Wruck & Anor v. Redland Shire Council & Anor; Birkdale Progress Association Inc v Redland Shire Council & Anor

[2007] QPEC 96

PLANNING & ENVIRONMENT COURT
OF QUEENSLAND

CITATION:

Wruck & Anor v Redland Shire Council & Anor; Birkdale Progress Association Inc v Redland Shire Council & Anor [2007] QPEC 096

PARTIES:

Maroochydore Appeal 314 of 2006

PAUL D WRUCK and MARGARET A WRUCK

Appellants

V

REDLAND SHIRE COUNCIL

Respondent

And

ESVEE PTY LTD ACN 105392372

Co-respondent

Appeal 3327 of 2006

BIRKDALE PROGRESS ASSOCIATION INC

Appellant

V

REDLAND SHIRE COUNCIL

Respondent

And

ESVEE PTY LTD ACN 105392372

Co-respondent

FILE NO/S:

Maroochydore D314/2006; Brisbane BD 3327/2006

DIVISION:

Planning and Environment

PROCEEDING:

Appeals

ORIGINATING COURT:

Planning and Environment Court of Queensland

DELIVERED ON:

20 November 2007

DELIVERED AT:

Brisbane

HEARING DATE:

7 November 2007

JUDGE:

Alan Wilson SC, DCJ

ORDER:

Appeals dismissed

Review at 9:00am on 21 November 2007

CATCHWORDS:

PLANNING – PLANNING LAW – ACCESS FROM APPROVED SUBDIVISION TO NEIGHBOURING LAND – CONDITIONS – whether condition should be imposed to provide for additional access from approved subdivision to appellants’ neighbouring land – discretion – relevant criteria

Integrated Planning Act 1997, s 3.5.30 & s 4.1.50

Cases considered:
Proctor v Brisbane City Council & Ors (1993) 81 LGERA 398
Smith v Maroochy Shire Council [2004] QPELR 358
Sumvista Pty Ltd v Redland Shire Council [2005] QPELR 460
Wingate Properties Pty Ltd v Brisbane City Council [2001] QPELR 272

COUNSEL:

M A Williamson for appellants P D & M A Wruck
D Baxter, agent for appellant Birkdale Progress Association
S Ure for respondent Council
B D Job for co-respondent Esvee Pty Ltd

SOLICITORS:

IPA Law for appellants P D & M A Wruck
Birkdale Progress Association Inc self-represented
Deacons for respondent Council
Geoff Klooger & Associates for co-respondent Esvee Pty Ltd

1. The sole dispute in submitter appeal 314/2006 concerns the contention by the appellants, the Wrucks, that a subdivision Council has approved on land owned by the co-respondent Esvee Pty Ltd should have a condition attached to it which would facilitate future access to the Wruck’s adjoining land by way of two access points, and not just one (as the current approval from Council provides).  Council opposes that proposal; Esvee, while not offering vehement opposition to the Wruck’s submission (which would cause it no loss, expense or inconvenience) simply contends the current, approved layout is both acceptable, and to be preferred.

1. In the second appeal 3327/2006 the Birkdale Progress Association was, by an order made some months ago, excused further attendance unless and until it wished to raise further issues or be heard about conditions of approval associated with the subdivision on Esvee’s land.  It has not raised further issues, but, through a member, Mr Baxter, it wishes to be heard about conditions of approval.  The Association’s only remaining interest, it transpired, is the preservation of a liquid amber tree near the second access point sought by the Wrucks.  For reasons which follow, that is probably not a matter which requires adjudication.

1. The Esvee and Wruck properties adjoin each other on Old Cleveland Road East, at Birkdale.  They share a boundary (on the east of the Esvee parcel, and western edge of the Wruck land) of about 150 metres. When Esvee sought approval for its subdivision, it presented a plan which showed road access from its land into the Wruck land at two separate points.  Council’s approval was conditional, however, upon removal of the southern access point.  The Wruck’s seek, in their appeal, the imposition of a condition which restores what Esvee originally sought.  (Esvee’s position has, of course, changed: it is content with what Council has permitted.)

1. It was not in dispute that access to the Wruck’s land can only realistically, now and in the future, be obtained across the Esvee land.  It is unlikely to be achieved via Old Cleveland Road East to the south, which is too busy to allow any increased residential access from side streets, developments etcetera.  It is unable to be achieved via the existing road network on the land to the east of the Wruck’s property, because the development there did not make provision for connectivity.  Similarly, it is unlikely to be achieved via the land to the north – council has granted a preliminary approval for that property, in a form which provides for no connection between it and the Wruck’s property.

1. The Esvee land contains about 2.7 hectares and is on the corner of Old Cleveland Road East and Carinyan Drive.  Under the planning scheme in force at the time the development application for subdivision of that land was lodged, the land was contained within the Special Facilities (plant nursery) zone and partly within the Special Protection Public Open Space strategic plan designations.  Under the later IPA scheme it is partly within the Urban Residential and Open Space zones.  The approval is for a twenty five lot subdivision for residential purposes together with areas of park including portions along the length of the eastern boundary – ie, the border with the Wruck land.

1. The Wruck’s property is contained partly within the Urban Residential and Open Space zones.  Potentially, it could be used for a number of purposes including multiple dwellings, and housing for aged persons or those with special needs.  The planning scheme’s Outcomes for the Open Space zone also include provision for a range of open space and recreational activities.  Relevantly, no development application has yet been lodged in respect of that parcel although the Wruck’s solicitors provided, for the purposes of this appeal, a concept plan depicting a form of staged subdivision.

1. Council’s conditions of approval for the Esvee land require the provision of a corridor on the eastern boundary, running north to south[1].  The corridor will link areas of bushland intended to provide habitat and allow local fauna including, in particular, koalas, to move through the landscape. 

   [1]Exhibit 2, Negotiated Decision Notice dated 16 October 2006

1. The environmental planner called by Council, Mr Maslen, was opposed to the additional interruption of that corridor which would occur if a second access point to the Wruck land was allowed.  Somewhere between 200 and 400 square metres of land that could otherwise be rehabilitated and revegetated would, he said, thereby be denied to this linkage system.  Mr Caneris, an environmental consultant and ecologist called in the Wruck’s case agreed the extra access point would provide some loss of parkland.  In his opinion this loss would not, however, endanger the value of the linkage itself or endanger fauna which might use it because, he said, suitable landscaping, fencing and safe crossing areas (eg, under the road surface) could all be provided.

1. In his report[2] Mr Caneris had agreed, however, that the site supports koala habitat and forms part of ‘…the last remaining option to create a viable linkage between suitable habitats within the broader study area’.  The concession is a proper and sensible one.  Once it is made, Mr Maslen’s opinion that the linkage will be, to some degree at least, diminished (and, potentially, harmed) by the provision of a second access route becomes persuasive in the final determination.

   [2]Exhibit 9, p 10, [3.1.5]

1. All parties called traffic engineering experts.  Mr Beard and Mr Holland gave evidence which was persuasive that there is no demonstrated traffic engineering requirement, or justification for, a second access.  While the traffic engineer called in the Wruck’s case, Mr Rytenskild, suggested that two access places would provide greater design flexibility, it was clear from the evidence of town planners called by each party that this was an essentially hypothetical proposition.  Notwithstanding a variety of design proposals which arose for discussion, it could not be said, on any view, that access, capacity or use of the Wruck’s land were markedly (or even observably) reduced by the provision of only one access point to the Esvee land.  Regardless of the possibility of some environmental detriment there was, then, no persuasive evidence that a second access point is necessary, or even especially desirable. 

1. Counsel for the Wrucks pointed to the use of the phrase ‘maximising connectivity’ in the planning scheme[3] as support for the proposition that it encourages as much access as possible.  The actual phrase used in the scheme is ‘provide pedestrian, cycle and vehicle movement networks that maximise connectivity’.  The phrase is plainly one which must be construed with proper regard to the relevant, prevailing circumstances.  Here, these circumstances include the absence of any apparent need for a second access point for traffic movement purposes, and the fact that an important fauna linkage will suffer if the extra point is provided. 

   [3]Overall Outcomes: extracted in Mr Bullen’s report, Exhibit 11, p 27

1. In argument some emphasis was placed on the need for ‘design flexibility’ when the time comes to settle the ultimate use of the Wruck land.  A second access would, it was suggested, help to ‘unlock’ that parcel in the sense of widening potential uses and enhancing choices for subdivision and the like.  Even if it is accepted that the notion of ‘connectivity’ (as it is used in the planning scheme) might encompass concepts like the widening of design opportunities on contiguous parcels, the problem for the appellants here is (again) that the evidence does not establish any unreasonable limitation is imposed if only one access point is allowed, or that development opportunities are lost if a second is denied. 

1. The Wrucks prayed support from the decision of Dodds DCJ in Smith v Maroochy Shire Council [2004] QPELR 358. In that case, as here, an appellant sought the imposition of a condition upon a development approval over neighbouring land requiring the dedication of a road to provide future access to its own property. The planning scheme emphasised the need for ‘internal accessibility and good external connections …’[4]. In accepting that such a condition should be imposed, his Honour focussed upon s 3.5.30 of the Integrated Planning Act 1997. This provision concerns the validity of conditions of approval of development and enquires, in particular, whether the proposed condition is relevant to the development, or reasonably required ‘… in respect of the development or use of premises as a consequence of the development’. 

   [4]Smith v Maroochy Shire Council [2004] QPELR 358, p361

1. His Honour was also taken to authority showing that the idea that conditions may be imposed over one parcel for the advantage of another was not novel: in Proctor v Brisbane City Council & Ors (1993) 81 LGERA 389 the objector, as here, owned an adjoining property and sought the imposition of a condition on its neighbour’s approval for townhouses which required the provision of road access through that site, so as to permit subdivision of the objector’s land. The Court of Appeal accepted that a condition which was not reasonably required by a development itself might nevertheless be relevant because it fell within ‘… the proper limits of a local authority’s function under the Act …to maintain proper standards in local development’. 

1. His Honour also accepted, however, that tests of reasonableness would dictate whether access requirements should in fact be imposed.  He said at 362 – 363:

[36] … I think it remains a relevant matter to be considered whether the layout of the subdivision roadways so as to provide connectivity to land outside the land proposed to be subdivided is reasonably required in the interests of the rational development of this area … (emphasis added)

1. Although no specific finding appears to have been made, it seems tolerably clear that the Court was persuaded there were sound practical reasons to allow one particular form of access over the neighbouring property.  On that ground alone it can be seen that the circumstances differ markedly from those arising here, where the evidence produces a different result: namely, that one access is perfectly reasonable, and there is no relevant basis for requiring a second. 

1. It also appears the Court in Smith may not have been referred to other decisions in this jurisdiction suggesting that, in cases where additional conditions of approval are urged, consideration of the issue for determination properly starts with the question whether the proposal, as approved without the condition sought to be superimposed, has been shown to be acceptable.  If that is so, the fact that some alternative proposal may be thought to be even more desirable may not be of great moment. 

1. In Wingate Properties Pty Ltd v Brisbane City Council [2001] QPELR 272 Brabazon QC, DCJ said at 276:

[21] … it is not the function of this Court (or indeed any planning authority) to refuse an application because it considers that the proposed use is not the best possible use for the site.  It is not the function of the Court to redesign a proposal.  Its function is to pass judgment on that which is proposed.  In this case, the issue is whether or not the current proposal has been shown to be acceptable.  The fact that some alternative proposal may be thought to be even more acceptable is by the way.  If the current proposal is acceptable, then that is enough.[5] (emphasis added)

[5]And see the remarks of Skoien SJDC in Sumvista Pty Ltd v Redland Shire Council [2005] QPELR 460, at 464-5

1. The onus in an appeal of the present kind is, under IPA s 4.1.50, upon the co-respondent to establish that the appeal should be dismissed.  It is not discordant with the principle found in Proctor (or the decision in Smith) that relevant and reasonable conditions of approval are not required to take into account every foreseeable option for the future uses of the Wruck’s adjoining parcel.  Once the evidence shows that the access provided is reasonable and accords with the relevant parts of the planning scheme, that is enough for it to be said that the co-respondent has discharged its onus. 

1. For the sake of completeness it is appropriate to add that I am, regardless of the approach suggested by Wingate, unpersuaded the application of the test arising under IPA s 3.5.30 alone warrants, necessitates or justifies the imposition of a condition of the kind sought by the Wrucks here. The evidence simply falls short of establishing that it is reasonably required, for any purpose.

1. Finally, it is regrettable that Mr Baxter’s concerns about a particular tree were not put to the ecologists who may have been able to provide some assistance, or information.  His failure to do so means there is no evidence of any kind about the value, or prospects of preserving, the particular tree he mentioned for the first time during closing addresses.  The question whether conditions should be added touching its preservation must be left, then, to the offices of the Council.

1. For these reasons I dismiss both appeals.