Avenues Highfields Pty Ltd v Toowoomba Regional Council [2017] QPEC 48 (2017) QPELR 1033

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: The Avenues Highfields Pty Ltd v Toowoomba Regional Council [2017] QPEC 48 PARTIES: THE AVENUES HIGHFIELDS PTY LTD ACN 602 513 762 (Appellant/Applicant) v TOOWOOMBA REGIONAL COUNCIL (Respondent) FILE NO/S: 4575 of 2016 and 2082 of 2017 DIVISION: Planning and Environment Court PROCEEDING: Appeal and Originating Application ORIGINATING COURT: Planning and Environment Court, Brisbane DELIVERED ON: 17 August 2017 DELIVERED AT: Brisbane HEARING DATE: 1 June, 2 June, 19 June and 1 August 2017 JUDGE: Kefford DCJ ORDER: The appeal is dismissed The Originating Application is dismissed. CATCHWORDS: PLANNING AND ENVIRONMENT – APPEAL – where the applicant made an application to convert infrastructure required by conditions of a development approval from non- trunk infrastructure to trunk infrastructure – where the application was refused – where the roadworks the subject of the infrastructure conversion application had started – whether the infrastructure was consistent with trunk infrastructure – whether the criteria for conversion of the infrastructure have been satisfied – whether the infrastructure conversion application ought be approved PLANNING AND ENVIRONMENT – APPLICATION FOR DECLARATION – where the applicant made an application to convert infrastructure required by conditions of a development approval from non-trunk infrastructure to trunk infrastructure – where that application was refused and the decision appealed – where Council indicated that, if the applicant’s infrastructure conversion application is successful on appeal, it would impose a different condition with respect -- 1 of 46 -- 2 to infrastructure to require more significant roadworks – whether Council can amend the infrastructure condition LEGISLATION: Planning Act 2016 (Qld), s 311 Sustainable Planning Act 2009 (Qld), s 345, s 456, s 461, s 478, s 478A, s 493, s 495, s 627, s 630, s 633A, s 645, s 658, s 659, s 660, s 661, s 662, s 665, s 982 CASES: Ballymont Pty Ltd v Ipswich City Council (No 1) [2003] 2 QdR 461; [2002] QCA 233, applied Behrens v Caboolture Shire Council (1979) 39 LGRA 138, considered BM Carr Holdings Pty Ltd v Southern Downs Regional Council [2013] QPELR 372; [2013] QPEC 4, approved. Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616; [1976] HCA 62, cited Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106; [1971] HCA 12, applied HECEC Australia Pty Ltd v Hydro-Electric Corp [1999] FCA 822, applied Leahy v Barnes [2013] QSC 226, applied Mooncraft Pty Ltd v Redland Shire Council [2006] QPELR 338; [2005] QPEC 115, approved Octopus Media Pty Ltd v Brisbane City Council [2006] QPELR 678; [2006] QPEC 61, approved R v Lukin; Ex parte Sunshine Pty Ltd [1967] QdR 49, cited WH Soul Pattinson & Co Ltd v Secretary, Department of Health and Family Services (1997) 74 FCR 339, applied Zhang v Canterbury City Council (2001) 51 NSWLR 589; [2001] NSWCA 167, applied COUNSEL: D R Gore QC with J Ware for the Appellant M A Williamson with D Whitehouse for the Respondent SOLICITORS: HWL Ebsworth Lawyers for the Appellant Corrs Chambers Westgarth for the Respondent Table of contents Introduction .......................................................................................................................... 3 The subject land and the surrounds ...................................................................................... 4 The proposed development and the relevant approval ......................................................... 5 The issue ............................................................................................................................... 9 -- 2 of 46 -- 3 The legislative framework for the conversion application ................................................... 9 The decision framework ..................................................................................................... 12 The consequences of approval of a conversion application ............................................... 15 Relevant statutory provisions ......................................................................................... 15 The dispute with respect to the proper construction of s 662(3) .................................... 16 Relevant principles with respect to statutory construction ............................................. 17 The effect of and action after conversion of infrastructure to trunk infrastructure ........ 19 The merits of the conversion application ........................................................................... 26 Section 7(a)(ii) ................................................................................................................ 26 Section 7(a)(iii) ............................................................................................................... 27 Section 7(a)(vii) .............................................................................................................. 28 Are the conditioned works for a major distributor road? .............................................. 29 Are the conditioned works for roads with a minimum capacity of 5 000 vehicles per day?................................................................................................................................. 40 Are the conditioned works for roads servicing a minimum of 500 residential lots? ...... 40 Conclusion regarding section 7(a)(vii) .......................................................................... 42 Significance of failure to meet the conversion criteria ................................................... 42 Conclusion .......................................................................................................................... 46 Introduction [1] The Avenues Highfields Pty Ltd (referred to herein as “the Appellant”) has instituted two proceedings. [2] The first proceeding is an appeal pursuant to s 478A of the Sustainable Planning Act 2009 (Qld) against the decision of Toowoomba Regional Council (“Council”) to refuse, in part, a conversion application made pursuant to s 659 of the Sustainable Planning Act 2009. The application was made with respect to roadworks and stormwater drainage infrastructure required pursuant to conditions of a development approval granted by Council for land situated at New England Highway, Highfields, more particularly described as Lots 105 and 106 on DAR211.1 [3] The second proceeding is an originating application, commenced under s 456 of the Sustainable Planning Act 2009, in which the Appellant seeks declaratory relief relating to the interpretation of s 662(3) of the Sustainable Planning Act 2009. 1 Appeal Book - Exhibit 2 p 18. -- 3 of 46 -- 4 [4] Pursuant to s 311 of the Planning Act 2016 (Qld), the Sustainable Planning Act 2009 continues to apply to both proceedings. [5] The appeal is by way of hearing anew.2 Unlike an orthodox merits appeal, the appeal is to be decided based on the laws that apply at the time when the appeal is heard and determined.3 The court is not, however, precluded from also having regard to the law that applied at the time when the application was made to Council.4 [6] The Appellant, as the moving party, bears the onus of proof in both proceedings.5 The subject land and the surrounds [7] The subject land is situated on the northwest corner of the New England Highway and Cronin Road, Highfields. It also has frontage to Barracks Road in the north. It has an area of approximately 44.921 hectares and is roughly rectangular in shape.6 [8] The New England Highway is a state-controlled road. The Department of Transport and Main Roads required the signalisation of Cronin Road and the New England Highway as a condition of the Appellant’s development approval.7 2 Sustainable Planning Act 2009, s 495(1). 3 Section 495(2)(a) does not apply, because that provision only applies if the Appellant is the applicant or a submitter for a development application. The legislature introduced a provision stipulating that development application appeals be determined on the law in force at the time of the application following a decision of the Local Government Court in Behrens v Caboolture Shire Council (1979) 39 LGRA 138. That case involved an appeal against the local authority’s refusal to allow a rural residential subdivision. After the third day of the hearing, the appeal had to be adjourned because of the illness of the presiding judge and, during the adjournment (which was lengthy), the local authority amended the relevant by-law to prohibit subdivision of any land outside a 5,000 metre radius of the Caboolture Post Office (as the appellant’s land was in that case). As Professor Fogg records in Fogg “Land Development Law in Queensland” (1987) p 101, the Judge “showed some restiveness with the course of action he felt obliged to follow”. The law at that time required the court to apply the law at the date of hearing, as well as the facts and circumstances relevant at that time: R v Lukin; Ex parte Sunshine Pty Ltd [1967] QdR 49. Had that not been the law, Mylne DCJ would have approved the whole of the subject land for subdivision: Behrens v Caboolture Shire Council (1979) 39 LGERA 138, 149. 4 Octopus Media Pty Ltd v Brisbane City Council [2006] QPELR 678; [2006] QPEC 61, [13] citing R v Lukin; Ex parte Sunshine Pty Ltd [1967] QdR 49, 53 and Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616; [1976] HCA 62. 5 Section 493 of the Sustainable Planning Act 2009 identifies who bears the onus of proof in an appeal to this court. It makes no mention of an appeal under s 478A. Council submits, and the Appellant accepts, that the absence of any provision dealing with an appeal of the present character is a strong indicator that the parliament did not intend the onus of proof to be reversed. (See Written Submissions on behalf of Council pp 15 – 16 [50] – [53] and T3-4/L17-25.) Clear language within the act would be required to displace the orthodox legal convention that the person who desires the court to take action must prove its case to the satisfaction of the Court. This construction is just and harmonious having regard to the Sustainable Planning Act 2009 construed as a whole. 6 Book of Plans – Exhibit 1 p 21. 7 Appeal Book – Exhibit 2 p 101. -- 4 of 46 -- 5 [9] Until the Appellant recently commenced works in accordance with the conditions in its development approval, Cronin Road, located to the east of the subject land, was a rural road that was formed but not sealed. For the purposes of Council’s road hierarchy, Cronin Road is a “local” road.8 The road presently carries a low level of traffic, in the order of 70 vehicles per day.9 [10] Barracks Road, located to the north of the subject land, is also a rural road that is formed but not sealed. Like Cronin Road, Barracks Road is identified as a “local” road for the purposes of Council’s road hierarchy.10 It presently carries in the order of 78 vehicles per day.11 [11] The Highfields Regional Sports Park is located to the north of the subject land. It is a substantial district level sporting facility that is being developed to cater for various sports, with a range of sporting fields and other facilities. The facility has frontage to Barracks Road. At present it takes its access from Cabarlah Park Road, but it is intended to also have vehicular access to Cronin Road.12 A new road link has been created between Cabarlah Park Road and Kuhls Road. The gazetted eastern end of Kuhls Road touches the north-west corner of the subject land. [12] The retail, educational and community facilities servicing Highfields are located to the west of the subject land. They are located principally at the intersection of Highfields Road, Kratzke Road and O’Brien Road.13 Council’s Local Government Infrastructure Plan identifies that approximately $3 million is allocated to signalise this intersection in the year 2020.14 The proposed development and the relevant approval [13] The Appellant intends to develop the subject land as a master planned residential community known as “the Avenues of Highfields”. The master planned community is to be delivered in ten stages and is to include about 530 lots with associated public park and roads.15 8 Book of Plans – Exhibit 1 p 29. 9 Report of Mr Healy – Exhibit 8 p 2 [3.7]. 10 Book of Plans – Exhibit 1 p 29. 11 Report of Mr Healy – Exhibit 8 p 2 [3.7]. 12 Book of Plans – Exhibit 1 p 20. 13 Book of Plans – Exhibit 1 p 3. 14 Exhibit 10 p 59. 15 Book of Plans – Exhibit 1 p 19; Appeal Book – Exhibit 2 p 122; Joint report of Traffic Engineers – Exhibit 5 p 1 [2]. -- 5 of 46 -- 6 [14] The master planned community is to proceed in accordance with an approval granted by Council. That approval has been the subject of a number of permissible change requests under the Sustainable Planning Act 2009. The relevant version of the development approval for the purposes of this appeal is dated 20 October 2016 (“the development approval”).16 [15] The development approval granted by Council comprises two parts, namely: (a) a preliminary approval varying the effect of the planning scheme under s 242 of the Sustainable Planning Act 2009;17 and (b) a development permit for reconfiguring a lot, namely 104 lots in stages 1 and 2 of the development with associated public park and roads.18 [16] On 13 October 2016, the Appellant made the conversion application to Council.19 The application related to both roadworks and stormwater drainage infrastructure. The application was approved in relation to stormwater drainage, but refused in relation to roadworks.20 [17] In its conversion application, the Appellant applied to convert non-trunk infrastructure, required by conditions 18, 66, 67, and 8021 of the development permit for reconfiguring a lot, to trunk infrastructure. Condition 67 makes relevant condition 1.1 of the preliminary approval.22 [18] The conditions require the Appellant to undertake external roadworks to upgrade Cronin Road for the full extent of the subject land’s frontage to it and to upgrade Barracks Road to Kuhls Road. [19] Condition 18 of the development approval is in the following terms: 23 “18. The following land must be dedicated as road reserve in accordance with the requirements of the Department of Natural Resources and Mines: 18.1 The area shown as new road (including the pedestrian linkage) on the Approved Plans; and 16 Appeal Book – Exhibit 2 p 75. 17 Appeal Book – Exhibit 2 p 76. 18 Appeal Book – Exhibit 2 p 80. 19 Appeal Book – Exhibit 2 p 18. 20 Appeal Book – Exhibit 2 p 71. 21 Appeal Book – Exhibit 2 p 91. 22 Appeal Book – Exhibit 2 pp 89 and 76. 23 Appeal Book – Exhibit 2 p 83. -- 6 of 46 -- 7 18.2 The land area for the full length of the Cronin and Barracks Road frontages to create a 21.5m wide road reserve (unless otherwise approved by Council); and 18.3 All corners of intersections 6m x 6m x 3 chord truncations or 3.8m x 3.8m x1 chord truncation (unless otherwise approved by Council). Note: This condition is imposed pursuant to Section 665 of the Sustainable Planning Act 2009.” [20] Condition 66 of the development approval is in the following terms:24 “66. External Roads must be constructed as follows: Street: Cronin Road - From the New England Highway to Barracks Road. Classification: Refer to requirements outlined in Condition 1.1 of the Section 242 Preliminary Approval to Vary the Effect of the Planning Scheme approval above. Construction Standard: Collector Road. Street: Barracks Road - From Cronin Road to Kuhls Road. Classification: Refer to requirements outlined in Condition 1.1 of the Section 242 Preliminary Approval to Vary the Effect of the Planning Scheme approval above. Construction Standard: Collector Road. Note: This condition is imposed pursuant to Section 665 of the Sustainable Planning Act 2009.” [21] Condition 67 of the development approval is in the following terms:25 “67. The design of the roads must comply with the requirements outlined in Condition 1.1 of the Section 242 Preliminary Approval to Vary the Effect of the Planning Scheme approval above and the construction standards with PSP No. 2 (unless otherwise approved by Council) and must include in particular: 67.1 Dedication of a strip of land along the Cronin Road frontage of the subject site sufficient to widen the Cronin Road Reserve to 21.5m. This is to extend from the intersection of Cronin Road and the New England Highway to Barracks Road (unless otherwise approved by Council); 67.2 Dedication of a 1.5m wide strip of land along the Barracks Road frontage of the subject site. This is to extend for the full length of the Barracks Road 24 Appeal Book – Exhibit 2 p 89. 25 Appeal Book – Exhibit 2 p 89. -- 7 of 46 -- 8 frontage of the subject site (unless otherwise approved by Council); 67.3 Concrete kerb and channel along one side only of the required road construction along Cronin Road from the New England Highway to the northern most extent of Stage 1. The alignment of the kerb and channel is to be in accordance with the ultimate road alignment; 67.4 Seal width is to be 9.0m wide measured from the invert of the kerb and channel along the Cronin Road from the New England Highway to the northern most extent of Stage 1; 67.5 Shared pedestrian/cycle lane in accordance with Condition 78 80.2; 67.6 Deleted 67.7 Temporary asphalt kerbing to tapers; 67.8 Underground stormwater drainage; 67.9 Table drain works; 67.10 Relocation of utility and Council services; and 67.11 Street lighting.” [22] Condition 80 of the development approval is in the following terms:26 “80. The following works must be constructed in accordance with Planning Scheme Policy No. 2 - Engineering Standards - Roads and Drainage Infrastructure (PSP No.2) (unless otherwise approved by Council) and any current pedestrian and cycleway plans: 80.1 Concrete pedestrian paths, as described in PSP No 2 (unless otherwise approved by Council), must be provided for all internal roads and on both sides of access streets; 80.2 For Cronin Road and the internal collectors, a 2.5m wide concrete shared pedestrian/bikeway path, as described in PSP No 2 (unless otherwise approved by Council), must be provided; 80.3 Provision must be made for wheelchair and pram access at all kerb crossings associated with pathways, in accordance with IPWEA Standard Drawing RS-090 - Ramped Pedestrian Crossings; 80.4 The construction of paths must be carried out following completion of all development works on the site, but prior to the sealing of any Plan of Subdivision; 80.5 The required work includes any surface earthworks, grinding or saw cutting to ensure the footpath finishes flush with all existing service covers and 26 Appeal Book – Exhibit 2 p 91. -- 8 of 46 -- 9 the like, or alternatively these services are raised or altered, so as not to create a pedestrian safety hazard; and 80.6 The concrete footpaths must comply with IPWEA Standard Drawing RS-065 - Concrete Pathway. Where necessary, reprofiling of the verge area must be undertaken to enable the construction of concrete pathways with a maximum cross fall of 2.5%. Note: This condition is imposed pursuant to Section 665 of the Sustainable Planning Act 2009. Note: Similar requirements for Barracks Road are likely to be required as part of any Reconfiguring a Lot Approval for future stages.” The issue [23] The key issue in the appeal is whether the circumstances warrant a decision to convert non-trunk infrastructure, which is the subject of the conditions, to trunk infrastructure. In determining the issue, it is relevant to consider whether each of Cronin Road and Barracks Road should be classified as a distributor road (as the Appellant contends) or as a collector road (as Council contends). The legislative framework for the conversion application [24] Chapter 8 of the Sustainable Planning Act 2009 deals with infrastructure. The process for conversion of non-trunk infrastructure to trunk infrastructure is contained in Chapter 8 Part 2 Division 3 Subdivision 1 of the Sustainable Planning Act 2009. [25] Section 658 of the Sustainable Planning Act 2009 states: “658 Application of sdiv 1 This subdivision applies if— (a) a particular condition of a development approval under section 665 requires non-trunk infrastructure to be provided; and (b) the construction of the non-trunk infrastructure has not started. Note— The combined effect of the definitions trunk infrastructure and non-trunk infrastructure under section 627 is that where infrastructure is not identified in an LGIP it is, by default, non- trunk infrastructure.” -- 9 of 46 -- 10 [26] Section 627 of the Sustainable Planning Act 2009 contains definitions for Chapter 8. It contains the following definitions: “non-trunk infrastructure means development infrastructure other than trunk infrastructure. trunk infrastructure, for a provision about a local government, means all of the following– (a) development infrastructure identified in the LGIP as trunk infrastructure; (b) development infrastructure that, because of a conversion application, becomes trunk infrastructure; (c) development infrastructure that is required to be provided under a condition imposed under section 647(2). Note– Until 1 July 2016, identification of trunk infrastructure may also take place by resolution. See, for example, section 979.” [27] At the time the conversion application was made (13 October 2016) and the development approval was given (20 October 2016): (a) Council’s Local Government Infrastructure Plan had not commenced; but (b) Part 4 of the Toowoomba Regional Planning Scheme, which commenced on 1 July 2012, contained Council’s Priority Infrastructure Plan;27 (c) pursuant to s 982 of the Sustainable Planning Act 2009, Council’s Priority Infrastructure Plan was taken to be its local government infrastructure plan; (d) the subject land was in the Priority Infrastructure Area in Council’s Priority Infrastructure Plan;28 and (e) Cronin Road and Barracks Road were not identified in Council’s Priority Infrastructure Plan as either existing trunk transport infrastructure29 (which broadly consisted of arterial, sub-arterial and collector roads)30 or future trunk infrastructure.31 27 Book of Statutory Instruments – Exhibit 4 p 126 s 1.2(d) and pp 138 – 149. 28 Book of Statutory Instruments – Exhibit 4 p 144 s 4.4.1 and p 197. 29 Book of Statutory Instruments – Exhibit 4 p 148 s 4.6.3 and pp 199 - 200. 30 Book of Statutory Instruments – Exhibit 4 pp 147 - 148 s 4.6.2(1) and Table 4.6:1 – Trunk infrastructure networks, systems and items. 31 Book of Statutory Instruments – Exhibit 4 p 148 s 4.6.5 and pp 198 - 199. -- 10 of 46 -- 11 [28] As such, the relevant conditions were conditions requiring construction of non-trunk infrastructure. [29] The conditions were imposed by Council under s 665 of the Sustainable Planning Act 2009,32 which states: “665 Conditions local governments may impose (1) This section applies for the imposition by a local government of a condition of a development approval about non-trunk infrastructure. (2) The condition may be only about providing development infrastructure for 1 or more of the following– (a) a network, or part of a network, internal to the premises; (b) connecting the premises to external infrastructure networks; (c) protecting or maintaining the safety or efficiency of the infrastructure network of which the non-trunk infrastructure is a component. Example for paragraph (c)– A condition may require construction works in the vicinity of existing transport infrastructure must not adversely affect the infrastructure’s integrity. (3) The condition must state the infrastructure to be provided and when it must be provided.” (emphasis added) [30] At the time the conversion application was made, construction had not started.33 [31] As such, the pre-requisites for the application of Chapter 8, Part 2, Division 3, Subdivision 1, as set out in s 658 of the Sustainable Planning Act 2009, were satisfied. [32] The conversion application was made under s 659 of the Sustainable Planning Act 2009, which states: “659 Application to convert infrastructure to trunk infrastructure (1) The applicant for the development approval may apply (a conversion application) to convert non- trunk infrastructure to trunk infrastructure. (2) The application must be made to the local government in writing.” 32 Conditions 18, 66 and 80 expressly state that there were imposed by Council under s 665. 33 Book of Issues - Exhibit 3 pp 165 - 180. -- 11 of 46 -- 12 [33] It is common ground that the court has jurisdiction to decide the appeal, despite the fact that s 658(b) of the Sustainable Planning Act 2009 is not now satisfied due to construction having started in Cronin Road.34 The decision framework [34] The decision framework for determination of the Appellant’s conversion application is contained in s 660 of the Sustainable Planning Act 2009. It, relevantly, states: “660 Deciding conversion application (1) The local government must consider and decide the conversion application within the required period. (2) In deciding the conversion application, the local government must have regard to the criteria for deciding the application in its charges resolution.” [35] The power of a local government to adopt a charges resolution is conferred by s 630(1) of the Sustainable Planning Act 2009. Section 633A of the Sustainable Planning Act 2009 relevantly provides: “633A Criteria for deciding conversion application (1) A charges resolution must include criteria for deciding a conversion application. (2) The criteria must be consistent with parameters for the criteria provided for under a guideline made by the Minister and prescribed by regulation.” [36] At the time the conversion application was made, the applicable resolution adopted by Council was Charges Resolution No 1.35 However, by the time of the hearing of the appeal, Council adopted Charges Resolution No 2.36 It is the relevant charges resolution for deciding the appeal.37 34 The Appellant contends that, properly construed, s 658 of the Sustainable Planning Act 2009 does operate to “void” a conversion application that was properly made or to deprive the court of its jurisdiction to hear and determine the appeal – see Book of Issues – Exhibit 3 pp 145 – 157. Council does not dispute this construction – see Book of Issues – Exhibit 3 pp 160 – 162 [8] – [17]. The submissions on this issue are cogent. 35 Book of Statutory Instruments - Exhibit 4 p 98. 36 Charges Resolution No 2 - Exhibit 9. 37 The applicable criteria in the two charges resolutions are the same. -- 12 of 46 -- 13 [37] The applicable criteria are in the following terms: “7 Criteria for deciding conversion applications (a) Each of the following criteria must be met for non- trunk infrastructure to be converted to trunk infrastructure: (i) the infrastructure services development that is– (A) consistent with the assumptions about the type, scale, location and timing of future development stated in the LGIP; and (B) for premises completely inside the PIA; (ii) construction of the infrastructure has not yet started; (iii) the infrastructure is inconsistent with the requirements for non-trunk infrastructure stated in section 665 of the SPA; (iv) the infrastructure is owned or will be owned by the Council; (v) the infrastructure is not temporary infrastructure; (vi) the infrastructure will be used by other development; (vii) the type, size and function of the infrastructure is: (A) consistent with the trunk infrastructure identified in the Council’s LGIP; or (B) consistent with the examples of trunk infrastructure stated for a network in Table 4 4 (sic). (viii) the type, size and location of the infrastructure is the most cost effective option38 for servicing multiple developments in the area; (ix) the infrastructure could have been planned by the Council without knowing the detailed layout of lot reconfigurations or the design details for material change of use applications in the area. That is, the infrastructure could have been planned during preparation of the LGIP using only 38 “The most cost-effective option for trunk infrastructure provision means the least cost option based upon the life cycle cost of the infrastructure required to service future non-rural development in the area at the desired standard of service.” -- 13 of 46 -- 14 the planned density assumptions stated in the LGIP.” (emphasis added) [38] The criteria of particular interest in this appeal are sections 7(a)(ii), (iii) and (vii) emphasised in the extract above. [39] Section 7(a)(vii)(B) refers to Table 4, which includes the following entry: “Table 4 – Examples of trunk infrastructure for a network Infrastructure network Examples of trunk infrastructure Transport Land and/or works for:  the following Council roads, including associated intersections, roundabouts, bridges and culverts: o arterial roads o sub-arterial roads o major distributor roads having a minimum capacity of 5,000 vehicles per day and servicing a minimum of 500 residential lots or equivalent demand  standard items associated with the road profile of a Council owned trunk road specified above, including kerb and channelling, lighting, signage, traffic lights, pedestrian and cycle paths and basic verge plantings” [40] Pursuant to section 660 of the Sustainable Planning Act 2009, the decision maker must “consider and decide” the conversion application and, in deciding the conversion application, “have regard to” the criteria in section 7 of Charges Resolution No 2. [41] The legislation does not identify the consequences, if any, of a conversion application that does not comply with the relevant criteria. As such, having regard to the context of the provision, the requirement to “have regard to” the criteria is a condition of the valid exercise of the decision making power39 and requires the decision maker to give “proper, genuine and realistic consideration” to the criteria.40 It does not require the decision maker to adhere to the criteria. The discretion conferred on the decision maker is a broad one. The context does not require that any of the criteria is a focal 39 Origin Energy Electricity Ltd v Queensland Competition Authority [2014] 1 QdR 216, 231 [79]; [2012] QSC 414. 40 Zhang v Canterbury City Council (2001) 51 NSWLR 589, 601 [62]; [2001] NSWCA 167. -- 14 of 46 -- 15 point in the decision-making process,41 nor suggest that any of the criteria is more important than any of the others.42 The decision-maker is not bound to make a decision that complies with the criteria.43 It has the discretion to give the weight it considers appropriate to the criteria. The consequences of approval of a conversion application Relevant statutory provisions [42] Sections 661 and 662 of the Sustainable Planning Act 2009 provide guidance on what follows once a decision is made to approve a conversion application. Those provisions state: “661 Notice of decision (1) As soon as practicable after deciding the conversion application, the local government must give the applicant notice of the decision. (2) If the decision is to convert non-trunk infrastructure to trunk infrastructure, the notice must state whether an offset or refund under this part applies and, if it does, details of the offset or refund. (3) If the decision is not to convert non-trunk infrastructure to trunk infrastructure, the notice must be an information notice about the decision. 662 Effect of and action after conversion (1) This section applies if the decision on a conversion application is to convert non-trunk infrastructure to trunk infrastructure. Note— See section 627, definition trunk infrastructure. (2) The condition of the relevant development approval requiring the non-trunk infrastructure to be provided no longer has effect. (3) Within 20 business days after making the decision, the local government may amend the development approval by imposing a necessary infrastructure condition for the trunk infrastructure. (4) If a necessary infrastructure condition is imposed, the local government must also do either of the following within 10 business days after the 41 BM Carr Holdings Pty Ltd v Southern Downs Regional Council [2013] QPELR 372, 381 [24]-[25]; [2013] QPEC 4. 42 Ballymont Pty Ltd v Ipswich City Council (No 1) [2003] 2 QdR 461, 471 [38]; [2002] QCA 233. 43 Mooncraft Pty Ltd v Redland Shire Council [2006] QPELR 338, 344 [34]; [2005] QPEC 115. -- 15 of 46 -- 16 imposition for the purposes of section 649(2) or (3)(b)— (a) give an infrastructure charges notice; (b) amend, by notice to the applicant, any existing infrastructure charges notice for the development approval. (5) For taking action under subsections (3) and (4), divisions 1 and 2 and sections 478 and 535 apply (and IDAS does not) as if— (a) a development approval were a reference to the conversion; and (b) a levied charge were a reference to the amendment of a levied charge.” [43] The effect of these provisions, particularly s 662(3) of the Sustainable Planning Act 2009, is the subject of the Originating Application. The dispute with respect to the proper construction of s 662(3) [44] The Appellant contends that the consequences of a decision that the non-trunk infrastructure ought be converted to trunk infrastructure are: (a) Council must provide the Appellant with a notice under s 661(2) of the Sustainable Planning Act 2009 notifying the Appellant of its entitlement to an offset; and (b) the condition of the relevant development approval requiring the non-trunk infrastructure to be provided no longer has effect; and (c) Council must amend the development approval by imposing a necessary trunk infrastructure condition for the trunk infrastructure in the same terms (in a practical engineering sense) as the conditions the subject of the conversion application.44 [45] The Appellant submits that, upon the proper construction of s 662 of the Sustainable Planning Act 2009, Council does not have a discretion under s 662(3) to impose a condition that changes the form of the development infrastructure the subject of the development approval, because: (a) the word “may” in s 662(3) ought to be read to mean “must”; and 44 Outline of Submissions of The Avenues Highfields Pty Ltd p 24 [56]. -- 16 of 46 -- 17 (b) the expression “the trunk infrastructure” in s 662(3) of the Sustainable Planning Act 2009 should be read as the non-trunk infrastructure which is converted to trunk infrastructure by the decision made under s 660 and notified under s 661. [46] Council submits that if the Appellant is successful in its appeal, it has an opportunity to consider its position and exercise the discretion under s 662(3) of the Sustainable Planning Act 2009. This power would be exercised after giving the matter meaningful and proper consideration, including a consideration of the court’s reasons for judgment. Council submits that s 662(3) of the Sustainable Planning Act 2009 does not directly suggest a different conclusion ought be drawn, nor does the context require it. Relevant principles with respect to statutory construction [47] With respect to whether “may” should be construed as “must”, in Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106; [1971] HCA 12 Windeyer J said, at 134-5 that: “This does not depend on the abstract meaning of the word “may” but of (sic) whether the particular context of words and circumstance make it not only an empowering word but indicate circumstances in which the power is to be exercised - so that in those events the “may” becomes a “must”. Illustrative cases go back to 1663: R v Barlow. Today it is enough to cite Julius v Bishop of Oxford; and add in this Court Ward v Williams. But I select one other reference out of a multitude: Macdougall v Paterson. There Jervis CJ said in the course of the argument: “The word ‘may’ is merely used to confer the authority: and the authority must be exercised, if the circumstances are such as to call for its exercise”. And, giving judgment, he said: “We are of opinion that the word ‘may’ is not used to give a discretion, but to confer power upon the court and judges; and that the exercise of such power depends, not upon the discretion of the court or judge, but upon the proof of the particular case out of which such power arises.”” (footnotes omitted) [48] Mandatory words in surrounding paragraphs do not prevent “may” imposing a duty to act.45 The fact that the exercise of the power in question is not invoked by an application by an interested party seeking the exercise of that power does not mean 45 WH Soul Pattinson & Co Ltd v Secretary, Department of Health and Family Services (1997) 74 FCR 339, 370; Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106, 133; [1971] HCA 12. -- 17 of 46 -- 18 that the principle does not apply; a clear statutory purpose for the exercise of the power is enough.46 [49] With respect to the meaning of “may” and “must”, s 32CA of the Acts Interpretation Act 1954 (Qld), relevantly, states: “32CA Meaning of may and must etc. (1) In an Act, the word may, or a similar word or expression, used in relation to a power indicates that the power may be exercised or not exercised, at discretion. (2) In an Act, the word must, or a similar word or expression, used in relation to a power indicates that the power is required to be exercised.” [50] Section 4 of the Acts Interpretation Act 1954 (Qld) provides that provisions in the Act are subject to a contrary intention in the legislation being interpreted. In Leahy v Barnes [2013] QSC 226, Henry J took the view, at [30] to [36], that the combined effect of these provisions is that “may” should be given its usual meaning, subject to a contrary intention appearing in any Act, and that there exists a binding line of High Court authority that establishes that “may” effectively means “must” in cases where the fulfilment of stipulated conditions ground the exercise of power. [51] The statute is to be construed according to the relevant principles of statutory construction,47 which are summarised in Zappala Family Co Pty Ltd v Brisbane City Council & Ors,48 including by reference to Project Blue Sky Inc v Australian Broadcasting Authority.49 [52] As was observed by Morrison JA (with whom McMurdo P and Douglas J agreed) in Zappala Family Co Pty Ltd v Brisbane City Council & Ors:50 “The correct approach to statutory interpretation must begin and end with the text itself. At the same time it must be borne in mind that the modern approach to statutory interpretation … (a) insists that the context be considered in the first instance, not 46 Leahy v Barnes [2013] QSC 226, [40]. 47 HECEC Australia Pty Ltd v Hydro-Electric Corp [1999] FCA 822, [72] - [73]. 48 (2014) 201 LGERA 82; [2014] QPELR 686; [2014] QCA 147, [51] to [58]. 49 (1998) 194 CLR 335; [1998] HCA 28. 50 (2014) 201 LGERA 82; [2014] QPELR 686; [2014] QCA 147, [55], citing Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41, 46-7 [47]; Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55, 519 [39] and CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2, 408. -- 18 of 46 -- 19 merely at some later stage when ambiguity might be thought to arise, and (b) uses “context” in its widest sense …” (footnotes omitted) The effect of and action after conversion of infrastructure to trunk infrastructure [53] Section 662(3) of the Sustainable Planning Act 2009 is at the tail end of a process by which a successful applicant for a development approval can apply to convert non- trunk infrastructure, which it has been conditioned to provide, to trunk infrastructure.51 [54] The underlying basis for pursuing a conversion application is that non-trunk infrastructure cannot be the subject of an offset (or a refund) against an infrastructure charges notice for development, whereas trunk infrastructure can.52 [55] Section 662(3) of the Sustainable Planning Act 2009 only comes into play if: (a) the local authority has imposed a condition on a development approval requiring non-trunk infrastructure;53 (b) an application has been made to convert that non-trunk infrastructure to trunk infrastructure;54 and (c) the application has been successful.55 [56] In those circumstances, s 662(2) of the Sustainable Planning Act 2009 stipulates that the condition requiring the non-trunk infrastructure to be provided no longer has effect. At that point, the only remaining issue is the mechanism for provision of the trunk infrastructure, given the developer is no longer under an obligation to provide infrastructure that was considered reasonable and relevant.56 [57] The Appellant points to five reasons why it submits, pursuant to s 662(3) of the Sustainable Planning Act 2009, that Council “must” amend the development approval by imposing a necessary trunk infrastructure condition for the trunk infrastructure in 51 The process is contained within Chapter 8, Part 2, Division 3, Subdivision 1 of the Sustainable Planning Act 2009. 52 Sustainable Planning Act 2009, s 649. 53 Sustainable Planning Act 2009, s 658. 54 Sustainable Planning Act 2009, s 659(1). 55 Sustainable Planning Act 2009, s 662(1). 56 The power to impose a condition under s 665 of the Sustainable Planning Act 2009 is subject to the requirement in s 345 of the Sustainable Planning Act 2009. -- 19 of 46 -- 20 the same terms (in a practical engineering sense) as the conditions the subject of the conversion application.57 They are: (a) by operation of s 662(2) of the Sustainable Planning Act 2009, the condition requiring the non-trunk infrastructure to be provided no longer has effect. As such, the developer is no longer under an obligation to provide infrastructure that was considered to be reasonable and relevant;58 (b) the primary intention is to change the status of non-trunk infrastructure in a condition to trunk infrastructure: it is not to remove or modify the condition. The ability to challenge the imposition of a condition requiring non-trunk infrastructure, or challenge the terms of a condition, is already provided for by way of a merits appeal to the Planning and Environment Court pursuant to s 461(1)(b) of the Sustainable Planning Act 2009. A non-trunk infrastructure condition can only be imposed if: (i) it meets the criteria in s 665(2) of the Sustainable Planning Act 2009; and (ii) it is reasonable or relevant.59 A conversion application is assessed against a different and broader range of criteria (as set by the local authority itself in a charges resolution).60 The Appellant submits that this context indicates a legislative intention that success in a conversion application should result in a condition requiring non- trunk infrastructure be replaced with a condition requiring the same infrastructure, but rebadged as “trunk”. Otherwise, the development approval would be shorn of a condition that was reasonable or relevant and, the appellant submits, if the condition was significant enough, that might lead to the development approval being of no effect.61 It is unlikely the legislature 57 T3-10/L19 – T3-14/L15. 58 The power to impose a condition under s 665 of the Sustainable Planning Act 2009 is subject to the requirement in s 345 of the Sustainable Planning Act 2009. 59 Sustainable Planning Act 2009, s 345. 60 This is subject to it being consistent with parameters for the criteria provided for under a guideline made by the Minister and prescribed by regulation as provided under s 633A of the Sustainable Planning Act 2009. 61 This is by application of the principles of severability discussed in Kingsway Investments Pty Ltd v Kent County Council (1970) 68 LGR 301; [1971] AC 72; [1970] 1 All ER 70; cf Property 4 Retail -- 20 of 46 -- 21 intended to provide for a situation where a local authority by its own action could invalidate a development approval following the “success” of an applicant in a conversion application; (c) having succeeded on the conversion application, it cannot have been the intention of the legislation for the successful applicant to then face the risk of a different (potentially more onerous) infrastructure requirement: that runs counter to the primary intention of the conversion mechanism, which is the conversion of particular infrastructure required by a development condition from non-trunk to trunk; (d) there is no right of appeal against the imposition of a necessary trunk infrastructure condition under s 662(3) of the Sustainable Planning Act 2009. If s 662(3) was intended to grant Council a fresh discretion in relation to the infrastructure to be imposed on the development, it is to be expected that this would have been accompanied by fresh appeal rights, as is the case in all other circumstances when a local authority has a power to impose or vary development conditions under the Sustainable Planning Act 2009; and (e) s 661 of the Sustainable Planning Act 2009 provides that if the decision is to approve the conversion application then the decision notice must “state whether an offset or refund under this part applies and, if it does, details of the offset of refund”. However, there is no utility in doing so if the local authority still has a discretion, which it may exercise, to not impose a fresh condition requiring the infrastructure as trunk. In other words, s 661 of the Sustainable Planning Act 2009 presupposes that the outcome of a successful conversion application is that an offset or refund for the trunk infrastructure will be available. One of the steps required to achieve this outcome is the imposition by the local authority of a condition under s 662(3). Section 661 of the Sustainable Planning Act 2009 is consistent with a requirement that the local authority must do so. Pty Ltd v Hervey Bay City Council [2006] QPEC 110, 4-5 (where the issue was raised, but did not need to be decided). -- 21 of 46 -- 22 [58] Although these matters appear compelling at first, there are other relevant contextual matters that address the potential difficulties or absurdities of which the Appellant warns and that otherwise support a literal interpretation. [59] A literal interpretation of s 662(3) of the Sustainable Planning Act 2009 would permit a local authority to exercise a discretion that admits of at least two possible outcomes, namely: (a) a necessary infrastructure condition being imposed; or, alternatively (b) the local government electing not to impose a necessary infrastructure condition. [60] The existence of two options is reinforced by s 662(4) of the Sustainable Planning Act 2009, which provides: “(4) If a necessary infrastructure condition is imposed, the local government must also do either of the following within 10 business days after the imposition for the purposes of section 649(2) or (3)(b)– (a) give an infrastructure charges notice; (b) amend, by notice to the applicant, any existing infrastructure charges notice for the development approval.” (emphasis added) [61] Subsection (4) commences with the word “if”, which admits of the prospect that there may be more than one outcome following the exercise of the power under s 662(3) of the Sustainable Planning Act 2009. This works against the suggestion that “may” is to be construed as if it denotes “must”. The Appellant’s construction necessarily requires “if” to be read as “when”. [62] I do not regard those matters alone to be decisive of the issue. However, the following context also admits of an intention that the local authority has a discretion. [63] I do not accept that s 661 presupposes that the outcome of a successful conversion application is that an offset or refund for the trunk infrastructure will be available. Rather, s 661(2) of the Sustainable Planning Act 2009 reinforces that a local authority has a discretion that involves at least two options for a local authority. -- 22 of 46 -- 23 [64] Section 661(2) of the Sustainable Planning Act 2009 provides: “If the decision is to convert non-trunk infrastructure to trunk infrastructure, the notice must state whether an offset or refund under this part applies and, if it does, details of the offset or refund.” (emphasis added) [65] If the Council elects not to impose a necessary infrastructure condition, there would be no offset or refund. [66] If the legislature intended to limit the power of the local authority, such that the condition to be imposed would replicate the condition imposed for non-trunk infrastructure, it would have been a simple matter for the legislature to so provide. The legislature could have provided that the condition should be taken to be one for trunk infrastructure and required the local authority to amend the infrastructure notice. There also would be no need to provide notice whether an offset or refund would apply. [67] The power in s 662(3) of the Sustainable Planning Act 2009 is a power to impose a “necessary infrastructure condition”. [68] Section 627 of the Sustainable Planning Act 2009 contains definitions for Chapter 8. It defines “necessary infrastructure condition” by reference to s 645(2). [69] Section 645 of the Sustainable Planning Act 2009 states: “645 Application and operation of sdiv 1 (1) This subdivision applies if trunk infrastructure necessary to service premises the subject of a development application (the subject premises)— (a) has not been provided; or (b) has been provided but is inadequate. (2) Sections 646 and 647 provide for a local government to be able to impose particular conditions on the development approval (each condition is a necessary infrastructure condition).” [70] There are, effectively, two types of “necessary infrastructure condition”, namely: (a) a condition imposed under s 646 of the Sustainable Planning Act 2009 in circumstances where the local government infrastructure plan identifies -- 23 of 46 -- 24 adequate trunk infrastructure. Such a condition can require provision of either or both of: (i) the identified infrastructure; and (ii) different infrastructure delivering the same desired standard of service; and (b) a condition imposed under s 647 of the Sustainable Planning Act 2009 in circumstances where the local government infrastructure plan does not identify adequate trunk infrastructure. Such a condition can require provision of development infrastructure necessary to service the premises. [71] The offset and refund requirements in s 649 of the Sustainable Planning Act 2009 apply if a necessary infrastructure condition is imposed and requires an offset or refund. The effect of s 649 of the Sustainable Planning Act 2009 is to ensure the developer is compensated for the difference between the establishment cost of the infrastructure and that amount for which it is responsible (in terms of its infrastructure charges obligations). If there is an error relating to an offset or refund in an infrastructure charges notice, s 478 of the Sustainable Planning Act 2009 provides a right of appeal.62 [72] As such, if the necessary infrastructure condition is more onerous, in terms of the extent of works required to be undertaken, s 649 of the Sustainable Planning Act 2009 is framed to ensure that the developer is compensated accordingly. This neutralises any potential adverse consequences (of which the Appellant warned) that might otherwise arise if, on a conversion application, the local authority imposes a different (potentially more onerous) infrastructure requirement. [73] The local authority, by virtue of the refund and offset requirements, effectively bears the financial burden of any potentially more onerous infrastructure requirement. This reinforces an interpretation that permits the local authority to elect to either condition the works or undertake the works itself (with the potential for cost savings if the works can be undertaken in conjunction with other works in the network). 62 The right of appeal is maintained in the Planning Act 2016. -- 24 of 46 -- 25 [74] A literal interpretation also permits a local authority to provide the necessary service to the subject premises by the construction of different works to those conditioned so as to achieve a better outcome for the broader infrastructure network. [75] The Appellant expressed concern that a literal interpretation could result in a development approval being shorn of a condition that was reasonable or relevant and ultimately leading to the development approval being of no effect.63 I do not regard there to be an appreciable risk in this regard. Section 662 of the Sustainable Planning Act 2009 does not permit a local authority to revoke a valid and effective development approval should it elect not to impose a necessary infrastructure condition. In determining whether to impose a necessary infrastructure condition, the local authority would need to take into account that, should it not impose the condition, the development can lawfully proceed by complying with all remaining conditions. [76] In terms of the absence of a right of appeal against the imposition of a necessary trunk infrastructure condition under s 662(3) of the Sustainable Planning Act 2009, the potential disadvantage to a developer is addressed by: (a) s 658 of the Sustainable Planning Act 2009, in that there is a clear legislative intention that the non-trunk infrastructure not be constructed prior to a conversion application having been made. This provision ensures the developer is not disadvantaged by wasted costs associated with any changes that might be required to the ultimate form of the infrastructure, should the local authority impose a necessary infrastructure condition. It also would maintain the local authority’s option to elect to construct the same, or different, infrastructure itself; (b) as is noted in paragraphs [72] and [73] above, the local authority effectively bears the financial burden of any potentially more onerous infrastructure requirement; and (c) the absence of a power in s 662 of the Sustainable Planning Act 2009 to otherwise amend a development approval. This counteracts other potential 63 This is by application of the principles of severability discussed in Kingsway Investments Pty Ltd v Kent County Council (1970) 68 LGR 301; [1971] AC 72; [1970] 1 All ER 70; cf Property 4 Retail Pty Ltd v Hervey Bay City Council [2006] QPEC 110, 4-5 (where the issue was raised, but did not need to be decided). -- 25 of 46 -- 26 disadvantages that would raise expectations of appeal rights, such as an appeal about whether the condition was a reasonable imposition on a development. One such example is the risk that a local authority could otherwise change the approval to reduce the number of lots permitted so that a more extensive road could be accommodated within a development. The power to impose a necessary condition does not extend to such consequential changes to an approval. [77] Accordingly, I am not persuaded that, in the event that the appeal were allowed, Council must impose a necessary infrastructure condition under s 662(3) of the Sustainable Planning Act 2009 in the same, or substantially the same, terms as the conditions requiring the provision of non-trunk infrastructure that are the subject of the appeal. The merits of the conversion application [78] As is noted in paragraph [34] above, in deciding the conversion application, regard must be had to the criteria for deciding the application in Council’s charges resolution. [79] The relevant criteria in Charges Resolution No. 2 are s 7(a)(ii), (iii) and (vii). Section 7(a)(ii) [80] Section 7(a)(ii) of Council’s Charges Resolution No. 2 states “construction of the infrastructure has not yet started”. [81] This criterion does not appear in the default conversion criteria in the Statutory Guideline. [82] The criterion is consistent with the tenor of Chapter 8, Division 3, Subdivision 1 of the Sustainable Planning Act 2009, which manifests a clear intention that starting construction of non-trunk infrastructure works is inconsistent with a conversion application. This is confirmed by s 658(b) of the Sustainable Planning Act 2009. [83] It is uncontroversial in this case that the Appellant has commenced construction of the infrastructure the subject of the conversion application. The construction of -- 26 of 46 -- 27 Cronin Road was well underway at the time the Traffic Joint Expert Report was prepared. This was recorded as a point of agreement in the Joint Report.64 [84] Section 7(a)(ii), of the Charges Resolution No 2 cannot be met in this case in so far as it applies to Cronin Road. The significance of this failure will be discussed later. Section 7(a)(iii) [85] Section 7(a)(iii) of Charges Resolution No. 2 is expressed in the following terms: “(iii) The infrastructure is inconsistent with the requirements for non- trunk infrastructure stated in section 665 of the SPA;” [86] Section 665 of the Sustainable Planning Act 2009 facilitates the imposition of a condition on an approval about non-trunk infrastructure. Such a condition may only be imposed provided the requirements of s 665(2) are satisfied. The non-trunk infrastructure condition imposed may only be about providing development infrastructure for one or more of the following: (a) a network or part of a network, internal to the premises; (b) connecting the premises to external infrastructure networks; and (c) protecting or maintaining the safety or efficiency of the infrastructure network of which the non-trunk infrastructure is a component. [87] Conditions 18, 66 and 80 of the development approval were imposed pursuant to s 665 of the Sustainable Planning Act 2009. This position was not appealed by the Appellant. Rather, the development approval has taken effect. The Appellant has implemented this approval and taken the benefit of it. [88] It is uncontroversial that the conditions imposed pursuant to s 665 of the Sustainable Planning Act 2009 do not satisfy subsections (2)(a) and (b) of that provision.65 [89] It is not in dispute as between the traffic engineers that conditions 18, 66 and 80 of the development were imposed consistently with s 665(2)(c) of the Sustainable 64 Joint Report of Traffic Engineers – Exhibit 5 p 15 [62]. 65 T1-76/36-41 (Healey) and T1-42/L12-20 (Douglas). -- 27 of 46 -- 28 Planning Act 2009.66 The conditions and the works they require were imposed to protect the safety and the efficiency of the road network. [90] On the basis of the unchallenged evidence of Mr Healey, and indeed the agreed position of the traffic engineers, the Appellant is unable to demonstrate on the evidence that the infrastructure the subject of the relevant conditions of approval is inconsistent with s 665 of the Sustainable Planning Act 2009. The significance of the failure to comply with this criterion will be discussed later. Section 7(a)(vii) [91] Section 7(a)(vii) of Charges Resolution No. 2 relevantly states: “(vii) The type, size and function of the infrastructure is: (A) consistent with the trunk infrastructure identified in the Council’s LGIP; or (B) consistent with the examples of trunk infrastructure stated for a network in Table 4.” [92] The Appellant does not contend that the type, size and function of the infrastructure is consistent with the trunk infrastructure identified in the Council’s Local Government Infrastructure Plan67 adopted on 31 May 2017. (It does submit that the type, size and function of the infrastructure is consistent with the trunk infrastructure identified in the Council’s Priority Infrastructure Plan, which was in effect until 31 May 2017. This is considered in paragraphs [151] and [152] below.) [93] The Appellant’s case focuses on the alternative argument, namely that the type, size and function of the infrastructure is consistent with the examples of trunk infrastructure stated for a network in Table 4 of the Charges Resolution No. 2, particularly a distributor road (and potentially a sub-arterial road).68 The Appellant focussed, in this regard, on the requirement in the criterion that the infrastructure be “consistent with”, rather than exactly the same as, the examples of trunk infrastructure.69 66 This is confirmed by Mr Healey’s unchallenged evidence in Joint Report of Traffic Engineers - Exhibit 5 p16 [64] and Report of Mr Healey - Exhibit 8 p 3 [6.1]. See also T1-76/L42-44 (Healey) and T1-42/L22-39 (Douglas). 67 Exhibit 10. 68 Outline of Submissions of The Avenues Highfields Pty Ltd p 17 [41]. 69 T3-19/L5-13. -- 28 of 46 -- 29 [94] As is mentioned in paragraph [39] above, Table 4 provides that land or works for major distributor roads having a minimum capacity of 5 000 vehicles per day and servicing a minimum of 500 residential lots or equivalent demand may constitute trunk infrastructure. This example raises three considerations, namely whether the land or works are for: (a) a major distributor road; (b) a road with a minimum capacity of 5 000 vehicles per day; and (c) a road servicing a minimum of 500 residential lots or equivalent demand. Are the conditioned works for a major distributor road? [95] I do not accept, as was originally contended by Mr Douglas,70 that the roads, in a functional context, are planned to be used for traffic beyond the subject development including by: (a) the Highfields Sports Complex; (b) the existing Borneo Barracks; (c) the rural residential areas identified within the Priority Infrastructure Plan north-east of the Cronin Road and New England Highway intersection; (d) the low-medium density residential areas identified within Council’s Priority Infrastructure Plan along Cronin Road south of the New England Highway; and (e) low-medium density residential areas along Barracks Road to the west of the subject development. [96] There is no contemporary infrastructure planning that demonstrates that Cronin Road and Barracks Road are intended to function as distributor roads or above in the road hierarchy. The most recent statement of Council’s planning intent is contained in the Local Government Infrastructure Plan.71 It is less than one month old. 70 See Report of Mr Douglas – Exhibit 6 p 26 [138]. See also T1-22/L30 – T1-23/L39. 71 Exhibit 10. -- 29 of 46 -- 30 [97] The contents of the Local Government Infrastructure Plan make it plain that: (a) there is no trunk infrastructure upgrade planned for Cronin Road or Barracks Road; and (b) trunk infrastructure upgrades are, however, planned for the road network in and around the existing retail, educational and community facilities located in Highfields to the west of the subject land for the purposes of improving the planned road hierarchy. [98] Further, the Council’s road hierarchy planning does not support the Appellant’s position that the relevant roads ought be seen as distributor roads, or above, in the road hierarchy. At present, Barracks Road and Cronin Road are local roads in the Council’s road hierarchy.72 There is no formal planning that envisages, or encourages, the upgrade of those roads to a standard equivalent to a distributor or above. [99] With respect to this issue, Mr Douglas relied on statements made by Council officers73 and draft planning traffic studies74 to contend that Cronin Road and Barracks Road will, in the future, be treated as subarterial roads. These documents are not formal planning documents. They do not represent the current planning of Council. The current planning is embodied in the planning scheme and the recently adopted Local Government Infrastructure Plan. It is these formal documents that are of importance and provide a true representation of the Council’s planning, not documents that are draft or that contain statements made by Council officers75 inconsistent with Council’s formally adopted planning position. [100] It is accepted, however, that the conditioned works are not consistent with a local road. This was a matter of common ground between the parties and their experts.76 72 Book of Statutory Instruments – Exhibit 4 pp 199 – 200. 73 Report of Mr Douglas – Exhibit 6 p 33 [171] and p 63 above heading 1.5 and Exhibit 13. 74 Joint Report of Traffic Engineers – Exhibit 5 p 20 [89] and pp 133 - 134 Annexure F and Report of Mr Doublas – Exhibit 6 p 33 [172] and p 160 Annexure L. 75 See, for example, Exhibit 14, which contains the statement of Council’s development engineer (Mr Elliott) at the pre-lodgement meeting with the Appellant that Barracks Road was a distributor. 76 T1-56/L28 – T1-57/L3 (Healey) and Joint Report of Traffic Engineers – Exhibit 5 pp 17 – 18 [77] and pp 132 – 133 and Report of Mr Douglas – Exhibit 6 p 44 [246]. See also Outline of Submissions of The Avenues Highfields Pty Ltd p 18 [42(c)] and Written Submissions on behalf of the Respondent pp 20 – 21 [80]. -- 30 of 46 -- 31 [101] It is the Appellant’s position that the court ought prefer the opinion of Mr Douglas77 and find that, having regard to the criteria in Charges Resolution No. 2, the works conditioned for both Cronin Road and Barracks Road most closely align with works for a subarterial road or, as a minimum, a distributor road.78 [102] Council, on the other hand, contend that the works conditioned for both Cronin Road and Barracks Road are of a standard consistent with a collector road. [103] Schedule 6.2 Planning Scheme Policy No. 2 – Engineering Standards – Road and Drainage Infrastructure (“Planning Scheme Policy No. 2”) is instructive about the function of the conditioned works in Cronin Road and Barracks Road. It provides guidelines that “form the basis for design and delivery for Council’s constructed infrastructure works”.79 [104] Section 6.2.2.2 of Planning Scheme Policy No. 2 explains Council’s road hierarchy that, together with the associated cross-sections, represent Council’s minimum standard for its street and road systems.80 It describes the hierarchy in the following terms:81 “SC6.2.2.2.3 Subarterial roads (1) Subarterial roads are used for traffic circulating within the CBD and other regionally significant activities (e.g. airport, base hospital, University of Southern Queensland). (2) The speed environment for sub-arterial roads is 60–80 km/h in the urban area, 60 km/h in the inner urban area, and 80–100 km/h in the rural precinct. (3) Direct access to subarterial roads is typically limited — it is not permitted within 60 m of an intersection in the urban area, or 150 m in the rural precinct. Intersections are typically spaced more than 0.5 km apart; they use a staggered T configuration in the rural precinct and are either signalised or a roundabout in the urban area. (4) On-street parking is limited to service vehicles and short-term stays (subject to available width), indented bus/coach set-downs with deceleration/acceleration lanes in the urban area, and on localised widening in the rural precinct. (5) Cycling paths, where provided, are 1.5 m wide, on-road cycle lanes and a 2.0 m shared paths, on both sides of the road, with temporal separation crossings. 77 Report of Mr Douglas – Exhibit 6 p 44 [246]. 78 Outline of Submissions of The Avenues Highfields Pty Ltd p 17 [41]. 79 Book of Statutory Instruments – Exhibit 4 p 201 s 6.2.1(2). 80 Book of Statutory Instruments – Exhibit 4 p 204 s 6.2.2.2(6). 81 Book of Statutory Instruments – Exhibit 4 p 205. -- 31 of 46 -- 32 (6) Intersections with subarterial roads are designed to accommodate the turning movements of vehicles up to Class 11 Type 1 road trains. SC6.2.2.2.4 Distributer roads (1) Distributor roads allow traffic to move through a district. Access is provided for up to 120 ha of industrial land. (2) The speed environment for distributer roads is 60 km/h in the urban environment, 50–60 km/h in the inner urban area, and 80– 100 km/h in the rural precinct. (3) Direct access to distributor roads is typically limited and not provided within 40 m of an intersection in the urban area, or 100 m in the rural area. Intersections are typically spaced more than 200 m apart; they use a priority T configuration in the rural precinct and either a priority T or a roundabout inthe urban area. (4) On-street parking is typically limited to service vehicles and short-term stays (subject to available width), indented bus/coach set-downs or use of designated parking lanes, where available, in the urban areas, and on localised widening in the rural precincts. (5) Cycling paths, where applicable, are 1.5 m on-road cycle lanes and a 2.0 m shared paths, on both sides of the road, with temporal separation at signals or pedestrian crossings. (6) Intersections with distributer roads are designed to accommodate the turning movements of vehicles up to Class 10 B-double trucks (Class 11 Type 1 road trains by permit) in the urban area, Class 11 Type 1 road trains in the industrial area, and Class 10 B-double trucks in the rural precinct. SC6.2.2.2.5 Collector roads (1) Collector roads move local traffic to the distributer network. Access is provided for up to 300 dwellings or 30 ha of industrial land. (2) The speed environment for collector roads is 40–60 km/h in the urban area, 10–50 km/h in the inner urban area and 80–100 km/h in the rural precinct. (3) Direct access to collector roads is typically permitted, but not within 25 m of an intersection in the urban area or within 100 m of an intersection in the rural area. Intersections are typically spaced more than 100 m apart; they use a priority T configuration in the rural precinct and either a priority T or a roundabout in the urban area. (4) On-street parking is typically limited to service vehicles and visitor/short-term stays (subject to available width), indented bus/coach set downs or use of designated parking lanes, where available in the urban area, and on localised widening in the rural precinct. (5) Cycling paths, where provided, are on-road cycle lanes, combined with parking, on both sides of the road, and include pedestrian crossings or slow points combined with refuges. (6) Intersections with collector roads are designed to accommodate the turning movements of vehicles up to Class 9 semitrailers in the -- 32 of 46 -- 33 urban area, Class 11 Type 1 road trains in the industrial area, and Class 10 B-double trucks in the rural precinct. SC6.2.2.2.6 Local access/access streets (1) Local access streets provide access for up to 175 dwellings or 8 ha of industrial land. (2) The speed environment for access roads is 40–50 km/h in the urban environment, 10–50 km/h in the inner urban area, and 80– 100 km/h in the rural precinct. (3) Direct access is typically permitted to access roads, but not within 20m of an intersection in the urban area or 100 m of an intersection in the rural precinct. Intersections are typically spaced more than 100 m apart; they use a priority T configuration in the rural precinct and either a priority T or a roundabout in the urban area. (4) On-street parking is typically permitted (subject to available width), with indented bus/coach set-downs or designated parking lanes, where available, in the urban areas, and on localised widening in the rural precinct. (5) Cycling paths, where provided, are on-road cycle lanes, combined with parking, on both sides of the road, and include pedestrian crossings or slow points combined with refuges. (6) Intersections with local access roads are designed to accommodate the turning movements of up to Class 6 service vehicles in the urban area, Class 11 Type 1 road trains in the industrial area, and Class 9 semitrailers in the rural precinct.” (emphasis added) [105] The Appellant submits that Mr Douglas carried out a comprehensive assessment of the conditioned works for Cronin Road and Barracks Road against these parameters.82 [106] I do not regard Mr Douglas’ assessment as one that persuasively demonstrates that the conditioned works are for a subarterial road or a distributor road. This is primarily because I do not accept Mr Douglas’ opinion about the likely distribution of traffic in the road network, assuming a fully developed catchment as depicted in Council’s Priority Infrastructure Area. [107] In the Joint Report of Traffic Engineers, Mr Douglas expressed the view that significant areas of future planned low-medium density residential development to the south, east and west of Cronin Road and Barracks Road will contribute to increases in traffic on Cronin Road and Barracks Road. He also expressed the view that non-residential uses outside the Priority Infrastructure Area will contribute 82 Report of Mr Douglas – Exhibit 6 pp 15 – 21 [52] – [98]. -- 33 of 46 -- 34 significant traffic to Barracks Road and Cronin Road, including the existing Borneo Barracks and the Highfields Sporting Complex.83 [108] During cross-examination, Mr Douglas conceded that the vast majority of residents in the south-western and north-western portions of the Priority Infrastructure Area (and in an area generally west of Kuhls Road and Reis Road) would not generally rely on Barracks Road or Cronin Road.84 That area will contribute a substantially greater proportion of the traffic movements in the network than the proportion east of that area.85 [109] In light of Mr Douglas’ concessions during cross-examination, the principal point of difference between the traffic engineers turns on whether motorists would prefer to take a less direct route in favour of a route that is direct but includes traffic lights.86 [110] The attractiveness or convenience of any given traffic route is a matter about which reasonable minds may differ. To aid my understanding of the evidence, I had the benefit of a site inspection in Toowoomba, including an inspection of the various roads the subject of the evidence of the traffic engineers. I am mindful of the limited purpose of a site inspection, and that I must act on evidence. However, the site inspection allowed me to appreciate the road layout in this area of Toowoomba and the likely relative ease (or otherwise) of travelling around the area such that I prefer the evidence of Mr Healey on this issue. I expect that drivers in this locality will take a direct route in preference to an indirect route, notwithstanding the presence of signalised intersections.87 [111] Whether Cronin Road and Barracks Road will provide a convenient and more attractive trip for drivers travelling from either the south of the New England Highway (which equates to a total of about 5% of the area of the Priority Infrastructure Area)88 or from further afield in the east is relevant to the function of those roads. 83 Joint Report of Traffic Engineers – Exhibit 5 p 12 [42] and p 13 [51]. 84 T1-23/L41 – T1-26/L13 (Douglas). 85 T1-26/L15-21 (Douglas). 86 T1-26/L23 - T1-27/L30 (Douglas). 87 T1-51/L4-17 (Healey). 88 T1-50/L22-30 (Healey). -- 34 of 46 -- 35 [112] I am not satisfied that the function of Cronin Road and Barracks Road will be to move traffic through a district. I prefer the evidence of Mr Healey, who concluded that Cronin Road and Barracks Road will primarily be used by residents of the Appellant’s development. Cronin Road and Barracks Road will be used by residents of the Appellant’s development to access facilities to the west of the subject land, namely educational, retail and community facilities. A very substantial demand will be placed upon Cronin Road and Barracks Road by the Appellant’s development for local access purposes.89 This will be the primary purpose of both Cronin Road and Barracks Road. That is not to say that these roads will not be carrying traffic for other development. The level of traffic utilising the road for other purposes will, however, be modest when compared to the traffic generated by the Appellant’s development.90 [113] The Appellant submits that Mr Healey’s approach to the classification question, being one that applies a test whether the roads have a primary traffic carrying function or a primary access function,91 is not a test that finds reflection in any Council document.92 I disagree. The function of each road in Council’s hierarchy needs to be considered in context. That context includes a hierarchy of roads, each with a different planned function. Relevantly, the planned functions are: (a) for subarterial roads to be used for traffic circulating within the CBD and other regionally significant activities; (b) for distributor roads to be used to allow traffic to move through a district; (c) for collector roads to be used to move local traffic to the distributor network; and (d) for local access streets to be used to provide access for up to 175 dwellings. [114] These planned functions must, sensibly, be understood as the primary planned function of the roads, given the inability to exclude traffic that intends to use the road for a different purpose. In practical terms, each road in any road hierarchy will, to a certain degree, have a traffic access function. 89 As was confirmed by Mr Healey in his report at Exhibit 8 p 3 [4.8] and, in part, by Mr Douglas at T1-20/L41 - T1-21/L8. 90 Report of Mr Healey – Exhibit 8 p 3 [5.1] – [5.5] and Figure 3. 91 T1-62/L10-14. 92 See Outline of Submissions of The Avenues Highfields Pty Ltd pp 21 - 22 [51]. -- 35 of 46 -- 36 [115] Further, when the respective design parameters for each road in the hierarchy (namely the speed environment; availability of direct access, on-street parking and cycling and pedestrian paths; and intersection design) are read in context, it is apparent that they are not determinative of the function of a road. The purpose of the design parameters is to ensure that a road that is planned to provide a particular function is designed to specified minimum standards, so as to best ensure the road can operate as planned. That is not to say that conditioning a development to deliver roads with particular parameters is irrelevant to the classification of the road. In some circumstances, the provision of a road with higher order design parameters may encourage a redistribution of traffic such that the road has a function consistent with its design. I do not consider that to be likely to occur here. As noted above, I prefer the evidence of Mr Healey about the likely distribution of traffic. [116] Further, and in any event, I do not regard the conditioned design of Cronin Road and Barracks Road, when compared to the design parameters in Planning Scheme Policy No. 2, demonstrates that the road ought be classified as a subarterial or distributor road. In that regard, I note: (a) the posted speed limit for Cronin Road and Barracks Road will be 60 km/h, which is consistent with collector, distributor and subarterial roads;93 (b) direct access to Cronin Road is proposed for a number of residential lots, including approximately one or two that will gain direct access to Cronin Road within 40 metres of the Barracks Road intersection and one or two that will gain direct access to Cronin Road within 40 metres of the Barracks Road intersection.94 As such, the road design does not accord with the requirement for subarterial and distributor roads that access is “not permitted” within 60 metres and 40 metres respectively of an intersection in the urban area; (c) the spacing of the intersections does not accord with the desired “typical” spacing on subarterial and distributor roads;95 (d) on-street parking is permitted along both Cronin Road and Barracks Road. Mr Douglas notes that it is expected to typically be for short-term visitors to the 93 Report of Mr Douglas – Exhibit 6 p 20 [90]. 94 Report of Mr Douglas – Exhibit 6 p 19 [81]. 95 Report of Mr Douglas – Exhibit 6 p 19 [82] and p 21 [92]. -- 36 of 46 -- 37 adjacent residential properties,96 consistently with the desired outcome for subarterial and distributor roads. This is also consistent with the desired outcome for a collector road; and (e) while a 2.5 metre wide shared path is conditioned along the development side of both Cronin Road and Barracks Road, instead of the on-road cycle lanes that are preferred for collector roads,97 this is reflective of Council agreeing to the Appellant’s request for on-road planting, which in turn prevented on-road cycle lanes.98 It does not demonstrate that the road is intended to function as a distributor road. [117] The requirement that a collector road provide access for up to 300 dwellings99 is considered below as part of the consideration of the number of lots served by the conditioned works. [118] Planning Scheme Policy No. 2 requires the sections describing the road hierarchy to be read in conjunction with Council’s standard drawings, which provide typical cross sections for the various types of roads in the road hierarchy.100 [119] The conditioned road formation for Cronin Road and Barracks Road are based on the standards collector road design formation.101 However, Council has approved variations to the standard design, namely: (a) partial construction. Council has allowed the Appellant to build only half of the ultimate cross section of Cronin Road, being the 11.5 metres from the development property boundary to the road centreline. The remaining 11.5 metres road width has been approved with an interim design formation involving a rural drainage solution where there is no kerb and channel and no paved footpath.102 Further construction works will be necessary at some future stage if full collector road standard is to be achieved; and 96 Report of Mr Douglas – Exhibit 6 p 20 [85] and p 21 [94]. The basis of Mr Douglas’ expectation is not explained in his report. Even though the admissibility of the opinion was not challenged, it difficult to place significant (if any) weight on the opinion, given the absence of an explanation for its basis. 97 Report of Mr Douglas – Exhibit 6 p 18 [73]. 98 Report of Mr Healey – Exhibit 8 p 4 [6.3]. 99 Book of Statutory Instruments – Exhibit 4 p 205 s 6.2.2.5(1). 100 Book of Statutory Instruments – Exhibit 4 p 204 s 6.2.2.2(5). 101 Report of Mr Healey – Exhibit 8 p 4 [6.4]. 102 Joint Report of Traffic Engineers – Exhibit 5 p 18 [79]. -- 37 of 46 -- 38 (b) a landscape and cycle land variation. As is mentioned in paragraph [116](e) above, Council has approved construction of an alternate design for landscaping and cycle provision that involves planted islands within the road pavement area. This change, together with the partial construction, results in the need to relocate the cycle provision to the verge and provision of a wider off road shared path.103 [120] I accept the evidence of Mr Healey that: (a) if the functions of Cronin Road and Barracks Road were to be greater than that of a collector road, a wider formation (consistent with Council’s distributor road cross section) would be required to adequately service the higher traffic volumes;104 and (b) the important traffic engineering change between a collector road cross section and a distributor road cross section is the width of the traffic lanes (being 3.5 metres for a distributor road as compared to 3 metres for a collect road). The greater width is required to accommodate the higher traffic volumes and the likely greater composition of heavy vehicles including buses that could be expected on distributor roads.105 During cross-examination, Mr Healy conceded that the approved Cronin Road cross section (with lanes of 3.4 metres and 3.5 metres) more closely resembles a distributor than a collector in terms of that important difference.106 However, the lane widths should be considered in conjunction with other design elements that would impact on the availability of the traffic lane unrestricted traffic movement. In the standard distributor road cross section, the full 3.5 metre lane width is complimented by additional widths of 2.5 metres and 3 metres provided for bike lanes or breakdown areas and indented parking respectively. The subject design does not include the benefit of those additional widths.107 The overall reserve width 103 Report of Mr Healey – Exhibit 8 p 4 [6.3]. See also Joint Report of Traffic Engineers – Exhibit 5 p 19 [80]. 104 Report of Mr Healey – Exhibit 8 p 4 [6.5]. 105 Report of Mr Healey – Exhibit 8 p 4 [6.6]. See also Joint Report of Traffic Engineers – Exhibit 5 p 19 [81]. 106 T1-63/L20-38. 107 Report of Mr Healey – Exhibit 8 Figure 4. -- 38 of 46 -- 39 at 21.5 metres is less than the 25 metres that is envisaged for a distributor road.108 [121] Mr Douglas did not regard it as clear that the cross-section of conditioned works was based on that for collector roads. In forming his view, he placed considerable emphasis on the existence of other distributor and subarterial roads in Toowoomba that do not achieve the minimum standards or the cross-sectional profile sought in Planning Scheme Policy No. 2.109 He regarded the different standards exhibited by other roads as demonstrating that the cross-sectional width is not a clear determinant of a road’s function.110 I disagree. I do not regard the fact that the form of works required by the conditions for Cronin Road and Barracks Road is consistent with the form of many existing sub-arterial and distributor roads in the locality, in terms of road reserve width, pavement width and frontage access, to be demonstrative of the appropriate classification of the road. [122] Town planning, and the planning of infrastructure, involves a local authority setting a “blue print” for future development in its local government area. A local authority cannot require existing lawful development to comply with new standards. Change in standards can only be achieved over time as an area re-develops. Adopting the approach contended for by Mr Douglas would inhibit the ability of a local authority to effect a change in standards over time. [123] I also do not regard the fact that the Department of Transport and Main Roads imposed a condition requiring signalisation of the intersection of Cronin Road and the New England Highway as indicative of a view held by the Department that Cronin Road would be a high order road.111 The reasons for the conditions112 do not suggest the intersection works were required because the Department saw Cronin Road as an important or higher order road. Nor do the reasons for the conditions suggest the intersection works were required for anything other than the impacts of the development on the state-controlled road network. 108 Report of Mr Healey – Exhibit 8 Figure 4. 109 See, for example, Report of Mr Douglas – Exhibit 6 p 19 [83], p 21 [97], p 41 [213] – [221] and pp 112 – 144 Annexures F and G. 110 Report of Mr Douglas – Exhibit 6 p 41 [221] and p 44 [242] – [245]. See also Joint Report of Traffic Engineers – Exhibit 5 p 20 [84] – [85]. 111 Report of Mr Douglas – Exhibit 6 p 24 [116] and p 26 [136]. See also Joint Report of Traffic Engineers – Exhibit 5 p 16 [66] – [69] and T1-76/L31-34 (Healey). 112 Appeal Book - Exhibit 2 p 103. -- 39 of 46 -- 40 [124] The Appellant submits that the diagrammatic representation of the road hierarchy in Council’s road hierarchy plan113 shows that, in an ideal situation, the different levels in the hierarchy connect with each other (and do not skip over a level). Mr Douglas explained his understanding that Council had treated the main internal road for the Appellant’s development as a collector road,114 and this evidence was not challenged. On that basis, on the Appellant’s case, a collector (the internal road) connects with a distributor (Cronin Road) and then with a sub-arterial (New England Highway). On Mr Healey’s approach, a collector (Cronin Road) connects directly to a subarterial.115 I do not regard this as providing a reliable indication of the function of the conditioned works. There are many local access roads in the locality that intersect directly with the New England Highway.116 [125] For the reasons outlined in paragraphs [95] to [124] above, I do not accept that the conditioned works are for a major distributor road. Are the conditioned works for roads with a minimum capacity of 5 000 vehicles per day? [126] It is common ground between the traffic engineers that both roads have the theoretical capacity to carry more than 5 000 vehicles per day.117 Are the conditioned works for roads servicing a minimum of 500 residential lots? [127] Table 4 refers to a major distributor road that serves a minimum of 500 residential lots. One of the quantitative parameters for a collector road in Planning Scheme Policy No. 2 is that it serves up to 300 dwellings. [128] The Appellant’s development itself involves approximately 530 dwellings.118 The site has a frontage to both Cronin Road and Barracks Road. On this basis, the Appellant submits that it is reasonable to conclude that the occupants of all lots will use both roads on a not irregular basis throughout the life of the development (i.e. that both roads serve the entire development of more than 500 lots). 113 Book of Statutory Instruments – Exhibit4 p 204. 114 T1-8/L35 – T1-9/L29. 115 T1-58/L40-44. 116 Book of Plans – Exhibit 1 p 29. T1-77/L20 – T1-78/L19 (Healey). 117 Joint Report of Traffic Engineers – Exhibit 5 p 11 [37], p 12 [41] and p 13 [50] and [51]. 118 The preliminary approval refers to 524 lots and other material refers to “indicatively” 536 lots. -- 40 of 46 -- 41 [129] Although the Appellant’s development will, eventually, involve somewhere in the order of 530 dwellings, traffic associated with the development will be distributed over three points of access to Barracks Road, four points of access to Cronin Road and four future connections to the land to the immediate east.119 As such, the traffic generated by the approximately 530 dwellings will not all be distributed to Cronin Road or Barracks Road. [130] The Appellant criticises reliance on future connections to the land to the immediate west in circumstances where Council has conditioned road upgrades based on an assessment that ignored such possible connections. I do not regard the criticism as legitimate. It is not appropriate to take account of future lots, which do not yet exist, while ignoring the future road connections that will be provided coincident with the future lots. Further, Council’s decision to, in the meantime, impose the subject conditions is explicable. They were imposed to maintain the safety and efficiency of the road network in the short-term: their utility may well decrease in the future if other road connections are made available.120 [131] On the issue of the number of lots serviced by the conditioned works, I accept the evidence of Mr Healey. He concluded, from a traffic demand perspective, that the proposed development (fully developed) would generate in the order of 2 924 vehicles per day on Barracks Road.121 On the basis that it can be assumed a dwelling will generate 10 vehicle movements per day, Mr Healey’s demand estimate equates to 293 dwellings utilising Barracks Road. [132] Mr Healey also estimated that the development would generate 1 792 vehicle movements per day on Cronin Road.122 Again, assuming 10 vehicle movements per day per dwelling, this would equate to a total number of 180 dwelling units utilising Cronin Road.123 [133] These traffic demand estimates fall short of establishing that 500 lots, or equivalent demand, will be serviced by Barracks Road and Cronin Road. 119 Book of Plans – Exhibit 1 p 19. 120 T1-60/L1-12. 121 Report of Mr Healey – Exhibit 8 p 3 [5.2]. 122 Report of Mr Healey – Exhibit 8 p 3 [5.3]. 123 See also T1-59/L26-47 and T1-60/L44 - T1-61/L6 (Healey). -- 41 of 46 -- 42 [134] Mr Douglas’ estimate of traffic demands also confirms that Mr Douglas has assumed a distribution of traffic from the Appellant’s development that is consistent with the notion that neither Cronin Road nor Barracks Road will service a catchment of 500 dwellings or more. Mr Douglas has estimated that the demand at the southern end of Cronin Road will be in the order of 3,878 vehicle movements per day, equating to a total demand generated by 388 dwellings per day.124 Conclusion regarding section 7(a)(vii) [135] For the reasons provided in paragraphs [92] to [134] above, I am not satisfied that the works to be undertaken by the Appellant will result in the creation of a major distributor road of the kind envisaged in Table 4 of Charges Resolution No. 2. Accordingly, the Appellant has not demonstrated that s 7(a)(vii) is satisfied. Significance of failure to meet the conversion criteria [136] For the reasons provided above, I am not satisfied that the criteria in s 7(a)(ii), (iii) and (vii) of Charges Resolution No. 2 are satisfied. [137] This failure is not necessarily fatal. As is noted in paragraphs [40] and [41] above, s 660 of the Sustainable Planning Act 2009 does not mandate refusal of a conversion application that does not meet all of the criteria for conversion. It only requires the decision maker to have regard to the criteria. [138] The Appellant submits that the criterion in s 7(a)(ii) of Charges Resolution No. 2 is, in the circumstances of this appeal, deserving of little or no weight because:125 (a) it is reasonable to infer that criterion (ii) was inserted by Council for consistency with s 658(b) of the Sustainable Planning Act 2009 and, in view of what transpired in this appeal before the court on 16 December 2016, when Council did not oppose an order permitting the Appellant to commence the works, the criterion does not add anything meaningful to the debate; (b) the criterion has no significance in terms of the impact of the commencement of construction on the exercise of a discretion under s 662(3) of the Sustainable 124 Exhibit 11. 125 Outline of Submissions of The Avenues Highfields Pty Ltd p 15 [37]. -- 42 of 46 -- 43 Planning Act 2009 as, on the Appellant’s case, s 662(3) does not confer any discretion; and (c) even if s 662(3) of the Sustainable Planning Act 2009 did confer a discretion, the Appellant has accepted the risk of the exercise of any such discretion.126 [139] There is no doubt that the Appellant has commenced the roadworks on Cronin Road that are the subject of the conversion application. The criterion in s 7(a)(ii) of Charges Resolution No. 2 turns its face against a conversion application succeeding in such circumstances. I accept Council’s submission that there is a good reason for this. [140] If the Appellant is successful in this appeal, on the proper interpretation of s 662 of the Sustainable Planning Act 2009: (a) the conditions that require the works to be undertaken no longer have effect; and (b) Council may impose conditions with respect to necessary trunk infrastructure. [141] A developer, such as the Appellant, who commences work that is the subject of a conversion request, and succeeds, puts itself in a position where, as a matter of common sense and practicality, the discretion to be exercised by a local authority under s 662(3) of the Sustainable Planning Act 2009 is at risk of being prejudged, compromised or rendered a futility because of the very step taken to commence the relevant works. It may be compromised to the extent that the local authority has no choice but to impose exactly the same condition in exactly the same form as that which existed prior to the conversion application to avoid a waste of private and public resources. By starting the works, the dye has, to some extent, been cast. [142] The prospect that the exercise of the discretion under s 662(3) of the Sustainable Planning Act 2009 may be compromised or prejudged is a strong reason that militates against the exercise of the discretion in the Appellant’s favour. [143] The Affidavit of Ms Plumbe, which is unchallenged, confirms that Council would like an opportunity to review the relevant conditions the subject of the conversion application if it is held that the works ought be converted from non-trunk to trunk 126 Book of Issues - Exhibit 3 p 169 [1] – [22]. -- 43 of 46 -- 44 infrastructure. This is because Council was prepared to accept variations to the design of the roads, on the basis that they were non-trunk infrastructure.127 [144] The fact that the Appellant says it has accepted the risk of the exercise of any such discretion is beside the point. The prospect of wasted cost is unpalatable. [145] The Appellant also submits that non-compliance with the criterion in s 7(a)(iii) of Charges Resolution No. 2 is deserving of little or no weight. It submits that protecting or maintaining the efficiency of the infrastructure network applies to all roads and, as such, s 665(2)(c) of the Sustainable Planning Act 2009 is not a helpful basis to distinguish between trunk and non-trunk infrastructure.128 [146] The Appellant accepted long ago that, as a matter of characterisation, the infrastructure works required by conditions 18, 66 and 80 of the development approval are, by their very nature, conditions calling for non-trunk infrastructure under s 665 of the Sustainable Planning Act 2009. It did not appeal this position. It allowed the approval to take effect and acted upon it for its benefit. To suggest that consistency with s 665(2)(c) of the Sustainable Planning Act 2009 is unhelpful in determining the outcome of this case ignores the importance of s 665 and its very purpose – to allow the imposition of conditions which are, by definition, non-trunk in nature. [147] The Appellant has failed to establish that the underlying reason for conditions 18, 66 and 80 is erroneous or misplaced. The Appellant has not established that the qualification referred to in s 665(2)(c) of the Sustainable Planning Act 2009 does not exist now or as a consequence of a change in circumstances since the approval was granted. It has not established that the works were more than was required to protect or maintain the efficiency of the infrastructure network. [148] Nevertheless, I regard the non-compliance with this criterion to be of less significance than the non-compliance with the other two criterion. 127 Book of Issues – Exhibit 3 p 88. 128 Outline of Submissions of The Avenues Highfields Pty Ltd p 15 [38]. -- 44 of 46 -- 45 [149] Finally, with respect to the non-compliance with the criterion in s 7(a)(vii) of Charges Resolution No. 2, the Appellant notes that its conversion application was refused by Council with particular reliance upon the criterion in s 7(a)(vii)(B), because:129 “The Traffic Impact Assessment undertaken by HIG and supplied with the development application indicates that Barracks and Cronin Road are both below the 5,000 vehicles per day minimum capacity. The functional classification of the infrastructure is the equivalent of a collector road under Council’s Road Hierarchy. This level of road is not considered trunk as per Charges Resolution No. 1.” [150] Prior to 31 May 2017, when the draft Local Government Infrastructure Plan was adopted by Council, it was the Appellant’s position that the structure of the legislative scheme required Council’s Priority Infrastructure Plan to be treated as the local government infrastructure plan for the purposes of s 7(a)(vii)(A) of the two charges resolutions. [151] The Appellant submits that this was significant because trunk infrastructure under the Priority Infrastructure Plan included collector roads and that made it strictly unnecessary for the Appellant to deal with Council’s reliance upon s 7(vii)(B) of the Charges Resolution (as it is only an alternative to (A)).130 The Appellant’s argument in this respect is premised on the explanation by Mr Douglas in the Joint Expert Report131 and in his individual statement.132 The Appellant also submits that Council’s conduct in adopting its Local Government Infrastructure Plan on 31 May 2017 deprived the Appellant of this “winnable point” and that it is impossible not to think the timing was deliberate. [152] I am not convinced that the status of the road as a collector road would have been determinative under Charges Resolution No. 2. The provision referred to by Mr Douglas is contained in Table 4.6:1 of Council’s Priority Infrastructure Plan.133 It “broadly outlines” the trunk infrastructure networks. It is apparent from the context that the descriptor of “collector roads” is one of many broad descriptors used in the Table. Curiously, the other broad descriptors for roads are “arterial, sub-arterial” and “some minor roads in townships”. There is no reference to distributor roads. In those circumstances, I do not accept that, prior to the introduction of the Local 129 Appeal Book – Exhibit 2 p 73. 130 Outline of Submissions of The Avenues Highfields Pty Ltd pp 11 - 12 [22] – [25]. 131 Joint Report of Traffic Engineers – Exhibit 5 pp 6 – 7 [13] – [15] and [17] – [20]. 132 Report of Mr Douglas – Exhibit 6 pp 11 - 13 [26] – [45]. 133 Book of Statutory Instruments – Exhibit 4 pp 147 – 148. -- 45 of 46 -- 46 Government Infrastructure Plan, the Appellant would have necessarily succeeded by relying on s 7(vii)(A) alone. [153] Even if the point were a “winnable” one, I do not regard the recent introduction by Council as a legitimate basis to exercise the discretion in the Appellant’s favour. The Appellant’s right is a right to have the appeal heard and determined on the law as it applies at the time of determination of the dispute. It ought to have reasonably anticipated the prospect of a new local government infrastructure plan. Its expert, Mr Douglas, was alive to the possibility.134 While the hearing was scheduled for June 2017, it must have been reasonably contemplated that a decision would not be received before the end of June 2017. [154] I also do not regard the timing of the adoption of the new Local Government Infrastructure Plan as improper. Council was required to adopt it prior to 1 July 2017 in order to avoid losing its ability to levy infrastructure charges on new development.135 [155] Further, and in any event, I regard the non-compliance with the criterion in s 7(a)(vii) of Charges Resolution No. 2 to be significant. [156] The Appellant did not establish on the evidence that the type, size and function of the infrastructure required by the relevant conditions is consistent with the nature of trunk infrastructure envisaged in the Council’s recent Local Government Infrastructure Plan or Table 4 of Charges Resolution No. 2. I do not accept that, as an exercise of discretion, it is appropriate to convert infrastructure that fails to meet this criterion to trunk infrastructure, thereby allowing it to attract a credit or offset for infrastructure charging purposes. The circumstances are not such to persuade me that such a course is appropriate. Conclusion [157] For the reasons provided in paragraphs [53] to [77] above, the Originating Application is dismissed. [158] The appeal is also dismissed. 134 Report of Mr Douglas – Exhibit 6 p 11 [26] – [32] and p 33 [176] – [177]. 135 Exhibit 10 p 7. -- 46 of 46 --