Ausbuild Projects Pty Ltd v Redland City Council & Anor; Peet Thornlands Pty Ltd v Redland City Council & Anor [2010] QPEC 133 [2011] QPELR 236

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Ausbuild Projects P/L v Redland City Council & Anor [2010] QPEC 133 Peet Thornlands P/L v Redland City Council & Anor [2010] QPEC 133 PARTIES: AUSBUILD PROJECTS PTY LTD (ACN 105 319 079) (appellant) v REDLAND CITY COUNCIL (respondent) AND HARRIDAN PTY LTD (co-respondent by election) FILE NO: 1302 of 2009 PARTIES: PEET THORNLANDS PTY LTD (ACN 117 970 813) (appellant) v REDLAND CITY COUNCIL (respondent) AND HARRIDAN PTY LTD (co-respondent by election) FILE NO: 1303 of 2009 DIVISION: Appellate PROCEEDING: Developer appeals against refused applications ORIGINATING COURT: Planning and Environment Court at Brisbane DELIVERED ON: 6 December 2010 DELIVERED AT: Brisbane HEARING DATE: 15, 19, 24, 25 November 2010 JUDGE: Robin QC DCJ -- 1 of 29 -- 2 ORDERS: 1. Appeals adjourned for formulation of conditions CATCHWORDS: Developer appeals against refusal of applications for development permit and preliminary approvals for Material Change of Use for residential – Council now supports applications – Council and appellants propound a conditions package and infrastructure agreement – co-respondent submitter interested in developing its site on opposite side of road contends that conditions ought to require upgrading of the road by appellants – co-respondent also contends that there could or should not be offered credits against infrastructure charges (payable on reconfiguration for example) for works to be done to bring (or assist to bring) an adjoining road between their sites to “boulevard” standard as sought in future planning (but not needed for the developments) – traffic experts called agreed no further upgrading presently necessary – relevant Infrastructure Charging Policy of Council did not preclude the contentious credits Integrated Planning Act 1997, s 3.5.30, s 3.5.31, s 3.5.34, s 4.1.27, s 4.1.28, s 4.1.50(1), s 4.1.52 Local Government Act 1993, s 36 Sustainable Planning Act 2009, s 348, s 346, s 819 Ajana Park Pty Ltd v Mackay City Council [2008] QPEC 20 Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council (1970) 123 CLR 490 Australian Retirement Homes Limited v Pine Rivers Shire Council [2009] QPEC 92 Cox v Chief Executive, Department of Main Roads [2009] QPELR 718; [2009] QPEC 50 Daley v Redland Shire Council [2005] QPELR 727 Dennis & O’Neil Pty Ltd v Mulgrave Shire Council [1982] QPLR 394 Hanson Construction Materials Pty Ltd v Gold Coast City Council [2010] QPEC 242 Hymix Industries Pty Ltd v Alberton Investments Ltd [2001] QCA 334 Marsh v Logan Shire Council (1981) 7 QL 256 Petroleum Design Management Pty Limited v Whitsunday Shire Council [2009] QPEC 115 Proctor v Brisbane City Council (1993) 81 LGERA 398; [1993] QCA 440 Refaka Pty Ltd v Scenic Rim Regional Council [2009] QPEC 139 COUNSEL: D Gore QC and J Houston for appellants G Gibson QC and S Ure for the respondent A O’Dwyer (solicitor) for co-respondent by election -- 2 of 29 -- 3 SOLICITORS: Herbert Geer for appellants Redland City Council Legal Service for Respondent Mullins Lawyers for Co-respondent by election [1] Before the court are separate developer appeals against the Council’s refusal of two applications for development approval for a material change of use for Residential A purposes of land in Kinross Road, Thornlands which were refused on 7 April 2009. The development applications, in each case having been made by A.V. Jennings Limited) relate to the land at No. 104 (15.27 hectares – for which a preliminary approval was sought) in the case of Ausbuild and the land at Nos. 89- 101 (for which a development permit was sought) in the case of Peet (12.258 hectares). [2] The appellants and the Council have reached common ground as to how the appeals ought to be resolved. They continue to be resisted by the co-respondent by election. [3] Harridan is another developer in the locality whose own development ambitions are on hold by reason of the proximity of a poultry farm which, it seems, is unlikely to stop operations any time soon. Harridan’s holdings include land on the opposite (western) side of Kinross Road, to the south of the appellants’ sites, of which Ausbuild’s is the northern one, the two being separated by the gazetted but unformed Goddard Road. Goddard Road connects the northern end of Kinross Road (Ausbuild’s “frontage” being to the stub) to Panorama Drive, an important (somewhat meandering) north-south thoroughfare in Thornlands. Kinross Road is a straight one, taken to be 1.2 kilometres long, running north from the main road in the area, Boundary Road (east-west), a dual carriageway, which is a State controlled road, intersecting with Panorama Drive further east. [4] Harridan’s understandable concern, of which the court is not in the least critical, is that the appellants are being let off much too lightly by the Council in respect of works they may be required to do to “upgrade” Kinross Road as a condition of the approvals the Council would now support. Indeed, from Harridan’s point of view, there is no upgrading whatsoever, the appellants being required to do no more than fund two layers of resurfacing of the existing 5.8 metre wide sealed surface and maintain it for five years (the time for doing the work being before the completion of operational works in their respective developments – something well in the future, as not even reconfiguration is applied for yet). Those works have been provisionally costed at $207,000 worth. Harridan is also concerned that the appellants will obtain a full credit against future infrastructure charges to be levied when development of the appellants’ sites takes place for contributions which the infrastructure agreement to be entered into by them and the Council requires. See s 3.5.34 of the Integrated Planning Act 1997 (IPA) and now s 348 of the Sustainable Planning Act 2009 (SPA). Those provisions contemplate such agreements. [5] The requirements include dedication by Peet of a 6 metre strip along the frontage to Kinross Road to facilitate widening thereof, dedications by each appellant of a 6 metre strip from its frontage to Goddard Road and, so far as Ausbuild is concerned, -- 3 of 29 -- 4 dedication of what amounts to a northern deviation of Goddard Road to link with Panorama Drive slightly further to the north. [6] A concern in Harridan that its interests as a potential future developer, or as a ratepayer, not be inappropriately compromised is a perfectly proper one, as would be (in my view) an attempt by it to have the conditions of the appellants’ developments ones that favour its own interests, if possible. Cf. Daley v Redland Shire Council [2005] QPELR 727 at [17]. Of course the final decision should look to public interests, rather than private ones. [7] There may be cases in which the first developer in the field has to bear what may prove a disproportionate share of the cost of providing public infrastructure such as roads to service his proposal. There will be other cases in which the first developer in escapes having to upgrade infrastructure and later developers do not. Ajana Park Pty Ltd v Mackay City Council [2008] QPEC 20 provides an interesting example of an attempt to accommodate such difficulties to the extent of providing for adjustments depending on future events. In respect of signalisation at the Boundary Road – Kinross Road intersection (as to which the Department of Transport and Main Roads will presumably have the final say, the appellants are first in and obliged to do work at their cost to the benefit of later developers: see item 1, 6 in the schedule set out in [25] below. [8] It may be accepted, for purposes of these appeals, that the court has the responsibility of looking to the public interest and ought not uncritically accept a Council’s determination that what conditions require of a particular developer is appropriate. Ordinarily, one would expect a local government to be an effective guardian of the general and public interest, but circumstances such as relevant factors being overlooked or miscalculation may lead to an outcome being proposed that the court ought not to accept. If it is made to appear that a particular developer is being allowed to cast burdens that inarguably ought to be his on to others, it may be that the court should act to avoid such an outcome. Once its jurisdiction is involved by an appeal being instigated, the court effectively becomes the assessment manager in place of the original assessment manager. Agreement that a development application should result in an approval does not bind the court. On the other hand, a good reason would ordinarily be required to lead the court to reject an agreement of the kind presented where (as here) there is no evidence presented by any party opposing effect being given to the agreement. [9] From Harridan’s point of view, it has been put into a difficult situation by the Council’s eleventh hour determination to support the appellants’ proposal. In the documents filed in the court setting out the parties’ positions, Harridan has adopted the Council’s. As things turned out, the hearing of the appeal did not commence until the last of the eight days for which it has been set down. A number of mentions occurred, the court taking the view that, in principle, Harridan ought to have been ready to conduct a hearing as a co-respondent by election/adverse submitter on the dates fixed, even if unexpectedly left on its own. Things happened so much at the last minute that the Council did not have (still does not have) its final conditions package ready. The court sympathised with Mr O’Dwyer, the solicitor who capably represented Harridan, in his not being inclined to proceed until a -- 4 of 29 -- 5 conditions package “final” in the sense that the appellants accept it was available. He has been excluded from the other parties’ negotiations, which experience says is the usual pattern in equivalent situations, and for obvious enough practical reasons. I agreed with his disinclination to proceed on the basis of something like a summary of points of agreement, which might prove an inadequate guide to the precise terms or implications of what his client ended up faced with. The series of short hearings that took place clarified that Mr O’Dwyer was not interested in pursuing the whole gamut of issues in respect of which groups of experts engaged by the other parties have prepared joint reports, but only matters to do with roads in the area from which the appellants’ sites would take access and the relevant obligations in respect of road infrastructure and contributions which the appellants might become committed to. In addition, Mr O’Dwyer foreshadowed that he would be running legal arguments to do with credits which he apprehended the appellants would be allowed (allegedly impermissibly) for dedications, works or monetary contributions they may make under the conditions against future obligations to make infrastructure contributions under the Council’s infrastructure charging policies when reconfiguration occurs, for example. Mr O’Dwyer also intimated (I thought in a more general way) that he might challenge the lawfulness of conditions. Only very recently has he had an actual opportunity to get an understanding of the extent of what is being sought from the appellants now. [10] The court was unsympathetic to his interest in having the appeals adjourned for a substantial time – which would have meant until next year. His client has engaged no experts, relying (as indicated) on the Council’s anticipated evidence. The assumption was that experts engaged by the Council who have provided reports to the court would be available to give evidence which may have assisted Harridan’s cause. The court offered the possibility of Harridan organising some new expert(s) at short notice, as occurred in Petroleum Design Management Pty Limited v Whitsunday Shire Council [2009] QPEC 115; see [29]. Time was made available for such an exercise, to the extent that the court offered the parties whatever time they might need in the week following those in which the appeals were set down to prepare for and complete the hearings. In the end, Harridan called no evidence. [11] What changed to generate the recent confusion is the access arrangements envisaged for the appellants’ proposal. They are making common cause. Reconfiguration not being applied for, one can have no precise idea how many households may establish on the combined sites. Given the densities mentioned, it is likely to be around 250, slightly under 100 on the Peet land, the balance on Ausbuild’s. The development will represent an extension westwards of residential development that has already occurred along Panorama Drive, especially to the west. Uses north, south and west of the site(s), all accessed via Kinross Road, are non-urban. A creek, designated a “waterway corridor” in a Contextual National Concept Plan included in the report of Mr Beard (who called it a drain) associated with a line of dams (said to be man- made) runs parallel to and west of Panorama Drive, defining the limit of the existing residential footprint. This feature may create some issues for the engineers if ecological/environmental values are to be protected. However, what may be seen as a neutral stance taken by the maker of the original development applications as to whether access would be taken from Kinross Road in the west (connecting to Boundary Road to the south) or via extension of the street network west of Panorama Drive (connecting with it) was overtaken when Mr Stuart Holland’s -- 5 of 29 -- 6 traffic reports presented to the Council, after canvassing the options, favoured access by extension of Carlingford Drive, which connects via a somewhat meandering route with Panorama Drive. The connection would be to Peet’s land from which access across the unformed Goddard Road to Ausbuild’s land would be provided. [12] The Council has all along strongly favoured using Kinross Road. A factor may well have been the opposition of residents of Carlingford Drive to the additional traffic the development proposals involve. This route is too narrow to accommodate buses. The appellants stuck to their guns until recently, but now have capitulated and propose using Kinross Road. In the circumstances, I do not assess this as a change in the development proposal. This is a context in which designating suitable access arrangements is a matter for conditions. Mr Holland’s evidence [13] Mr Robert Holland became involved with the applications after the appeals were commenced. He supported the appellants’ proposals for access, conceding that a consideration for him was concern that the Council might insist on onerous conditions by way of upgrading Kinross Road, perhaps for its entire 1.2 kilometre length, if it were the access. Perhaps he has been surprised by the turn events have taken, the Council’s requirement being that Kinross Road be made good, in the sense of ensuring that its theoretical sealed pavement with 5.8 metres is actually available with a sound new surface. In addition to that, of course, is Peet’s 6 metre dedication along the Kinross Road frontage, which is probably something that would have been anticipated all along. It can be anticipated that Harridan will have to reciprocate on the other side of the road, in any future development proposal by it. Harridan’s concern at any further upgrading of Kinross Road being deferred with likely implications for future developments using Kinross Road is understandable. Of course, infrastructure contributions under the relevant policy would have to be paid by the appellants if they reconfigure. Harridan’s concern is that the credits now offered will reduce or wipe out future contributions. [14] Things will happen in Kinross Road. The Council’s published Transport Infrastructure Contribution Schedule in Chapter 4 of its Planning Scheme Policy plan shows it being widened from two lanes to four within the next five years. This appears to represent planning independent of the appellants’ proposals, although realistically, given that they were made in 2004, the Council probably would have had them in mind. Under Fielder Gillespie arrangements, the court has been provided with the Council’s draft of a Structure Plan for the Kinross Road area. Given the confidentiality that recourse to Fielder Gillespie arrangements implies, the court ought to be discreet about how much is revealed, notwithstanding that some of the information appears to have come out in other ways. Suffice it to say that residential development to be accessed by Boundary Road and Kinross Road is being planned for and that Goddard Road is identified as the principal link for such development to Panorama Drive on an assumption that means will be found of accommodating the creek/wetlands and general environmental concerns – which go to explain Ausbuild’s provision of land for the Goddard Road deviation mentioned above. Kinross Road-Goddard Road, each of which may be seen as a continuation -- 6 of 29 -- 7 of the other at a 90 degree bend (there is no other road at the “intersection”), is to become a “boulevard”. This is a species of thoroughfare recognised in the planning scheme featuring a generous median strip and vegetation there and on wide verges. [15] One of the factors Mr Holland relies on in resisting assertions that more ought to be done to upgrade Kinross Road, in particular that the sealed surface ought to be widened, to say, 7.5 metres, is that the requisite works would inevitably be dug up to provide the median strip, and before too long, which he regarded as waste, and difficult to defend. It would be difficult to disagree. [16] The other factor relied upon by Mr Holland, with which the court agrees, and which goes to reinforce the preceding factor, is a view that Kinross Road can and ought to be seen for the time being not as part of a suburban road system (as Mr O’Dwyer contended), but as a country road linking discrete settlements. One is the proposals, the other is in and (for the most part) beyond Boundary Road. In those circumstances, there is no requirement for street lighting, kerb and channelling and the like. I accept Mr Holland’s explanation that a requirement for kerb and channelling, which is not called up by the present uses along Kinross Road, brings with it other requirements, such as for drainage and extended width, given the reluctance of drivers to drive close to a kerb (whereas they feel comfortable about driving close to or even across a level verge). Analysis of the aerial photos showed some 24 residences or buildings apparently residences along Kinross Road, something like double Mr Holland’s impressionistic estimate. This does not affect the court’s acceptance of his assessment of Kinross Road as essentially a rural road which does not require upgrading to adequately serve the appellants’ sites. In Ajana Park the traffic experts were unanimous that the appellant’s project should not be allowed to go ahead unless Sugarshed Road was upgraded first. [17] Some questioning related to provision of bus services to the site(s) along Kinross Road. Desirable as such services might be, Mr Holland is right in his view that they will not be provided if Kinross Road represents both the way in and the way out: operators will not tolerate this amount of “dead running”. Bus services may be expected when there is a link from Kinross Road through the residential development to Panorama Drive. For the moment, it seems, a link of any kind is unwelcome along Carlingford Road (which is really not wide enough to accommodate buses). There is another east-west connection shown in UBD mapping further south but this is another gazetted, unmade road, less likely to become a reality than Goddard Road. The appellants’ proposal does not require completion of the link to Panorama Drive. The utility of such a link and its contribution to residential amenity and facilities is obvious. It would provide far superior access to facilities east of Panorama Drive such as the state school, otherwise reached by a long deviation using Boundary Road. The traffic experts agree that a link to the east ought to be provided for cyclists and pedestrians – indeed, a road as well, for safety reasons, against the possibility of Kinross Road being unavailable. The suggestion was that this be provided in the short term along Carlingford Road, but, in deference to local residents’ sensibilities, locked off, with the key held under some appropriate arrangement, such as by local police. -- 7 of 29 -- 8 Mr Beard’s evidence [18] The first day of evidence was taken up by Mr Holland, the second by Mr Beard. Mr Beard, having carried the day in the sense that the envisaged residential development will take its access to the outside world from Kinross Road rather than Carlingford Drive (indeed, that access using Carlingford Drive by vehicles should be limited to emergency vehicles or emergency situations), did not differ in significant respects from Mr Holland. He categorised Kinross Road as a “fringe urban road” with a “rural road configuration”. He was cross-examined at length by Mr O’Dwyer upon parts of his contributions to the joint report of 3 August 2010 and also his subsequent individual report which Mr O’Dwyer tendered as exhibit 21. Those documents contain numerous references to anticipated upgrading of Kinross Road and contributions to be made by developers (which it was inferred might include the appellants) for that purpose. This was in aid of an attempt to present Mr Beard as advancing an opinion that Kinross Road ought to be upgraded over and above the re-surfacing (a matter of reinstatement, rather than upgrading) and signalisation of the Boundary Road intersection to meet the requirements of the development which Mr Beard estimated would introduce 263 new households. The attempt failed. The essential reason is that, in the documents referred to, Mr Beard was contemplating developments where access was solely taken from Carlingford Drive, not using Kinross Road at all. Kinross Road attracted mention as available alternative access which he considered far superior, being of the view that Carlingford Drive was totally unsatisfactory. There was no occasion at those stages for Mr Beard to consider and present a view as to what, if anything, ought to be done in Kinross Road. The references to upgrading involved little more than noting the grand future for Kinross Road which the Kinross Road Structure Plan envisages. [19] Now having to confront the adequacy of Kinross Road from the point of view of bearing the additional traffic the appellants’ developments may bring about (2000 – 3000 vehicle movements per day), Mr Beard’s views accord with Mr Holland’s: what is proposed in the infrastructure agreement(s) placed before the court is sufficient. Nothing by way of widening the pavement, etc. is required. Mr Beard acknowledged rules of thumb adopted by the authorities such as requirement for a “collector street” once 300 houses were being served, whereas, for example “access streets” might serve 75 houses; those “rules” were not appropriate to apply here. [20] Mr Beard also gave useful evidence in respect of practice in allowing credit for contributions made by developers for the purposes of policies relating to infrastructure charging such as the Council’s Transport Planning Scheme Policy (Exhibit 13). This was in response to Mr O’Dwyer’s contention that the appellants ought not to get 100 per cent “creditability” for the aggregate dedications and works required in Goddard Road when infrastructure charges are levied in the future on reconfiguration; one aspect of the argument was that a certain amount of road construction in Goddard Road was required in any event to provide access to the Peet “estate” and the Ausbuild “estate” (no lots will take access directly from Goddard Road, all will take access from “internal” roads). The court accepts from Mr Beard that the established practice is to allow full credits where they are claimed for works which produce the final construction of particular road infrastructure, that is, so that no further work may be done. That is the situation in Goddard Road, -- 8 of 29 -- 9 given that, for the full extent of road construction, from the “end” of Kinross Road to the entrances to the two “estates” (as I have called them), what is to be provided is the full 32 m wide boulevard envisaged, with its vegetated verges and median strip. It is true that the council’s Policy, while providing for “Kinross Road” to be widened from two lanes to four between 2011 and 2016, makes no reference to Goddard Road at all. Mr O’Dwyer contended that nothing provided by the appellants in respect of Goddard Road would merit “creditability” for purposes of Kinross Road. [21] The Policy has been overtaken by events. The Structure Plan plainly treats Kinross Road and Goddard Road as a continuum, providing the key link between Boundary Road and Panorama Drive and, indeed, the “spine” or backbone of roads for the whole area west of Panorama Drive: or other streets will gain access from it. It is artificial and inappropriate to separate the two thoroughfares, notwithstanding that in the structure plan the distinguishing names are used. [22] I took Mr O’Dwyer to concede that considerable weight could and should be attributed to the Kinross Road area structure plan, having regard to the “Coty” principle. Harridan’s Submissions [23] It is convenient to respond to Mr O’Dwyer’s written outline of submissions. The appellants’ development applications are described as “capable of being approved subject to lawful conditions”. Peet’s is for a development permit for a material change of use for residential A at maximum density; Ausbuild’s is for a preliminary approval in the same vein. To the extent that the relevant statutory (and policy) regimes prevailing at the dates of the applications are determinative (see s 4.1.52 of IPA, application of which is confirmed by s 819 of the SPA), Peet comes under Reprint 5 of IPA, Ausbuild under Reprint 5C. Mr O’Dwyer presented the following argument: “15 Section 3.5.34 provides in Reprint 5, Reprint 5C, Reprint 10 and Reprint 10A: ‘3.5.34 The applicant may enter into an agreement with an entity, including, for example, an assessment manager or a concurrence agency, to establish the obligations, or secure the performance, of a party to the agreement about a condition.’ 16 Section 3.5.31(1)(c) in Reprint 5 and Reprint 5C provides: ‘3.5.31(1) A condition may – (c) require development, or an aspect of development, to be completed within a particular time and require the payment of security under an agreement under section 3.5.34 to support the condition’ -- 9 of 29 -- 10 17 The proposed infrastructure agreement does not fall within the scope of section 3.5.31(1)(c) of Reprint 5 or Reprint 5C. 18 Section 3.5.31(1)(c) in Reprint 10 and Reprint 10A provides: ‘3.5.31(1) A condition may – (c) require compliance with an infrastructure agreement relating to the land.’ 19 For an agreement of the nature mentioned in section 3.5.34 in Reprint 5 and Reprint 5C to fall within the definition of an infrastructure agreement; the agreement must fall within section 5.2.1 of the Integrated Planning Act (See Schedule 10) which provides relevantly: ‘5.2.1 In this part – “infrastructure agreement” means an agreement, as amended from time to time, mentioned in any of the following sections – • section 3.5.35, • section 3.5.36, • section 5.1.11(2), • section 5.1.12, • section 5.1.14(2), • section 5.1.15(1) and (2), • section 5.2.2.(1).’ 20. The agreement mentioned in section 3.5.24 of Reprint 5 and Reprint 5C is not an infrastructure agreement for the purposes of the Act. 21. For an agreement of the nature mentioned in section 3.5.34 in Reprint 10 and Reprint 10A to fall with the definition of an infrastructure agreement, the agreement must fall within section 5.2.1 of the Integrated Planning Act Reprint 10 and Reprint 10A (See Schedule 10) which provides, relevantly: “5.2.1 In this part – “Infrastructure agreement” means an agreement, as amended from time to time, mentioned in any of the following sections – • section 3.5.34, to the extent the agreement is about a condition of the payment for, or the supply, of infrastructure …” [24] I agree with Mr Gore QC, for the appellants that the argument misses the point. Part 2 of ch 5 has no present relevance. The infrastructure agreement here is authorised by s 3.5.34 (in Pt 5 of ch 3) or the SPA equivalent. Harridan apparently -- 10 of 29 -- 11 holds some concern that the Council and the appellants would have an inappropriate freedom to vary their infrastructure agreement, perhaps by reducing the obligations the appellants would have under it. I doubt that this would be the case. The proposed development conditions require each appellant to enter into the infrastructure agreement (condition 6 for Peet, condition 4 for Ausbuild); changing the agreement would be tantamount to changing a development condition set by the court. Harridan’s argument is that conditions must impose obligations about supplying or paying for infrastructure, that an infrastructure agreement must have conditions to operate in aid of. As regards roads, the only condition proposed relates to Peet (proposed condition 22). It provides: “The Applicant shall complete the following works, in accordance with the construction standards in the Redlands Planning Scheme, along the Goddard Road frontage of the site: 1. Construct the following roadworks: i. a 6.5m landscaped verge incorporating native canopy shade trees, utility services and concrete pathways; i.ii. a 1.5m on road cycle lane using differently textured materials; i.iii. one vehicular lane and one breakdown lane, minimum dimension of 5m; i.iv. a 6 m central median incorporating native canopy trees and water sensitive urban design principles; 2. Footpath earthworks, topsoiling and turfing of all disturbed footpath areas; 2.3. Construction of concrete kerb and channel where required; 2.4. Entry treatment/access to the site; 2.5. Adjustment and relocations necessary to public utility services resulting from these works; and 2.6. Signage and line marking as per the Department of Transport and Main Roads standard titled the Manual of Uniform Traffic Control Devices (MUTCD). … The Applicant shall obtain Operational Works/Compliance Assessment approval and complete these works prior to the use commencing.” [25] The infrastructure agreement requires much more. Schedule 2 is: “ -- 11 of 29 -- Schedule Infrastructure Contributions Schedule Column 1 Item number Column 2 Infrastructure Contribution Column 3 Desired Standards for provision of infrastructure Column 4 Timing of provision of Infrastructure Contribution Column 5 Provider of Infrastructure Contribution Column 6 Infrastructure Credit 1 Road infrastructure 1.1 Works Contribution for resealing of Kinross Road. The Works Contribution is to comprise: (a) the resealing of the full length of Kinross Road from the intersection with Boundary Road to the intersection with Goddard Road; and (b) maintenance of the resealed Kinross Road for a period of 5 years from the eCompletion of the works contribution. The resealing is to be a 2 coat bitumen seal of 5.58 metres. The Works Contribution is to be provided prior to the Completion of operational work for the 1 st stage of Development of the Land. Council This Works Contribution is not subject to an Infrastructure Credit. 1.2 Financial Contribution towards resealing of Kinross Road. The Financial Contribution is to total $207,866.00 for the amount of the Works contribution required by item 1.1, being the resealing of the full length of Kinross Road and the maintenance of such for a period of 5 years. The Financial Contribution is to comprise the following: (a) $103,933.00 by PEET; and (b) $103,933.00 by Ausbuild. A CPI factor is to be applied to the Financial Contribution from 1 July 2011 in the event that payment is made after this date. The Financial Contribution is to be provided prior to the commencement of operational work for the 1 st stage of Development of the land. Applicants This Financial Contribution is not subject to an Infrastructure Credit. 11 -- 12 of 29 -- 13 1.3 Land Contribution from the PEET Land for road reserve on Kinross Road. The Land Contribution is to comprise the dedication of a 6 metre wide strip of land along the frontage to Kinross Road as it abuts the Peet Land. The Land Contribution is to: (a) accommodate the future construction of the Council’s ultimate solution for Kinross Road; and (b) comply with the requirements of PSP 9. The Land Contribution is to be provided at the same time as the Approval of the Subdivision Plan for the 1 st stage of Development of the PEET Land. Peet This Land Contribution is subject to an Infrastructure Credit for the Peet Land. The Creditable Portion is 100%. The value of the land will be at urban residential land rates agreed by the parties and in the absence of agreement determined by an independent valuer appointed jointly by Council and the Applicants to ascertain the value 1.4 Land Contribution from the PEET Land and from the Ausbuild Land for road reserve on Goddard Road. The Land Contribution is to comprise the dedication of a 6 metre wide strip of land along the frontages to Goddard Road as it abuts the Ausbuild Land and the PEET Land. The Land Contribution is to: (a) accommodate the future construction of the Council’s ultimate solution for Goddard Road; and (b) comply with the requirements of PSP 9. The Land Contribution is to be provided at the same time as the Works Ausbuild and PEET This Land Contribution is subject to an infrastructure Credit for the Land. The Creditable Portion is 100%. The value of the land will be at urban residential land rates agreed by the parties and in the absence of agreement determined by an independent valuer appointed jointly by Council and the Applicants to ascertain the value. 1.5 Works Contribution for extension of Goddard Road. The Works Contribution is to comprise the design and construction of the extension of The Works Contribution is to be designed and constructed to Council’s ultimate design in accordance with the requirements of the Structure Plan: The Works Contribution is to be provided prior to the Completion of operational work for the 1st stage of Development of the Land . Applicants This Works Contribution is subject to an infrastructure Credit. The Creditable Portion is 100%. -- 13 of 29 -- 14 Goddard Road from the intersection of Goddard Road and Kinross Road through to the roundabout proposed at the entrances to Peet Land and the Ausbuild Land, as shown between Point # and Point # on the Infrastructure Contributions Map. (a) a 6.5m landscaped verge on both sides of the road incorporating native canopy shade trees, utility services and concrete pathways; (b) a 1.5m on road cycle land on both sides of the road using differently textured materials; (c) one vehicular lane and breakdown lane, minimum dimension of 5m on both sides of the road; (d) a 6m central median incorporating native canopy trees and water sensitive; (e) Footpath earthworks, topsoiling and turfing of all disturbed footpath areas; (f) Construction of concrete kerb and channel where required; (g) Entry treatment/access to the site; (h) Adjustment and relocations necessary to -- 14 of 29 -- 15 public utility services resulting from these works; and (i) Signage and line marking as per the Department of Transport and Main Roads standard titled the Manual of Uniform Traffic Control Devices (MUTCD). 1.6 Works Contribution for signalisation of the Kinross Road and Boundary Road intersection. The Works Contribution is to comprise the signalisation of the intersection of Kinross Road and Boundary Road unless the DTMR impose conditions in relation to the intersection of Kinross Road and Boundary road in a concurrence agency response to the Subsequent Development Applications. The Works Contribution is to be designed and construction to the standards agreed between the Applicants’ and the Council’s traffic experts. [Parameters as agreed by Mr Beard and Mr Holland to be inserted] and will comprise; (a) the installation of traffic signals at the intersection of Boundary Road and Kinross Road; (b) where necessary, minor roadworks in Kinross Road including: (i) modification of the existing central traffic island in the Kinross Road approach to the intersection to facilitate a short two- The Works Contribution to be provided prior to the Approval of a Subdivision Plan for the 101 st lot for the Development. Applicants The Works Contribution is not subject to an infrastructure Credit. -- 15 of 29 -- 16 lane approach to the intersection; and (ii) construction of some kurb bail-outs in Boundary Road on both the northern and southern sides, to protect traffic signal pedestals, shorten pedestrian crossing paths and properly define traffic lanes through the intersection; and (c) apart from (a) and (b) above no significant roadworks or upgrading of Boundary Road is required, in particular no additional traffic lanes in Boundary Road will be required in conjunction with the installation of the traffic signals. 1.7 Land Contribution for Goddard Road Deviation. The Land Contribution is to comprise the dedication of a 20 metre wide strip of land for the Goddard Road Deviation through Lot 2 on RP75742. The Land Contribution will comprise the land indicated on the infrastructure Contributions Map. The Land Contribution is to be provided prior to the Approval of a Subdivision Plan for the Development of the Ausbuild Land. Ausbuild This Land Contribution is subject to an Infrastructure Credit for the Ausbuild Land. The Creditable Portion is 100%. The value of the land will be at urban residential land -- 16 of 29 -- rates agreed by the parties and in the absence of agreement determined by an independent valuer appointed jointly by Council and the Applicants to ascertain the value. 2. Open space infrastructure 2.1 Land Contribution for open space Land. The Land Contribution is to compromise the dedication of the open space Land. The Land Contribution is to be provided prior to the Approval of a Subdivision Plan for the Development of the Ausbuild Land Applicants This Land Contribution is subject to an Infrastructure Credit for the Ausbuild Land. The Creditable Portion is 100%. 2.2 Land Contribution for open space Land. The Land Contribution is to compromise the dedication of the open space Land. The Land Contribution is to be provided prior to the Approval of a Subdivision Plan for the Development of the PEET Land. Applicants This Land Contribution is subject to an infrastructure Credit for the PEET Land. The Creditable Portion is 100%. ” 17 -- 17 of 29 -- Condition 22 is reflected in item 1.5 which imposes the appropriate equivalent obligations on Ausbuild. [26] It should be interpolated at this point that Ausbuild through its counsel made clear its willingness to submit to a condition replicating Peet’s (indeed, I would take it that the appellants would raise no difficulty about all of their infrastructure agreement obligations being set out as conditions if the court thought that necessary). The documents under discussion have been prepared in haste as events in the appeals have unfolded and there has been no investigation into why the proposed conditions in exhibit 14 differ as they do. Peet’s are fuller. The explanation may lie in its obtaining a development permit, rather than a preliminary approval, which authorises no development to occur. The appellants argued that many of the matters that Mr O’Dwyer contended ought to be dealt with now by conditions (for example dedication of land to accommodate a roundabout where Kinross Road and Goddard Road meet) are more appropriately dealt with as developments authorising reconfiguration or other actual work are applied for. Mr Gore referred to Fogg, Land Development Law in Queensland 618, suggesting that there is still some life, relevantly, in what Carter DCJ said in Marsh v Logan Shire Council (1981) 7 QL 256 at 261: “Since the imposition or otherwise of such a condition is a matter which must be considered and, if thought fit, attached to the approval to subdivide, I do not see how it can be thought to be a condition reasonably required by the rezoning of the land which may or may not be followed by subdivision of the land either in the suggested form or otherwise. I have concluded that the imposition of a condition for water supply headworks contribution as a condition of approval by the Local Authority of this application for rezoning is not reasonably required by the rezoning, and as such, cannot be allowed to stand.” [27] In Dennis & O’Neil Pty Ltd v Mulgrave Shire Council [1982] QPLR 394 at 396, Judge Row said: “Although the power to impose conditions is expressed in an unqualified way ample authority exists which indicates that a condition to be valid must fairly and reasonably relate to the application then being considered. The proposed re-zoning will permit the subsequent subdivision of the land into lots for residential purposes. On that subdivisional application, the Respondent has power under s. 34(12)(1) of the Act to impose certain conditions in respect to water supply or sewerage or both water supply and sewerage in relation to contributions towards the costs in connection with the construction of mains for the augmentation of existing mains or the construction of pumping stations or the augmentation of existing pump stations as is therein prescribed. The subdivisional by-law of the Respondent gives the Respondent the powers envisaged within s. 34(12)(1) of the Act. The Respondent seeks herein charges which include and are beyond what is covered by the -- 18 of 29 -- 19 subdivisional by-law. In respect of those charges which could lawfully be made at the subdivisional stage it is submitted that it is not reasonable at the re-zoning stage to impose a condition which includes amounts which could lawfully be imposed at the subdivisional stage. As the general power to impose a condition requires that such a condition must fairly and reasonably relate to the application then under consideration I think it proper that a Local Authority at a re-zoning stage cannot reasonably require an applicant for re-zoning to subject such an application for re-zoning to a condition which could be lawfully imposed at the subdivisional stage.” [28] The impossibility (in the court’s view) of identifying precisely what (if any) dedications may be required at the bend where the separately named roads terminate and meet is an indication that it is premature to be formulating at this stage conditions about such matters; there is no concern that the appellants or their successors will somehow escape having appropriate conditions imposed in the future if appropriate. The onus which the appellants bear under s 4.1.50(1) of IPA in these appeals does not extend so far as to require them to present to the court “final” conditions in such respects. There is similar uncertainty in respect of a possible roundabout around the middle of Goddard Road where the opposed entrances to the two “estates” of Peet and Ausbuild come in. The Structure Plan identifies future roundabouts but none in that location; the only reference to a roundabout in that location is in the draft Infrastructure Agreement Schedule in column 2 of item 1.5. On any view, this would seem to be a matter of detail best attended to later, when things might have changed. As was said in the hearing, all that is clear at this stage is what parts of the sites will be dedicated as open space (coloured green) and what parts will become residential or subject to dedication for the Goddard Road deviation, coloured pink. Just what will happen inside the pink is (necessarily) uncertain. [29] As to the argument that an agreement under s 3.5.34 of IPA or s 348 of SPA may be made only if there is a condition for it to be “about”, while there are considerations favouring that view (including the location of the provision in the respective Acts), I am of the view that there is no difficulty where both a condition and an infrastructure agreement under the provision (s 348 now being the relevant one) are both in existence. A condition may pick up another document and incorporate it by reference: Cox v Chief Executive, Department of Main Roads [2009] QPEC 50; [2009] QPELR 718 at [30]. Consistent with that is s 3.5.31(1)(c) of IPA at this stage when it was repealed (now s 346(1)(c) of SPA) whereby a condition may “require compliance with an infrastructure agreement relating to the land.” It is true that reprints 5 and 5C did not include that provision. Given that the SPA authorises the proposed infrastructure agreement which is yet to be entered into, in my opinion, the court can feel completely comfortable about giving the new provision sufficient “weight” under s 4.1.52(2)(a) to hold that the infrastructure agreement envisaged would be valid. An examination of the provisions reveals that the proposed condition, in each case that “the Applicant will enter into the attached Infrastructure Agreement with Council within 14 days of the Approval taking affect (sic)”, is deficient; “affect” should be deleted and replaced by something like the following: -- 19 of 29 -- 20 “effect and thereafter comply with its obligations thereunder”. [30] It might usefully be noted that the Council has the ability to make contracts such as the infrastructure agreement proposed under its general statutory powers (the appellants referred to ss 36(1) and (2)(a) of the Local Government Act 1993), but that the court lacks power to issue directions to the Council about the entering into of an agreement. To the appellants’ list of authorities, namely: Knox v BCC 1975 31 LGRA 108, 111; Wendon Nominees Pty Ltd v BCC 1984 QPLR 99, 102; Harderan v Logan CC 1989 1 Qd R 524, 527-528; Mascotmont Pty Ltd v Bundaberg CC 1997 QPELR 350, 352; Ajana Park (supra) (leave to appeal refused: Ajana Park Pty Ltd v Mackay CC 2998 QCA 404). One might add Wroxall Investments Pty Ltd v Cairns City Council [2010] QPEC 092 at [32]. [31] Harridan’s submissions then turn to the topic of conditions, adopting the explanation of the conditions power in Australian Retirement Homes Limited v Pine Rivers Shire Council [2009] QPEC 92 at [8]–[13]; the wide scope of the discretion to impose conditions may be accepted. On the assumption that matters are to be regulated by conditions, the written argument runs: “The Conditions 34. The Co Respondent by Election does not oppose conditions relating to:- 34.1 The dedication by PEET of a 6 metre wide strip of land along the frontage of the PEET site with Kinross Road and the entitlement to an infrastructure credit for that land save that adequate provision should be made for a roundabout at the intersection of Kinross and Goddard Roads by way of the dedication of additional land for that purpose. 34.2 The dedication by both PEET and Ausbuild of 6 metre wide strips of land along the frontages of both the PEET and Ausbuild sites with Goddard Road save that adequate provision should be made for roundabouts at the intersection of Kinross and Goddard Roads and at the entries to the developments from Goddard Road by way of the dedication of additional land for that purpose. 34.3 The construction of part of Goddard Road consistent with proposed condition A22 for PEET; 34.4 The signalisation of the intersection of Kinross and Boundary Roads; and 34.5 The dedication of a 20 metre wide strip of land for the Goddard Road deviation. -- 20 of 29 -- 21 35. The Co Respondent by Election submits that there ought not be provision made for infrastructure credits in relation to the dedication of land along the frontages with Goddard Road, the dedication of land for the Goddard Road deviation or the construction of Goddard Road. 6. The Co Respondent by Election submits that the Court ought to impose conditions requiring the upgrade of Kinross Road to service these developments consistent with the Respondent’s standards established under its planning scheme for a residential collector street and accommodating a bus route.” Infrastructure Credits [32] Chapter 4 of the Council’s Planning Scheme Policy 3 (the version of which the court has is RPS V2 – 2008 Pt 11) identifies the purpose as implementing “an equitable developer contributions scheme for the trunk transport network servicing the mainland of Redland City.” It is an interim arrangement (pending a new Priority Infrastructure Plan and related Infrastructure Charges Schedule) intended to be the basis for infrastructure contributions for trunk transport infrastructure and “the basis for the charges.” Section 3.4.4 sets out to achieve “(2) Equitable Apportionment to New Development” based on “equal distribution of the total cost of all trunk road network components of the mainland spread across all residential traffic generators (existing and future)”; in part it reads: “(7) Creditable Contributions (a) Where a condition of development approval (by Council) requires the applicant to undertake works and/or dedicate land which are identified as part of the infrastructure charges schedule it is appropriate for the Council to offset the agreed costs of such works and/or land from the Transport Infrastructure Charge contribution. The value of the works will need to be agreed to by council prior to the works commencing and documented in an Infrastructure Agreement.” Section 3.4.9 begins: “3.4.9 Credit for Previous Contributions (1) Credit may be sought for previous transport infrastructure contributions attached to a parcel of land where conclusive documentation is presented to Council that detail: (a) How and the extent to which the previous charges or works complies with requirements of the Infrastructure Contributions Schedule -- 21 of 29 -- 22 (b) The date the previous charges works was dedicated to Council; (c) The lawful development potential and actual development that accompanied the charges for works; and (d) A breakdown of credit per lot for each lot that resulted from a previous residential material change in use or reconfiguration of a lot for which credit is sought.” [33] Mr O’Dwyer’s focus was on 3.4.4(7) and the absence of any reference there to Goddard Road, which is the location of the bulk of the appellants’ contributions that the proposed infrastructure agreement identifies as “creditable”. Kinross Road is there from “Boundary Road” to “End” in respect of “Upgrade from 2 to 4 lanes” with intersection upgrades in the form of “2 roundabouts”. The existing infrastructure value is shown as $3 million, the upgrade cost as $5 million, which one would take as the cost of the new works envisaged, given that for some entries in the schedule the upgrade cost is less than the “existing infrastructure value”. The construction period is shown as 2011-2016. It was common ground that the upgrade will probably depend on the Council obtaining the necessary land to widen the existing road reserve from 20 m without cost to it, that is, by way of dedications from developers implementing projects requiring development approvals. [34] The Policy does not say that there can be no credit for contributions to the network which are not mentioned in the schedule, for whatever reason (whether it be that the works are different or that they relate to a road or a street not named in the schedule). It is correct but beside the point to note that “if the infrastructure charges schedule had intended to include Goddard Road and the proposed upgrade of Kinross Road then consistent with many other items included in the schedule, it was open to the planning authority to specify “Panorama Drive” instead of “End” as the “To” point. It may be correct that “to allow the Appellants infrastructure credits for the Goddard Road Works and dedications results in the Respondent collecting insufficient funds for the purposes of the works identified in the infrastructure charges schedule”, but the Council should be taken as knowing what it is doing and content to take the financial consequences upon itself. No doubt the Council is sensible of the considerable public benefit to be derived from the handsome dedications and works in Goddard Road at the appellants’ cost; they not only far exceed what the needs of their proposed developments might be, but represent the achievement of the Council’s long term vision for the Kinross Road – Goddard Road continuum in the relevant part of Goddard Road. Harridan concedes that it might be appropriate for a credit to be allowed in the future, but opposes its being allowed now. If the Council, as the decision maker under the Policy, is prepared to introduce some certainty by allowing credits now for the contributions the appellants are expected to make to conclusion of the Goddard Road vision, these are not circumstances in which the court should take a different view. My view is that it is open to the Council (or the court) to allow credits beyond those expressly contemplated in the Policy. There appears to be nothing in the IPA to prevent this. -- 22 of 29 -- 23 If Mr O’Dwyer was presenting a case that, considered as conditions, the credits somehow fail the reasonableness and relevance tests in s 3.5.30, that argument should be rejected. Kinross Road [35] Harridan faces an uphill battle in seeking to overcome the matching views of Mr Holland and Mr Beard in relation to the appropriate standard to be required of Kinross Road as the sole everyday access to the proposed developments. Mr O’Dwyer argues that “it is open to a court to find that Kinross Road at 5.8 m is sub-standard”. It is difficult to agree with that proposition in the face of the experts’ evidence. True it is, as they acknowledge, that Kinross Road at that width may not meet street design criteria from “Queensland Streets” given the potential number of households in the developments and the anticipated number of associated vehicle movements (2000 to 3000 vehicles per day) that there is a case for imposing the requirements of a collector street, which would have “a width of 7.5 m and a footpath amongst other things”. Guidelines such as those provided by Queensland Streets are not binding and the application here is uncertain in any event. I accept the experts’ view that a collector street is envisaged as one passing through residential development, consistent with the function of serving access streets with catchments up to 75 lots; one expects collector streets to be residential, or urban. Kinross Road is not in that category and will not be brought into that category by the developments. Mr Beard agreed with the suggestion that Kinross Road, which he described as a “fringe urban road” bore similarities to those roads one finds all along the Queensland coast linking beach settlements with the principal north-south road nearby. It would be ridiculous to expect them to be constructed to urban or suburban standards. The use to be made of such roads simply does not require that. Mr Beard was adamant that there is no need for a wider pavement, street lighting, footpaths, curbing and underground drainage, etc. He favours steps such as signage to encourage traffic to keep to a safe speed, given the undulating terrain, which I took him to suggest was 60 km per hour. He thought that existing residents of Kinross Road concerned about the safety of their entrance driveways if traffic volumes increased markedly (as they will) might prevail on the Council to get “concealed entrance” signs put up. It was correctly said that Kinross Road is in transition from its history as a rural road in a farming area. It is not yet (and the proposed developments will not make it) an urban road. Indeed, the view was advanced that the impression of being out in the country, so to speak, may have the psychological effect of reducing a number of trips per day which residents of the new estates would undertake. [36] Arguments about provision for buses, cyclists and pedestrians in Kinross Road do not assist Harridan in practice. Buses could use Kinross Road as it is; trucks need to traverse it for some of the existing uses. There will be no buses until Goddard Road links with Panorama Drive, which the appellants cannot be required to bring about; the Council apparently wish to retain available vegetation on the eastern section of Goddard Road, which will remain unconstructed for the time being; the dedication for the deviation terminates at Ausbuild’s boundary and will fall short of any other road. Cyclists and pedestrians will not use Kinross Road. For those whose purposes, or likely destinations are east of Panorama Drive, many, such as schools, -- 23 of 29 -- 24 being to the north, the development should feature or link with suitable connections. If no convenient link along made pathways is provided, cyclists and pedestrians will certainly create their own, for example by creating it in the vicinity of the valued trees, this requiring to cover only a short stretch until the Goddard Road Reserve meets Lorikeet Drive, which runs parallel to Panorama Drive and its northern extension, Wellington Street. [37] I reject the contention in paragraphs 57 and 58 of Harridan’s submissions that there should be identified at this stage “all of the road dedications actually required”, the difficulty being that it is not known what road dedications will be required. There is nothing to suggest that it will be impossible to demand them in the future. [38] The following submissions note the absence of any evidence that the appellants will develop in tandem or any assurance that both developments will proceed in convenient harmony or necessarily at all. The particular difficulty which occasions concern is that Ausbuild may develop before Peet. The Peet proposal provides the connection to Carlingford Drive. Although blocked off to exclude ordinary vehicular traffic, the connection is important for providing access to and from the developments for pedestrians and cyclists and for emergency vehicles. As it happens, Ausbuild stands to gain from its appeal only a preliminary approval. Should it appear when any development permit is applied for that access to the east is required, and not available through Peet’s land, suitable alternative arrangements can be insisted upon if development is to be approved. What might happen to provide a trafficable link along Goddard Road from Kinross Road to each “estate” if the other were not developed was also questioned. The answer is that each appellant has the possibility and obligation to construct that part of Goddard Road on its side. [39] The court ought not to assume, even if it had evidence to the effect, that the appellants will proceed in ways that may best suit each other. That they are making common cause with common representation in these appeals does not make co- operation in the future (assuming they continue to own their respective sites) any more likely than co-operation between any pair of developers pursuing proposals near or adjacent to each other. It is entirely appropriate to leave identification of conditions to the processes that will come into play when future development permits are sought. [40] There is complaint about the delay Messrs Beard and Holland defend in respect of work in Kinross Road, firstly at the Boundary Road end, where signalisation is not required to be undertaken until 100 lots have been created within the developments and secondly in works that may be required at the “intersection” of Kinross Road with Goddard Road, which must await further development applications – indeed, further applications will necessarily precede achievement of 100 lots. As Mr O’Dwyer says, it may be odd to create a boulevard in Goddard Road to which the western (for the moment, the only) entry is the existing bend in the road without doing something commensurate in that location. It does not follow from parts of Goddard Road being brought to their ultimate splendour years before that can be justified (except by reference to avoiding having to replace interim work) but one should require additional costly works which can be seen as premature. The 100 lot -- 24 of 29 -- 25 benchmark for signalisation (which is to control right hand turns) is well established by relevant guidelines and practice. [41] The traffic experts have come under criticism for their inability to identify current traffic volumes at the intersection and at Kinross Road generally (likely to be the same traffic). They have relied on impressions of what current traffic volumes might be, derived from driving at Kinross Road on a number of occasions and observations of the surrounding development. They do not know what traffic is generated by the business of the Orly Juice factory and staff driving to and from work there, by the chicken farm activity or a nursery said to operate in Kinross Road (Mr Holland opined that any such nursery (he had not noticed it) would not attract much business in that location and that he was unsurprised by a suggestion it was for sale). No doubt the conducting of surveys to ascertain traffic volumes can be an expensive exercise. Messrs Holland and Beard are respected and experienced in the field and there is no reason to doubt that they have provided their various reports and evidence in accordance with the principles that experts in the court are expected to embrace. The court is comfortable in accepting their evidence to the effect that it would be inappropriate to require any more of the appellants in relation to Kinross Road than they have agreed upon with the Council. [42] I have assumed, for the sake of argument, that had the appellants achieved a favourable outcome from the Council, the Council might reasonably have required more of them, or granted less by way of credits to be used in the future. That appears to be Harridan’s view. However, there is no finding possible that it is a correct view. Onerous obligations are imposed on the appellants’ developments in Kinross Road in item 1.6 for which no infrastructure credit is offered, works which will be for the benefit of future developers in the area. To the extent the appellants have frontage to Kinross Road, there will be a dedication of depth of 6 m. What is to be done in Goddard Road will be for the benefit of the public (including developers) generally. [43] The court was anxious to finalise these appeals this year. That may have been over- optimistic. Had the appeals run on the “merits”, and succeeded, it is likely that they would have gone off to permit the working out of conditions. It has been possible to embark on that exercise already, but not in a complete way. It has been possible and appropriate to deal with road infrastructure issues and for the court to indicate its considered view. Other issues remain. Harridan says it “repeats (its) submissions in respect of the second proposed infrastructure agreement relating to water and sewer which has not been provided by either the Appellants or the Respondent”. It may be that submissions mirroring those in respect of roads have to be considered by the court in due course. It may be that some conditions issues emerge on which the appellants and Council do not see eye-to-eye, so that the court has to make determinations. With the qualification mentioned above, the court is prepared to endorse, so far as they go, what the parties other than Harridan have agreed on exhibits 12 and 14. -- 25 of 29 -- 26 A minor change? [44] In closing addresses, Mr O’Dwyer disavowed pursuit of any suggestion that the development applications had been changed by the substitution of Kinross Road access for Carlingford Road access so that s 4.1.52(2)(b) precluded the appeals’ proceeding on the basis of the change. Successful application before Judge Pack to have changes in the areas designated pink and green (see [28]) accepted as “minor change” are presently irrelevant. The applications as publicly notified and assessed by the Council contained the possibility of access being taken from Kinross Road albeit on the basis of Mr Stuart Holland’s recommendations favouring the other access in his traffic reports. I agree with Mr Gore that the late acceptance of the Council’s requirement by the appellants represent a change for IPA purposes no more than did the attenuation measures agreed on for conditions in Hanson Construction Materials Pty Ltd v Gold Coast City Council [2010] QPELR 242. On the evidence, the developments are well within the capacity of Kinross Road to accommodate them. The additional use likely to be made of Kinross Road is unreasonable in any event. Compare Refaka Pty Ltd v Scenic Rim Regional Council [2009] QPEC 139 in which the additional demand on the road systems involved in a development proposal was unusually great. Submitters and appeals about conditions [45] These are applicant appeals under s 4.1.27 of IPA as noted, by s 4.1.50(1), the appellants must show these appeals should be allowed. If there had been an appeal by Harridan as submitter, by sub-section (2), Ausbuild and Peet would bear the onus to show that the appeal should be dismissed. Section 4.1.28(2) authorises appeals by submitters in respect of “(b) any provision of [an] approval including – (i) a condition of, or lack of condition for, the approval”. Appeals against a condition, or lack of a condition are rare, but have happened. A well known example is Proctor v Brisbane City Council (1993) 81 LGERA 398; [1993] QCA 440. The Council had determined not to impose a condition favourable to the appellant objector. The condition would have required that access be provided to land of the appellant’s across the developer’s land. In Proctor’s appeal to this court, it refused to impose the condition, a determination upheld by the Court of Appeal which emphasised that it was not concerned with the question whether “as a practical matter it would have been reasonable to require the condition the appellant desired, so as to make possible, by appropriate changes in the layout of roads in the sub-division, access from lot 1 [the Proctor land] across lot 111 to Settlement Road. This Court’s only relevant jurisdiction is to determine whether the Planning and Environment Court made an ‘error or mistake of law’” (399). The argument in the Court of Appeal was that the judge in this court had confined her attention to two criteria, sterilisation and landlocking of Proctor’s land, in determining whether to impose the condition. It was agreed that doing so would amount to an error of law. It was concluded that her Honour had applied the proper statutory test for conditions, namely whether they were “relevant or reasonably required”, that she had not failed to do that. The Court of Appeal said at 403: “Neither Coulson v Shoalhaven Shire Council (1974) 29 LGRA 166 nor any other authority which we have found provides reason to -- 26 of 29 -- 27 doubt the Council’s power to impose such a condition as the appellant seeks. It would be advantageous to the owner of lot 1 to have the access; the advantage is reflected in the appellant’s offer to pay money towards the cost of provision of access. It may be said that if the desired access were provided, that would be a private advantage for the appellant arising out of subdivision, because no doubt the access could augment the value of his property, but the access would, it must be remembered, be a public not a private road, and one which persons other than the appellant could use.” [46] Two years before the Court of Appeal had decided Hymix Industries Pty Ltd v Alberton Investments Ltd [2001] QCA 334. The role of this court had been to allow an appeal by Alberton against the Council’s refusal of an application for a concrete batching plant at Windsor. Hymix and Boral Resources (Qld) Pty Ltd, which had objected to Alberton’s development application, asked the court to impose conditions additional to those agreed on by the other parties while the appeal stood adjourned after Judge Quirk’s intimating that it would be allowed. The relevant condition was one “limiting the production of concrete at the plant”, which would not have been allowed to produce more than 48,000 m3 in any calendar year nor operate with more than 13 concrete mixer trucks on any given day. Records were required to be maintained and forwarded periodically to the Council. In paragraph [5], Williams JA in the leading judgment noted that the usual case concerned a developer challenging the lawfulness or reasonableness of conditions and some cases indicating the approach adopted by the courts, going on: “[5] … It was not really contested by the second respondent that a condition of the type in question would reasonably relate to the development in question; but that does not mean that failure to impose such a condition constituted an error of law. Not all possible conditions satisfying the test of “reasonably relating to the development” must be imposed; it is for the appropriate body (local authority or court on appeal) to determine in the exercise of discretion what conditions satisfying such a test should be imposed on the development. [6] Where an objector is contending that the Local Government Court erred in law in not imposing a condition when giving consent to a development proposal, the objector would have to satisfy the appellate court (arguing by analogy from the decision in Associate Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223) that if the tribunal acted reasonably it must have included such condition. Only if that test was satisfied would there be an error of law on the part of the tribunal. As discussed in Wednesbury, it would not be sufficient for the appellate court to say it thought the imposition of such a condition was reasonable or that it would have imposed such a condition if it was the tribunal at first instance.” -- 27 of 29 -- 28 His Honour’s analysis reviewed the evidence in the light of the conditions imposed and concluded at [17], “it cannot be said that a condition placing a cap on annual production capacity had to be included in the order for the decision to be reasonable. It is not a situation where the only conclusion open on the evidence was that a cap on annual production should be imposed.” Indeed, at [19], his Honour referred to the lack of findings as to the amounts which might have represented a reasonable upper limit: “that confirms that on the present material there was no proper basis for the court below imposing a condition in those terms sought by the appellants.” Muir J agreed, but Atkinson J dissented. She agreed that the test to be applied was whether this court, acting reasonably, must impose the condition and concluded at paragraph [57] that it was “inevitable that it was an error of law not to have imposed a condition limiting production so that the permitted development has no greater impact on amenity than has been assessed by the Planning and Environment Court as acceptable”, reference being made there to the appeal having been presented on the basis of the plant producing 48,000 m3 per annum; her Honour emphasised that the approval ran with the land, so that levels of production the particular developer had in mind would not limit a different operator’s ability to produce more. Needless to say, the arguments of Hymix and Boral were not based on market considerations, but on considerations of neighbourhood amenity: see [8]. Such considerations suggest that “neighbour” submitters in appropriate circumstances may succeed in obtaining imposition of conditions which the local government does not seek, for example limiting the hours of building activity which the High Court 40 years ago accepted as a proper subject for conditions: Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council (1970) 123 CLR 490, at 499-500. (In this case the Council had imposed and sought to enforce such conditions.) [47] This court is not in the constrained circumstances of the Court of Appeal in the cases mentioned, where jurisdiction depended on showing an error of law. This is not a conditions appeal. The court, rather than the Council, as events happen, is the assessment manager for the purpose of determining what conditions are appropriate. The court enjoys the usual wide discretion in the matter. It is not constrained by the Council’s opposition to particular conditions that come up for consideration, still less by the appellants’ opposition. [48] Harridan has not assisted the court by proposing conditions in identifiable terms, as did Boral and Hymix. Nonetheless, the court is able to (and should) consider the substance of conditions reasonably clearly proposed. There are some that would require further work, others that would change “conditions” proposed by the other parties by deleting provision for credits for dedications, works, etc in Goddard Road. As I understand it, there are also suggestions that work required not be delayed to the extent currently anticipated. The court accepts that it has jurisdiction to impose conditions along the lines suggested by Mr O’Dwyer. The question is whether a case is made for them or any of them, and it is not. Indeed, the appellants have shown that it is not, if it be necessary to say so. -- 28 of 29 -- 29 [49] The court can do no more at the present stage than indicate its preparedness to endorse the Council’s and appellants’ agreement to the appeals being allowed and its satisfaction (subject to the qualification mentioned) with the conditions so far as they go in exhibits 12 and 14. Otherwise, the appeals should be adjourned generally (without the court making any orders at all) to enable the parties to work out a final set of conditions in accordance with the usual practice. -- 29 of 29 --