Courtware (Australia) Pty Ltd v Council of the Shire of Noosa [2008] QPEC 64

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Courtware (Australia) Pty Ltd v Council of the Shire of Noosa [2008] QPEC 64 PARTIES: COURTWARE (AUSTRALIA) PTY LTD Appellant v COUNCIL OF THE SHIRE OF NOOSA Respondent FILE NO: 118 of 2006 DIVISION: Planning and Environment PROCEEDING: Appeal ORIGINATING COURT: Planning and Environment Court DELIVERED ON: 18 September 2008 DELIVERED AT: Maroochydore HEARING DATE: 8 September 2008 JUDGE: Judge K.S. Dodds DCJ ORDER: The appeal against the condition in issue is dismissed. CATCHWORDS: PLANNING – PLANNING LAW – reconfiguration – whether condition for intersection works unlawful – whether works for connecting premises to external infrastructure networks – whether works for protecting or maintaining the safety or efficiency of the infrastructure network – whether works relevant to the reconfiguration – whether an unreasonable imposition on the reconfiguration Integrated Planning Act 1997 (Qld) s 3.5.30, s 3.5.32, s 5.1.2 COUNSEL: S R Morris QC for the appellant E Morzone for the respondent SOLICITORS: Schetzer Brott & Appel for the appellant Wakefield Sykes Solicitors for the respondent -- 1 of 9 -- 2 [1] This is a continuation of an appeal which was heard and largely decided in 2006. One of the issues in the appeal, a condition about road works contribution, was adjourned for the parties to negotiate. On 11 February 2008 the respondent applied to the court to have the issue heard and decided by the court. Directions were given and further hearing of the appeal occurred on 8 September 2008. The further hearing may be regarded as an appeal against the condition about the adjourned issue which the respondent wishes to attach to the development approval granted. Background [2] In March 2006 Noosa Shire Council granted preliminary approval with conditions for a reconfiguration to 48 lots of a 3.2928 hectare parcel of land at Noosaville (the land). The application by the appellant had sought a development permit. The appellant appealed against the preliminary approval and some of the conditions. [3] The appeal was heard on 6 and 7 November 2006. Resolution of the preliminary approval issue was achieved. The appeal about some conditions was allowed. It was dismissed insofar as it was against conditions requiring the provision of a road constructed as a Neighbourhood Collector road connecting two existing terminating streets, Ely Street and Starboard Avenue. Another condition under appeal (condition 11) regarding the appellant’s contribution of “an equitable road works contribution in addition to contributions required by the Coastal Major Road Infrastructure Charges Plan” to be determined prior to issue of a development permit was left undecided (with the consent of the parties) to be negotiated and hopefully agreed and the appeal adjourned. No agreement has been achieved. Condition 11 had included the following “as a guide only contributions may be required towards the cost of providing intersection improvements at Eumundi-Noosa Road/Ely Street, Eumundi-Noosa Road/Headland Drive and Gibson Road/Riverbreeze Avenue, as well as traffic calming devices if the need arises”. The land and relevant roads [4] The land is a small part of quite a large precinct of existing developed urban subdivision to the east of Noosa-Eumundi Road. At present access into the precinct I have mentioned, from major roads, may be gained only from: ƒ at the northern boundary of the precinct from Gibson Road into Riverbreeze Avenue. After a short distance Riverbreeze Avenue becomes Shorehaven Drive; ƒ at the northern boundary of the precinct, from Gibson Road further to the east, into Saltwater Avenue which connects with Shorehaven Drive; ƒ at the eastern boundary of the precinct from Reef Street into Bay Street, which also connects with Shorehaven Drive. -- 2 of 9 -- 3 ƒ from Noosa-Eumundi Road into Ely Street for traffic travelling both north and south and into Headland Drive only for south bound traffic. [5] The location of the land and relevant roads may be described as: ƒ Noosa-Eumundi Road travels north south adjacent to the land. Ely Street forms a T junction with Noosa Eumundi Road and travels east for a short distance; ƒ Headland Drive forms a T junction with Noosa-Eumundi Road to the south of and parallel to Ely Street and travels east until forming a T junction with Shorehaven Drive. ƒ Starboard Avenue forms a T junction with Headland Drive and travels north for a short distance; ƒ although presently terminating roads, both Ely Street and Starboard Avenue have been constructed to neighbourhood collector standard. Headland Drive was also constructed to this standard. As appears above, presently north bound traffic on Noosa-Eumundi Road may turn right into Ely Street but it is a short terminating street which provides access to only a couple of lots abutting it and to the land. The land was in the past used for a concrete batching plant. At Headland Drive, to the south of Ely Street, channelisation prevents any right turn into it from Noosa-Eumundi Road. There is only left turn into and out of it from and to Noosa-Eumundi Road. The dispute [6] The respondent seeks the following condition accompany the development approval: “The applicant shall construct channelisation at the intersection of Ely Street with Eumundi Road to accommodate left turns in and out of Ely Street and right turns into Ely Street all to Council’s reasonable satisfaction including any pavement widening which is necessary in Eumundi Road. This shall be designed to cater for a 12.5 metre long bus and shall include any necessary islands to ensure safe operation of the intersection. The design or construction shall include on-road cycle lanes along Eumundi- Noosa Road. The applicant shall also construct a pedestrian refuge crossing of Eumundi Road to the north of Ely Street in a position maximising sight distances to facilitate movement between Ely Street and the western side of Eumundi Road.” -- 3 of 9 -- 4 [7] This condition will result in the reconfiguration being for 47 lots. [8] The appellant is opposed to this condition. It contends: ƒ The proposed condition is unlawful; ƒ Alternatively, if lawful, it should only be required to contribute 11% of the cost of the intersection works. The traffic engineering experts for each party have agreed that the reconfiguration will contribute about 11% of the vehicle movements per day (VPD) using the intersection once Ely Street and Starboard Avenue are joined up and the land developed. Is the condition unlawful? [9] The appellant referred to section 3.5.32, 5.1.2 and 3.5.30 of the Integrated Planning Act 1997 (Qld) (IPA). [10] Section 3.5.32 provides that a condition in a development approval must not “(b) for infrastructure to which Chapter 5, Part 1 applies, require (other than under Chapter 5, Part 1) – (i) a monetary payment for the establishment, operating and maintenance costs of the infrastructure; or (ii) works to be carried out for the infrastructure. -----”. [11] In the Dictionary, Schedule 10, “infrastructure” includes land, facilities, services and works used for supporting economic activity and meeting environmental needs. “Development infrastructure” means land or works or both land and works for inter alia “(ii) transport infrastructure (including roads--- traffic control devices)”. [12] In Chapter 5, Part 1 section 5.1.2 of the Act deals with conditions a local government may impose for non-trunk infrastructure. In the Dictionary, Schedule 10, “non-trunk infrastructure” means development infrastructure that is not trunk infrastructure. The intersections works the condition relates to at the junction of Noosa-Eumundi Road and Ely Street may be regarded non-trunk infrastructure. Pursuant to section 5.1.2 the respondent may only impose a condition about it if the infrastructure is supplied “for one or more of the following- (a) networks internal to the premises; -- 4 of 9 -- 5 (b) connecting the premises to external infrastructure networks; (c) protecting or maintaining the safety or efficiency of the infrastructure network of which the non-trunk infrastructure is a component. [13] The reference to premises here is a reference to the land. Subparagraph (a) may be put to one side. The appellant submitted that subparagraph (b) had no application because the land is connected to Ely Street about 70 metres east of its junction with Noosa-Eumundi Road. The condition was not for the supply of infrastructure that connected the premises to external infrastructure networks. [14] I am unable to agree with this submission. “Connecting” is not limited to the first or most immediate connection. The condition relates to supplying of infrastructure at the junction of Ely Street with Noosa-Eumundi Road. Although this is remote from where the land connects immediately to Ely Street, it is nevertheless a connection of the land to external infrastructure networks, that is, to Noosa-Eumundi Road. In an appropriate case section 3.5.30(1)(a) of the Act may mean that a remote connection is an unreasonable imposition. [15] The appellant further submitted that the condition was not for the supply of infrastructure that protected or maintained the safety or efficiency of the infrastructure network of which Noosa-Eumundi Road Ely Street junction was a component. It was rather to improve the safety and/or efficiency of that part of the infrastructure network, to remedy a deficiency in the network, that is, the lack of a right turn into the precinct for vehicles travelling north in Noosa- Eumundi Road. [16] It is no doubt the case that the works contemplated in the condition contended for will improve the safety of the junction for right turns into Ely Street and the efficiency of the infrastructure network by providing an access into the precinct from Noosa-Eumundi Road for northbound traffic in that road. That does not exclude it from functioning as infrastructure that protects the safety or maintains the safety of the infrastructure network of which it is a component by providing right turn access into the precinct from Noosa-Eumundi Road. It may function in a number of ways, none of which necessarily excludes others. [17] I do not think the condition contended for is prohibited by section 3.5.32 of the Act. [18] The appellant submitted the proposed condition was prohibited by section 3.5.30 of the Act because it was not reasonably required by the proposed reconfiguration and/or assuming relevance it was an unreasonable imposition on the subdivision. The court should exercise its discretion to limit the appellant’s contribution to construction of the intersection works to 11% of the cost. The traffic engineers for the parties were agreed that as a result of the court’s decision and the proposed development, the volume of traffic expected to use Ely Street at the Noosa-Eumundi Road intersection should be in the order of 950 VPD while the subject development could be expected to produce up to approximately 450 VPD to and from the Noosa Waters Precinct. Approximately -- 5 of 9 -- 6 103 VPD of the 450 VPD would use Ely Street to access the external road network. Consequently, 11% of the 950 VPD using Ely Street at the Noosa- Eumundi Road intersection would be generated by the subject development. [19] The respondent argued that its long term planning for the precinct had been for precinct access from Noosa-Eumundi Road to be by Ely Street with Ely Street and Starboard Avenue to be connected which would provide access to Headland Drive. As other parts of the precinct had been developed, the developers had constructed access from the external roads system, neighbourhood collector streets and necessary intersection works. The appellant should provide “safe” access for its reconfiguration from Noosa-Eumundi Road for all traffic at its cost even though other residents of the precinct would also use it, just as residents from its reconfigured lots would use other roads into and out of the precinct. [20] The appellant still wants that which it contended for in the 2006 hearing of the appeal, that is, right turn access from Noosa-Eumundi Road into Headland Drive. Recently it distributed written material headed “The Headlands Premier Estate”, presumably to residents in the area in which it set out its contention why that would be a better outcome and included “we agree with Council the need for a right turn at The Headlands. But we say: The right turn should be at Headland Drive, not Ely Street---They (the respondent) think they can make us pay for an Ely Street intersection but not for a Headland Drive intersection. But we are happy to pay for a Headland intersection 100%. We will even build it.”1 [21] The appellant also tendered into evidence: ƒ a plan showing the likely intersection works at Ely Street as described in the respondent’s condition;2 ƒ a plan which showed a lesser channelisation at the intersection which would prevent right turns into Ely Street but allow left turns out.3 The point of this was to illustrate, I think, that the safety issue at Ely Street generated by the subdivision of the land (and connection of Ely Street and Starboard Avenue) could be addressed more cheaply than the respondent’s condition required. 1 Exhibit 11. 2 Exhibit 12. 3 Exhibit 14. -- 6 of 9 -- 7 The 2006 hearing of the appeal [22] In the hearing of the appeal in 2006, the traffic engineers gave evidence in the case for each party. They expressed opposing opinions about the respondent’s requirement for a neighbourhood collector standard road connection between Ely Street and Starboard Avenue. They were agreed the precinct should have neighbourhood collector access to and from Noosa-Eumundi Road. The appellant’s engineer considered that the intersection at Headland Drive and Noosa-Eumundi Road should be upgraded to allow right turns from south to east and east to north at a channelised priority controlled intersection or to allow all turns by construction of the roundabout. The respondent’s engineer considered upgrading of either intersection should be limited to channelisation to allow right turns south to east but not from east to north. He considered this could probably be constructed at Headland Drive without generating any rat-running. It could certainly be constructed at Ely Street without doing that. He provided two options for precinct access to and from Noosa-Eumundi Road. In order of preference they were: “(i) Ely-Starboard link constructed to collector standard with the Eumundi Road intersection restricted to left entry and exit and right turn entry (south to east) by appropriate channelisation and with a short left turn acceleration taper. No change to the Headland Drive intersection; (ii) Ely Starboard link constructed to collector standard with the Eumundi Road intersection restricted to left entry and exit by a narrow medium and with a short left turn acceleration taper. Channelisation changes at the Headland Drive intersection to allow right turn entry (south to east). In this arrangement, the Ely Starboard link would still be constructed to collector standard to preserve the option of using this route for precinct access should it prove necessary in the future; ---” [23] The respondent’s engineer’s preference for the first of the above options was, as he explained, because it was consistent with the respondent’s long term planning for the precinct, it provided for precinct access from the south and south west without any potential for rat-running, it was the most economical in terms of intersection works, it preserved all of the feasible options for the local road and street network and given VPD to be expected from the subject development moving to and from the external major road network it would mean no existing route would carry significantly increased traffic as a consequence of the development. It was thus the most equitable arrangement for the precinct access involving Noosa-Eumundi Road. Decision [24] The matter His Honour was concerned with was the condition requiring a road to neighbourhood collector standard connecting Ely Street and Starboard Avenue. In his reasons he examined the differing opinions expressed by the traffic -- 7 of 9 -- 8 engineers. His Honour preferred the approach of the respondent’s traffic engineer. In particular he made reference to the proposal’s favoured by the appellant’s traffic engineer significantly increasing traffic volumes in Headland Drive, whereas that favoured by the respondent and its engineer achieved “a much better balance of traffic flows which is moving around the Noosa Waters estate and ensures that the increased traffic flows of the proposed development are distributed in an orderly fashion throughout the streets system.” He considered the impact on the amenity of existing residents in Starboard Avenue from the respondent’s engineer’s approach was more acceptable in planning terms than the impact on the amenity of Headland Drive residents from the appellant’s engineer’s proposals. [25] It is plain enough from His Honour’s reasons that he considered access into the precinct from Noosa-Eumundi Road should be that of the respondent’s engineer’s preferred option, that is, Ely Street. [26] The proposed reconfiguration is at the western side of the larger precinct of which it forms a part. It is only a short distance from Noosa-Eumundi Road. Absent access from Noosa-Eumundi Road, access to it could be gained from Gibson Road via Shorehaven Drive Headland Drive and Starboard Avenue. [27] Left turn capacity already exists at both Ely Street and Headland Drive junctions with Noosa-Eumundi Road. However right turn capacity from and to Noosa- Eumundi Road presently only exists at Ely Street. It does not exist at Headland Drive. When the latter road was constructed in the past the channelisation preventing right turns from Noosa-Eumundi Road was constructed also. With the reconfiguration of the land the resulting increased traffic generation requires the right turn be made safe, even more so because of the connection of Ely Street and Starboard Avenue which provide access to other parts of the precinct. Both traffic engineers were in agreement that works in the nature of those in the respondent’s condition would be required for safety reasons. [28] It is I think shown on all the material that a right turn (south to east) into Ely Street is relevant to the development proposed on the land and to the use of the land as a consequence of the development. The reasons for this are: ƒ such a right turn into Ely Street presently exists, terminating at the land; ƒ both parties seem of the view that a right turn (south to east) from Noosa- Eumundi Road is needed; ƒ the proposed reconfiguration is at the western side of the precinct, virtually adjacent to Noosa-Eumundi Road; ƒ no other right turn (south to east) from Noosa-Eumundi Road giving access to the land exists. -- 8 of 9 -- 9 More particularly, the question is whether the condition contended for by the respondent which would require the appellant to establish a safe south to east right turn into Ely Street is relevant to but not an unreasonable imposition on the development or the use of premises as a consequence of the development. [29] I have come to the conclusion the condition the respondent contends for, that is, that the appellant construct the therein described intersection works, is relevant to the development and to the use of the reconfigured lots. I have also come to the conclusion that it is not an unreasonable imposition on the development, although estimates of usage from the development suggest only approximately 11% of traffic using it will come from the development itself. [30] It may well have been relevant in the past for there to be some south to east access to the precinct from Noosa-Eumundi Road. Indeed at some level it probably was, but none was provided. The relevance for present purposes arises because of the appellant’s reconfiguration which is at the present termination of Ely Street. Incidentally, once Ely Street is connected to Starboard Avenue, south to east access from Noosa-Eumundi Road is provided to other parts of the whole precinct via the network of streets. However that does not seem to me to require a conclusion that the condition contended for is an unreasonable imposition on the development or the use of the reconfigured lots. [31] It seems to me the same conclusion applies regarding the other restraining sub- paragraph of section 3.5.30.4 The condition contended for is reasonably required in respect of the reconfiguration. [32] The appellant’s appeal against the condition in issue is dismissed. The condition contended for by the respondent will be a condition of the development approval for reconfiguration of the land. 4 Section 3.5.30(1)(b). -- 9 of 9 --