Smith v Brisbane City Council
[2009] QPEC 135
•09 December 2009
PLANNING & ENVIRONMENT COURT OF QUEENSLAND
CITATION: | Smith & Anor v Brisbane City Council [2009] QPEC 135 |
PARTIES: | DAVID JOHN SMITH and SEANN JOY SMITH (Appellants) v BRISBANE CITY COUNCIL (Respondent) |
FILE NO/S: | BD46 of 2009 |
DIVISION: | Appellate |
PROCEEDING: | Developer’s conditions appeal |
ORIGINATING COURT: | Planning & Environment Court |
DELIVERED ON: | 09 December 2009 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 04 December 2009 |
JUDGE: | Robin QC DCJ |
ORDER: | Appeal dismissed |
CATCHWORDS: | Integrated Planning Act 1997 s 3.5.30 Council approved reconfiguration of two lots into three and material change of use for three single unit dwellings (two new units) – condition of dedication of strip along frontage to widen footpath from current 1.75m (or greater) to 2.5m – whether condition satisfied test of relevance and reasonableness – whether unreasonable imposition on the development |
COUNSEL: | N Kefford for the Appellants T Trotter for the Respondent |
SOLICITORS: | McInnes Wilson Lawyers for the Appellants Brisbane City Legal Practice for the Respondent |
This is a developer appeal against conditions of a development approval brought under s 4.1.27(1)(b) of the Integrated Planning Act 1997 (IPA). By s 4.1.50(1) it is for the appellants to establish that the appeal should be upheld. If the appeal fails, the development approval advised by the Council’s Decision Notice of 18 August 2008 remains intact.
The site is on the southern side of Cunningham Street, Taringa and comprises Lot 2 on Registered Plan 62646 (304m2) and Lot 3 on Registered Plan 62186 (611m2); their frontages are 7.544m and 15.088m respectively. The street numbers are 91 and 93. The development application identified the proposal as one involving new uses:
“1: 3 x single unit dwellings (2 new units plus one existing house)
and
2: Subdivision (2 lots into 3 lots).”
The existing house is a post-war, red brick structure straddling both lots erected close to ground level at the front; there is a matching red brick fence along the footpath alignment (whose retention the appellants say would be a desirable feature). The site falls away fairly steeply from Cunningham Street. The house is to be retained and become Lot 1 (343.7m2); there is room in the back yard for two “single unit dwellings”, to be Lot 2 (358.2m2 and Lot 3 (206.6m2). The new Lots 2 and 3 will be accessed by use of the existing driveway alongside the western boundary of the site; the driveway may become part of one or both of those lots. The boundaries, particularly at the rear, remind one of a gerrymandered electorate, featuring a dozen bearings where one might ordinarily suffice. The Council has approved the re-configuration subject to amendment to provide a 2.5m verge on Cunningham Street, which will have the effect of widening the footpath by something like 0.7 of a metre (which may not be consistent along the whole frontage).[1] The relevant conditions are the subject of the appeal. The appellants describe the Council’s exercise as a “land grab” and contend that the condition cannot be justified under s 3.5.30 of the IPA. Ms Kefford, representing them accepts that it is their task to persuade the court that the Council falls foul of s 3.5.30(1)(a) and/or (b) of the IPA. She submitted firstly that the proposed conditions were not reasonably required, not being a reasonable response to the changes which occur in consequence of the development (ie two lots into three and a material change of use for three single-unit dwellings), secondly that the conditions are not relevant (not being necessary to maintain proper standards in local development or for rational development of the area) and, thirdly that the conditions are an unreasonable imposition on the proposed development which threatens only a negligible increase in pedestrian traffic.
[1]The strip required to be dedicated by the conditions varies from six tenths of a metre to three quarters of a metre.
The development application required impact assessment as the site is located within a character residential area and a demolition control precinct. Exhibit 5 purports to reproduce 12 submissions from local residents, some of which were joint submissions. No submitter elected to become a party in the appeal. The Council’s decision on the development application does not give effect to the objectors’ complaints about the change to the amenity of the area threatened by the introduction of new residences; there are unsurprising complaints of increased density, loss of privacy, impacts on visual amenity, etcetera. A widespread concern is the narrowness of Cunningham Street, which was said to create issues of safety and parking pressure. Although the street is narrow, the expert traffic engineers the court heard from (Mr Stuart Holland, engaged by the appellants and Mr Colin Beard, engaged by the Council) considered the width of the carriageway acceptable. In the context of safety, some submitters (the Conroys and the Patties) in terms complain of the narrowness of the footpath and the MacGillivrays’ suggestion of a condition of any approval that there be a setback of at least double those at multi-unit properties of an earlier vintage must be construed as a call for a dedication along the frontage of the site to permit footpath widening. The safety of pedestrians using the footpaths is an issue for the submitters generally; one finds specific mention of the obstruction of footpaths in the immediate area by wheelie bins placed out for collection (fears are expressed that some, such as the residents of proposed Lots 2 and 3 may store their wheelie bins on the footpath as apparently happens in other parts of Cunningham Street) and by vehicles parking with wheels on the footpath.
Ms Kefford made the point that, while the court might be entitled to have regard to the submissions, they did not constitute evidence in the sense that the court could take them as proof of assertions made. That may well be the case. However, the court had the advantage of visiting Cunningham Street. Observations that could be made then support the submitters’ statements. The footpaths, where appreciably under (say) 2m in width, are obviously substandard and incapable of providing a haven for pedestrians which they can use conveniently (especially with encumbrances such as accompanying pedestrians or pets, prams/strollers and the like). The photographs in the exhibits, in my view, create a misleading impression of the space available, especially those showing wheelie bins which (on the evidence) are likely to be placed in inconsistent locations when put out by residents to be emptied and even more likely to be “placed” erratically and inconveniently after emptying by Council’s contractors. The Cunningham Street situation is compounded by its being a convenient access from the east to Taringa Railway Station (and the court was told by availability of station facilities to gain access to the Taringa shops beyond); the submitters express a view that parking problems in Cunningham Street are exacerbated by rail patrons choosing to park there. The court’s unfavourable assessment of the footpath is unaffected by the consideration that similar conditions may be encountered in many older areas of Brisbane.
The Council’s current standards for footpaths in suburban areas embodied in City Plan 2000 envisage footpath widths of 4.25m. That is acknowledged to be a luxurious standard, designed to accommodate features such as tree plantings and provision of parking bays, which necessarily reduce the usable width for pedestrians and cyclists. In the circumstances, for established suburbs, such as this part of Taringa, the Council seeks to set a more modest standard of 2.5m.
Mr Trotter, appearing for the Council, had no difficulty in regaling the court with chapter and verse from City Plan establishing the importance placed on roads and footpaths being suitable for pedestrians and cyclists, categories of users intended to be encouraged. See for example Chapter 3, 5.1.1 Desired Environmental Outcomes for Residential Areas, DEO 7, the Subdivision Code in Chapter 5 (The Design Elements for Each Scale of Subdivision Focusing on Pedestrian and Cyclist Facilities). The general design elements in this Code have a “Purpose 4” of encouraging walking and cycling “by providing a safe, convenient and legible Movement System to points of attraction within and beyond the development”. The Code’s Performance Criteria and
Acceptable Solutions in 5.1.3 for pedestrian and cyclist facilities are:
“
Performance Criteria
Acceptable Solutions
Planning
P1 The minor roads and path network must provide pedestrian routes and low speed, low volume routes for cyclists with connections to adjoining minor roads and major roads, open spaces and activity centres
A1 Walk/bikeways comply with the Bicycle Brisbane Plan, any Local plans and/or Neighbourhood Structure Plans
P2 A network of walk/bikeways must be provided to encourage walking and cycling in accordance with:
· identification of opportunities to link pedestrian and cyclist destinations such as schools, shopping centres, open space areas, public transport stations/stops, and local activity centres along the safest, most direct and convenient routes
· likely users, e.g. school children, parents with prams, the aged and/or people with disabilities, and commuters and recreational cyclists
· topography
· pedestrian and cyclist safety
A2.1 Walk/bikeways comply with the Bicycle Brisbane Plan, AUSTROAD’s Traffic Engineering Practice, Part 14 – Bicycles, Queensland Streets 1993 and the Transport and Traffic Facilities Planning Scheme Policy
A2.2 Walk/bikeways link each residential precinct to pedestrian and cyclist destinations by the most favourable routes
Location and design
P3.1 The location of walk/bikeways in a street reservation must be determined by vehicle speeds and volumes. The use of footpaths by cyclists must not affect the comfort and safety of pedestrians
P3.2 The alignment of walk/bikeways must be designed so that they are:
· varied to add interest and conserve trees and other significant features
· on easily trafficable grades
· well lit where subject to high night time usage
· on safe and convenient routes
· located where there is casual surveillance
· adequate for passing
· widened at potential conflict points
A3 Walk/bikeways are located and designed in compliance with the Bicycle Brisbane Plan, AUSTROAD’s Traffic Engineering Practice, Part 14 –Bicycles, Queensland Streets 1993 and the Transport and Traffic Facilities Planning Scheme Policy.
”
Additional requirements for 5.1.6 Minor Road Design are:
“
Performance Criteria
Acceptable Solutions
Function and width
P1.1 The design features of each type of road must convey its primary function
P1.2 The minor road reserve width must be sufficient to cater for all road functions including:
· safe and efficient movement of all users
· parked vehicles
· landscaping
· adequate cul-de-sac heads to enable a refuse vehicle to undertake a three-point turn
· location, construction and maintenance of public utilities
P1.3 The minor road verge width must be adequate for safety, visibility, pedestrian movement, landscaping for amenity, noise reduction, parking, allotment access and utility services and must be sufficient to provide for special site conditions and future requirements
Designing for safety
P1.4 The minor road design must facilitate safety for road users, including people with disabilities, the aged and children, by:
· providing a carriageway width that allows vehicles to proceed safely at the operating speed intended for that level of road
· making allowances for restrictions caused by on-street parking
· providing a horizontal and vertical alignment that is not conducive to excessive speeds
· promoting the safety of pedestrians where it is intended that they use the carriageway at bus stops and other crossing points
· promoting the safety of cyclists in streets and at crossing points
P1.5 Speed reduction techniques and devices must be used to achieve desired speeds as part of a design for the whole road environment
P1.6 Safe sight distances based on the speeds that vehicles may travel at in the street must exist at access points to properties, at pedestrian and cyclist crossings and at junctions and intersections including corner truncations
Access and verge
P1.7 The carriageway width, verge width and crossover dimensions must allow for unobstructed and efficient access to individual lots and sites even when a car is parked on the opposite side of the road
P1.8 Driveway egress movements must not create a safety hazard
A1 Design of the minor roads complies with Queensland Streets 1993 and the Transport and Traffic Facilities Planning Scheme Policy
”
It was not suggested that anything available in Cunningham Street complied with the various documents identified in the Acceptable Solutions column. Some attention was devoted during the hearing of the appeal to the contribution that widening of the footpath might make to safety when a vehicle was reversing out of the driveway on the site by providing an increased width of level terrain to enhance the driver’s opportunity to make observations prior to entering the carriageway: while this advantage of a widened verge was pointed to, Mr Beard was not prepared to accord much weight to it.
I took Mr Trotter to be submitting that the proposal is problematic from the point of view of the Services, Works and Infrastructure Code as regards P2:
“
Performance Criteria
Acceptable Solutions
P2 Frontage to the site must provide the following to an appropriate urban standard:
· an effective, high quality paved roadway
· an effective, high quality roadway kerb and channel
· safe, high quality crossings over channels and walkways
· safe, accessible high quality bikeways
· a safe, accessible, high quality public walkway compatible and integrated with the surrounding environment
· provision of and alteration to required public utilities
· effective drainage
· appropriate conduits to facilitate the provision of required street lighting systems and traffic signals
A2 The following are provided or already exist at the frontage of the site, to the standard that would have applied if the development formed part of a new subdivision:
· concrete kerb and channel
· forming and grading to walkways
· crossings over channels and walkways
· a constructed bikeway
· a constructed walkway, minimum 1.2m wide and full width from the property line to the kerb in Multi-purpose Centres
· reconstruction of any damaged public walkway in concrete
· construction of the carriageway
· payment of costs for required alterations to public utility mains, services or installations
· construction of and required alterations to public utility mains, services or installations
· drainage works
· installation of electrical conduits
”
Apropos specific planning for the area in the Toowong-Indooroopilly District Local Plan, the development principles include that:
“2.5 Pedestrian and cycle paths will be enhanced.”
Other Council instruments on which attention was focussed include the Transport and Traffic Facilities Planning Scheme Policy which commences:
“1 Introduction
In the City of Brisbane, transport and traffic facilities planning and design is undertaken in accordance with the requirements of Austroads guidelines and Queensland Streets – Design Guidelines for Subdivisional Streetworks, including the Australian Model Code for Residential Development (AMCORD).
The following sections highlight Council’s preferred solutions for aspects covered by these documents. Generally these have been developed with experience over time from the application of the standards/guidelines.
For information on detail design, the Council’s Subdivision and Development Guidelines should be consulted.
2. Pedestrian facilities
Provision for pedestrians is to be primarily on footpaths within road reserves, although walkways through developments, residential subdivisions and open space areas, particularly as linkages to public transport routes and activity nodes, are also required.
Verges are normally to be 4.25m wide with a 1.2m footpath. In commercial and high activity areas they are to be fully paved.
Footpaths are to be provided along both sides of all major roads and neighbourhood accesses that serve as bus routes. Other neighbourhood accesses have a footpath on one side. On low speed, low volume local accesses, pedestrians share the carriageway with vehicles and bicycles.
Pedestrian walkways through developments and residential estates are to be a minimum of 5m wide with a minimum 1.2m footpath, which is to be increased to 2.5m when required to provide a shared facility with bicycles. Walkways are to be as wide and short as is feasible to make them as obvious, convenient and secure as possible, e.g. the ideal walkway between a residential cul-de-sac and a major road has the full width residential street right of way contiguous with that of the major road, so that a concrete strip of the order of only 5m length would form the link.”
Ms Kefford sought to take some comfort from the above, the penultimate paragraph in particular. However, I agree with the argument made in the Council’s case that sharing of carriageways by vehicles and pedestrians is not contemplated in Cunningham Street. The Policy relevantly provides:
“5.5 Neighbourhood access
Neighbourhood accesses collect low volumes of local traffic. It is intended that neighbourhood accesses will:
·be constructed to type C standard
·provide direct property access
·minimise environmental impacts on surrounding activities
·be designed to provide safe use by pedestrians and cyclists and avoid conflicts between pedestrians, bicycles and vehicular traffic.
5.6 Local access
Local accesses provide for individual property access. It is intended that local accesses will:
·be constructed to type A or B standard
·minimise environmental impacts on surrounding activities
·provide a pedestrian and cyclist preferred environment
·be designed to provide safe use by pedestrians and cyclists and avoid conflicts between pedestrians, bicycles and vehicular traffic.”
Cunningham Street is a local access.
Verges, footpaths and pathways area the subject of Subdivision and Development Guidelines promulgated in November 2000 by the Council’s Urban Management Division. These provide:
“8.2VERGE WIDTH AND CROSSFALL
The verge width of all streets and roads in new developments is as shown in Table B8.2.1. Verge widths in older established areas may vary from these widths in order to fit in with the existing situation.
For Residential Streets (except bus routes) the verge width can narrow to three metres at traffic control devices or where the proposed road will meander within the road reserve. The verge width may also narrow to two metres where car parking bays are provided if approved by the Engineering Officer Development & Regulatory Services. Also refer to Chapter 5 of Part B of this document.
All verge widths must be measured from property boundaries to invert of the kerb and channel.”
Consistently with the Policy, by 3.6, neighbourhood accesses are intended to be designed to provide safe use by pedestrians and cyclists and by 3.7 local accesses must provide a pedestrian and cyclist preferred environment and (among other requirements) be designed to provide safe use by pedestrians and cyclists. Ms Kefford placed some reliance on 4.3.3 Verges:
“Major roads provide the most important pedestrian corridors because they link people generating activities on the most direct and best-graded alignments. They also are the principal bus routes, so pedestrian access to bus stops must be provided.
A 4.25m wide verge should accommodate a concrete footpath continuously on both sides of all major roads (refer Section 10.2.2 for appropriate paved widths which vary with location). This verge width also provides for the planting of trees which are important from the pedestrian shading and visual amenity viewpoints. Verge width should be maintained where indented bus bays are located. The absolute minimum width, which can be used at pinchpoints and not over any extended distance, is 2.5m. Where a bikeway is proposed on the verge, the verge width should be increased to 6.5m. Refer Section 9.0 for further details.”
as indicating the flexibility which the Council as planning authority is prepared to extend even for major roads, the implication being that for minor roads (such as Cunningham Street), the same insistence on high recently adopted standards is not appropriate. For minor road design, in accordance with Table 1.2 for industrial, local access and neighbourhood access (whether bus route or not) all are expected to have the verge widths of 4.25m, minimum. Mr Trotter drew attention to Note 3 (“Verge widths for roads providing frontage to open space relaxable to 1.5m subject to service corridor considerations”), Ms Kefford to Note 4 (“Verge widths for local access servicing less than 30 lots relaxable to 3m where justified by additional streetscaping and landscaping provision. Total minimum reserve width of 14m”.) For minor roads, the verges provision in 5.4.2 (which corresponds with 4.3.3) is as follows:
“5.4.2 Verges
Verges are generally 4.25m wide. For residential streets (except bus routes), the verge width may be reduced to 3m at localised points of constriction (such as at a speed control devices or at cul-de-sac heads) or where the proposed road will meander within the road reserve, provided pedestrians and service utilities can be accommodated. In rural residential areas an absolute minimum width of 2.5m may be accepted.
A 4.25m wide verge can accommodate a concrete path, but these are typically provided only on the more highly trafficked minor roads because it is accepted that pedestrians can share the carriageway with very low volume, low speed traffic (refer Section 10.2 for footpath requirements which vary with location). Verge design should avoid the clearing or disturbance of significant vegetation identified by the Natural Assets Local Law where roads front existing or proposed Council managed natural areas and parkland. In these situations, walkways, bikeways and drainage features should be aligned to protect significant vegetation.
This verge width also provides for the planting of trees, which are important from the pedestrian shading and visual amenity viewpoints. Verge width should be maintained where indicated bus bays are located.
Refer to Section 9.0 for additional requirements for verges.”
The provisions quoted from extensively above establish the importance attached by the Council as planning authority to achieving adequate footpath width, even accepting that “guidelines” or a “policy” may not command the same level of obedience as planning instruments more elevated in the hierarchy. Ms Kefford’s submissions included:
“21.with respect to the application of design standards, Rackemann DCJ observed in Australian Retirement Homes Limited v Pine Rivers Shire Council & Anor [2009] QPEC 92 at [13]:
“While it is appropriate to give weight to those documents, it would be inappropriate to strictly and slavishly apply each and every provision of them without due regard to the particular context and circumstances at hand.”
22.Similar observations were made about design guidelines by Skoien SJDC in Neilson v Gold Coast City Council & Anor [2005] QPELR 452 at 455 para. [25] where he said:
“First it must be observed that guidelines are what the name suggests, not inflexible rules but statements about usual events or what may generally be expected. There must sometimes be circumstances which fall outside the scope of guidelines.”
23.In this case, the following should be remembered when considering the appropriateness of conditions 21 and 45:
(a)the Policy is called up as an “Acceptable Solution” and as such, compliance with provisions of the Policy is only one means of achieving the relevant Performance Criterion (SDW Projects Pty Ltd v Gold Coast & Anor [2007] QPELR 24);
(b)section 1 of the Policy states:
“The following sections highlight Council’s preferred solutions for aspects covered by these documents. Generally these have been developed with experience over time from the application of the standards/guidelines.” (my emphasis)
(c)the requirement in the Guidelines for a verge of 4.25m is a principle for the design of new subdivisions, and the Guideline specifically provides that verges in older established areas may vary from those specified in section 5.4.2 in order to fit in with the existing situation; and
(d)a condition must pass the test for lawfulness in section 3.5.30 of IPA “despite the laws that are administered by, and the policies that are reasonably identifiable as policies applied by, an assessment manager or concurrence agency”.”
The traffic experts’ joint report explained Mr Holland’s disagreement with Mr Beard in the following way:
“Mr Holland does not believe it is reasonable to require dedication of the reserve widening for the following reasons:
(i)The development, creating only 1 additional allotment, does not contribute towards the need for the widening in any measurable way, and the development does not prejudice the ability of Council achieving the widening in the future if desired.”
(ii)The only developments that appear to have provided widening are the adjacent development to the west,[2] and development of 75 Cunningham Street (although the retaining wall for that development is still on the old alignment rather than the new alignment, so it is unlikely the widening will ever be available for public use). There are at least 3 other very similar recent developments along the same side of Cunningham Street (which have even narrower verges than at the site) that have not provided road widening.
(iii)The critical issue relates to pedestrians being able to pass along the verge behind refuse bins at the kerb awaiting collection. While it is agreed that the available verge width is narrow, it is not unacceptably so in that it can accommodate bins on collection day and still provide for the low density of pedestrians that utilise the street past the standard 0.7m wide bins. The proposal to provide a concrete footpath across the entire verge at the site frontage would assist in that regard. It is noted that the available width for pedestrians on refuse collection day would be virtually the same as that available at 75 Cunningham Street (where bins appear to be permanently stored in the verge).”
[2]This should probably refer to “east”.
In (i), Mr Holland contemplates the Council’s proceeding in the traditional way to achieve widening of the footpath by resumption and payment to the owner of fair compensation by reference to market value. That is not going to happen, realistically. As Mr Beard said in his evidence-in-chief at page 31, “… dedications can only be achieved on those applications where Council in fact has the power to do it under the various codes that are relevant. But, in my opinion, Council will do its level best, progressively achieve these widenings and … it’s just purely and simply a matter of one step at a time.” Without development applications such as the appellants’, progress towards an outcome that is desirable will not be achieved. In Cunningham Street as a whole and in its vicinity, the pattern of footpath width is messy. The Council may have missed some opportunities to require dedication of the kind in issue here. The site is the middle one, of three in the suburban block between Beatrice Street and Adsett Street. Close to half of the block at the Beatrice Street end is accounted for by a multi unit (town-house type) development, whose developer was required to dedicate to produce a 4.25m verge. If widening as desired by the Council occurs at the expense of the site, that will leave about one third of the block at the Adsett Street end with a narrow frontage. There, a character house occupies the relevant parcel. The experts agree that dedication to achieve a 4.25m wide verge would unreasonably impact on the amenity of that house but that some limited road widening would be feasible if the currently undeveloped portion of the site was developed. According to the experts’ report, the existing verge width at the site frontage, measured from the face of the adjacent kerb and the face of columns in the brick fence along the property boundary is 1.9m at the eastern end and 1.75m at the western end of the site, where it very likely coincides with that at the character house, which at present is bordered by a low timber retaining wall. Across Adsett Street the footpath situation becomes worse. There is a new house on the corner at number 81 with retaining walls and an existing verge of about 1.7m. The next block but one (number 75) contains a multi-unit dwelling approved long ago, but on the basis of a road dedication to achieve Council’s standard verge. Works have not been done to provide that, and a retaining wall constructed on the original alignment leaves a verge available for public use of about 1.8m, according to Mr Holland. He has identified locations where the usable verge is as narrow as 1.5m.
The obverse of Mr Holland’s (i) is that the dedication sought by the Council, which would reduce the area of the site by about 15m2, does not prejudice the development. This is a contrast with the position in May v Redland Shire Council [2009] QPEC 106, where the dedication sought by the local government might well have radically reduced lot yield in circumstances where a standard of 6,000m2 minimum per lot applied. The dedication sought here would require loss or removal of the brick fence and reduce the area of the front yard of proposed Lot 1. There was no evidence to show what the impact on the appellants in financial terms might be. It is correct to say that there is, to the extent of 15m2 to be dedicated, a loss of further (unidentified) development potential.
Apropos Mr Holland’s (ii), while concern will always arise if it appears that a planning authority is demanding more of some developers than of others, it is an unsound approach to insist that a bad decision or a series of bad decisions should be followed again and again. Mr Beard was able to distinguish all or most of the troubling development approvals on the basis that they did not require (as the appellants do) reconfiguration, in particular reconfiguration to provide additional lots. While the present reconfiguration technically creates only one additional allotment, in practical terms (given that existing Lot 2 is too narrow to accommodate a house) it creates two additional residences, generating concern that Mr Holland is, in calculating effects of the development, taking into account only half of them. Mr Holland’s conclusions in his subsequent individual report, Exhibit 3, are as follows:
“CONCLUSION
The issue in the appeal is in relation to conditions of approval 21 and 45 which require dedication of road widening from the site frontage to Cunningham Street. My conclusion is that those conditions should be deleted for the following reasons:
(a)The development, proposing only one additional residential allotment does not contribute toward the need for a road widening in any measurable way.
(b)The existing verge width is acceptable. Should Council wish to improve the existing situation, paving of the full width of the existing verge would be an appropriate solution in the circumstances.”
I am unsure whether he is now expressing a stronger view that the existing verge width is acceptable. With respect to his impressive and helpful report which contains much useful information, I cannot accept that conclusion, to which he adhered. I do not accept his opinion that no more is needed than “tidying up”, essentially to improve the surface, to make current arrangements suitable. I accept the views expressed by Mr Beard in cross-examination at page 36ff:
“Is it fair to say that the – that you view there to be a need for widening of the verge absent this development?-- Yes, I think that’s fair comment.
…
The desirability then of increasing the verge width is related not solely to the proposed development by any stretch of the imagination, but is also being driven by the existing problem coupled with the increase in density?-- I think , as you said, that irrespective of this development, verge widening is desirable. I think that when you are talking about rearrangement of boundaries, subdivision to create additional lots, three houses instead of one house on this property, I think that sort of intensification increases the need for improved verges, but, yes, the need to widen the verges existed before. I don’t certainly disagree with that.
If the only increase was the – I believe it was approximately 10 pedestrians that will result from this development, that by itself – if that were the only factor in comparing the existing verge to the – comparing the existing situation to the situation post development, that by itself wouldn’t justify widening the verge?-- If the existing verge was adequate then the additional pedestrian traffic volumes wouldn’t justify any further widening. Yes, you are quite right. I think it is a case of, as you said, the existing verge is inadequate and in my view this development will increase the need to rectify that problem.
Is it fair to say that you classify a verge width of 4.25 metres as ideal?-- It is ideal in new development, but as I said earlier that really provides for a wide range of things, particularly all of the services that you expect to find in verges these days, it provides for street trees, it provides for footpaths of varying widths. It can provide for bicycle movement. It can even provide for indented parking bays in some cases. So that 4.25 metres wide verge is designed to accommodate a wide range of activities. What I am saying is that in terms of the provision of the minimum amenity for a pedestrian pathway, 2.5 metres is, in my opinion, an appropriate absolute minimum.
So you would say that a verge width of 1.75 metres would have no utility?-- No, not at all. As I said, it is only some people would consider it to be inadequate now. There are some people that walk on the road now because they don’t like walking on the narrow verges. It is – a verge width of 1.75 or thereabouts has some utility and amenity. It would have significantly enhanced utility and amenity at two and a half metres and I simply made the point that going from two and a half to four and a quarter, it is not a question of every half metre extra is of equal value in terms of that utility, but below 2.5 I regard it is critical.
So you have said, though, that a verge width of 1.75 metres does have some utility?-- Yes, of course.
What utility does it have?-- It provides for people to walk with some difficulty. It does provide for the accommodation of wheelie bins. It does accommodate people carrying things. It just does it with some difficulty and particularly if someone comes the other way or they are walking a dog or if the wheelie bins have been knocked over when they have been put back down. It is just – we are only talking about degrees of acceptability.
I understand that. In terms of the difficulty that you refer to, is the difficulty limited to a situation where pedestrians wish to pass and there are wheelie bins out for collection?-- No, I think you really do have the whole gamut of things in terms of people choosing to walk side by side, school children carrying rucksacks and things which are quite bulky, that in effect extend their functional width, if you know what I mean, in terms of using the path. You do have prams, you do have people using wheelchairs. There is a whole range of things.”
Ms Kefford’s argument against relevance of the impugned conditions was:
“[35]While it is accepted that, as stated by Mr Beard, “failure to obtain a widening on some other site is not seen as a satisfactory justification for Council not obtaining a clearly desirable verge widening pursuant to this development proposal”, the Council’s past conduct and the minimal prospect of widening verge width ever being achieved along significant parts of Cunningham Street is relevant to a consideration of likely future streetscape and the reasonableness of a proposal to require dedication in this case.
[36]It is apparent from the history of development in the street that the streetscape of the area is likely to remain one which is, in part, characterised by its narrow pavement width and narrow verges.
[37]Furthermore, with respect to the adjoining character house to the west of the Site and located at 34 Adsett Street, it would seem unlikely that a dedicated widening of 0.7 metres would be achievable pursuant to possible future redevelopment of that property as suggested by Mr Beard having regard to:
(a)the location of the property within the Character Residential Area and a Demolition Control Precinct in Brisbane City Plan 2000;
(b)the character of the house;
(c)the extensive renovations which have been undertaken during the last 10 years;
(d)the ownership of the property and the current intentions of the owners;
(e)the extensive retaining wall supporting the western half of the Cunningham Street frontage of 34 Adsett Street;
(f)the potential for there to be redevelopment without requiring planning approval;
(g)the streetscape of the area and those circumstances referred to in paragraphs 32, 34 and 35 coupled with the statement at section 9.1 of the current Guidelines that verge widths in older established areas may vary from those specified in section 4.3.3 and section 5.4.2 in order to fit in with the existing situation.
Mr Holland appears to support the appellants in making the point emphasised in Hammercall Pty Ltd v Gold Coast City Council [2005] QCA 29 at [89]ff that the dedication conditions should fail because they will not achieve any useful purpose. If such a point was being made, I record my agreement with Mr Beard’s approach at page 32:
“What if the Council doesn’t get the whole lot in Cunningham Street. Is it still an improvement every time they get one more?-- Absolutely. Every metre of length of footpath that has the improved amenity improves the overall amenity of the area. And, of course, it’s more beneficial if you can string a number of them together, but every 20 metre length – well, this property is 22 and a half metres long. So every 22 and a half metre length … just improves the overall pedestrian amenity because that length is now more comfortable.”
I find myself in agreement with his approach encapsulated in answering the final question in cross-examination at page 45:
“You view the dedication as being desirable in terms of pedestrian amenity; is that a fair summary?-- I believe it’s desirable now. I believe that the need for it increases with the subject development, but I do believe it is a reasonable requirement of this development.”
But not if he was suggesting in earlier answers that the Council’s position gained some strength from a “give and take” approach whereby the appellants ought not to complain about the dedication condition on the basis that their development was facilitated by so-called “relaxations” in respect of other matters such as set-backs, inadequate manoeuvring space for vehicles on the site and the driveway giving access to Cunningham Street, which might be seen as too steep. In this context, “relaxations” may be used to describe favourable judgments reached by the Council that performance criteria were satisfied. I do not think that the case for requiring a dedication of land is strengthened because of favourable stances taken by the assessment manager in other respects. Plainly, there can be special cases, as where (for example) a set-back is technically inadequate because of the dedication itself. Ms Kefford pointed out that Council officers who assessed the development application did not draw attention to issues along these lines raised by Mr Beard.
The court can be expected to approach conditions asserted to constitute a “land grab” in a careful, searching way. Ordinarily, they ought to be proportionate to the proposed development. Ms Kefford referred me to MGW Hotels Pty Ltd v Gold Coast City Council [2007] QPELR 77 at [34]ff. It would seem to me an undesirable “precedent” to set here if the court were to pronounce against the condition with the consequence that in similar circumstances in future development applications calculated to bring about a similar intensification of residential uses in Cunningham Street, a condition of footpath widening could not be imposed. For the purposes of s 3.5.30 of the IPA, I have reached the view that the impugned conditions are relevant to the proposed development, and are not an unreasonable imposition on it. If it were necessary to go further, perhaps with a degree of hesitation, I would hold the twin conditions be reasonably required in respect of the development as a consequence of it.
Mr Trotter referred me to what Judge Quirk said in Simpson Rayner Surveys v Brisbane City Council [2001] QPELR 231 at [12] – [13]:
“[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.”
and what Senior Judge Skoien said in Delaview Pty Ltd v Redland Shire Council [1997] QPELR 250 at 252:
“I was referred to no authority to suggest that a council is bound to treat all similar applications uniformly. No doubt the principles of parity and equal dealing will be applied and should be applied unless there are reasons to the contrary. But there may be perfectly valid reasons to the contrary. The factual circumstances or the law may change in the meantime. Generally accepted attitudes may change. History gives countless examples of that. So what was done on the Goleby and Ziegenfusz land rezonings may be taken to establish a general pattern, but not Holy Writ. If it is clear to me that sufficient different considerations exist here, they will be applied in the appeal.”
I have indicated already my reservations about an approach along the lines of [13], although Mr Beard is no doubt correct that, in practice, in negotiations between local governments and developers an approach along such lines is taken; I agree with Senior Judge Skoien’s statement.
Ms Kefford’s written submissions distilled from leading cases going back to Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council (1970) 123 CLR 490 (at 499-500) (and thus for the most part necessarily decided upon statutory provisions not in precisely the same terms as the IPA) what I have accepted for present purposes as “well-established principles with respect to the conditions power”. The “principles” are largely collected in passages in a couple of recent judgments in this court, first Bryant v Caloundra City Council [2006] QPELR 335 at 337:
“[13]Section 3.5.30 IPA provides that a condition attached to a development approval must:
·be relevant to the development; or
·be relevant to the use of premises as a consequence of the development;
·but not be an unreasonable imposition on the development or the use of premises as a consequence of the development; or
·be reasonably required in respect of the development; or
·be reasonably required in respect of the use of premises as a consequence of the development.
[14]Whether a condition is reasonably required by a proposal requires a consideration of the proposal and what changes may result from its completion. Proctor v Brisbane City Council (1993) 81 LGERA 398.[3] The condition must be a reasonable response to the change in the existing state of things, which may result from the proposal. Wootton v Woongara Shire Council (1985) 56 LGRA 301.[4]
[3]The Court of Appeal said at 404:
“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 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. We would not, without further argument, be prepared to accept that the broad notion of relevance as applied in Lloyd v Robinson can have no application under s 6.1(1)(c) of the 1990 Act.
Of course the mere fact that a condition is relevant to the proposed subdivision will not necessarily be sufficient to justify its imposition. The positive side of imposing conditions is dealt with by s 5.1 of the Local Government (Planning and Environment) Act 1990, subs (3) of which requires the local authority to assess many prescribed matters “to the extent they are relevant to the application”. Section 5.1(6) grants the power to approve an application subject to conditions. Comparable provisions, dealing with planning scheme amendments, re-zoning in stages and subdividing in stages respectively are found in ss 4.4, 4.7 and 5.9 of that Act. The negative side is dealt with by s 6.1 which forbids the imposition of conditions that are not relevant or reasonably required. In this context, the positive matters that are to be addressed under s 5.1 assist in identifying the matters which may attract the imposition of conditions, but it is interesting to note that the category is not closed, and that the local authority is to assess “such other matters, having regard to the nature of the application, as are relevant” (s 5.1(3)(u)). A condition may therefore go beyond the specific matters mentioned in s 5.1(3), but it cannot be inconsistent with what may be seen to be the “terms or the plan or policy of the Act”: Coupe v Mudgee Shire Council (1986) 7 NSWLR 264 at 266; 61 LGRA 281 at 283-284 per McHugh JA.”
[4]The Full Court said at 303, apropos Gibbs CJ’s statement set out paragraph [23] below:
“Those remarks were made in a case where the question at issue was whether conditions could be imposed only if they were necessary to provide access or drainage to the land or if they provided a benefit to the land which would be enjoyed exclusively by persons connected with the land. The High Court held that this was too stringent a test. I do not consider that its observations are properly understood as meaning that a condition is not required by the use of the land if existing facilities are adequate to cope with that use. The question must be whether there is a relevant nexus between the use of the land and the conditions sought to be imposed, that nexus being that the proposed use creates such a change in existing affairs that the condition is a reasonable response to it.
The learned judge has found that the existing water supply and sewerage systems provided by the appellant council have sufficient present capacity for this development. However, in my judgment this does not have the consequence that there can be no relevant nexus between the use of the land as a caravan park and outdoor entertainment area and the making of contributions for the water supply headworks and the sewerage headworks which are required to bring water supply to the land and to take sewerage from the land. The contributions are to buy into an existing adequate system or infrastructure. Nevertheless, there seems to me to be a clear relationship between a use of land which would involve increased use of an existing system causing a corresponding reduction in the reserve capacity and a condition requiring a user to make a contribution to the cost of that system.
It follows, in my opinion, that it would not be unlawful for the council to subject the approval of the application to the conditions set out earlier in this judgment. If the council gives its consent subject to conditions, these must be reasonable and relevant: see bylaw 3(1)(C) of Pt 2 of Ch XXXII of the bylaws of the council of the Shire of Woongarra. The power to impose conditions upon an application for consent is accorded by this bylaw and not by s 33(16C) of the Local Government Act. The question for determination by the Local Government Court must therefore be whether the conditions sought to be imposed by the council are reasonably required by the use of the land to which the application relates.”
[15]In what circumstances a condition may be relevant was the subject of discussion in Proctor. Proctor was a subdivision case under the now repealed Local Government (Planning and Environment) Act 1990 (Qld). It was decided a condition may be relevant as a reasonable imposition in the interests of rational development of an area in which a subdivision was located even though not reasonably required by the subdivision.
[16] Section3.5.30 requires that a condition, even if relevant in the way discussed in Proctor, must also not be an unreasonable imposition on the development or the use of premises as a consequence of the development. This focuses attention on the development or potential use of the subject land as a consequence of the development and the reasonableness of the proposed condition in the light of the development or the potential use.”
The more recent one is Australian Retirement Homes (supra):
“[8] Putting to one side concurrence agency conditions, the power to impose conditions on the approval of an application is expressed in general terms (s 3.5.11(11)(b) of IPA). That must be read subject to the statutory tests for the lawfulness of conditions (s 3.5.30 of IPA), but there remains a relatively broad residual discretion in relation to the (lawful) conditions which may properly be imposed upon an approval.
[9] The exercise of that discretion should have regard to any relevant provisions of the planning documents.”
There should be added what Gibbs CJ (for the High Court) said in Cardwell Shire Council v King Ranch Australia Pty Ltd (1984) 53 ALR 632, 635; 54 LGRA 110, 113:
“The statutory test that has to be applied by a local authority in deciding whether to attach conditions to its approval in a case such as the present is whether the conditions are reasonably required by the subdivision. This means that 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 that the subdivision is likely to produce – for example, in a case such as the present, the increased use of the road and of the bridge – and to impose such conditions as appear to be reasonably required in those circumstances.”
and what Callinan J (dissenting) said in reference to that paragraph in Western Australian Planning Commission v Temwood Holdings Pty Limited (2004) 221 CLR 30, 87:
“… a condition must be for a planning purpose and not for any ulterior purpose, must fairly and reasonably relate to the proposed development, and, thirdly must not be so unreasonable that no reasonable planning authority could have imposed it. It may be doubted whether the third limb of the test is necessary. It uses the language of Wednesbury, but if, as the second limb of the test requires, the condition must fairly and reasonably relate to the proposed development, it must be a condition, not simply justifiable as one which a reasonable planning authority could impose, but one which is fair and reasonable in the circumstances of the particular case.”
I could not locate in the report cited in the submissions anything to support the asserted principle that when the discretion to impose conditions is exercised, “the result must not offend against common sense”. As indicated, however, I have accepted this is a correct proposition.
The judgment that the present footpath is inadequate and substandard does not depend on the falling short of the Council’s recent counsel of perfection seeking 4.25m verges, or, indeed, any other benchmark such as the so-called “absolute minimum” of 2.5m, which is being applied for the appellant’s development. The relevant footpath is inadequate, considered on its own merits, having become so because of the proliferation of vehicles (increasing both traffic movement and demand for parking) over the decades, and crucially, more recently, the use of footpaths for placement of wheelie bins for rubbish collection. Even if every resident eschewed leaving any bin out each week for longer than absolutely necessary, for parts of two days per week the rubbish bin will be there, accompanied by a recycling bin every second week. Because of people’s work and other commitments, bins will be put out early and collected late; they will not necessarily be placed with consideration for pedestrians using the footpath and, even if they are, negotiating them may be a problem for some, or a nuisance. My own observations confirm that, after clearance, bins may be left all over the place, may on occasions have fallen over so that the verge may effectively be blocked. The development can be expected to increase the number of bins from one to three for each weekly clearance, from two to six on recycling days. Widening of the footpath will attenuate those new impacts in a useful way, and is not an unreasonable imposition on the development. Further, the appellants have not shown that it is not reasonably required in respect of the development in the circumstances. In this context I do not accept that it is correct to describe the development as “modest” or its impacts as “negligible”.
The appellants’ offer to submit to a condition over, and above Mr Holland’s suggestion of paving the verge, that it be kept free of built form, except for the existing fence or a replacement, “to enable the Council to more readily acquire the dedication strip for footpath purposes should it so desire” is understandable, consonant with the philosophy that the Council should pay the proper cost of acquiring private land to be turned over to public purposes, as eloquently stated by Callinan J in Temwood Holdings at CLR 74:
“It is no doubt tempting for planning authorities, especially those that are also rating or taxing authorities, to seek to obtain for the perceived public benefit, such parcels of land as they can, for as little as they can, or for nothing. But that temptation cannot of itself justify the opportunistic imposition of a condition on a planning or a subdivisional approval, that the land owner convey land free of cost to an authority. The test of validity of such a condition is not whether its imposition is in the public interest, but whether the condition is for a planning purpose and reasonably required by, and related to the subdivision, in the light of other relevant considerations such as the changes, burdens and demands that the subdivision will produce. A condition which answers this description may still be valid even if it produces benefits for people other than the persons connected with, or who will occupy or use the subdivided land.”
In present day conditions, accepting that opinions (including judicial opinions) often differ, dedications of private land of developers are commonly appropriate, especially for road (or footpath) widening. Here, the acquisition is not going to occur, for lack of funds. It is unlikely that the Cunningham Street situation would be accorded a high priority for attention. The point, however, is that the relevant tests formulated in any of the ways set out above are satisfied by condition(s) requiring dedication.
The appeal will be dismissed.
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