neighbourhood design, Its objective is to provide safe convenient and attractive neighbourhoods that meet the diverse and changing needs of the community. Performance criteria P3 provides that the street network provide a high level of internal accessibility and good external connections for local vehicle, pedestrian and cycle movements with traffic management to restrain vehicle speed, deter through traffic and create safe conditions for other road users. Performance criteria P12 provides that “the layout is integrated with the surrounding urban environment, complements existing attractive streetscapes and landscapes and provides for shared use of public facilities by adjoining communities”.

1. Element 1.2 of the Code is for integrated movement networks. Its objective is to provide movement networks for vehicles, public transport, pedestrian and cyclists that are integrated, cost effective and environmentally acceptable and minimise the impact of traffic on the residential environment. Performance criteria P4 provides that the street system connects with external traffic routes (or corridors) to maximise movement efficiency on the traffic routes. Performance criteria P6 provides for streets within any neighbourhood not to operate as though traffic routes for externally generated traffic. Performance criteria P7 provides for safe and efficient connections between transport corridors and residential neighbourhoods.

1. Element 1.3 of the Code is for street systems. Its objective is to create street systems in which the function of each street is clearly identified providing acceptable levels of access, safety and convenience for all users. Performance criteria P5 provides that the street system create convenient movement for residents between their homes and higher order roads. Acceptable measures include that the driving distance from any dwelling to the road network or Major Collector street is no more than… 2000 metres for rural residential areas.

1. It appears from the material in evidence before me that in about September 2002, Smith offered $10 000 to McDonald for a 10 metre wide dedication of land for future road access to Smith’s land. The offer was rejected.

1. By its inclusion in the sustainable rural residential precinct 12 Smith’s land has potential for reconfiguration. If for example it be supposed a reconfiguration into four lots were sought, absent road access through McDonald’s land, access would have to be provided somehow through surrounding general rural lands.

1. Smith’s present access is the easement through lot 4. Lot 4 is in the general rural lands precinct. It has an area is 9.489 hectares. Minimum lot size in the general rural lands precinct is 10 hectares. Any dedication of road access along the line of the easement would of necessity further reduce the lot size of Lot 4 below 10 hectares.

1. Maroochy Plan 2000 Codes for reconfiguration of lots for residential purposes (Code 8.2) and for rural purposes including rural residential (Code 8.3) define a hatchet lot in part as “a lot that has access to a road by means only of an access strip or easement”. See Element 5.1 lot layout and design. For residential purposes the relevant Code goes on to provide

“no more than two traditional hatchet lots are to be created behind any full frontage traditional lot … and only when Council is satisfied that there is no reasonable alternative to the second lot having regard to the sites topography access, location, shape and size … For any other types of lots (rural residential dual occupancy etc) no more than one hatchet lot is to be created behind a full frontage lot as shown in diagram D.”

For rural purposes the relevant Code provides

“no more than one hatchet lot is to be created behind any full frontage lot… and only when council is satisfied that there is no reasonable alternative to the hatchet lot having regard to the sites topography, access location, slope and size.”  

1. The evidence from the town planners, Mr Dillon for Smith and Mr Ryter for McDonald was that any reconfiguration of Smith’s land to produce more lots which sought to gain access along the easement was unlikely to be supported by Maroochy. Thus reconfiguration of Smith’s land was unlikely to be achievable despite its inclusion in the sustainable rural residential precinct 12. Ms Beasley, a town planner who gave evidence in Maroochy’s case, was more noncommittal.

1. All the town planners accepted that a planning principle of general application is to maximise connectivity between developments of a similar nature. The underlying purpose is to achieve permeability throughout residential and rural residential areas. Thus individual developments may contribute to the connectivity and permeability of the road networks in a locality.

1. If the road dedication sought were to occur it would reduce the area of McDonald’s land by approximately 1670 m². It would not reduce the lot yield for the reconfiguration. Some redesign would be required.

1. The road dedication sought does not benefit McDonald’s land other than to provide potential future access to the easement. Provision of access to the easement is of no real benefit to McDonald. In terms of connectivity it would provide a potential vehicular access link between Glenfinnan Street, Kentish Road and Malones Road and of course for Smith’s land to Glenfinnan Court.

1. Section 3.5.30 of the Integrated Planning Act 1997 (IPA) provides that a condition of a development approval must be tested against certain criteria. It must be:

·     relevant to the development or;

·     relevant to the use of the land as a consequence of the development;

·     but not be an unreasonable imposition on either.

or;

·     be reasonably required in respect of the development or;

·     be reasonably required in respect of the use of the land as a consequence of the development.

1. In Proctor v BBC & Ors (1994) QPELR 309 the Court of Appeal considered a similar provision of the now repealed Local Government (Planning and Environment) Act (P&E Act). Section 6.1 (1) (c) of that Act provided that a development approval could not be made subject to a condition that was “not relevant or reasonably required in respect of the proposal to which the application relates”. In the Planning and Environment Court Proctor was an objector appellant against the council’s decision on an application to rezone and subdivide land and to erect dwellings and other facilities. He contended for a condition of approval that road access be provided for his land which abutted the subdivided land across the subdivided land to a public road. Apart from that sought after access there were other possible means of access from his land to the road as well as to another road. The council declined to subject its approval of the application to such a condition. He appealed and the Planning and Environment Court dismissed the appeal. That decision was upheld in the Court of Appeal.

1. In its reasons for judgment the Court of Appeal said that the council had the power to impose a condition such as the appellants sought. It was not a precondition that, absent the condition, the appellant’s land was land locked. Regarding the words of the Act, the court said

“it may be that a condition which is not reasonably required by the subdivision is nevertheless lawful because relevant … it may well be that a condition which is in no proper sense of the word ‘required’ by a subdivision is nevertheless relevant in the way indicated by the High Court as falling within the proper limits of a local authorities function 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 subdivision 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”

1. Section 3.5.3O IPA enlarges on the provisions of section 6.1(1) of the P&E Act. It limits the criteria of relevance by providing that a condition though it may be relevant must not be an unreasonable imposition on the development of the land. That does not detract from what was said by the Court of Appeal in Proctor. I think it remains a relevant matter to be considered whether the layout of the subdivision roadways so as to provide connectivity to land outside the land proposed to be subdivided is reasonably required  “in the interests of the rational development of” this area of sustainable rural residential precinct. It should be noted that the condition sought does not require the road be constructed by McDonald. It only seeks the dedication of land for a future road which if and when constructed will become one of the roads in McDonald’s reconfigured land.

1. I am not persuaded that to impose a condition such as that sought is an unreasonable imposition on McDonald’s development. It will not result in reduction in lot yield, rather a minor reduction in lot size of one or two lots which when lot sizes are considered is a minor impact. There is no other real detriment. I note that fairly early on Smith’s offered to pay McDonald for the road dedication. 

1. The Co-Respondent has not shown the application should be approved absent the condition.

1. The appeal is allowed.