Exchequer Property Finance Pty Ltd v Fraser Coast Regional Council [2015] QPEC 60 [2016] QPELR 160

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: Exchequer Property Finance Pty Ltd v Fraser Coast Regional Council [2015] QPEC 60 PARTIES: EXCHEQUER PROPERTY FINANCE PTY LTD Appellant v FRASER COAST REGIONAL COUNCIL Respondent FILE NO: 148 of 2015 DIVISION: Appellate PROCEEDING: Appeal DELIVERED ON: 11 December 2015 DELIVERED AT: Southport HEARING DATES: 28 & 29 October 2015 at Hervey Bay and written submissions received on 16 & 19 November 2015 JUDGE: Judge C F Wall QC ORDER: Appeal allowed, condition varied. CATCHWORDS: TOWN PLANNING – condition imposed on developers – traffic generated by development – other nearby developments – extent of contribution to road construction costs – whether condition is unreasonable or not reasonably required. LEGISLATION: Sustainable Planning Act 2009, Sections 345, 369, 375 CASES: Bugeja v Mulgrave Shire Council [1982] QPELR 320 at 322 COUNSEL: Mr R Litster QC for the Appellant Ms N Kefford for the Respondent SOLICITORS: McDonald Balanda & Associates Lawyers for the Appellant Connor O’Meara Solicitors for the Respondent Introduction [1] This is an appeal from a decision of the respondent dated 19 March 2015 to approve, in part, a request by the appellant under s. 369(1) of the Sustainable Planning Act 2009 (SPA) to change conditions 29 and 30 of a development approval dated 13 -- 1 of 12 -- 2 August 2004 to reconfigure land from 1 lot into 253 lots. The land is situated at 256 Doolong South Road, Nikenbah, Hervey Bay and is called Parklands Estate. The estate is substantially developed. [2] Conditions 29 and 30 relate to the upgrading of Doolong South Road as each stage of the estate that fronts that road is developed. Relevant stages for the purposes of the appeal are 3A and 3B (the development or the subject land) which have frontage to the north-south section of Doolong South Road as shown on the maps at page 17 and 18 of exhibit 2. See also exhibits 3 and 12. [3] The appeal in relation to condition 30 has been resolved. The appeal now involves only condition 29. [4] Original condition 29 of the 2004 approval was in these terms “Condition 29 In lieu of constructing kerb and channel together with all associated road widening and underground drainage for the full length of the existing Doolong South Road frontage to the development designed in accordance with the standard defined in Council’s road hierarchy for a Traffic Distributor Road, the Developer shall make a cash contribution to Council toward the future construction of the roadworks by Council. The value of the contribution to Council is to be determined on the basis of a formal design, schedule of quantities and estimated contract rates prepared by a registered professional engineer and approved by Director Development Services.” The emphasis is mine. [5] Doolong South Road has recently had its status changed from Traffic Distributor Road to Major Collector Road (bus route), a higher status and one which envisages more traffic as well as buses.1 This change prompted the appellant to seek a change to condition 29 to add wording such that the appellant’s contribution to future construction of Doolong South Road be assessed on the bases of traffic generated by the development (an argument pursued on the appeal). This application was supported by a detailed report from Burchills.2 [6] The respondent’s internal advice in relation to this application included the following “This request is not in keeping with current Council policy. All requirements for the delivery of frontage works are based upon the 1 The planning scheme classifies such a road as a non-trunk road with a road reserve width of 20 metres and capacity of up to 1000 residential allotments 2 Exhibit 1, tab D -- 2 of 12 -- 3 delivery, or payment in lieu, of a half width road constructed in accordance with the roads current classification. The request to contribute based upon traffic generation is not valid.” [7] The appellant’s request was accordingly rejected and the only change which the respondent made to condition 29 was to delete the words “Traffic Distributor Road” and substitute for them the words “Doolong South Road”. [8] The respondent’s current proposal for condition 29 is set out in exhibit 7 as follows “Condition 29 The Developer shall, prior to the sealing of the plan of survey for stages 3A and 3B: (a) Construct roadworks for the full length of the eastern frontage of the development to Doolong South Road in accordance with the Council’s design requirements for a Major Collector Road (bus route) and with Planning Scheme Policy SC6.3 – Planning Scheme Policy for Development Works (‘PSP SC6.3’). The roadworks shall be constructed to half the required road width (from the centre line to the western kerb), in particular: (i) shall be 5.5 metres wide, comprising one 3.5 metre wide travel lane and one 2.0 metre shoulder; (ii) the kerb and channel will be designed and constructed in accordance with PSP SC6.3, including any necessary tapering so that there is an appropriate transition from the kerb to the road’s western property boundary; (iii) all associated road widening will be designed and constructed in accordance with PSP SC6.3; (iv) all underground drainage will be designed and constructed in accordance with PSP SC6.3, including to accommodate developed stormwater flows from the site and upstream undeveloped flows (based on a Q2 minor storm event and Q100 major storm event in accordance with the requirements of Queensland Urban Drainage Manual 2013); (v) the design will include provision for street lighting in accordance with PSP SC6.3; and (vi) the design will include any necessary works to relocate existing services that will be impacted upon; or (b) Alternatively, the Developer shall make a payment to the Council of an amount equal to the cost of the construction of the roadworks outlined in condition 29(a) above. The value of the payment is to be based upon a formal design, schedule of quantities and estimated contract rates prepared by a registered professional engineer, which is to be approved by the Director of Community and Development.” -- 3 of 12 -- 4 [9] The respondent has proposed the condition in exhibit 7 “to avoid argument about alleged uncertainty” which is one of the grounds of appeal relied upon by the appellant. [10] The estimated cost to construct such a road is $1,079,701. The appellant estimates that the development will generate about 12% of the traffic likely to use the road and therefore it’s contribution should be 12% of the estimated construction cost, namely $129,564.12. This is the dispute but it is compounded by two other residential development proposals for land also adjoining Doolong South Road. There is no real challenge to the 12% figure. [11] The appellant proposes the following condition “29. In lieu of constructing kerb and channel together with all associated road widening and underground drainage for the full length of the existing Doolong South Road frontage to the development, the developer shall make a cash contribution towards the roadworks by Council in the amount of $129,564.12.3 Nearby developments Adjoining Parklands Estate on its southern boundary and on the western side of Doolong South Road is the Insight Projects land which will also have access to Doolong South Road.4 It has an area of just over 15ha and a development permit granted in July 2007 authorised a configuration of that land into 98 residential lots (Insight Estate). The land is yet to be developed. The development permit includes a condition requiring the developer to construct Doolong South Road for the frontage of the development site to a Traffic Distributor Road standard (condition 28). In July 2014 an extension to the Insight Estate development approval was granted to 6 July 2017. Opposite Parklands Estate and Insight Estate on the eastern side of Doolong South Road is Ring Estate5 having an area of 76.486ha. Development approval for this land was granted in December 2008 and what is proposed is 694 lots (not 692 as stated) including one townhouse lot of 2 ha intended to accommodate 50 smaller townhouse lots which brings the total to 741 lots including a child care centre. 39 duplex sites 3 Exhibit 8 updated by exhibit 21c 4 See exhibits 3 and 12 5 See exhibits 3 and 12 -- 4 of 12 -- 5 could also equate to 78 dwellings (see T2-29) thereby increasing the total to 780.6 The development approval includes a condition requiring the developer to construct Doolong South Road on the western frontage of the development site to a Traffic Distributor Road standard (condition 35). In February 2015 an extension to the Ring Estate development approval was granted to 10 December 2016. Condition 35 includes the same part of Doolong Road South as is encompassed by condition 29. [12] No work has yet commenced on either Insight Estate or Ring Estate. Planning scheme provisions [13] The Fraser Coast Planning Scheme commenced in January 2014 and in it Parklands Estate, Insight Estate and Ring Estate were each included in the Doolong Flats/Ghost Hill Emerging Community Local Area Plan which recognises Parklands Estate as existing development and includes the other two in a mixed density residential area. [14] The onus is on the appellant to establish that its requested change to condition 29 ought to be approved. This requires a consideration of the planning scheme that applied at the time of the development approval for reconfiguration of Lot 4 on RP 838848 (Parklands Estate – 253 lots) which was made under the Hervey Bay Transitional Planning Scheme (TPS) on 13 August 2004 and the current planning scheme which is the Fraser Coast Planning Scheme (FCPS). [15] The respondent emphasises the following provisions of each scheme: “Transitional Planning Scheme Part 4 – General Development Requirements 4.4.2 Basic General Conditions of Approval of Subdivisions 4.4.2.2 Without limiting the rights of the Council to impose reasonable and relevant conditions when granting approval to an application to subdivide land, the following shall be basic general conditions applicable to all approvals for subdivisions. … (d) Where allotments in a proposed subdivision will have frontage to an existing formed dedicated road, the applicant shall construct, at the applicant’s own expense, and to the satisfaction of the Council the upgrading construction in such road on the frontage of the subdivision to the standards set out in Council’s ‘Standard Specification for Civil Works’, or any relevant Local Planning policy applicable to the new roads in the Zone in which the subdivision is located. 6 Exhibit 6, drawing 03-121, issue D, development summary -- 5 of 12 -- 6 Alternatively, with the consent of the Council, the applicant shall pay to the Council such sum as may be agreed upon with the Council as the cost of executing such work, and agree with the Council as to when such work shall be executed by the Council. Fraser Coast Planning Scheme The Transport and Parking Code states: 9.4.4.2 Purpose and Overall Outcomes (2) The purpose of the Transport and parking code will be achieved through the following overall outcomes:- … (b) transport infrastructure is designed and constructed to acceptable standards and operates in a safe and efficient manner that meets community expectations, prevents unacceptable off-site impacts and reduces whole of life cycle costs, including reduced ongoing maintenance costs; … PO10 Development provides the reserve width and external road works along the full extent of the site frontage, and other transport corridors where appropriate to support the function and amenity of the transport corridor, including where applicable:- (a) paved roadway; (b) kerb and channel; (c) safe vehicular access; (d) safe footpaths and bikeways; (e) safe on-road cycle lanes or verges for cycling; (f) stormwater drainage; (g) provision of public utility services; (h) streetscaping and landscaping; and (i) provision of street lighting systems, road signage and line marking.” Respective arguments [16] The appellant argues that condition 29 (a) is uncertain; and (b) to the extent that it requires the appellant to construct, or fund, an upgrade of that part of Doolong South Road adjoining the development, it is neither reasonable nor relevant. [17] The respondent contends that condition 29 requires the construction of a traffic distributor road along the subject site’s frontage or, in lieu thereof, a cash contribution for the cost of such works.7 7 Exhibit 23, para 31 -- 6 of 12 -- 7 [18] The appellant contends that the condition requires only a cash contribution. In my view that is correct. The words ‘in lieu of…” clearly mean “instead of…” and the words “make a cash contribution… toward the future construction of the roadworks by council…” clearly contemplates a contribution and not, alternatively, construction. [19] The appellant’s other submissions about (a) whether costs are able to be properly calculated;8 and (b) whether the use of the words “contribution” and “toward” (towards) mean that the contribution is of an amount equal to the cost of construction or a lesser amount. need not be answered because of the way matters developed. [20] The appeal is to be resolved by determining whether a condition requiring a contribution equal to the cost of the works itemised in para (a) of exhibit 7 or the condition proposed by the appellant in exhibit 8 should be imposed. [21] The appellant submits that a contribution based on the whole cost of the proposed construction is, in terms of s. 345(1) SPA, an unreasonable imposition on the development and/or is not reasonably required in relation to the development. [22] The work specified in para (a) of the condition proposed in exhibit 7 represents half the required road width for a Major Collector Road (bus route).9 [23] The condition proposed by the appellant in exhibit 8 as updated is a contribution equal to 12% of the cost of construction of the full width of such a road. [24] Upgrading the road is required as a result of the development but it should also be recognised that as a result there will “undoubtedly be a significant community benefit which will be shared by the community as a whole and by the area in the immediate vicinity of the subject land”.10 [25] The respondent contends that absent its proposed condition there can be no guarantee that the road will be upgraded in the future in circumstances where the other developments may not proceed (realistically unlikely I consider) and that the interim 8 See exhibit 24, paras 45, 46 and 51-53. As to paras 45 and 46, Mr David Perkins, the town planner called by the respondent saw no uncertainty, see exhibit 2, para 5.0.11 9 See the diagram, exhibit 18 10 Bugeja v Mulgrave Shire Council [1982] QPELR 320 at 322 and Viney T2-78,80, Schomburgk T2-32 and Perkins T2-96,97 -- 7 of 12 -- 8 solution proposed by the appellant would not result in a safe road or traffic solution. The local area plan though envisages residential development occurring in the area and the Insight Estate and Ring Estate approvals reflect that. Mr Viney concedes that the area is “rapidly transitioning into an urban area” but sought to criticise the appellant’s proposal on the basis that “it doesn’t allow for developments that don’t proceed”.11 [26] The appellant accepts that the relevant part of Doolong South Road is not currently safe for the traffic it already carries.12 Traffic and engineering aspects [27] The effect of the evidence of Mr Dale Kleimeyer, the appellant’s traffic engineer is that the contribution proposed by the appellant would, if now used for upgrading the road in the way he suggests13, be sufficient to bring it to a safe reasonable standard; that the roadworks proposed by him, which include widening the pavement, will bring the road up to a safe standard capable of accommodating vehicles generated by stages 3A and 3B and the existing traffic14 even though Mr Viney considered Mr Kleimeyer’s solution to be “not the normal way of doing a half-road construction” and an “out-of-left-field design”.15 Mr Kleimeyer says that his proposal adopts the same method as used for infrastructure charges – traffic generated on a per lot basis – which is also the method adopted by the respondent for trunk roads.16 In my view Mr Kleimeyer’s proposal represents a safe, reasonable standard and this is so notwithstanding the respondent’s criticism summarised in Ms Kefford’s written submissions supported by Mr Viney’s evidence.17 11 T2-65. In the Joint Report Mr Viney recognised that the area was changing from rural to urban residential, exhibit 1, tab F, p.3 12 Exhibit 24, para 92. Both traffic engineers agreed, see e.g. T1-94,95. See also exhibit 23, para 53(a). Mr Schomburgk, the town planner called by the appellant didn’t find the road unsafe (and nor did I) given current volumes of traffic, rather the pavement needed repair in places, but he did defer to the traffic engineers, T2-34 13 See exhibit 1, tab D, p. 33 for a summary. This has been referred to as an interim solution; see also Mr Kleimeyer’s evidence T2-4. Mr Kleimeyer’s interim solution proposes widening the road on the western side of the road, not the eastern side as suggested in Burchill’s report; T2-8 14 T1-82,83,95 15 T2-81,82 16 Joint Report, exhibit 1, tab 17 Exhibit 23, para 53(d); see also PO10 Fraser Coast Planning Scheme; Viney T2-62-66 -- 8 of 12 -- 9 [28] Mr Viney conceded that Mr Kleimeyer’s interim solution would improve the safety of those currently using the road18 (and implicitly those from stages 3A and 3B who would also use the road). Buses don’t yet use the road. 19 [29] I agree with the submission of Mr Litster QC that the contribution proposed by the appellant will allow the respondent, if it chooses, to undertake works that will safely accommodate the forecast increase in use as a result of the development and existing demand.20 It also recognises that other developments will be expected to contribute to the road construction or cost. [30] I prefer Mr Kleimeyer’s evidence about road construction to that of Mr Viney because he is more qualified and experienced in road construction and design and Mr Viney deferred to him in relation to costings.21 Mr Viney’s expertise was more related to traffic using roads than making roads for use by traffic. I accept Mr Kleimeyer’s evidence that his interim solution would not be unsafe.22 His interim solution is a preferable outcome to a half road construction until such time as the other developments come on stream and contribute to the cost of upgrading the road.23 [31] The ultimate road sought by the respondent is one of a standard required as a combined result of Parklands Estate, stages 3A and B, Insight Estate and Ring Estate and also existing underlying traffic growing over time; a road to half of that standard is not required by only stages 3A and 3B. [32] The interim solution would not be wasted.24 If Ring Estate proceeded it could be re- used; it would provide the foundation for the major collector road; it would be able to be utilised in the “final solution for the road”.25 [33] Like the respondent’s proposal in exhibit 7 the appellant’s proposal is based on the assumption that other residential development in the area will occur in the future and the local area plan recognises this.26 There is greater optimism reflected in the local 18 T2-79,80 19 T1-90, T2-9 20 Exhibit 24, para 100 21 T2-68,69 and see T2-28 22 T1-95 23 T1-96 24 Mr Viney accepted that this would be the case: T2-81 25 T1-102,103 26 See also Burchills report, exhibit 1, tab D pp. 15 & 16 and exhibit 14 -- 9 of 12 -- 10 area plan than in the respondent’s submissions about likely future development in the area.27 [34] I accept that the respondent cannot be compelled to build the interim solution road28 but that is no reason why the appellant should pay the respondent what it wants to allow it to do what it wants if that is unreasonable and/or not reasonably required by the development. [35] I prefer Mr Kleimeyer’s evidence that the proposal represented in exhibit 18 (Mr Viney’s suggested solution), whilst clearly an engineering solution is not economically the best solution.29 Mr Kleimeyer conceded that his proposal effectively maintains a rural road situation rather than an urban situation30 but that will change as development occurs. [36] I am not satisfied that the safety problems for pedestrians perceived by the respondent are such that Mr Kleimeyer’s solution should be rejected; they are not significant.31 [37] Ms Kefford criticised Mr Kleimeyer’s cost calculations32 but I am satisfied on the bases of his qualifications, experience and knowledge of such matters, even if some figures are proposed by others, that they do represent a reasonably accurate estimate of costs. [38] The current Major Collector Road (bus route) classification is a road with a capacity up to 1000 residential allotments. Stages 3A and 3B have about 25 allotments.33 Both traffic experts accepted that the subject site “will contribute a relatively minor portion of the ultimate traffic flow that will ultimately use Doolong South Road”.34 [39] Mr Viney agreed that classification of the road as a Major Collector Road (bus route) assumes that the other developments will go ahead but then said there’s no guarantee they will.35 Absent such a guarantee he was unable to agree with the appellant’s 12% methodology.36 In my view such a guarantee is not necessary; the likelihood is that 27 See e.g. exhibit 23, para 54 28 Exhibit 23, para 53(i) 29 T2-6,7; see also T2-57,58 30 T2-9 31 See T2-56,57 and Schomburgk T2-30,31 32 Exhibit 23, para 60 33 Exhibit 1, tab E, p. 125 34 Joint Report, exhibit 1, tab F, para 2.0 35 T2-82 36 T2-85 -- 10 of 12 -- 11 further residential development in the immediate area will occur as is anticipated by the planning scheme. [40] I think the appellant’s proposal better reflects likely future development in the area and resultant cost sharing for ultimate construction of the road to Major Collector Road (bus route) standard. Only a small part of Parklands Estate will use this section of Doolong South Road whereas most, if not all, of Ring Estate and probably most of Insight Estate (recognising that there will be a road connection between Insight Estate and Parkland Estate37) will use the road. Town planning aspects [41] Mr Schomburgk agreed that this area of Hervey Bay is undergoing a transition from a rural area to an urban area, broadly in accordance with the planning intentions for the locality.38 He considers at 12% contribution – the traffic generated by the subject site – “appropriate”.39 The biggest single contributor to urbanisation of this part of the local plan area will be Ring Estate.40 From a town planning perspective an interim solution such as is proposed by Mr Kleimeyer is not inimical to good town planning “especially in a situation where the existing road is already sub-standard, so it’s appropriate to have some form of interim solution as quickly as possible”.41 The full standard road would be constructed as soon as Ring Estate would be likely to generate traffic.42 He considers the respondent’s proposal in exhibit 7 “clarifies the certainty issue but doesn’t appropriately deal with the reasonableness issue”; it does not propose a “reasonable contribution”.43 [42] Because I have preferred the evidence of Mr Kleimeyer to Mr Viney, I also prefer the evidence of Mr Schomburgk to Mr Perkins. I also thought Mr Perkins was a little rigid in his approach and did not sufficiently recognise the relatively limited amount of traffic which the subject site will generate. He also did not seem to appreciate that Mr Kleimeyer’s interim solution would not be wasted when the road was upgraded and would in fact contribute to the ultimate outcome.44 37 T2-56 38 Exhibit 2 para 5.1.1 39 T2-30 40 T2-31, see also Perkins T2-97 41 T2-31 42 T2-37 43 T2-37,38 44 See T2-90 for example -- 11 of 12 -- 12 [43] Both town planners deferred to the traffic engineers when it came to safety and traffic generation. Like Mr Schomburgk, Mr Perkins agreed that the Ring and Insight developments would complete the urbanisation picture intended by the local plan.45 Result [44] For these reasons I consider the respondent’s proposed condition in exhibit 7 (accepting for the moment that it complies with s 375(2) SPA) goes beyond what is reasonably required by the subject development. In my view, what is proposed by the appellant is consistent with s 345 SPA. [45] The contribution suggested by the appellant will allow the upgrading of the road to a safe (interim) standard, would be a reasonable response to traffic likely to be generated by the subject development, would not be inconsistent with likely future residential development in the area or inconsistent with the provisions of the planning schemes referred to be the respondent. It is of course a matter for the respondent whether it carries out the interim solution but the evidence is to the effect that any work now would not be wasted in future upgrading of the road. [46] Orders of the nature proposed by the appellant would seem appropriate. [47] I make the following orders 1. The appeal is allowed. 2. The decision dated 19 March 2015 is set aside and in lieu thereof a condition in the following terms is substituted ‘Condition 29 In lieu of constructing kerb and channel together with all associated road widening and underground drainage for the full length of the existing Doolong South Road frontage to the development, the developer shall make a cash contribution towards the future construction of roadworks by Council in the amount of $129,564.12 by 8 January 2016.46 45 T2-97 46 Exhibit 24, para 115(c) -- 12 of 12 --