Wroxall Investments Pty Ltd v Cairns Regional Council

[2010] QPEC 92

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Wroxall Investments Pty Ltd v Cairns Regional Council [2010] QPEC 92

PARTIES:

WROXALL INVESTMENTS PTY LTD
ACN 010 172 728
(appellant)

v

CAIRNS REGIONAL COUNCIL
(respondent)

FILE NO:

3105 of 2008

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING COURT:

Brisbane

DELIVERED ON:

16 September, 2010

DELIVERED AT:

Brisbane

HEARING DATE:

25, 26 (site visit), 27 August 2010, with written submissions on 1, 3 September 2010

JUDGE:

Robin QC DCJ

ORDER:

1. Appeal adjourned to allow finalisation of subdivisional layout and appropriate conditions

CATCHWORDS:

Acts Interpretation Act 1954 (Qld), s 14B
Integrated Planning Act 1997, s 1.2.2, s 1.2.3, s 3.5.30, s 3.5.4(2), s 4.1.27(1)(a), s 5.3.1
Land Act 1994, s 93, s 95
Local Government Act 2009, s 59, s 60

Ajana Park Pty Ltd v Mackay City Council [2009] QCA 404, cited
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175, cited
Australand Holdings Ltd v Gold Coast City Council [2007] QPELR 48, considered
Bakrnchev Enterprises Pty Ltd v Maroochy Shire Council [2008] QPELR 372, cited
Belcaro Pty Ltd v Brisbane City Council (1963) 110 CLR 253, considered
Brisbane City Council v Cunningham [2002] QPELR 90, cited
Fitzgerald v Logan City Council [1993] QPLR 1, cited
Harderan Pty Ltd v Logan City Council [1989] 1 Qd R 524, considered
Hydrox Nominees Pty Ltd v Brisbane City Council [2010] QPEC 64, cited
Jones Flint & Pike v Maroochy Shire Council [1999] QPELR 434, considered
Kenlynn Hospitality Pty Ltd v Bundaberg City Council [2007] QPELR 37, considered
Knox v Brisbane City Council (1975) 31 LGRA 108, considered

Developer appeal against refusal of code assessable development application for 50 lot subdivision on strategically located site separating North Wonga Beach from South Wonga Beach – Council now supportive, but opposes appellant’s proposal to construct on or partly on the site a connecting road, in line with views expressed by local residents to the south fearful of their existing road (Marlin Drive) becoming a “racetrack” – connection to Marlin Drive required use of a dedicated (unconstructed) road reserve which Council refused to agree to – whether Council could be compelled – whether issue concerned a “condition” at all – consideration of appropriate park provision

COUNSEL:

C Hughes SC with B Job for the appellant

E Morzone for the respondent

SOLICITORS:

IPA Law Planning lawyers for the appellant

King & Company solicitors for the respondent

1. The issues requiring decision have reduced to two: what credit for park contributions for a residential subdivision the appellant ought to be allowed because of a previous owner’s dedication of adjoining land for a road reserve which may not now be so used, and (more important) whether the Council may by a condition or otherwise preclude provision of a public road through the site to connect separated areas of existing urban development, the connection necessitating use of part of the reserve.

1. This is an appeal under s 4.1.27(1)(a) of the Integrated Planning Act 1997 (IPA) against the Council’s refusal of a development application submitted in September 2007 for a 6.035 hectare site in the town of Wonga Beach, whose address was given as Oasis Drive, the Esplanade and Marlin Drive, Wonga Beach, for a proposed use of a 53 lot residential subdivision and a reconfiguration of two existing lots into 53 lots, generating 51 additional residential lots for the purposes of the development applied for.  The existing use was described as Resort and Associated Facilities; this described a backpacker resort which the court was given to understand accommodated 69 guests.  There was a substantial hotel type building along with other facilities such as tennis courts.  The improvements (but for a shed) have been removed.  Essentially, the site is completely cleared.  Upon the court’s inspection, it presented as a large flat open glade benefiting from lofty vegetation to the east which flourishes on the broad, unconstructed esplanade stretching to the Coral Sea, and to the west by the double rank of trees along a drainage easement which may occasionally function as a creek (on the inspection, water was present, which appeared to be stagnant); the impression looking north/south from the site is also of established vegetation which is interspersed through existing residential development in South Wonga Beach terminating at the site boundary and in the north (and north west) across Oasis Drive which runs north/south and in the north forms a “T” intersection with Wonga Beach Road.  The site adjoins the southern extremity of residential development in North Wonga Beach. 

1. Vehicular access to the site is available only from Oasis Drive.  The Esplanade is unconstructed.  The Marlin Drive frontage from one point of view is non-existent.  What exists is a frontage to a projection of the present Marlin Drive across a deep open drain excavated along (and inside) the southern boundary of the dedicated road reserve there – then of the site – leading to the Esplanade.  This drain is crossed by a narrow bridge within the reserve, usable only by pedestrians or cyclists; a sealed cycle path exists there connecting Oasis Drive and Marlin Drive.  It is constructed along the road reserve abutting the treed drainage easement.  The reserve is significantly widened in the north and the south at the expense of the site (as it once was) to accommodate bends to the west appropriate to accommodate a link for vehicular traffic between the two Drives. 

1. The road reserve was created by a dedication under an agreement between the then owner of the land, HJL Redfern as trustee and the Council’s predecessor, Douglas Shire Council in the late 1990s.  He and Redhop Pty Ltd signed the appellant’s development application as consenting owners on 13 and 17 September 2007.  Exhibit 7 is a copy of the agreement.  By clause 2A.1, the Council agreed to “permit the maximum density in the Low Density Area to be calculated over the whole site including the Road Area and any Protection Area.  No other bonus design features will be required to achieve the maximum density.”  The recitals record the predecessor Council’s request for a “road/bicycle land corridor along the western side of the Land”.  The “Land” is Lot 17 on RP 890710. 

1. The northern section of the site is a prong, Lot 2 on RP 747733; it is narrower than the balance of the site in the west on its frontage to Oasis Drive, which, indeed, curves west at its southern end to provide access frontage either to, or near to Lot 17; Lot 2 is narrower on the east by reason of the existence of Bells Reef Close which curls off Oasis Drive towards the Esplanade and turns south providing an eastern frontage to Lot 2 and a western frontage to four blocks on the other side which have the appearance of having been carved out of the Esplanade.  The Close ends in a cul-de-sac and provides the street frontage of only the northern third of the site’s eastern boundary.  A drain crosses the site from the bend in Oasis Drive to the bulb of the Close.  No doubt it collects runoff from the drainage easement referred to above which turns 90 degrees to the east at that bend. 

1. Expansion of Wonga Beach North in a southerly direction is occurring on Bells Reef Close (the four allotments mentioned), Oasis Drive (as far as the end) and along a parallel thoroughfare to the west, Ives Avenue.  To the west of the Avenue the expansion is occurring around a series of cul-de-sac “closes”, now five, to which two may shortly be added.  Ives Avenue and Oasis Drive terminate at “T” junctions with Wonga Beach Road which links the State controlled Mossman Daintree Road (“the highway”) directly to the beach.  A couple of house blocks west of Ives Avenue, on the other side of Wonga Beach Road at another “T” junction, Snapper Island Drive leads north through established residential areas to Wonga Beach State School on the western side at the corner with Paddy’s Lane. 

1. The site and a much smaller parcel (their southern boundaries are continuous), being Lot 101 SP 204468, constitute at present an undeveloped tract separating North Wonga Beach from South Wonga Beach.  There is no internal connection between the two settlements, which the relevant Douglas Shire Planning Scheme treats as a single planning area (Coastal Suburbs, Villages & Townships Locality).  There is a contrast with Newell Beach and Cooya Beach, which are arguably similarly placed, being separated by the mouth of a watercourse entering the Coral Sea; they are separate planning areas. 

1. Wonga Beach Road is the sole connection between Wonga Beach North and the highway; the Council has imposed a condition requiring the linking of Snapper Island Drive and Vixies Road further north which would provide a second highway access in a recent development approval.  Highway access for South Wonga Beach is provided at its southern extremity by Marlin Drive and also by Oleander Drive, a little further north; Oleander Drive follows a zig-zag course to link with Marlin Drive about three-fifths of the way to where it currently terminates at the southern boundary of the site.  Marlin Drive is wide and essentially straight, with a single curve in it just south of Oleander Drive. 

1. While the school is the community facility in North Wonga Beach, the corresponding one (and only one – a community park excepted) in South Wonga Beach is a Caltex service station located at one of the intersections on the highway.  It boasts limited convenience shopping facilities.  It is expected that three new shops whose operators are yet to be identified will before long be added to the attractions of South Wonga Beach.  Although there is some residential development west of the highway opposite Oleander Drive, development in Wonga Beach does not extend west of a north/south line terminating at Oleander Drive, in the south and about a third of the way from the highway to the beach in the north.  There is no reason to anticipate development in that area which, west of the site, is currently Lot 2 on RP 887367, containing 51.34 hectares.  Wonga Beach Road marks its northern boundary. 

1. The point of this observation is to underline that a north/south connection internal to Wonga Beach Road cannot be anticipated to the west of the currently developed area.  Mossman Daintree Road is the only vehicular route available between the two sections of the town; it must be used to travel between the south and the school or to travel between the north and the limited commercial facilities to the south.  The speed limit is 100 kilometres per hour, as opposed to 50 kilometres per hour within the town (and presumably a 40 km/h zone near the school).  Right hand turns across the path of highway traffic have to be executed at Wonga Beach Road.  This gives rise to safety concerns.  Patrons exiting the service station to travel north likewise are committed to a right hand turn across the path of highway traffic.  There is no record of any road accident at any of the three intersections, which does not gainsay that there may have been minor incidents not reported to authorities.  As Mr Williams, the appellant’s traffic consultant, says, it is not only the likelihood of an incident occurring that requires consideration, it must not be overlooked that the consequences of a collision involving at least one vehicle travelling at highway speed may be very serious.  It is worth observing that Ives Avenue, even if it could be linked to the southern street system (which is doubtful), cannot be considered as suitable to accommodate a through road through Wonga Beach.  Oasis Drive is the obvious road to use.

1. The desirability of a north/south connection within Wonga Beach is accepted by the parties’ traffic engineering experts, likewise by their expert planners.  The Council has, it seems, held that opinion, at times with reservations.  Mr Beard attaches to his report an extract from minutes of the Council Building, Town & Environmental Planning Services Ordinary Meeting on 12 August 1999 which notes in respect of a reconfiguration application by HJL Redfern that “the approval of Reconfiguration No 019.99 for the purpose of creating a link between North and South Wonga is only for a bicycle link and Council will consult with the community prior to any consideration of opening the link as a road.”

1. Wonga Beach Palm Resort Pty Ltd successfully applied for a development permit for a material change of use of the site (17 Oasis Drive, Lot 17 on RP 118447) for a restaurant/bar, shops and accommodation premises.  The decision notice sent 23 March 2006 attached conditions to the permit including the following:

“Access & Roads

4.4    A sealed road, minimum width six (6) meters, is required to be constructed at the applicant’s cost, parallel to the existing pedestrian/cycle path along the full length of the Road Reserve to connect Oasis Drive to Marlin Drive.

The road required by this condition is to include kerbing and channelling for the full length, and traffic calming measures including alignment design, signage notifying that the road is for ‘local traffic only’ to reduce the speed to 30km/hr, and pedestrian crossings.  The road shall be constructed in accordance with the requirements of the FNQROC[1] Development Manual and designs submitted for Council’s consideration at operational works stage for this application.

4.5    The road reserve is to be amended to accommodate the required road and pedestrian/cycle path completely within its boundaries.

[1]Far North Queensland Regional Organisation of Councils.

Traffic Management

4.6    The ingress/egress to the site shall be provided with a physical means of speed control.  Such speed control device shall be shown on any plans submitted for approval for building works and shall be constructed and maintained at all times.”

The “extent of works” indicated on the plans falls short of Marlin Drive; however, a connection to it was apparently contemplated.  That said, the Council at the time was plainly intent on ensuring a low speed environment adjacent to the site and beyond.  Condition 4.5 appears to recognise uncertainty about whether the 10 metre width of the road reserve was adequate to accommodate both the existing bicycle path and a complying road.

1. Against the background of the history recounted in the preceding paragraphs it came as no surprise that when (as would be expected in a small community), the appellant’s code assessable development application was made and became news, representations were made to the Council opposing the opening of a road linking Marlin Drive and Oasis Drive, alternatively the opening of such a road without speed reduction measures and assurance that the bicycle path (used by children to ride to and from school) would not be impaired.  Some 70 local residents signed a letter of 21 January 2008 and many of them subsequently sent individual communications.  Mr Palmer of 51 Marlin Drive, who, it appears, practises as a chartered accountant in nearby Mossman, wrote on 13 February 2008 in part as follows:

“I understand that the proposal to subdivide the land where the Daintree Palms Resort is situated is “code assessable” which means it is not necessary to advertise and seek public comment.  However no application has yet been made to build a tavern or shops as this is “impact assessable” and advertising and public comment must be carried out.

The application to open the road access from Oasis Drive to Marlin Drive has been made under the code assessable proposal so the public don’t have a chance to comment.  If the application for the shops and tavern had been lodged at the same time then the road opening would have been part of an impact assessable application and public comment could be made.

It is for this reason that the local residents feel they have been somewhat locked out from public comment as the manner in which the application has been lodged, as far as the road is concerned, is designed to stifle public comment.”

1. The traffic engineer, Mr Beard, who agreed with Mr Williams in a joint report that “under normal circumstances, based on residential street hierarchy considerations, it would be considered desirable to provide a collector street link between the northern and southern sections of Wonga Beach by a link through the subject site, for the reasons discussed by Mr Williams, and for other traffic related reasons” expressed a similar view to Mr Palmer’s, in support of the Council, in his individual report:

“The subject application is a code assessable application for residential subdivision.

The plan also shows a through road connection between Marlin Drive and Oasis Drive.  In respect of traffic engineering considerations, there are some advantages and some disadvantages to such a through road connection.  Council does not consider it appropriate to incorporate a through road connection on a code assessable development application, particularly in the absence of a local road network plan which has been developed with appropriate community and DTMR[2] consultation.  In my opinion, public consultation on this potential through road connection is particularly important because the likely traffic engineering advantages of such a connection would accrue to some people while the disadvantages would accrue to others.  The desirability of a through road connection might be increased if DTMR ever decided to close one or more of the three existing intersections which currently provide vehicular access between Mossman Daintree Road and the Wonga Beach community.

It is noted that the Minute of a Council meeting of 12th August 1999 relating to the construction of the pedestrian/bicycle link specifically noted the need for formal community consultation prior to opening this link as a through road (copy attached).”

[2]Department of Transport and Main Roads.

1. There was a similar concern (not shared by the local authority) at the effective exclusion of the public from a say about a code assessable development application in Brisbane City Council v Cunningham [2002] QPELR 90 (reversing [2000] QPELR 400).

1. The proposal plans show as Lot 53 a 5,000 square metre area on the south-western corner of the site where the road reserve broadens to the east to link with Marlin Drive designated “Indicative Shopping Centre Location (subject to future application)”; such an application would be impact assessable.  Mr Beard expressed concern that the through road would be of little benefit to the proposed subdivision on the site (with which I agree) but would be important to vehicular accessibility of any future convenience retail facility.  It is not clear that Mr Williams accepted the second proposition, but his view was that “due consideration of ‘future development proposals’ … is reasonable and the traffic related matters should be incorporated in the current traffic analysis.”

1. The present context is one in which it has all along been anticipated that Wonga Beach residents would have firm views about the north/south connection (which anticipation has been borne out by events) and the Council’s attitude has been that the public ought to be given a say before traffic arrangements for their town are substantially changed (notwithstanding that the north/south link makes obvious sense and has been under contemplation for years).  No one pointed to any basis on which public consultation was a prerequisite of changing a local road pattern, but councils in practice frequently offer the public an opportunity to have their say.  It would be unsound to take the views so far expressed (in documents Mr Beard included in his report) as representing a consensus.  They are strongly against what the appellant wants to do.  Others may have other views.  The appellant complains of the Council’s delay in embarking on public consultation.  Such processes should be pursued in a systematic, organised way, and will take time.  The contention which Mr Hughes SC appeared to make on the appellant’s behalf, that the Council’s inaction in this regard to date precluded its pleading that public consultation ought to occur before any north/south link use approved, is rejected.

1. The Planning Assessment Report accompanying the appellant’s development application at page 9 described the appellant’s intention to rescind the March 2006 development approval of a Restaurant/Bar, Shops and Accommodation Premises within the site stating that “in the future another application will be made over Proposed Lot 53 for a development similar to the current approval with the exception of the Accommodation component”.  At page 15, the report, in dealing with the Coastal Suburbs, Villages and Townships Locality Code, which applies, provided the following:

Performance Criteria	Acceptable Solutions	Comments
P4  Development Sites are provided with efficient and safe vehicle Access and manoeuvring areas on Site and to the Site, to an acceptable standard for the Locality.	A4.1  All Roads, driveways and manoeuvring areas on Site and adjacent to the Site are designed and maintained to comply with the specifications set out in the Planning Scheme Policy No 6 -  FNQROC Development Manual.	C4 Efficient and safe vehicular access and manoeuvring areas are provided.  All proposed lots are accessible from either Bells Reef Close, Oasis Drive or Marlin Drive.  A through road connecting Bells Reef Close and Marlin Drive is proposed to create a functional vehicular and pedestrian linkage between existing development located to the north and south of the site. In addition, creating a vehicular link between Bells Reef Close and Martin Drive reduces the need for creating a road pavement within the western road reserve adjacent to the pathway.  This will ensure that the integrity and functions of the pathway are preserved.

It appears that no through connection along the road reserve was envisaged.  Of the 10 proposed lots having a frontage to it, the northern three were to take access from a cul-de-sac not long beyond where Oasis Drive turns left.  The next five had access to a cul-de-sac roughly bisecting the site and entered from the east.  The last two (including Lot 53 to the north) are either side of a parallel road an allotment’s depth north of the site’s southern boundary and connecting (like the cul-de-sac) with Bells Reef Close which would no longer end at the existing cul-de-sac.  It is unclear whether Marlin Drive was to be used for any purpose other than providing access to the new southern road and perhaps most of the western frontage of Lot 53.  It may have been the narrowness of what is left of the road reserve beyond the bicycle track that is relied on to describe it and the pathway as “preserved”.

1. Discussion with the Council, apparently focussing on calming traffic in Wonga Beach which might be tempted to move quickly along straight stretches of road, has led the appellant to revise its proposed layout.  The new proposal (Exhibit 8) leaves Bells Reef Close untouched.  Where Oasis Drive was previously to curve west and terminate in a cul-de-sac, it now would curve east and turn south to provide the main north/south road through the site; it would terminate in a large cul-de-sac providing access to Lots 6 to 12 inclusive.  The original east/west cul-de-sac entered from the extension of Oasis Drive described would now continue through to form a “T” junction with the road reserve.  This would be widened (by dedication presumably) to provide an adequately wide vehicular access to a new east-west cul de sac providing road frontage for Lots 45 to 49 inclusive.  This new road will continue southwards adjacent to the 5,000 m² lot (now called Lot 2) to link with Marlin Drive.  The north-south link will involve veering left where Marlin Drive presently terminates into the road reserve area then turning right along the new east-west road around the 5,000 m² lot; then it would head north to Oasis Drive via the extension.

1. The Council is accepting of the layout but not of the connection with Marlin Drive.  The layout has been something of a movable feast.  Page 79 of the Appeal Book Volume 2 (Exhibit 1) is a layout plan dated 8 November 2007, providing what one would think the obvious solution of a connection along a widened road reserve providing the north-south link through the site; only two or three western lots would need to take access from the extension of Oasis Drive; the others are corner lots.  The covering letter of Jones Flint & Pike, sent in response to the Council’s Information Request, declares that the amended plan MZ1S6-05 “provides a better urban design solution”; within the site it certainly reduces to a minimum the households taking access directly from a through road.  This would be of small comfort to the present residents of Marlin Drive and cul-de-sacs coming off it, who may well favour the Council’s idea of blocking off by bollards the opening to Marlin Drive.

1. On the first day of the hearing (transcript p 10), the court ruled that changes from the layout in plan M2186-05C dated 29 June 2008 (a refinement of M2186-05) to that in plan M2186-07 dated 11 December 2009 (Exhibit 8) represented minor change and that the appeal should proceed on the basis of Exhibit 8.  The relevant changes were the widening of the beach access (to the extent that the Council accepts it as park contribution) and the new extension of Oasis Drive turning east to link with the main north-south road through the subdivision.  This flipping over of the extension, previously to curve west, renders the northern section of the road reserve surplus to road requirements; the appellant seeks a corresponding credit as park contribution.

1. Now disposed to support the proposed development in principle, the Council has prepared (Exhibit 4) a document which commences as follows:

“APPROVED DRAWING(S) AND/OR DOCUMENT(S)
The term ‘approved drawing(s) and/or document(s)’ or other similar expression means:

Drawing or Document	Reference	Date
Reconfiguration Plan (subject to condition 3)	To be determined	To be determined

Assessment Manager Conditions

1.Carry out the approved development generally in accordance with the approved drawing(s) and/or document(s), and in accordance with:

a.The specifications, facts and circumstances as set out in the application submitted to Council;

b.The following conditions of approval and the requirements of Council’s Planning Scheme and the FNQROC Development Manual.

Except where modified by these conditions of approval.

Timing of Effect

2.The conditions of the Development Permit must be effected prior to approval and dating of the Plan of Survey, except where specified otherwise in these conditions of approval.

Amendment to Design

3.The proposed layout plan must be amended to accommodate the following changes:

¢b.Amendment to design to remove vehicular road connection between Oasis Drive and Marlin Drive and install bollards to inhibit vehicle access to Oasis Drive and Marlin Drive at the interfaces to the unopened road area of the reserve;

c.Inclusion of a pedestrian / bicycle path through the unopened road reserve area along the western boundary of the site;

d.delete the reference to the road reserve area being called “Park”;

e.nomination of any provision of Park as required under Condition 6; and

f.fill lots to achieve the 1 in 100 year ARI storm tide immunity with the fill to be a transitional rise from the boundaries to neighbouring properties.  The applicant must provide supporting information to substantiate the stormtide level proposed including freeboard.  The applicant must have regard to the State Coastal Management Plan.  Coastal Hazards policy 2.4.4 in this regard and must substantiate any departures from the recommended default storm tide level.

Details of the above amendments must be endorsed by the Chief Executive Officer prior to an application for a Development Permit for Operational Works being made.”

[Inhibiting vehicle access to Oasis Drive is, one presumes, only required if such access is possible to Marlin Drive.  Without Oasis Drive, the site has no access to the outside world.]

Condition 6 is:

“Open Space Contributions

6. a.An area of land equivalent to ten (10) percent of the gross developable area of the site must be transferred to the Crown for Public Use Land – Park in accordance with the Planning Scheme Policy.  This area is to be fair average of the type of land to be reconfigured and shall be filled, graded, and drained, and all declared pest plants to be destroyed and left in a mowable condition to the requirements and satisfaction of the Chief Executive Officer.  Bollards to prevent vehicle access must also be installed as part of the physical land dedication.  This area of land must be to the requirements and satisfaction of the Chief Executive Officer.  The land must be transferred to the Crown at the same time as registering the Plan of Survey with the Department of Natural Resources and Water.

AND

b.the provision of a bicycle / pedestrian path, to the satisfaction of the Chief Executive Officer through the unopened road reserve along the western boundary of the site.  The park improvements must be completed prior to the approval and dating of the Plan of Survey for each of the respective stages containing Parkland.

AND

Where the area of land provided as Park is less than that required under (a) above then the applicant/owner is to pay the shortfall as a monetary contribution equivalent to the 10% of the Unimproved Capital Value of the created allotment/s in accordance with the Planning Scheme Policy less the area of Park provided and less the cost of works required under (b) above.

At the time of seeking approval and dating of the Plan of Survey, a security equivalent to the amount payable must be submitted to Council.  This security can take the form of a cash bond or bank guarantee.  The amount payable must be determined by an appropriately qualified property valuer and must be submitted to Council as supporting information when seeking endorsement of the Survey Plan.

The contribution payable must be made within three (3) months of the registration of the allotment/s.

Council acknowledges that it will accept the area of the proposed enhanced entrance to the vegetated foreshore and beach.  Neither the north-south drainage reserve (west of the road reserve) nor the road reserve will be included in calculations as they are outside the site.  The monetary contribution will be calculated on the basis of 10% less the area of widened access to the vegetated foreshore and the beach.”

1. I do not accept the appellant’s complaint that the Council is taking land from the appellant for a road or roads and then denying it the right to use those roads.  I agree with Mr Morzone for the Council that roads proposed in Exhibit 8 are no more than what is necessary to provide access to the proposed Lots.  The same can be said of the earlier layouts.  Except for providing the contentious north-south connection, there is no arguable element of public interest in provision of the southern section of the extension of Marlin Drive.  Referring to Exhibit 8, Mr Beard has proposed that there be no road made south of where the road reserve begins to widen to accommodate the curve into Marlin Drive (see Exhibit 9 page 20).  This for the moment closes off the link to Marlin Drive.  However, the road reserve is there to permit construction of the link when the time for it arrives, either at the Council’s expense or pursuant to a condition in some future development approval.  The traffic experts and the planning experts are unanimous as to the desirability in principle of the north-south link.  Exhibit 9 at page 21 illustrates how Lot 1 (800 m²) at the south-west corner of the site, which would be without access for vehicles under his proposal (in the absence of redesign of the layout), could be provided with access; three alternatives are suggested.

1. The curious position is reached in this appeal of the Council, which one would expect to be the guardian of the public interest, opposing a vehicular link between North Wonga Beach and South Wonga Beach for the moment and a developer propounding such a link, not for its value to future residents of the site under the current proposal, but as something in the wider public interest.  Although the appellant may urge on the court that the public interest is in having that road link, this is not necessarily correct.  The concerns of many that the existing Marlin Drive may become a “race track” with all the safety implications of that, especially for children, are perfectly proper ones.  On the evidence the court heard, residents of 50 odd new households on the site will travel south along Marlin Drive if their business is in the south (rather than travel north to access the highway via Wonga Beach Road), adding to the additional traffic that will come from further north.  It can be expected that a good deal of traffic heading north from South Wonga Beach will use Marlin Drive rather than the highway, including all traffic connected with the school.  If commercial development occurs on Lot 2 (formerly called Lot 53), that will only serve to increase the traffic (although the court notes Mr Williams’ opinion that this would be a modest increase only). 

1. Section 1.2.2 of IPA requires decision-makers (now the court) to perform their functions and exercise their powers in a way that advances the Act’s purposes, defined in the following section to include desiderata such as ensuring decision-making processes are accountable, co-ordinated and efficient, taking account of the short and long term “environmental effects of development”, applying standards of amenity and safety in the built environment for the public benefit and providing opportunities for community involvement in decision-making. The s 1.2.2 requirement “does not apply to code assessment”: subsection (2). Section 3.5.4(2) strictly limits the considerations for code assessment, essentially to the applicable codes and the “common material”, whereas impact assessment requires having regard to additional considerations, in particular the contents of submissions that have been accepted by the assessment manager which, in this context, are part of the “common material” by the Schedule 10 definition. The explanatory notes for sections 1.2.2 and 1.2.3 and otherwise (for example section 5.3.1) note that code assessment is “bounded – inconsistent with the open, discretionary nature of assessment or consideration [otherwise] required.” The Minister in her second reading speech (Hansard, 30 October 1997, page 4087) identified code assessment as “against the relevant codes”, drawing a distinction with impact assessment which requires that an application “is also publicly notified”, inviting submissions that may lead to appeal rights. The tension characterising this appeal between opposed views as to what say the community might be allowed was foreshadowed in Mr Welford’s speech (Hansard, 20 November 1997, page 4568):

“So we just need to be careful that, down the track, we do not try to slip in under the code assessment process larger-scale development applications which involve quite complex environmental implications and pretend that a code can necessarily deal with them without the process of public involvement.  It is very often the local community which has the information, the local knowledge and the best opportunity to alert us, as decision makers, and departments of State and local government as to what issues need to be addressed.”

I am not suggesting that this statement is in a category of extrinsic material that the court may refer to in interpreting the IPA under s 14B of the Acts Interpretation Act 1954 (Qld), although it may be “material in [an] official record of debates in the Legislative Assembly” within subsection (3)(g).

1. Whether code assessment or impact assessment is called for is a question answered for the purposes of this appeal by the Planning Scheme, which clearly specifies the former. 

1. It is difficult to disagree with the respondent’s view as described in Mr Beard’s individual report and set out above in paragraph [14]. The connecting road link nearby has nothing to do with the site which has and will have for all proposed lots adequate access from the north, via Oasis Drive, access consistent with what the Code calls the “standard for the Locality”. There may be some benefit flowing from an additional choice of route. If there is to be a connection, “traffic calming” or some equivalent would probably be necessary to control traffic in Marlin Drive, said to be 700 metres long north of Oleander Drive and 500 metres long south. It is a curious prospect that the appellant may be providing “calming” measures so far from its site, however eagerly. It seems only reasonable that residents affected should be offered a proper opportunity to have a say about any measures proposed. (The traffic experts agreed that those who press for “calming” are often the first seeking its removal.[3])

   [3]T2-48, line 55.

1. The court should not take the line that the community are shut out because the Council has failed to involve them earlier.  I appreciate that there is room for argument that limits not identifiable in the IPA ought not or cannot be imposed in respect of a development application entitled to code assessment.  In those circumstances, my misgivings about acceding to more technical arguments raised by the Council that might lead to the same result are more readily allayed.

1. There are two points:  the first is that the “condition” with which the appeal has been principally concerned is not in truth a condition of the kind contemplated by the IPA (so that questions of its relevance or reasonableness are never reached); secondly, by reason of its control over the road reserve abutting the western side of the site, the Council possesses an effective veto which it may exercise as it chooses over reserve land north of the end of Marlin Drive which must be made available if a link trafficable by vehicles is to be established.  It seemed obvious all along that the appeal would involve such considerations, which were ventilated by me during Mr Hughes’ opening (see the transcript for Day 1 at page 13).  I developed the impression that such considerations (the “conditions” one in particular) were not being pursued by the Council; however, reference to the transcript shows that Mr Morzone, representing the Council, was not implicated at that stage in contributing to any impression.  He relied on that point in closing arguments, leading to assertions from Mr Hughes of being taken by surprise.  He was given and availed himself of the opportunity to research matters further and present supplementary written submissions.

1. It may be the case that in the identification of issues in the customary exercise engaged in by the parties in an appeal like this, those issues were not flagged.  However, the appeal has changed considerably in its complexion; it started out as one against refusal of the development application on wide grounds such as offence to the Planning Policy for State and Regional Coastal Management Plans, to desired environmental outcomes in the 2006 Douglas Shire Planning Scheme 1, 2, 3, 4, 10, 11 and 12 as well as a host of codes (Coastal Suburbs, Villages and Townships Locality Code, Tourist and Residential Planning Area Code, and General Code (for each of Filling and Excavation Code, Natural Areas and Scenic Amenity Code and Reconfiguring a Lot Code)).  Both sides put correspondence before the court seeking to support their respective contentions as to whether or not these “technical” issues had been appropriately identified.  In my opinion, they have been.  In any event, they are of sufficient public importance to make it inappropriate for the appellant to be permitted to succeed in respect of them by default.

1. Having presented the Council’s arguments on the “merits” reflected in Mr Beard’s views, Mr Morzone submitted that, regardless of such matters, the issue is “non-justiciable.  The court has no jurisdiction to deal with the through connection to Marlin Drive.”  As indicated, it is impossible for the connection to be established without use of the southern part of the already dedicated road reserve.  The written submission goes on:

“7.   The applicants have expressly denounced (appropriately, in the absence of evidence of the requisite resource entitlement) that the dedicated road shaded green forms part of the land the subject of the development application (see Appellant’s solicitors’ letter dated 25 June 2010).  If such land were to be part of the application, evidence of a resource entitlement was required under s 3.2.1(5) of IPA.  Non-compliance with such requirement could not be excused either under IPA or pursuant to Section 820(1) of SPA (see Barrow Group Pty Ltd v Redland Shire Council [2009] QCA 310; Stockland Property Management Pty Ltd v Cairns City Council [2009] QCA 311; Mahaside Pty Ltd v Sunshine Coast Regional Council [2010] QPEC 70).

8.     Essentially, as the reconfiguration layout (Exh 8) shows, what is proposed by the applicant is to construct external roadworks on that land for the purpose of providing access to Lots 44 to 49 and Lots 1 and 2.  Those works will be undertaken pursuant to conditions agreed to and imposed by the Council.  Having put forward a proposal which provides for access to such lots as proposed, there can be no argument but that the construction of the external road to the point of access of Lot 1 (with the agreement of Council) is reasonable and relevantly required.

9.     In the circumstances, in the absence of the Council imposing a condition requiring the through connection to Marlin Drive, the decision to open the connection is not one for this Court.

(a)the external road network arrangements in this and the remainder of the Wonga Beach area are matters for the elected planning authority (see Mascotmont Pty Ltd v Bundaberg CC [1997] QPELR 350 AT 352; Jones Flint & Pike v Maroochy SC [1999] QPELR 434 at 438; Adam v Gold Coast City Council [2007] QPELR 379 [at 17]; Wendon Nominees Pty Ltd v Brisbane CC [1984] QPLR 98 at 102, Hanlon v Redcliffe CC [1977] 4 QL 287).  This includes how and when a through connection for the residences in Marlin Drive to the north is provided, designed, routed and coordinated.  Such matters are for political decision;

(b)it would be quite inappropriate to deal with this individual code assessable application for reconfiguration in a way which might be construed as determinative of some wider question (see Elan Capital Corporation Pty Ltd v Brisbane CC (1990) QPLR 209 at 211; Jones Flint & Pike v Maroochy SC (supra) at 438-9);

(c)when IPA refers relevantly to conditions, it is speaking of conditions which will bind or require performance by the applicant (see Logan CC v Harderan Pty Ltd [1989] QPLR 11 at 13; [1984] 1 Qd R 524, 527).

(d)if the Court acceded to the proposal, the Court would in effect wrongly impose upon the Council the on-going expense and responsibility for the control and maintenance of that connection against its will (see Australand Holdings Ltd v Gold Coast CC [2007] QPELR 48 at paras 19, 25; Jones Flint & Pike v Maroochy SC (supra) at 438); Belcare Pty Ltd v Brisbane City Council (1963) 11 CLR 253, 262.

(e)it is not to the point that the Appellant is prepared to meet any costs associated with the mode of connection.  The difficulty is the connection is not one the Council is at present prepared to accept (see Knox v Brisbane CC 31 LGRA 108 at 111; Mascotmont (supra) at 352 Jones Flint & Pike v Maroochy SC (supra) at 438-9; Hanlon (supra) at 288).

10.In short, the through road connection to Marlin Drive comprises external works which are not necessary for the development.  In the absence of the Council agreeing to such, the Council cannot (and should not) impose a condition compelling the Council to accept such works.”

1. It seems unnecessary to embark on consideration of the difficult issues to do with resource entitlements.  Little was heard of them at the hearing.  It is convenient to reproduce some of the reasons for judgment in Jones Flint & Pike v Maroochy Shire Council [1999] QPELR 434, more recently the subject of some endorsement in Australand Holdings Ltd v Gold Coast City Council [2007] QPELR 48 at [22], following a clear statement in [15] that the Council there should not and could not be compelled to accept an easement through the imposition of conditions attached to a reconfiguration approval and at [19] that the court has no jurisdiction to compel a local authority to become an occupier of land; the reasons in the earlier case at 438-39 include the following:

“Mr Hughes submitted that if the Court endorsed the JF&P proposal, it would be forcing the Council to permit works to be carried out in its road reserve which it does not want. He cited a number of authorities, commencing with Knox v Brisbane City Council (1975) 31 LGRA 108. Judge Byth said at 110:

‘The evidence in the appeal shows, and I find, that roadworks external to the subject land would be necessary in order to provide suitable road access from Old Cleveland Road to the site, if this caravan park is to be established.  There is nothing to suggest that the Council proposed to upgrade or seal Caradoc Street or Tinchborne Street, and, of course, this Court has no power to direct or order the Council to do such work.

There is no evidence that any agreement has been entered into between the Council (or its Registration Board or other delegate) and the appellants as to any payment to be made by the appellants in respect of upgrading or sealing of Caradoc Street (or of Tinchborne Street). As mentioned, the Appellants, during the hearing of the appeal, made an offer with respect to Caradoc Street, but it has not been accepted by the Council, or converted into an agreement at all.’

Next, in Wendon Nominees Pty Ltd v Brisbane City Council (1984) QPLR 98, at 102, Judge Quirk, referring to Knox said that:

‘This court has, on numerous occasions, accepted that it is not within its jurisdiction to make orders or issue directions to a Local Authority in respect of works.’

Mr Hughes rounded out this part of his submissions with a reference to an authoritative statement by Matthews J for the Full Court in Harderan v Logan City Council (1989) 1 Qd. R. 524, 527-28:

‘It is important to note that when the Act refers relevantly to conditions, it is speaking of conditions which will bind or require performance by an applicant.  During the argument in the instant appeal, it was accepted that the Local Government Court is given, by the legislation, no jurisdiction to order the appellant to carry out roadworks and, of course, that a person in the position of the Respondent has no right to do so outside his own land.  The particular roads affected by the proposed construction were public roads…’

A recent decision of interest is Mascotmont Pty Ltd v Bundaberg City Council (1997) QPELR 350. At 352, Judge Quirk was commenting on the Bundaberg City Council’s favourable attitude towards any proposal seeking to link a development to its existing sewerage system on an “ad hoc basis” in a way inconsistent with its broad strategies for sewerage. His Honour said:

‘Fundamentally, the arrangements for sewerage infrastructure in a local authority area is a matter for the elected planning authority.  How a system is designed, routed and coordinated throughout the area has no doubt important implications in respect of accessibility, efficiency and future costs of maintenance and upgrading.  One only has to examine the strategy report to have some appreciation of the work that is involved in settling it.  If this is the strategy that the Respondent favours (as was indicated by its case in this appeal) it is, in my view, entitled to resist any departure from it.

…

I can understand the Appellant’s frustration at this, particularly as it is prepared to meet any costs associated with the mode of connection of this proposal suggested by its engineer. The difficulty is that the proposed mode of connection, while practicable in an engineering sense, is not one which the Respondent is prepared to accept. There is, for the Appellant, the added difficulty that if I accede to its proposal, I would, in effect, be seeking to direct the Respondent to carry out work external to the site which it is not willing to perform. It is well settled that this would be beyond the Court’s power (Harderan Pty Ltd v Logan City Council (1989) 1 Qd R at 524).’

…

Mr Hughes’ closing gambit was to argue that this Court should not, when dealing with an individual application, like the present, substitute some road planning strategy of its own for the Council’s chosen road planning strategy, or determine individual applications such as this one in a way which might be seen as determining some wider question, such as the appropriateness of providing the passing lane from the bottom of Jones Road. He supported the proposition that this Court ought to respect the Council’s position as road authority by analogy with what Judge Quirk said in Elan Capital Corporation Pty Ltd v Brisbane City Council (1990) QPLR 209, at 211:

‘It should not be necessary to repeat it but this Court is not the Planning Authority for the City of Brisbane. It is not this Court’s function to substitute planning strategies (which on evidence given in a particular appeal might seem more appealing) for those which a Planning Authority in a careful and proper manner has chosen to adopt (Brazier v Brisbane City Council 26 LGRA 322 at 327). As was observed by Carter J. in Sheezel & Anor v Noosa Shire Council (1980) QPLR 130 (when he then constituted this Court), it would be quite inappropriate for this Court to deal with an individual application for rezoning in a way which might be construed as determinative of some wider question. Adopting the phraseology of those cases which deal with the non-derogation principle, I feel that to allow this appeal would be to ‘cut across’ in quite unacceptable manner, a planning strategy which has been adopted by the Planning Authority and publicly exhibited for community comment.’”

1. In the passage from Belcaro Pty Ltd v Brisbane City Council (1963) 110 CLR 253, which Mr Morzone relied on as indicating a general principle, Kitto, Taylor and Owen JJ said:

“It cannot be that the provision puts the Council at the mercy of the subdivider, in the sense that whenever the subdivider chooses to demand that his large-dimension stormwater drain be constructed and offers to pay the estimated cost of a small-dimension drain in accordance with the provision the Council comes under a public duty enforceable by mandamus to construct the drain, regardless of the Council’s available resources or its existing commitments.”

A further passage from Knox v Brisbane City Council (1975) 31 LGRA 108, which was approved in Harderan Pty Ltd v Logan City Council [1989] 1 Qd R 524, was:

“…a condition that the appellant pay or contribute towards the upgrading and/or sealing of Caradoc Street or Tinchborne Street from Old Cleveland Road to the site could not be imposed without an agreement having been entered into between the appellants and the Council, and, as I say, there is no such agreement.  The Court cannot, and would not, order the Council to enter into such an agreement.”

1. The appellant’s supplementary submissions of 1 September 2010 which attracted a response from Mr Morzone two days later, complain of being taken by surprise by the suggestion that Condition 3(b) is non-justiciable, asserting that a preliminary determination could have been sought prior to the parties embarking on “the three day merits hearing with its associated expense.”  Reference was made to Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 in support of a submission that the court should decline to entertain the road connection issue. I do not accept the assertion of surprise or ambush. Nor am I persuaded that this issue should be deferred to some future occasion when the appellant might lodge an application for a permit or approval for operational works. Mr Morzone’s response contends that the question of jurisdiction raised by him can be raised at any time and has to be considered by the court, citing Fitzgerald v Logan City Council [1993] QPLR 1 at 4. I confess to considerable difficulty in identifying any non-justiciable issue here. The whole notion of recourse to ideas of non-justiciability in a more confined context was helpfully discussed by Chris Finn in “The Justiciabililty of Administrative Decisions: A Redundant Concept?” [2002] Federal Law Review. It seems to me a rather different notion to argue that, given the state of the law as interpreted authoritatively in Harderan, the court is obliged to determine this appeal on the basis that the Council cannot be compelled by imposition of a condition on a development approval in the appellant’s favour or on any other theory to accept or permit work on its road reserve which it does not want. 

1. The appellant submits that “a determination that Condition 3(b) represents an unreasonable imposition upon the development (as the evidence confirmed) would not amount to a direction that the Council undertake work” it does not want to undertake.  It is true that any such work will be done and/or paid for by the appellant, entirely consistently with the purpose of the road reserve.  This does not gainsay that the Council, not the appellant and not the court, determine what works are done on the road reserve.  Notwithstanding the Council’s use of the device of a “condition”, the Council has not, in my view, got itself into a situation in which the court may reject or reformulate the condition with the effect of overriding the Council’s undoubted prerogatives in respect of the road reserve.  Neither a congruence of experts’ opinions nor recourse to the notion that establishing the north-south connection via Marlin Drive advances the community or public interest justifies a different outcome. 

1. The appellant is correct to say that “without the imposition of a condition upon this reconfiguration approval, approved by this court, Wroxall, or the future occupants of the subject land, cannot be prevented from exercising their entitlement to access the land from the gazetted roads to which it has a frontage.”  But the question in practical terms is about vehicular access by crossing the line at the northern limit of the trafficable sealed carriageway of Marlin Drive.  The Council proposes no impediment to vehicular access along the road reserve, provided that it is entered from the north and offers no connection to Marlin Drive.  Access to the reserve from Marlin Drive will continue to be available as it is at present for cyclists and pedestrians.

1. Mr Schomburgk, the appellant’s planning expert, gave evidence that he would advise his client not to proceed with the Exhibit 8 layout if the connection to Marlin Drive could not be provided.  He contemplates that a more efficient or advantageous layout could be proposed.  The appellant might be well advised to accept such counsel.  The court has not pre-judged anything, but it seems obvious that future residents may be happier if their frontages were not to a road forming part of a zig-zag connection between North Wonga Beach and South Wonga Beach.  It would seem likely that the Council would require as a condition of a 50-lot residential subdivision that the dedications required to widen the road reserve to accommodate a future road for vehicular traffic without compromising the existing cycle path and that such a condition would satisfy the IPA tests for relevance and reasonableness.

1. In the circumstances, it is inappropriate for the court to proceed on the basis of Exhibit 8 representing the appellant’s proposal.  What the court can usefully do is indicate to the parties, as it does, that the court will not force on the Council a north-south connection linking Oasis Drive and Marlin Drive in the short term – or putting it another way, approve a layout which includes an open vehicular connection from or to Marlin Drive.[4]  Progress towards establishment of a usable link (wherever located) has obvious advantages from every point of view; it may even be appropriate or defensible to go beyond the mere making of provision, to the stage of construction, depending on what works are necessary for access to proposed lots.

   [4]Excepting a connection that cannot link to Oasis Drive, such as one of Mr Beard’s proposals for access to Lot 1: see [23] above.

1. Mr Williams, the appellant’s traffic engineering expert, provides a useful summary of what had occurred earlier relevant to his field in his individual report (Exhibit 2):

“The discussions resulted in agreement that the “potential shopping centre” shown on the original layout plans does not form part of this application.  Mr Beard indicated that it would be inappropriate for a plan proposed to be approved to include any reference to a facility not part of the application and which is not consistent with the planning scheme.  I indicated that the traffic associated with any potential future development of the balance area should be considered within the current traffic assessment.  Mr Beard questioned the location of the proposed shopping centre in terms of viability, to which my response was to refer that issue to experts in economic need and town planning.

Mr Beard considered that the through road connection proposed with the ROL application was done so for the purpose of the future convenience centre and not the subdivision, i.e. ‘the tail wagging the dog’.

As part of the joint report I considered that the new connection between the northern and south ends of Wonga Beach would not result in any significant traffic related issues that would warrant removal of the road link.  I also identified that the circuitous nature of the connection would ensure that any unnecessary through movements would be minimised.  The benefits to the community that I identified included:

·      Improved connectivity between north and south Wonga   Beach, particularly for the existing primary school located   in Wonga Beach north;

·      A more direct bus route, which is currently required to   travel via the State-Controlled Road Network (SCRN); and

·      Provides an alternative access and egress to the SCRN for              the residents of Wonga Beach in emergency situations.

Mr Beard agreed, that under normal circumstances the provision of a connection within the residential street hierarchy would be considered desirable, however he considered that there are several unusual circumstances in the local street network, namely:

·      There is no internal bus route within Wonga Beach, other               than two school buses per day, normal scheduled bus                   routes are limited to Mossman Daintree Road;

·      Although the speed limit on Mossman Daintree Road is   high, traffic volumes are low and it is unlikely that any of   the three Wonga Beach access intersection will be   closed or have any turns rationalised in the future;

·      It would be simple to provide a gated emergency access linking the two sections of the community without providing a permanent vehicular connection;

·      While travel speeds through the site may be low, the southern section of Marlin Drive is wide and straight and speed control could be a significant issue.  Further, a through connection would be an attractive route for traffic movement between the northern section of Wonga Beach and Mossman Daintree Road (south).

·      An adequate pedestrian and cyclist network already exists as well as a comprehensive path network.  Provision of a vehicle connection would reduce the attractiveness of the existing pedestrian and cyclist connection which does not involve conflicts with vehicles;

·      Oasis Drive, while being designed as a minor collector, does not have the pavement width adequate to function as a bus route collector street, thereby reducing its functionality; and

·      The existing residents most likely to be affected by additional traffic volumes at higher operating speeds are those in Marlin Drive, south of Oleander Drive.  Without formal public consultation about significant changes to the local street hierarchy their reasonable expectations need to be considered.

Mr Beard further considered that Council is the appropriate authority to decide the advantages or disadvantages of any new connection on the basis of the planning intentions of the local planning scheme.  It is his opinion that Council’s decision not to approve the link is reasonable in these circumstances.

Mr Beard identified that Council could consider conditioning that the existing road reserve be widened to not preclude a connection in the future taking into account all relevant land uses planning and traffic planning considerations including the possibility of turn rationalisation at the intersections on Mossman Daintree Road.

I disagreed with Mr Beard’s previous issues on the basis that the proposed layout provides a circuitous route that would be an undesirable route choice for through movements for those residents of North Wonga Beach travelling to/from the south of Wonga Beach.  I noted Mr Beard’s comments regarding speed control, however I considered that this could be dealt with through appropriate conditions, if required.”

1. Mr Williams’ observation regarding the importance of an alternative way out for residents of North Wonga Beach is significant; indeed, Mr Beard agrees that the present situation is undesirable.  Interestingly, this is the second occasion within a month of my hearing that local residents faced with the prospect of a new “through” road proposed for such safety reasons indicated strongly a preference to remain in relative isolation, for all the attendant risk.  Cf. Hydrox Nominees Pty Ltd v Brisbane City Council [2010] QPEC 64 at pp 6-7. There is a prospect of alternative access to the highway from North Wonga Beach being made available if a recent preliminary approval issued by the Council for a residential development north of the site which includes a condition that a connector road be constructed to link Snapper Island Drive (where the school is) and Vixies Road, further north, results in the proposal being implemented. Vixies Road connects with the highway to the west.

1. Mr Beard thinks that in the longer term, the Department of Transport and Main Roads will rationalise accesses to the highway by reducing them to two, presumably Wonga Beach Road in the north and Marlin Drive or Oleander Drive in the south. This will be dependent on the north-south link within Wonga Beach being available.  It is expected that the Department would be in favour of this means of keeping internal Wonga Beach traffic off its road.  There are of course many instances of State- controlled roads running through the middle of communities and providing essential elements of the local street system.  Although Mossman Daintree Road appeared to be busy on the day of the court’s inspection, moreso during the drive north in the early afternoon, on the evidence, there are no serious difficulties with present traffic arrangements.  The experts did not suggest that the volumes of highway traffic were a cause for present concerns.  Again, while the importance of any development of the site preserving the potential for a connection to Marlin Drive is clear, there is no pressing need for a usable connection immediately available; there are good reasons for not permitting one at this time.

1. As to whether the road reserve ought to have been included in the land the subject of the appellant’s development application, Mr Hughes referred to Kenlynn Hospitality Pty Ltd v Bundaberg City Council [2007] QPELR 37, where one reads:

“31 It would be a dramatic development to hold that an application could not be approved, and conditions could not be imposed requiring anything to be done, unless the application itself had sought approval for the development the subject of the conditions.  Most development applications relate to proposals which envisage the use of land, which is dedicated as road (including footpaths), for access by pedestrians and vehicles and many are approved on conditions (the content of which are unknown when the application is made) requiring external works.  It would be a dramatic development if, in all such cases, the applicant was required to include the road in the application (or suffered that fate if it prepared a plan showing the external works it was prepared to construct, if required to do so by condition), even if the development within the road was otherwise exempt from assessment against the planning scheme.  Further the State, as the owner of the land, would effectively hold something of a right of veto as to whether such an application could be made, since the consent of the State, as owner of the land constituting the road, would be required.”

1. It is not any technicality of failure to include the road reserve in the application that causes difficulty to the appellant, but rather its determination, against the Council’s wishes, to provide the connection road, which cannot occur without use of the south eastern end of the reserve, which opens on to the “dead end” at the north of Marlin Drive. On the ground, the connection between Marlin Drive and the unmade reserve, as noted above, is limited to a narrow bridge (for cyclists and pedestrians only) which crosses a deep east-west drain running to the sea, apparently along and within the southern boundary of the road reserve and the site. There cannot be a connection trafficable by vehicles if the Council does not agree to accept necessary works. It controls roads in its local government area under s 60 of the Local Government Act 2009.  There were corresponding provisions in earlier legislation.  Roads include land dedicated to public use as a road (s 59).  Under the Land Act 1994, the land in all roads (defined in s 93) is vested in the State: s 95. The provisions of Chapter 7 Part 2 (s 404 ff) would appear to stand in the way of the appellant or anyone else occupying the road reserve or doing any work upon it without Council approval. The “site” formerly enjoyed frontage to the stub of Marlin Drive, but lost it on the dedication of the road reserve. See SP 118447 (Exhibit 6).

1. The remaining issue for the court concerns park provision.  As will be seen, from the point of view of formulating appropriate conditions, the context is going to depend on what transpires in respect of the road link: things may develop such that the northern part of the road reserve, perhaps augmented by a narrow strip taken from the site, could be regarded as providing open public space available for recreational purposes.

1. Section 3.5.30 of the IPA requires that a condition be “relevant to, but not an unreasonable imposition on” or “be reasonably required in respect of” the development or use of premises as a consequence of it. This applies despite the policies of the local government.

1. Mr Morzone’s written submissions adequately summarise the effect of Exhibit 15, the Council’s Policy 9 Open Space Contributions:

“13. Policy No 9:

(a)     is intended to “ensure that adequate parks and open space areas are provided for the enjoyment of residents” (p71);

(b)     makes it clear, by numerous references throughout the policy, that the surrender of parkland or the making of monetary contribution in substitution is intended “for use as a park” (eg 2^nd 3^rd 5^th paras p 71, 2^nd para p 72, 5^th para p 73);

(c)     provides that, in exercising its discretion, “the Council will seek to ensure that the contribution required from reconfiguration is adequate and reasonable under all the circumstances” (p72);

(d)     sets out the matters to be taken into account in determining the area to be provided and the need for monetary contribution (pp 73, 74);

(e)     recognises that parkland needs to be of an area sufficient to allow adequate space for leisure time activities and, accordingly, intends that park be a minimum of 1 hectare (bottom p 73); and

(f)   is limited in the way it provides for the taking into account of previous contributions (see bottom p 71 and bottom p 73).  Essentially, those circumstances are in cases where an application is made to “further reconfigure land which formed part of a previous application in respect of which an area of land was required to be provided for a use as a park” or in respect of which “a monetary contribution [in substitution] was required.”

1. The appellant proposes that the “acknowledgement” to be added to Condition 6 be:

“Council acknowledges that it will accept the area of the road reserve identified as park at the Oasis Drive end of the site as part of the park area contribution for the development, together with the proposed enhanced entrance to the vegetated foreshore and beach. Otherwise, no further physical land park contribution from the site will be required.

The north-south drainage reserve (west of the road reserve) will not be included in calculations.

Accordingly, the monetary contribution part shall be calculated on the basis of 10% less the area of rural reserve identified as park at the Oasis Drive end of the site and the area of widened access to the vegetated foreshore and the beach.”

1. Mr Morzone is correct that the policy would not allow a credit for “the area of the road reserve identified as park” as a previous contribution because the dedication was “not for use as a park”.  In similar technical vein, we may not be faced with an application to “further reconfigure”, although the consideration for the dedication was the Council’s agreement to permit maximum residential density.  I do not think it matters, where an allowance against ordinary contributions is the issue, that the area of land in issue may be “of insufficient area and quality for use as a park”. 

1. The court has the benefit of a joint expert report of the planners engaged by the parties, Mr Schomburgk (CS) and Mr Ovenden (GO):

“4.3   Condition 6(a) and 6(c) – Open Space Contributions
There remains disagreement about the need for additional open space contributions.

CS notes that the land owner has previously provided land to the Council for a pedestrian and bicycle link (along the site’s western boundary) at no cost to the Council, and that this should be taken into account.  Part of that link is shown as Park on the proposal plan, adjacent to proposed Lots 35 and 49.  CS also notes that the total site area is 6.036ha, such that a 10% contribution (if the maximum 10% was provided) would result in a park of on 6,000m² - which is less than the Council’s Policy of a minimum of 1.0ha.  Given the previous dedication to Council and the resultant small parcel that would be relevantly required, a land dedication is inappropriate in this case.

CS says the, that with respect to a monetary contribution, that amount should be calculated taking into account the previous dedication of land.

GO notes the historical agreement between the property owner and Council which resulted in the land in question along the western boundary of the subject site being dedicated as road reserve – not as park.  The road dedication agreement acknowledged the road area of 5260sqm and provided for future residential development of the subject site to achieve a density calculation as if the road dedication did not occur ie over the gross site area.  The action of this road dedication (prior to development of the subject site) enabled the Council to construct a bicycle lane and fence between Marlin Drive and Oasis Drive.  Further the dedication facilitated the future subdivision of the subject site (in all likelihood) in anticipation of the construction of the through road.  GO  notes that the Appellant has in part benefited from this road reserve with the subdivision proposal for the land, with the road providing direct access to lots in the subdivision proposed to be constructed in approximately 75% of the dedicated reserve.  A small pocket park is shown on the proposal plan at the Oasis Drive end of the road reserve as a result of the deviation of the north-south link road indirectly through the site.

While acknowledging that Council’s policy provides for parks to have a minimum area of 1 hectare, in the circumstances GO believes it is reasonable to accept the area of road reserve identified as park at the Oasis Drive end of site as part of the park contribution for the development.  The north-south drainage reserve (west of the road reserve in question) identified as park on the subdivision proposal plan should be excluded from calculations as it is actually outside of the site, including the area of the historic road dedication.  Given the proposed enhanced entrance to the vegetated foreshore and beach it is not considered necessary to achieve further physical park contribution on the site.  GO takes the view that the area of park provided plus the widened throat to the beach (where not required for drainage purposes) should constitute the park dedication for the development with the balance area (ie the shortfall below the nominal 10% land area) being subject to a monetary contribution.”

1. I have italicised a significant opinion of Mr Ovenden.  Of course, the planners’ view need not be accepted by the court.  Their agreement that a road connection between North Wonga Beach and South Wonga Beach “was desirable in the circumstances” (which finds support in Planning Scheme provisions identified by Mr Schomburgk and Mr Williams) will not prevail here, given that the issue is also (and essentially) a traffic one with implications for the town generally, not just for the present proposal for the site (for which they have only modest significance) – likewise its immediate locality.

1. It is a rather imaginative interpretation of the agreement covering the dedication of the road reserve to describe it, as does the appellant, as for “recreational” purposes: it is for a “road/bicycle land corridor [which] Haydn Redfern has agreed to dedicate … shown as New Road on the plan … as road”.  The appellant submits that Ajana Park Pty Ltd v Mackay City Council [2009] QCA 404 leaves some room for the operation of notions of fairness when the “reasonableness” of a condition is being considered. I did not understand the claim to be made that anything like the entire area of road dedication (in excess of 5,000 m²) should come in as a contribution pro tanto towards the 6,000 m², which the ordinary 10 per cent benchmark would call for. Credit was sought for “the part adjacent to Lots 25 and 49 which will look and function as a park”. Exhibit 8 has the area (to which a small sliver to the west of proposed lot 49 is apparently to be added) as “park”. Its area is not yet the subject of precise measurement. The parties’ estimate, scaling from Exhibit 8 and other documents, is that some 2,500 m² would be included. Notwithstanding the Council’s submission, I think that this area may function as a park in the circumstances, depending upon how things turn out. It will accommodate a bicycle track as an extension of the one coming from Marlin Drive, bordered in the west by the drainage area, which possesses considerable visual appeal as the drain/creek is fringed by an avenue of tall trees. At the time of the inspection, use of the expression “recreational” to describe what was there was appropriate.

1. In the circumstances, the court favours the appellant’s wording for Condition 6.  A “reasonable” approach would allow some credit for the useful part of the 1999 dedication.  The premise of that is that the Exhibit 8 layout represents the reconfiguration plan.  That is, the area under consideration, albeit designated road reserve, will be available in the long term for enjoyment as a park, which necessarily means that it will not be utilised as part of the through connection between Oasis Drive and Marlin Drive.  If the appellant proposes a new layout utilising the “park” for road purposes, the consequence ought to be foregoing any credit for park contribution.  It would remain appropriate for the connection on the eastern side to the Esplanade, which effectively requires the sacrifice of an 800 m²  allotment to earn credit: a beach connection 20 metres or so wide serves recreational purpose.  The absence of more substantial park provision within the proposed subdivision for enjoyment of residents is compensated for by the presence of the Esplanade, which links with more “manicured” parkland to the south, and, indeed, of the beach.

1. I understood the Council to be receptive to the idea of the appellant’s development application being kept open, leaving the parties to attempt to work things out with the benefit of knowing the court’s views regarding the couple of issues still in contention.  Cf. Bakrnchev Enterprises Pty Ltd v Maroochy Shire Council [2008] QPELR 372, 397. The appeal should be adjourned generally to accommodate this.

1. The court resolves the issues presented to it by indicating its support for the appellant’s view of condition 6 regarding park contribution (assuming the relevant area will be available for use as park in the long term) and for the Council’s view that the court is precluded from approving and would not approve a proposal including a through road requiring use of the reserve.  If this is a subject for conditions (contrary to the court’s view), the Council’s condition 3(b) is supported, subject to further consideration of where “bollards” might go to suit the final layout.  There is nothing to be achieved by the appellant espousing a layout including provision off the site of the contentious connection to Marlin Drive.[5]

   [5]With the qualification in footnote 3.