Dickson Properties Pty Ltd v Brisbane City Council & Ors [2019] QPEC 48

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Dickson Properties Pty Ltd v Brisbane City Council & Ors [2019] QPEC 48 PARTIES: DICKSON PROPERTIES PTY LTD (Appellant) v BRISBANE CITY COUNCIL (Respondent) and ANTHONY LEIGHTON (First Co-Respondent by Election) and BRUCE LOCKWOOD (Second Co-Respondent by Election) and JOHN BRISTOW (Third Co-Respondent by Election) and RURAL ENVIRONMENT PLANNING ASSOCIATION INC (Fourth Co-Respondent by Election) and GEORGE R PALLOT (Fifth Co-Respondent by Election) and MAX GODFREY GRINDON-EKINS (Sixth Co-Respondent by Election) FILE NO/S: 4072 of 2012 DIVISION: Planning and Environment PROCEEDING: Appeal -- 1 of 11 -- 2 ORIGINATING COURT: Planning and Environment Court, Brisbane DELIVERED ON: 30 September 2019, ex tempore DELIVERED AT: Brisbane HEARING DATE: 30 September 2019 JUDGE: Rackemann DCJ ORDER: 1. Conditions to be amended in accordance with these reasons 2. Adjourned to 22 October 2019 for further review CATCHWORDS: PLANNING AND ENVIRONMENT – APPEAL – CONDITIONS OF APPROVAL – refusal of development permit or reconfiguration of a lot and preliminary approval for material change of use – where appeal has been resolved subject to conditions – where a number of conditions relating to flooding issues remain in dispute COUNSEL: J Lyons for the appellant K Wylie for the respondent A Leighton, self-represented B Lockwood, self-represented and as agent for the sixth co- respondent by election A Williamson, Rural Environment Planning Association and as agent for the third and fifth co-respondents by election SOLICITORS: King & Company Solicitors for the appellant City Legal – Brisbane City Council for the respondent -- 2 of 11 -- 3 [1] This is an appeal against the Council’s decision to refuse a development application for a development permit for the reconfiguration of a lot and a preliminary approval for a material change of use in order to facilitate the development of a residential subdivision on land which was once a golf course. The co-respondents by election were submitters in respect of the application. The development was the subject of a comprehensive joint expert meeting process and was also the subject of minor change determinations. It is now a proposed 23 lot community titles scheme. [2] The parties are now agreed that the appeal can be allowed and the development approved subject to conditions. The Council has produced a draft conditions package. Those conditions are acceptable to each of the parties, save for Mr Leighton, who gave notice of the respects in which he was dissatisfied with the conditions. Although the other co-respondents by election had not taken issue with the conditions, they appear on the hearing and were given the opportunity to participate in the debate. [3] The development application the subject of the appeal was lodged with the Council on the 17th of October 2008 at a time when the Integrated Planning Act 1997 (“IPA”) was in force. The application was refused by way of a decision notice dated the 19 th of September 2012. At that time, and at the time the appeal was commenced, the Sustainable Planning Act 2009 (“SPA”) was in force. Both the IPA and the SPA have been repealed. However, by reason of s 802 of the SPA, the IPA continued to apply to assessing the development application, and by reason of s 819 of the SPA, this appeal must be heard and decided under the provisions of the IPA. [4] The land the subject of the application is subject to flooding, and flooding issues were prominent in the consideration of the application and the issues in the appeal. The proposal is to develop allotments on two fingers of an internal access road which leads to the highest parts of the site. Much of the site is not to be developed. [5] Mr Leighton is the owner of one of three properties which adjoin the western boundary of the subject site and which themselves obtain access via Allard Close to the west. The proposed development is to gain its sole access via Weekes Road to the south. I have already observed that flooding issues were to the fore. They are issues about which Mr Leighton, in particular, has a degree of passion. His concerns and the depth of them are understandable, given that he was traumatised by his experiences during the 2011 floods. At that time his sole access to the west, via Allard Close, was -- 3 of 11 -- 4 cut off, and he was, ultimately, rescued after making his way south and east to a part of Weekes Road from which the rescue could occur. One of his concerns at the time was that he did not know the location to which he could go in safety. He subsequently gave evidence at the flood inquiry. Whilst Mr Leighton was able to reach a degree of safety at Weekes Road, it should be noted that Weekes Road itself is subject to flooding. In the 2011 flood it was the subject of flooding around its midpoint, leaving areas to the east isolated from the western end of the road. [6] Mr Leighton’s concerns were, in essence, twofold. Firstly, he was concerned about the subdivision itself and those who would come to live in it. Secondly, he was concerned to ensure that the development occurred in a way which provided he and the other owners of the lots which have their access from Allard Close a means of emergency access through the subject site out on Weekes Road, at times when Allard Close is flooded or is about the flood. [7] The terms of the conditions package formulated by the respondent does much to address concerns both with respect to the safety of future residents of the development and also in relation to providing emergency access through the subject site for the occupants of the three residences to which I have referred. Weekes Road, as the only road access to the subject site, is to be upgraded so as to achieve a 2% AEP immunity for Brisbane River flood. That will not only improve the level of flood immunity for Weekes Road, but will also provide a greater warning period in respect of flooding of that road. [8] Insofar as the development of the lots on the subject site are concerned, each allotment has a proposed building envelope and, also, a proposed slab on ground zone, the effect of which is that dwellings will all have a 0.2% flood immunity, which is equivalent to a 1 in 500 year flood event. The internal roads will also meet the defined flood immunity level, which is 13.2m AHD. [9] In addition to providing appropriate levels of flood immunity, the conditions also require measures which will alert people to the flood risk and which will provide information in relation to appropriate management and behaviours in case of a flood event. There is proposed to be warning signs, including signs on Weekes Road, to warn of the flooding risk with respect to that road. There’s also to be gauge boards to show the depth of flooding. There are also to be signs within the development, -- 4 of 11 -- 5 including a sign as to the appropriate assembly point. The developer is to install and maintain a stream gauge that will automatically trigger a siren to alert residents of the imminent overtopping of Weekes Road, There is to be a flood emergency management plan and a household emergency action plan. [10] Insofar as providing for emergency access to the three allotments to the west, the proposal is to provide for an access way which extends from the head of the cul-de- sac of one of the fingers of the internal roadway. The easement rights of residents would be over the entirety of the route from the rear of their houses down to Weekes Road. [11] It may be observed, therefore, that the proposal, although introducing further development into the area, also proposes works which will be of benefit in the event of flood. In particular, it will improve the flood immunity of Weekes Road and will provide a formal and lawful emergency access for the three allotments which currently are isolated when their Allard Close access is flooded. [12] Mr Leighton’s first point was that a condition needs to be included ensuring that the proposal could not proceed without an emergency access and egress facility from the rear of the three allotments referred to through to the top of Weekes Road. That is in fact provided for in the draft conditions package. Condition 49(iv) requires provision of an access for flood emergency purposes, for both pedestrians and vehicles, over the common property of the development, to the three residences. Condition 25 requires the granting and maintenance of three separate access easements in favour of those lots and condition 10(f) requires the community management statement to provide for the grant (where not already granted) and maintenance of a flood emergency access easement to each of the three lots. [13] Mr Leighton’s second concern was a preference for the Council to take responsibility for the provision of the access rather than it be left to the residents to obtain easement rights from the developer. I see no good reason why appropriate access cannot be provided by using an easement mechanism as provided for in the conditions. Those conditions can be enforced. The conditions require the provision and maintenance of the internal roads and flood emergency access easements in any event. It will be for the developer to provide the physical access. All that remains is the granting of the easements to confer the legal rights for the residents to use them. The conditions of -- 5 of 11 -- 6 approval require those easements to be offered and for the offer to remain open and for the easements to be offered for a nominal consideration. The conditions also require the maintenance of the access. There is no reason why those matters are not appropriately dealt with by way of conditions requiring easements rather than by a dedication of land to the Council as Mr Leighton would seem to prefer. [14] Mr Leighton’s next concern was in relation to the content of the obligations under the easements. He again was concerned that it would be better for the Council to be responsible for making sure that the provisions were appropriate rather than those matters to be left to the residents. In particular, he wanted to ensure that the access was safe, uphill, unobstructed, fit for purpose, inextinguishable and free of cost to the residents. [15] The access is, on the evidence of Mr Roads, uphill and otherwise fit for purpose. Condition 25(1) requires the terms of the access easement to include that access will be unimpeded and uninterrupted. The solicitors for the appellant, on the hearing, volunteered a further condition, that irrespective of the granting or otherwise of easements, that no gates or other obstructions are to be placed, preventing a vehicle or preventing access to or from the three residences over the common property identified as the access easement on the approved drawings. Insofar as cost is concerned, the conditions require the easements to be granted for nominal consideration. In the course of the hearing, I expressed the view that, since the conditions otherwise require the holder of the development permit to construct and maintain the works, that they should bear the cost of them, such that the terms of the easement should put the cost of maintenance on them, rather than the adjoining residents, and the appellant’s representative has accepted that. [16] There does not appear to be any reason to conclude that the access provided pursuant to the easements would be other than appropriate. I note that the conditions, in addition to nominating the core requirements of the easement, including the purpose of the easement (for flood emergency purposes), its unimpeded and uninterrupted nature, its cost and maintenance, otherwise requires the easement to be made on reasonable terms and for negotiation to be entered into in good faith. In the event that an offer of an easement is not taken up, the developer has to demonstrate that it has complied with its obligations in that regard. -- 6 of 11 -- 7 [17] Mr Leighton was concerned that nevertheless a resident might not be prepared to accept an easement. The court cannot require a resident to take advantage of the offer of an access easement, however, given that there will be a right offered to the resident to use what will be an already constructed access in circumstances where the right will be provided at nominal cost and where the maintenance obligations will not fall upon the resident, it is difficult to see why the offer would not be taken up. In such circumstances, however, the conditions require the offer of the grant of easement to remain open for acceptance. The conditions in this respect are an appropriate way of addressing the planning objective for providing for emergency access for adjoining land whilst developing the subject land. [18] Mr Leighton requested that there be a condition requiring the Council to revert to the Minister about whether the proposal complied with State Planning Policy 1 of 2003. That is apparently triggered by a response which was given to the Council in respect of the notification of a draft Moggill Bellbowrie District Neighbourhood Plan. It is not something which related to the subject development application. It should be noted that the subject application was referred to the Department of Infrastructure and Planning as an advice agency. That department responded that it had no objection to the application. When it was suggested to Mr Leighton that this was, in any event, a matter which went more to an issue of approval or refusal of the development application, he acknowledged that it was not a matter which went to conditions and he confirmed that he only wished to challenge conditions. It would not be appropriate to add any condition of the kind suggested on account of the nominated State Planning Policy. [19] Mr Leighton had concerns about the use of the head of the cul-de-sac through to the common boundary with the three residences. The intention is for that part of the access to be used as an emergency access in relation to the three residences. His concern was that it would be used by others for various reasons, including for recreational reasons or some form of shortcut. He referred to the problems he has with people using his front driveway and thought he might encounter similar difficulties in respect of the subject access. Those difficulties, he thought, would be exacerbated by the draft conditions package that would require this part of the access to be paved. He considered it would be better if it had a gravel surface. -- 7 of 11 -- 8 [20] In this regard, the other co-respondents by election, although accepting of the conditions which have been proposed, indicated they also had a preference for a gravel surface. The traffic engineer engaged by the appellant expressed the view that there was no particular need for the access easement to be in the form of a sealed pavement. The Council submitted that it would prefer a sealed pavement, but did not call any evidence in support of its preference or the basis thereof. In the circumstances, I consider that the condition ought be amended so that it provides for a gravel surface, but of the width otherwise required. That should be supplemented with a condition which was offered by the appellant that lot owners and residents are not to traverse that part of the flood emergency access easement to the north of the cul-de-sac head. [21] Mr Leighton raised issues in relation to the dimensions of the access north of the cul- de-sac head and, in particular, adjacent to the three residences. It was suggested that the access should be wider, that it should extend 10m to the north than is currently proposed, and it should provide for truck turnarounds within the subject land adjacent to the rear of each property. Those matters were addressed by the traffic engineer engaged by the appellant, Mr Williams. I accept this evidence that the width contemplated by the draft conditions is suitable to facilitate access for the largest emergency vehicle likely to be expected and it is appropriate in the circumstances. I also accept his evidence that provision of a dedicated truck turnaround adjacent to the rear of each of the three allotments is not necessary. As he noted, the easement could be utilised in a manner similar to a hammerhead-style turnaround, using the access into the backyard of the affected properties as the minor approach. [22] The position in relation to the extension of the access further north needs some further consideration. On the hearing, there were two suggestions. The first, by Mr Leighton, was that, because of the position of the house on the northernmost of the three allotments, there was a need for the easement to continue a further 10m to the north. Mr Williams thought that ought not be the case and he pointed to the easement for other purposes which exists along the common boundary, but inside the residence. Mr Lockwood, however, pointed out that there are differences in level between the adjoining property where the easement would be provided and the adjoining land within the subject property. Mr Williams acknowledged that the levels should be similar and that, if they were not, there may need to be some earthworks. The levels -- 8 of 11 -- 9 are not something which he had investigated in any detail. In the circumstances, whether there needs to be some elongation of the easement or some earthworks is a matter which cannot be resolved without some further evidence, and so the matter will be adjourned to allow the parties to carry out further investigations in relation to that particular issue. [23] Mr Leighton next suggested that there ought be a condition setting aside an adequate flood-free space of at least one lot at the top of each of the fingers of development to which future residences could move their possessions in time of future flood. There has already been mention that the floor level of each of the future residences is above the 0.2% AEP, the equivalent of the 1 in 500 year flood event. So it would only be in a very extreme event that there would be any need of the residents to move their belongings to higher ground. I agree with the opinion of Mr Roads that it would be a poor use of space to set aside land for a purpose which would potentially be required only once every 500 years, on average. Mr Leighton was concerned that in times of flood, people would not know what particular flood event it was and would be seeking to move their possessions even in smaller flood events. There is provision, however, in the conditions, for both a flood emergency management plan and a household emergency action plan, which are designed to inform residents of what they need to do in relation to flood events and, indeed, in respect of flood events of different levels. I note that the flood emergency plan is to include information about the flood immunity of buildings. In my view, it would be going too far to require land to be put to one side for the purposes suggested by Mr Leighton. [24] Mr Leighton was concerned to ensure that no impediments be erected to the passage of the residents of the three houses across the emergency access through to Weekes Road. In that regard, it has already been observed that condition 25(i) provides that the conditions of the easements should include a right to unimpeded and uninterrupted access. Further, the appellant has volunteered an additional condition that irrespective of whether an easement has been granted or not, that no gates or other obstructions are to be placed preventing vehicular or pedestrian access for those lots over the easement access. [25] Mr Leighton’s concern was that the access be able to be used at any time, so as to avoid argument as to when an emergency has started so as to allow him to use the access. In my view the access should be limited to flood emergency use, but the -- 9 of 11 -- 10 conditions should define that term. The appellant suggested that it be defined by reference to when the Allard Close access is covered by flood water. Mr Leighton was concerned that he might need to use the emergency access prior to that point. Counsel for the appellant ultimately suggested that Mr Leighton’s concerns could be adequately addressed by adding the words “or in circumstances of any current Bureau of Meteorology flood warning for the locality”. I agree and Mr Leighton also seemed to accept that. [26] The last of Mr Leighton’s suggestions relates to the warning sign along Weekes Road. The signage which is proposed commences in bold: Be prepared for flooding. [27] Mr Leighton is happy with that. The last two sentences are: Don’t wait until it’s too late. Be prepared. [28] Mr Leighton is also happy with that. The other sentence reads: Weekes Road could become impassable during major Brisbane River flooding. [29] Mr Leighton suggests that it instead read: This road will become impassable here during major Brisbane River flooding and there is no land beyond this point that is above the maximum flood levels of the river. [30] His suggestion that the sign say “this road” rather than “Weekes Road” is sensible because it prevents any confusion in the minds of the motorists as to which road is being referred to. The sentence is referring to major Brisbane River flooding and so it is sensible as a matter of warning that the sign says, “becomes impassable” rather than just “could become impassable”. I realise that there are some flood events for which Weekes Road will not be impassable. However, as I have already noted, the sign relates to major Brisbane River flooding and the amended signage that I consider is appropriate would be more effective in emphasising the need of passers-by to be prepared for the flooding of the road. Neither the appellant nor the respondent were terribly concerned about those changes. -- 10 of 11 -- 11 [31] The last part being “and there is no land beyond this point that is above the maximum flood levels of the river” was more controversial. The statement is literally true as referring to the probable maximum flood, that is, a flood with an average recurrence period much longer than even the 1 in 500 year flood event which has been used for the purpose of the residences on the new development. The concern of the appellant and respondent is that those additional words might do more to alarm than alert the average reader who is not familiar with the extreme event to which that description relates. I agree with that concern and will not require a change of the sign other than in the respects which I indicated. -- 11 of 11 --