Walker v Western Downs Regional Council
[2015] QPEC 33
•30 July 2015
PLANNING & ENVIRONMENT COURT OF QUEENSLAND
CITATION:
Walker & Anor v Western Downs Regional Council [2015] QPEC 33
PARTIES:
GRANT WALKER
&
MARIANELLA WALKER
(appellants)
v
WESTERN DOWNS REGIONAL COUNCIL
(respondent)
FILE NO:
P&E No. 4502/14
PROCEEDING:
Appeal
PLACE OF HEARING:
Brisbane
DELIVERED ON:
30 July 2015
DELIVERED AT:
Brisbane
HEARING DATE:
8 July 2015 (written submissions filed 20 July 2015, 24 July 2015 and 28 July 2015)
JUDGE:
Dorney QC DCJ
JUDGMENT:
It is ordered that all parties consult in order to prepare, and file, agreed short minutes of the judgment and orders to be made in accordance with these Reasons and, failing agreement, that each prepare, and file, submissions on the same by 4pm on 6 August 2015.
CATCHWORDS:
Appeal – whether conflict – what additional or alternative conditions (if any) to be imposed
LEGISLATION CITED:
Sustainable Planning Act 2009, s 245, s 313(2)(c), s 313(2)(e), s 313(3)(d), s 326, s 345(1), s 493(1), s 495(1), s 495(1)(a)
CASES CITED:
Insight Projects (Qld) Pty Ltd v Hervey Bay City Council [2008] QPELR 321
Smith v Maroochy Shire Council & Anor [2004] QPELR 358
Tully Sugar Ltd v Cassowary Coast Regional Council & Anor [2010] QPELR 643
Waverly Road Developments Pty Ltd v Gold Coast City Council [2011] QPELR 649
Wroxall Investments Pty Ltd v Cairns Regional Council [2010] QPELR 82
COUNSEL:
J T Dillon for the respondent
SELF
REPRESENTATIVE:
G B Walker (on behalf of the appellants)
SOLICITORS:
King & Company Solicitors for the respondent
Introduction
The primary issue in this appeal is what conditions, if any, should be imposed relevant to access arrangements concerning a proposed 4 lot “rural residential” subdivision of an existing Lot at 82 Watt Street, Dalby, in circumstances where the subdivision as presently proposed by the Appellants comprises 2 front lots with road access and 2 rear lots without existing road access (but proposed easement access). The appeal was filed 19 November 2014 against the conditioned approval referred to below.
The relevant code assessable development application for a reconfiguration of this lot (described as Lot 11 on SP202815) (“Site”) was lodged by Grant Walker and Marianella Walker, the Appellants, on 6 June 2014 with the Respondent, the Western Downs Regional Council (“Council”).
On 24 September 2014, the Council sent to the Appellants a Decision Notice approving the development but subjecting it to conditions. The plan of development considered by the Council was Drawing No 38659_POD_REVG (“Plan”).
The particular conditions contained in the Decision Notice which were, essentially, the contested subject of the present appeal as initiated were Conditions 1, 18, 24 and 28. But, as later discussed, a new Schedule of Conditions has now been proposed by the Council. No application in a proceeding was made – much less foreshadowed – by the Appellants for an adjournment to better consider these new Conditions or to propose ones alternative to those in the original application.
Background
The Plan designated:
·that the 2 proposed front lots adjacent to Watt Street would have dimensions of approximately 50m x 98m, each with a total area of 4,900m2;
·that the 2 proposed rear lots would have dimensions of approximately 50m x 102m, with a total area for each of 5,100m2; and
·that access to the 2 proposed rear lots would be provided by two access driveways with reciprocal easements, each being 5m wide and 98m long, to run along the central boundaries of both of the 2 proposed front lots to create battle-axe or hatchet blocks.
No provision was made for the access driveways to be sealed.
Dealing with the Conditions originally imposed by the Council:
·Condition 1.1(ii) required Stage 2 (involving the remainder of the development) to include a 20m road for access to the proposed rear lots 2 and 3, as per Condition 18.0;
·Condition 18.0 set out the basis for that new road (and a new road reserve), with a provision for sealing;
·Condition 24 set out the requirements for the design and installation of street lighting and consequential actions; and
·Condition 28.1 required the Appellants to dedicate, at no cost to the Council, specified land as a road reserve.
The Council, no longer contending that a road is, initially, required to provide access to the proposed rear lots, now submits that Conditions should be imposed requiring:
·that all the proposed lots be re-orientated so that they run lengthways north/south;
·that access be provided to the “rear” lots by way of a 10m wide easement running along the northern boundary of the development, with a 3m wide bitumen sealed driveway connecting to Watt Street; and
·that provision be made for the potential dedication of a 10m wide portion of land, which would include the proposed easement area, to facilitate orderly development.
These “new” Conditions are contained in Exhibit 6. This document also contains, on page 7, the relevant lot and access diagram and sets out the “disputed” new Conditions: 1.0, 18.0, 19.0, 20.0, 21.0, 22.0 and 23.0. Their effect will be considered later in these Reasons. No contest was undertaken as to those dealing with water (Condition 15.0) or electricity (Condition 26.0). The entirely new proposal in the Appellants’ lately filed Written Submissions has not been considered: see the attached “Alternative Configuration”. This is because neither expert called by the Council has had an opportunity to consider it and, if necessary, assist the Court in evaluating its strengths (if any) and weaknesses (if any). Furthermore, Mr Walker has not been subjected to cross-examination on it. Additionally, it raises the issue of an immediate dedication of a road reserve – not previously examined [in circumstances where there is no power in this Court to compel it: see Wroxall Investments Pty Ltd v Cairns Regional Council [2010] QPELR 82 at 91–95 [31]-[34] (per Robin QC DCJ)]. The evidence was finalised at the close of the hearing on 8 July 2015. It was not “fresh” evidence (in the sense that it could not have been obtained and considered at the Hearing). Even if I were to be wrong about its admission, I would give it very little, if any, weight (for the reasons just canvassed).
Relevant Statutory Provisions
In a “conditions appeal” such as this, under the Sustainable Planning Act 2009 (“SPA”) in respect of a code assessable development application, the Appellants bear the onus: see s 493(1) of the SPA.
Section 495(1) of the SPA requires that this appeal be way of rehearing “anew”. Furthermore, this Court must decide this appeal based on the laws and policies applying when the development application was made, though it may give weight to any new laws and policies that the Court considers appropriate: see s 495(2)(a) of the SPA.
On this appeal, this Court must assess the development application against the applicable codes, having regard to the purpose of any planning instruments containing the applicable codes: see ss 313(2)(c), 313(2)(e) and 313(3)(d).
This Court’s decision on this appeal must not conflict with a “relevant instrument”, unless there are sufficient grounds to justify the decision despite such conflict: see 326(1)(b) of the SPA.
Concerning the imposition of conditions, s 345(1) of the SPA provides that a condition:
·be relevant to, but not an unreasonable imposition on, the development or use of the premises as a consequence of the development; or
·be reasonably required in relation to the development or use of the premises as a consequence of the development.
The relevant principles applicable, and applied, here concerning the use of that power to impose conditions, extracted from Waverly Road Developments Pty Ltd v Gold Coast City Council [2011] QPELR 649, are:
·the power to impose conditions on the approval of an application is expressed in general terms;
·the power to impose conditions is subject to the statutory tests for the lawfulness of conditions;
·whether conditions are reasonably required involves a consideration of the proposal and what changes may result from its completion;
·the condition must be a reasonable response to the change in the existing state of things;
·a condition which is not “required” in respect of a proposed development may nevertheless be relevant on the basis that it is imposed to maintain proper standards in a local development or in some other legitimate sense, such as where it is reasonably imposed in the interest of rational development of the area;
·the mere fact that a condition is relevant to the proposed development will not necessarily be sufficient to justify its imposition;
·the requirement that a relevant condition not be an “unreasonable imposition” 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 light of the development or the potential use; and
·there remains a relatively broad discretion in relation to the lawful conditions which may properly be imposed upon an approval and, in exercising such a discretion:
oregard must be had to a relevant considerations, including relevant provisions of the planning documents;
oimproper consideration must be disregarded;
othe result must not offend against common sense;
othe conditions must fairly and reasonably relate to the permitted development or the planning considerations affecting the land; and
oit must be fair and reasonable within the circumstances of that particular case;
: at 659 [47].
A relevant, and reasonably recent, authority concerning conditions is Insight Projects (Qld) Pty Ltd v Hervey Bay City Council [2008] QPELR 321. Although the two questions which came to predominate there were different from those with which the Court is concerned here (there, whether the road within the proposed subdivision should be continued through into the cul-de-sac at the end of the relevant street and whether, if such a road were not required, that pedestrian access would be appropriate), it was held that, where planners had agreed that (as general town planning principles) the greater the degree of permeability provided by road and pedestrian network in a particular locality the better and that each development should contribute to an acceptable road/pedestrian network and an acceptable subdivisional pattern within the locale, the Court can recognise that connections (that is, “connectivity”) between like developments are “a desirable incidence of good town planning”: at 322-323 [11]-[12].
Earlier, in Smith v Maroochy Shire Council & Anor [2004] QPELR 358, it was held that it remains a relevant matter to be considered that the layout of the subdivisional roadways so as to provide connectivity to land outside the land proposed to be subdivided can be reasonably required “in the interests of the rational development of” an area of a sustainable rural residential precinct: at 362-363 [36]. In particular it was noted:
·that the conditions sought did not require the road to be constructed by the developer;
·that the conditions also sought the dedication of land for a future road, which if and when constructed would become one of the roads in the developer’s reconfigured land;
·that the court was not persuaded that to impose conditions such as those sought was an unreasonable imposition on the developer’s development;
·that such conditions would not result in a reduction of the lot yield but, rather, a minor reduction in the lot size of one or two of the lots (which, when lot sizes were considered, was a minor impact); and
·that there was no other real detriment;
: at 363 [36]-[37].
Current Planning Instrument
The existing planning scheme is contained in the Wambo Shire Planning Scheme (“existing Scheme”). The relevant zoning, under it, is “Rural”. As the intent of Part 4.1 states, the Rural “Zone” is intended primarily for rural uses and associated activities. By Part 4.1.2, dealing with the Rural Zone Tables of Assessment, for “reconfiguring a lot”, the Assessment Category is “Code Assessment” and the Applicable Code is “Reconfiguring a lot Code”.
Part 5 contains the Code for “reconfiguring a lot”. By-Part 5.2, dealing with the “Code Purpose”, outcomes are stated as being the “Purpose of this Code”. They include, for reconfiguring a lot, that it achieves a lot size appropriate to the “Zone” in which the site is located and maintains the local amenity and environmental characteristics of the locality through appropriate lot layout and design: see Part 5.2(1)(a). A further outcome is that reconfiguring a lot is undertaken in an orderly and logical sequence to achieve efficient provision of infrastructure: see Part 5.2(1)(c). By-Part 5.2(1)(f) another outcome is that reconfiguring a lot does not impact adversely on infrastructure. Lastly, for present purposes, Part 5.2(2) states an outcome that each lot (created by the reconfiguration) has water supply, storm water disposal, sustainable effluent and waste disposal, power and access to the road network to appropriate standards.
In Part 5.3, dealing with performance criteria and acceptable solutions, for the relevant land, AS1.1 states that all lots have a minimum area of “300.0” hectares. PC1 states that the minimum lot size for the Rural “Zone” ensures that the Zone “retains its viability as an area of primary production, consistent with the local character”.
PC11 deals with “Layout and Design”. The relevant Performance Criterion particularly states, by (a) and (b), that reconfiguring of lots is, respectively, to ensure safe and liveable communities and to ensure safe and legible vehicle and pedestrian movements, areas and roads. Also, PC11(c) states that the reconfiguring of lots is to integrate with adjoining land. PC19 covers “Vehicle Access”; and PC20 covers “Roads, Firebreaks and Maintenance Trails”.
Draft Planning Instrument
The relevant instrument here is the draft Western Downs Planning Scheme (“draft Scheme”). Its history is set out in paragraph 6 of the affidavit of Erin Louise Kay (which was filed on 8 July 2014, by leave). In brief terms:
·on 2 December 2009, the Council resolved to receive expressions of interest for the preparation of a planning scheme that covered the entire Western Downs Region (including both the Wambo Shire and the Town of Dalby, as well as many other areas);
·in early 2010, the Council engaged Humphrey Reynolds Perkins now Cardno HRP) to commence drafting the draft Western Downs Planning Scheme;
·the statutory guideline for making and amending local planning instruments at that time was Statutory Guideline 02/09, dated 25 November 2009 (Exhibit 5);
·the draft scheme had its first State interest review between March 2012 and March 2013;
·the draft scheme was publicly notified between August 2013 and April 2014;
·the draft scheme is currently being reviewed; and
·the Council anticipates undertaking further consultation towards the end of 2015.
With respect to this draft Scheme, the relevant Zone would be the “Rural residential zone”. By Part 5.7, particularly from Table 5.7.1, the identified level of assessment for reconfiguring a lot for the relevant Zone is “Reconfiguring a Lot Code”. Dealing with the purpose of this Zone, Part 6.2.12.2(3) states that the purpose of the relevant Zone code “will be achieved” through overall outcomes such as:
·that the scale, intensity, form and character of development are complementary to the built form “typology” and landscape character of the surrounding area: at (b); and
·that developments are undertaken in a logical and orderly sequence that makes efficient use of existing and planned urban infrastructure: at (f).
Because the relevant precinct is Precinct 1, designated as the “Rural Residential 4000 Precinct”, the maximum net residential density of 2.5 dwellings per hectare is to be achieved: see Part 6.2.12.2(3)(k) and Table 9.4.4.2 (referencing 4,000m2).
Table 6.2.12.1 sets out the relevant performance outcomes and acceptable outcomes, relevantly, as follows:
·by AO3.1, that the buildings and structures have a minimum setback of 15 m to the primary relevant frontage;
·by AO3.2, that the buildings and structures have a minimum side and rear boundary clearance of 10 m;
·by AO4.1, that the site cover does not exceed 20%;
·by PO3, that the building setbacks are appropriate (having regard to 4 specified factors);
·by PO4, that the development protects the semi-rural and natural landscape values of the area and is usually unobtrusive; and
·by PO5, that the development must not detract from the amenity of the local area, having regard to, in particular, noise, visual amenity and emission: at [a], [f] and [i].
The relevant “reconfiguring a lot” Code is contained in Part 9.4.4. As Part 9.4.4.1 states, this Code applies to assessing reconfiguring a lot for development in “all zones”. By Part 9.4.4.2(1), the purpose of this Code is to ensure that reconfiguring a lot results in development that is consistent with the purpose and overall outcomes of the zone or precinct in which the land is located. In particular, Part 9.4.4.2(2) states that the purpose of this Code will be achieved through the following overall outcomes, among others:
·that lots are of a suitable size and shape for the intended or probable use having regard to the relevant zone and/or precinct: at (b);
·that lots are provided with safe and efficient access that is not likely to create or exacerbate traffic problems or adversely impact on the functioning of the road network: at (d);
·that lots have efficient and cost effective access to the full range of development infrastructure and services and integrate with transport networks: at (e); and
·that reconfiguring a lot does not compromise the future development of adjoining land: at (i).
Pursuant to Table 9.4.4.1, dealing with the criteria for assessable development, relevant performance outcomes and acceptable outcomes are as follows:
·by AO1.2, that no rear lots are created;
·by AO1.3, that lots are regular in shape; and
·by PO1, that the layout and design of lots enable the provision of safe and legible vehicle access, car parking and manoeuvring areas: at (c).
It needs to be remarked that a “Note” to PO1 states that, where rear lots are provided that are “consistent with” PO1, no more than 2 access corridors for battleaxe shape allotments are to be situated adjacent to each other and that access corridors to rear lots are to have a minimum width of 5.0 m where in a Residential Zone category (and otherwise of sufficient width to accommodate the maximum vehicle class servicing the site): at (i) and (ii).
With respect to the Transport, Access and Parking Code, it applies to assessing all development involving reconfiguring a lot in all the zones.
By Part 9.4.5.2(2) the “purpose” of this Code “will be achieved” through the following overall outcomes, including:
·that development is integrated with the transport network to maximise the accessibility and efficiency of traffic and transport movement: at (a);
·that the hierarchy of the transport network is maintained and reinforced by development: at (b); and
·that on-site car parking and manoeuvring areas are provided that are safe, convenient and legible for vehicle and pedestrian movements: at (e).
Pursuant to Table 9.4.5.1 concerning the assessment criteria, relevant performance outcomes are:
·by PO9, that adequate car and service vehicle manoeuvrability is provided on site to ensure safe and functional vehicle movements on the site, vehicle access and road networks; and
·by PO13, that the road hierarchy provides a safe and efficient transport network catering for the movement of people and goods throughout the region, whilst maintaining the amenity of urban and rural areas.
Areas of Dispute
Although the Council originally imposed conditions requiring the construction of a road and cul-de-sac to provide rear lot access, its final contention was that the replacement conditions in Exhibit 6, requiring an access easement and driveway along the northern boundary, with the potential for a future road dedication, would best satisfy the appropriate statutory tests.
For their part, the Appellants contended at the Hearing that their original access arrangement by means of central access handles and reciprocal easements, thereby creating two battleaxe blocks, would, without more, satisfy the statutory requirements. I have dealt with later, modified contentions made by them in these Reasons.
I will, when discussing the evidence dealing with the relevant statutory requirements, discuss the particular positions, including fall-back positions, contended for by both the Council and the Appellants
Evidence (generally)
The Appellants called no expert evidence. Although initially offered the choice of giving evidence in person at the beginning of the hearing, the male Appellant, who appeared on behalf of both Appellants, elected not to take that course then; but, in accordance with the leave that I gave to him, he did give evidence after Mr Colin Leonard Beard, a traffic engineer, who had prepared an expert report (Exhibit 2), and Mr Christopher Buckley, a town planning expert who had also written a report (Exhibit 1), had both been called to give oral evidence and both had been cross-examined – although Mr Buckley needed to be recalled.
I will deal with both experts’ evidence when I come to consider the issues upon which their respective expertise impinged.
As for Mr Walker, he first produced 4 photographs (which became Exhibit 7) which purported to show battle axe type access roads in an area known as Spring Creek Drive. Thereafter, he produced a 2009 zoning map (which became Exhibit 8) – for the limited purpose of showing where the next 4 specific photographs had been taken – which photographs were in an area known as Derrick Avenue. Those latter photographs became Exhibit 9. Although the Appellants’ Written Submissions (filed after the Hearing on 8 July 2015) attempted to lead “further” evidence, I have ignored it (in circumstances where it was made clear at the Hearing that it was then that was the appropriate time for any evidence). As for an inspection, or view: it was canvassed at the beginning of the Hearing and, after I gave my indicative approach to it, neither party submitted that it was necessary for the limited purpose that it serves. It is to be noted that it does not constitute evidence in itself. It simply helps the Court to better understand the evidence led.
Battleaxe access easements
Before dealing with how such an access is dealt with under each of the relevant planning schemes, it is necessary to determine whether the evidence led on behalf of the Appellants has any relevance and, if so, what weight, if any, it might have on this issue.
Turning, first, to the evidence given by Mr Walker about such developments on Spring Creek Drive, this particular area is on the western edge of Dalby and it is to the east of the proposed development. More importantly, it is in a different planning scheme area, being subject to the Dalby Town Planning Scheme (as can be seen from Exhibit 4, which is a Precinct Map of that particular scheme). It does, for the draft Western Downs Planning Scheme, however, lie in the same Zone, and Precinct, as the Site. The photographs which became Exhibit 7 were said to be identified (as to place) by a Map (created on 3 December 2009) which was admitted for the limited purpose that it sought to depict where the photographs were taken.
The other aspect of the evidence on this issue is the 4 further photographs (Exhibit 9) which purport to show lots on Derrick Avenue. Similar to Spring Creek Drive, this road is also subject to the Dalby Town Planning Scheme and, additionally, is on the opposite side of the town of Dalby, on its eastern outskirts (as can be seen from Exhibit 4).
I accept the Council’s arguments that there are severe limitations which ought to be placed on Mr Walker’s evidence on this issue. Importantly, there is no evidence, concerning any such access, about:
· how it came to exist;
· if it has been approved and, if so, when;
· the manner in which any such approval occured; and
· the particular aspects of the planning scheme, or schemes, under which it may, or may not, have been approved.
Additionally, Mr Walker’s evidence lacks specificity in dealing with the concerns of emerging development areas. There is force in the argument, supported by the expert evidence of Mr Buckley, that planning considerations are different when considering the implementation of the orderly development of an area in its “first wave”, as compared to more heavily developed older areas like Spring Creek Drive and Derrick Avenue, which were, and are, subject to earlier schemes.
As to the matter of precedent, there is strong, continuing authority for the proposition that each development application is to be assessed on its own individual merits and that any other approval, even if proved to be an approval within the same scheme, does not act as a precedent: see, for instance, Tully Sugar Ltd v Cassowary Coast Regional Council & Anor [2010] QPELR 643 at 649 [35].
Hence, in the end, I give this evidence little weight. It simply is evidence that in a rural residential area it may be possible, if the circumstances otherwise allow it under any particular identified (and examined) planning scheme, to have such an access.
As for the contention made by the Council that the photographs demonstrate the adverse character and amenity impacts that battleaxe driveways have, it is difficult to discern how a properly sealed roadway realistically would differ in that way in this instance if it was moved from being a battleaxe access to being a northern side direct access. Despite that, I do see some merit in Mr Buckley’s evidence that a concentration of “hatchet blocks” or “rear lot” developments with long driveways would “erode” a performance outcome such as PO4 in the draft Scheme (which seeks to protect the semi-rural and natural landscape values of the area and to be visually unobtrusive).
Traffic engineering and the existing Scheme
As already outlined, Mr Beard gave both a written report and oral evidence.
With respect to the existing Wambo Shire Planning Scheme, his view was that the Council’s proposed access was generally consistent with the existing Scheme, with particular reference to Parts 5.2(1)(a), (c) and (f). In contrast, his view of the Appellants’ proposal was that it “potentially” conflicted with those provisions, on the basis that it did not make any provision for any future development of adjacent lands at all, particularly where the best planning was stated to be planning that leaves the most options open, with the provision for a possible future half-road construction on the northern boundary preserving those planning options to a much more satisfying extent than the Appellants’ proposal.
With respect to the performance criterion dealing with layout and design under the reconfiguration Code, his view was that, although the Appellants’ proposal was not “quite a matter of direct conflict”, the proposal by the Council was more consistent with the objectives set out in PC11, particularly in (b) and (c).
The conclusion I, thus, reach is that there is no clearly established conflict between the existing scheme and either proposal, at least insofar as the traffic engineering perspective is concerned. But given the general import of Mr Beard’s evidence, the particular Council Conditions that he supported are ones which are clearly preferable. They are, also, relevant and are ones which do not place an unreasonable imposition on the development.
Traffic engineering and the draft Scheme
Again, Mr Beard gave evidence both by way of a report and oral evidence with respect to the draft Western Downs Planning Scheme.
With respect to Parts 9.4.5.2(2)(a), (b) and (c), Mr Beard expressed the view that the Appellants’ proposal was “less consistent” with the “purpose” than the Council’s proposal, particularly concerning (a), because there was “a complete absence of integration with any future development that might occur”. Concerning PO13 in Table 9.4.5.1 of Part 9, Mr Beard’s view was that the sketch plan of the Council for the proposed northern driveway (marked “D” to Exhibit 2) would be consistent with that performance outcome, in particular because a possible future access street would not be prejudiced by such a configuration where the draft scheme included provision for a significant area of rural residential development on that side of Watt Street, especially where it was more likely than not that the rural residential access streets would be most efficiently developed along common boundaries, allowing half-roads to be developed for the mutual benefit of developers on both sides. As he expressed it: consequently, in the interests of orderly planning of this area, it was highly desirable that the subject development did not preclude the possible future development of an access street along the northern boundary of the Site.
Finally, dealing with another plan (marked “E” to Exhibit 2), Mr Beard indicated that it showed what a potential concept could be of a road network layout that might occur in terms of a future subdivision of the area, primarily on the basis that it would be sensible to maintain that sort of option as far as possible in any development which does occur, with the Council’s proposal being entirely consistent with such a layout.
Again, no inconsistency is shown. But, again, the conditions canvassed by Mr Beard show, this time with respect to the draft Scheme, that such conditions as proposed by the Council are preferable; and, also, are relevant to, but not an unreasonable imposition on, such a development. The fact that Mr Beard conceded in cross-examination that there were other options does not assist the Appellants, because he did not support the Appellants’ “option” (stating both that it would remove one logical option and that the best planning is that which “preserves the most future options”).
Town planning and the existing Scheme
Mr Buckley gave evidence by way of his expert report (Exhibit 1) and orally.
As has been noted, the existing scheme is the Wambo Shire Planning Scheme.
When Mr Buckley was taken to Parts 5.2(1)(a), (c) and (f), as well Part 5.2(2), he expressed the view that the Appellants’ proposal conflicted in the following ways, namely:
· the size of the proposed allotments fell well short of the minimum area required by the planning scheme in that zone;
· its lot layout and design did not assist in the orderly and logical sequence which is necessary to be able to take, in order to achieve efficient provision of infrastructure (with the reasons for that being set out in more detail in Exhibit 1);
· as for the achievement of an appropriate lot size, there was an “extreme” contrast between the required and minimum area for each proposed lot;
· as for an orderly and logical sequence, long driveways, being at risk of dust creation and of causing unnecessary noise, are inappropriate (as being out of character with the existing area); and
· making provision for the probable future development of land around the site is in the public interest (which serves the very important requirement of facilitating integrated and co-ordinated growth).
With respect to the Council proposal, Mr Buckley stressed that his opinion was that, though the minimum lot size presented a conflict issue, with respect to the concept of orderly development it did not.
As for the performance criteria, Mr Buckley was of the view that PC11 was a key provision, although PC1, PC19 and PC20 overlapped and thus were relevant. The important parts of PC11 were those contained in (a), (b) and (c). The particular planning issue was about the communities being “liveable” communities; and one of the benefits of getting integrated estates is so that people can connect socially and physically. As his report (Exhibit 1) asserted, there are good planning reasons why access to rear lots should not be supported. These include that long unsealed driveways will cause a nuisance (by dust and noise) and that, at almost 100 m in length, such driveways do not maintain the rural or locality “amenity” as required by the outcomes for the purpose of the Rural Zone Code. Additionally, long “handles” create irregular development conditions which then impact on future sub-divisional patterns and opportunities.
Dealing more specifically with his experience of rear lots, he stated that, when these are created in a closely settled residential area, they both have a different outcome and are more acceptable, in part because the distances of the actual “length” are rarely more than the depth of a typical lot (being some 40 m) and do not impact on local character. Also, they do not involve long lengths of bitumen, concrete or other hard pavement. Further, long handles for rear allotments in rural residential sub-divisions should be discouraged as they hinder future redevelopment options, impact on visual amenity and character, and create a burden of cost for those responsible for the maintenance, generating amenity complaints when they are not maintained.
Thus, there is undoubted conflict with the size of the lots under the current scheme, whatever proposal is preferred. As Mr Buckley opines, both the application and the conditional approval by the Council rely heavily on the draft scheme. That will be next considered.
Town planning and the draft Scheme
The draft Western Downs Planning Scheme is said to conflict, in Mr Buckley’s view, with the Appellants’ proposed access because the latter conflicts with the “purpose” of the zone and, in particular, the overall outcomes set to achieve that purpose [as stated in Parts 6.2.12.2(3)(b) and (f)]. This was contended to occur because of the concept of orderly development such that, when the draft Scheme is read in its entirety, it speaks to rear lots not being anticipated, with a reasonable extension of that being that approvals which do introduce such things will start to erode the character of the area in a number of ways over time. Particularly, with respect to PO4 in Table 6.2.12.1, the Appellants’ proposal was opined by Mr Buckley to take away from the outcomes of protecting the semi-rural and natural landscape values of this area and to not be “visually unobtrusive” (because the concentration of rear lot developments with long access ways would erode such values and be visually obtrusive).
Concerning PO5(f), in particular, Mr Buckley was of the view that it would detract from the visual amenity of the rural residential area.
With respect to the Code for reconfiguring a lot, Mr Buckley was of the view that it would conflict with Parts 9.4.4.2(2)(b), (d), (e) and (i), with a particular aspect of such conflict being that, although they are lots of the size permitted, they needed to contribute to the future development of the area, which included the adjoining land and that they did not integrate with wider parts of the future community and, in particular, with transport networks. With respect to the assessment criteria, taking AO1.2 and AO1.3 together, in a spatial sense, Mr Buckley considered that, the more regular the lots and the greater the opportunity to access them correctly, the greater the opportunity there would be to get comprehensive and well integrated development. He stated that it would follow from that, that where there were “exaggerated handles (including battleaxe handles)”, the ability for any future sub-division to achieve those ends would be significantly compromised, if not, in fact, obliterated. This would conflict with the sort of co-ordinated development that the Scheme otherwise anticipates. As for the “Note” to PO1, Mr Buckley, in Exhibit 1 referred to the apparent conflict between AO1.2 and that note by remarking that such criteria apply to “all” zones and that the footnote ties the rear lot opportunity to the “purpose” of all such zones and precincts such that, where, as here, the subject land will be in the Rural Residential Zone, the purpose includes an outcome which states that “the scale, intensity, form and character is (to be) complementary to the built form typology and landscape character of the surrounding area”, in a Precinct which sets the outcome for lots to be a minimum area of 4,000 m2 .
The conclusion I reach is that while, obviously, the Council’s proposal is consistent with, in particular, AO1.2 and AO1.3, in circumstances where performance outcomes do not have to be consistent with acceptable outcomes but are considered on their own merits, it is open to this Court to find that PO1 is consistent with the Appellants’ proposal, despite Mr Buckley’s preference for the Council’s proposal. Nevertheless, given the broad scope of PO1 as covering all the zones, the mere lack of conflict with PO1 does not mean that, overall, some conditions should not be imposed where, for the other reasons so advanced by Mr Buckley, such conditions preferable and, also, are “relevant” to, and not an unreasonable imposition on, the development.
This is especially so where other conflicts have been properly identified. As for the Code covering Transport, Access and Parking, Mr Buckley was of the view that the Appellants’ proposed access was not consistent with Parts 9.4.5.2(2)(a), (c) and (e). This was because the first two of those involves the concept of integration of the development and the third involves “the sorts of things that Mr Beard talked about in terms of having efficient and safe access, not just for the people living there but for refuse vehicles and other service providers”.
As for performance outcomes for this particular Code, PO9 and PO13 were commented upon by Mr Buckley in terms of the former being inconsistent with that proposed by the Appellants (because of the fundamental principle that what happens on private land has a connection to and creates safe opportunities on public land) and, for the latter, that hierarchies are “really part of the delivery of the orderly development principles”. Thus, what is said not to be wanted by these outcomes is a series of cul-de-sacs but, rather, an ability for the roads to connect which need to be roads of a certain width and to a certain standard, so that they can take many different vehicles.
Town planning aspects more generally
Mr Buckley’s evidence (while overlapping, to some extent, with some of the more specific considerations) also covered:
· the importance of protecting amenity and character of the proposed developments and the surrounding area, such that long driveways would be out of character with both the existing area (currently rural) and the preferred character of the area as it develops under the draft Scheme;
· making provision for probable future development of land around the subject area being in the public interest, because of the important factor that any development should facilitate integrated and co-ordinated growth;
· particularly where the development of an area in its “first wave” implementation, each development must have an impact upon the orderly development of the area – to be contrasted to the more heavily developed rural residential areas like those already identified by Mr Walker; and
· rear lot proposals, while potentially being more appropriate in close, or more intensely, settled areas (because they have less impact, are less likely to take away opportunities for development, are less likely to compromise future planning, and may even be infill development or otherwise necessary for various reasons), where they are proposed for rural residential areas, they can fetter future development options, impact on visual amenity and character and create a burden of costs for those responsible for maintenance.
Mr Buckley was of the view that the northern access arrangements now proposed by the Council, because they undertook and contributed to important orderly development principles, were particularly important (in circumstances where the draft Scheme had not been finalised in its detail, since this was the first development in this area and presented an opportunity to put in place, at the beginning, a framework in the public interest). As such, it is an important first step towards creating the integration and “setting in place” of the first crossroads to the west from Watt Street. This was in circumstances where the planning at this stage is about “getting the pieces of the jigsaw in place” in order to allow, first, individual owners to respond and to get their commercial return and, secondly, to put in place the building blocks to allow communities to grow as one.
Where, as here, a draft scheme is being finalised, Mr Buckley opined that it permits the advantage of planning for future orderly development which has the effect of more efficient provision of infrastructure and the sharing of infrastructure costs. His statement in “further” cross-examination, that the “approval” of “rear-access blocks” would “not either take away opportunities for … development or compromise any future planning for the area” was directed to those other blocks “identified” by the Appellants (which were described as “quite different” from the locality that was being considered here). As for his complete answer to Mr Walker’s question in yet “further” cross-examination concerning a precluding of future orderly development (after Mr Buckley had been recalled), while he answered, initially, “No” to the question, it had been framed in terms of the “two rear…lots”. In then responding to the context of those 2 lots, he added: “But the pattern of the way the two lots are made up of the whole four…in the absence of the type of condition the Council is looking at, yes it would” (emphasis added).
Significance of draft Planning Scheme
Since, as referred earlier, this Court in this Hearing may give weight to any new laws and policies that the Court considers appropriate, it is noted that the draft Western Downs Planning Scheme has not only passed through the first State interest check process but also been publicly notified.
It is in just such circumstances as here, where the proposed development is in substantial conflict with requirements of the Rural Zone in the existing Scheme but where the designation of the Site and lots surrounding it would fall within the Rural Residential Zone (in particular, in the Rural Residential 4000 Precinct) of the draft Scheme (such that that conflict, at least as to size, would be removed), that significant weight can be accorded to a draft scheme such as the draft Western Downs Planning Scheme.
Nevertheless, what the proposed development must also face is that it would be one of the initial developments of this kind under the new regime. This has the important consequence that it, as a “first wave” development, sets up the kinds of concerns (expressed as “purpose” and “outcome”) that have become more pronounced, or are designed to be of greater significance, in the newer and more modern approach.
To this end, the facilitation of rational and orderly development of the surrounding area and other areas identified for rural residential development under the draft Scheme means that, although not in conflict with the draft Scheme as to allotment size, the details of the proposed development may need to yield to conditions which reflect the purpose and requirements of the various applicable codes under the draft Scheme, especially where there are, in fact, identified conflicts in other areas which can be overcome but only by a full implementation of the Council’s latest Conditions, thereby permitting approval despite such conflict.
Conclusions
It is to be noted that the dimensions of the lots under the Conditions proposed by the Council, calculated by reference to the dimensions identified in the Plan, would be as follows:
·lot 1: 4,900.15 square metres;
·lot 2: 5,099.85 square metres (including an easement of 509.985 square metres);
·lot 3: 5,099.85 square metres; and
·lot 4: 4,900.15 square metres (including an easement of 980.03 square metres).
Thus, the lot size under both the Appellant’s proposal and the Council’s conditions would remain complaint with the draft Scheme (having that minimum lot size of 4,000 square metres). Moreover, the overall dimensions of such lots would not significantly change from the proposal to the proposed Council Conditions.
Insofar as there is conflict with the existing Scheme and the draft Scheme, there are sufficient grounds to justify the decision to approve the development application despite such conflict. This is because of the significance of the weight that is given to the new draft Scheme, taken in conjunction with the proposed new Council Conditions.
Thus, what has been considered carefully is – especially taking account of both the existing and draft Codes where they impinge upon this development application – the lack of necessary integration with the new zoning (i.e. Rural Residential) under the Appellants’ proposal. This means that the conditions imposed upon any approval of the development do have a special significance in a case such as this.
The analysis which has been done of the expert evidence which was led, both with respect to traffic engineering and general town planning, has identified the extent to which, in order to achieve the purpose of each code, Conditions have become of singular importance.
As for traffic engineering concerns, I find that, in particular:
·in order to facilitate the ordinary and rational development of the area of the Site – particularly given the absence of detailed road network planning under the draft Scheme – effective development of rural residential access streets can be best achieved by their development along common boundaries, for the mutual benefit of all adjacent developers;
·it is of importance that such a development does not preclude possible future development of an access street along the boundary of the site – in this case, the northern boundary; and
·having roads developed on common boundaries is a sensible outcome because the sharing of development and land dedication costs.
As for town planning considerations, I find that, in particular:
·in order to achieve an orderly and logical sequence for the relevant lot layout and design, long driveways are at risk of causing nuisance and impact, also, adversely on visual amenity and are out of character with the zoning applicable;
·in order to facilitate integrated estates and co-ordinated redevelopment growth, provision should be made for probable adjoining development around the Site, which is in the public interest;
·in order to preclude maintenance burdens and amenity complaints, sealed shared roads should be provided; and
·in order to properly set the implementation of a new scheme, initial development must be consonant with the various purposes (to be achieved through the various “outcomes”) in ways which, in fact, best reflect such outcomes.
These conclusions have the consequence that the Appellants’ proposed access would not achieve those ends. To paraphrase the evidence of Mr Beard, it would, for example, “pretty much eliminate” the potential for a half road development on the northern boundary. Thus, they have not discharged their onus on their own case. In contrast, the Council’s proposed access Conditions do ensure that any possible future access street on the northern boundary is not prejudiced by the subdivision proposed. This is particularly important where the Council’s proposed access arrangements have a greater consistency, in particular, with the requirements of the various Codes in the draft Scheme, which is the Scheme which underlies why approval is at all possible in this case. And the Appellants have, also, not discharged their onus in proving that the Council’s Conditions (as amended) should not be imposed if the approval is to stand.
Summary
The undeniable import of all the analyses undertaken in these Reasons is that the development application should be approved despite some identified conflicts; and that, in any event and to alleviate that conflict (in terms of these being sufficient grounds to justify the approval), it needs to be governed by conditions which, even taken as their most intrusive, still remain relevant to the development and are not, in the circumstances in question and particularly given the effect of the various Codes in the Draft scheme, an unreasonable imposition on that development. Only the Council’s Conditions meet that standard. As to the type, nature and construction of such easements (and future dedication), no cogent argument was pressed to gainsay the recommendations of Mr Beard and Mr Buckley (which appear as Conditions 18.0, 19.0, 20.0, 21.0, 22.0 and 23.0 in Exhibit 6).
Additional Matters
The Council acknowledges that Exhibit 6, containing its draft Conditions Package, does not reflect the proposed staging which is an integral part of the Appellants’ application. Since the Council is willing to accept staging – and it is not otherwise unlawful, inappropriate or unsuitable – it will be necessary to make changes to accommodate the Appellants in that respect. Thus, the judgment will contain a requirement for consultation and agreement, with a default proposal (failing such agreement).
As explored by Mr Buckley in his evidence, in the circumstances of an acceptance of the Council’s proposed Conditions, additional ones concerning setbacks will need to be imposed. The reason is that setbacks under both the existing and draft Schemes are calculated by reference to property boundaries and, given the conditions here about easements, it is necessary to ensure that adequate setbacks are achieved both from the access easement boundary and the potential future road.
Such Conditions are both relevant and not an unreasonable imposition.
I accept the Council’s submission that Conditions 23.1 and 23.2 should be amended as follows:
· in Condition 23.1 by adding: “or 15 m from the northern boundary in the event the land is dedicated pursuant to Condition 21.”;
· in Condition 23.2, by adding: “10 m from the northern boundary in the event the land is dedicated pursuant to Condition 21.”.
An additional concern that the Court had, which was raised during the hearing, was that, although the conditions approved would run with the land and bind successors in title (in accordance with s 245 of the SPA), it was possible that potential purchasers, particularly of proposed lot 3, be informed of the effect of the setback and dedication conditions.
The Court accepts that a further Condition, therefore, should be added in the following terms:
“Upon Council being notified that the plan for reconfiguration has been registered with the Titles Registry, Council will place a Notice on the rates notices of Lots 2, 3 and 4 informing them of the relevant setback and dedication requirements imposed by Conditions 21 and 23.”
Judgment
Judgment will need to be given to the effect that the appeal is allowed and that Conditions be imposed in accordance with Exhibit 6, although subject to the amendments that I have just outlined. Additionally, leave will be given to the parties to confer and to agree to a further condition concerning staging but failing such agreement, for a court determination to be made.
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