DMHP Pty Ltd v Whitsunday Shire Council [2007] QPEC 127

1 [2007] QPEC 127 PLANNING AND ENVIRONMENT COURT JUDGE ROBIN QC No 2162 of 2006 DMHP PTY LTD Appellant and WHITSUNDAY SHIRE COUNCIL Respondent BRISBANE ..DATE 11/09/2007 ORDER CATCHWORDS: Integrated Planning Act 1997 s 3.5.30 - circumstances in which a condition that sealing of a plan of survey await actual provision of power to a subdivision by Ergon (rather than conclusion of an agreement in that regard) was held unreasonable -- 1 of 9 -- 2 ORDER 1 10 20 30 40 50 60 HIS HONOUR: This is an appeal against the Council's refusal of a development application for a development permit for reconfiguration of a Lot (27 Lots and common property) and material change of use (18 detached residential dwellings and 9 dual occupancy) in respect of land described as part of Lot 43 on SP 152078 Parish of Conway which is located in the Shire of Whitsunday. On the 23rd of May this year Judge Rackemann made an order for notification by the Council of its proposed conditions "Upon the parties by their legal representatives having indicated that they will consent to an order allowing the appeal subject to conditions." Other directions were given. The stage has been reached after a good deal of difficulty, centring on geotechnical aspects that only one condition is contentious and that is the Council's proposal, "9.2 A Certificate of Compliance must be provided from the relevant electricity authority certifying that electricity supply has been provided to all Lots prior to sealing the final plan of survey." The difficulty created for the appellant by that condition is, it seems to me, a commercial one. There will be no problem about providing electricity within the subdivision to all of the Lots, that being the conventional 240 volt supply. The problem relates to provision by an appropriate high voltage line leading to a sub-station of electricity supply -- 2 of 9 -- 3 ORDER 1 10 20 30 40 50 60 from the grid. There is only a short connection to the planned sub-station, across land outside the estate, to be completed. The appellant's concern is that the constructing and/or operating authority, Ergon, will not be anxious to order its priorities in the Shire (where demand for its facilities is burgeoning) so as to provide the requisite high voltage connection at an early date well in advance of there being an actual tenant for power by paying customers. The proposed subdivision will complete a very large multistage development which has, on the uncontested evidence, proceeded without problems so far. In earlier stages, the Council has been prepared to seal the plan of subdivision on the basis of agreements being in place for the provision of electricity. There has typically been a delay of months, perhaps a minimum of two, up to 12 months before power is actually required on individual lots; within that period, the efforts of the appellant, with or without the support from lot owners, have produced an outcome acceptable in practice. The Council have become apprehensive that purchasers of lots in such circumstances may be frustrated because of the unavailability of power as early as they might need it to get houses constructed. -- 3 of 9 -- 11092007 D.1 T(1)20/LBM20(BNE) M/T BRIS11 (Robin DCJ) 4 ORDER 1 10 20 30 40 50 60 That is something that might have happened in previous stages of the development, although the burden of the evidence before the Court is that the appellant and its purchasers have been lucky. Mr Joughin's statement in paragraph 4 gives the detail of what happened in respect of what I take to be the appellant's most recent "offer for network connection services" from Ergon - which in the event performed some six months after the agreed completion date. I accept from Mr Button that purchasers in other developments have actually been frustrated in getting timely access to power and have complained to the Council. It has the proper concern to order matters in its area in the best interests of the present and future population and has reached the view that more should be required than the mere signing of agreements, whose intended benefits may not be realised in practice in a timely way. I will note here a decision of the English Court of Appeal, Western Fish Products Limited v. Penwith District Council (1978) 77 LGR (especially 185 at 214) - a case which I had occasion to acknowledge in Adam v. Gold Coast City Council [2007] QPEC 025 at paragraph [17]. The passage quoted points out in a useful way the important role of local government in ensuring that for developments of the present kind arrangements (which, in the English case, concerned water, -- 4 of 9 -- 11092007 T(1)21/DR(BNE) M/T BRIS11 (Robin DCJ) 5 ORDER 1 10 20 30 40 50 60 effluent and highways) are implemented according to an orderly timetable in which everyone can have confidence. Clause 7.2.9 of the Council's planning scheme, which goes back to 2000 and is about to be replaced by an IPA-ised scheme which went on public display today after obtaining ministerial approval, deals with this topic and provides as follows: "7.2.9 Other Public Utilities Objective: To ensure subdivided land is adequately serviced with electricity and telephone in a timely, cost-effective, coordinated and efficient manner, and is adequately street lighted and signed. Performance Criteria (a) Electricity and telephone services provided in conformity with the cost-effective performance measures of particular electricity and telephone service suppliers, including (where applicable and possible) such provision coordinated in common trenching in order to minimise construction costs for underground services. (b) Street lighting and signs provided in accordance with the Council's requirements to ensure the safety of both vehicles and pedestrians, and to facilitate access and movemen t Acceptable Solutions (a) (i) Arrangements agreed with particular suppliers of these services for the provision of electricity (where required in accordance with the Act), and telephone services to each allotment, and evidence of such agreement submitted to the Council. (ii) Such arrangements including provision for underground electricity services where required under this planning scheme, or any Council planning scheme policy or guideline. (b) Arrangements agreed with the Council for the provision of street lighting and street signs , including lighting for urban subdivisions at the following locations: • intersections • cul-de-sac heads, • bends, • pedestrian crossings, • elsewhere as required by the Council -- 5 of 9 -- 11092007 T(1)21/DR(BNE) M/T BRIS11 (Robin DCJ) 6 ORDER 1 10 20 30 40 50 60 I accept from Mr Button, who has been in his office as the Council's manager of planning and assessment since February this year, that going back for a year or more the Council has in most, if not all, cases insisted on a condition in terms of 9.2. It is a strong thing for an assessment manager to determine that a solution declared acceptable in its current planning scheme is inadequate. It is accepted by Mr Trotter that, notwithstanding the way in which the condition came to be formulated, his client bears the onus, in particular the onus of establishing for purposes of section 3.5.30 of the Integrated Planning Act 1997, which provides as follows: "3.5.30 Conditions must be relevant or reasonable (1) A condition must - (a) be relevant to, but not an unreasonable imposition on, the development or use of premises as a consequence of the development; or (b) be reasonably required in respect of the development or use of premises as a consequence of the development. (2) Subsection (1) applies despite the laws that are administered by, and the policies that are reasonably identifiable as policies applied by, an assessment manager or concurrence agency." that the condition is either not relevant or is unreasonable. Mr Trotter does not seek to establish the former but contends that he has established the latter by reference to the acceptable solutions indicated in 7.2.9 by whose terms agreements as opposed to the actual installation of facilities will suffice. -- 6 of 9 -- 11092007 T(1)21/DR(BNE) M/T BRIS11 (Robin DCJ) 7 ORDER 1 10 20 30 40 50 60 Over the last year or so the Council has taken a different approach. It's by a very narrow margin which I might say owes a lot to the appellant's good record in the past in getting power to its purchasers when needed that I have concluded that in the particular circumstances of this final stage of the appellant's development the condition is unreasonable. Mr Button has been frank about the Council's approach that it is proper that if there are delays in the provision of power it is preferable for the appellant to bear them than for the purchasers to bear them. There is no doubt much to be said for a proposition that in the Shire of Whitsunday in modern conditions, purchasers would expect to be provided with access to electric power on completion of their purchases - completion which will presumably be delayed some considerable period from the contract dates until the plan is sealed. I think, however, that enough remains of the old doctrine of "purchaser beware" to suggest that purchasers of the appellant's lots are likely to be careful enough to inform themselves of the circumstances and may appropriately bear the risk in which the Court's decision might involve them rather the appellant bearing. I ought to note the background circumstances, which the appellant's witnesses said they were not aware of, that the Council is willing in appropriate cases to issue development approvals including authority (to build to those in the category of purchasers from the appellant) which are either -- 7 of 9 -- 11092007 T(1)22/MEB(BNE) M/T BRIS11 (Robin DCJ) 8 ORDER 1 10 20 30 40 50 60 issued immediately upon sealing of the plan or issued at an earlier stage but subject to sealing of the plan. That, as I understand it, is something which had actually happened on occasions. The history of this appeal may mean that many of the appellant's purchasers are provided with the geotechnical information that might be required for their own development applications as a result of the appellant's efforts in the appeal. I propose to take up the proposal for an alternative condition 9.2 set out in Connor O'Meara's letter of the 21st of August 2007 Exhibit 1 but varied to take up Mr Milne's offer in his statement to provide some additional assurance that matters will progress expeditiously in a favourable way on the ground. Mr Milne made the suggestion that the appellant could be required to apply to the relevant authority, Ergon, for power forthwith upon the development approval becoming effective. I think that is sensible. I have also, on my own initiative, introduced the idea of a timeframe - an indicative timeframe at least - being extracted from Ergon so that there is a target date extant for whatever comfort that might give purchasers or intending purchasers and the Council which may yet find itself fending off complaints by them. So I propose and invite the parties to comment on a condition 9.2 as follows: Prior to sealing of the plan of survey there must be provided to the Council: -- 8 of 9 -- 11092007 T(1)23/IK(BNE) M/T BRIS11 (Robin DCJ) 9 ORDER 1 10 20 30 40 50 60 (a) Evidence of an application made to Ergon forthwith upon the development approval becoming effective (that is on the day of the Planning and Environment Court's order about this condition) and of the making of an agreement with Ergon on acceptable terms as soon as practicable thereafter for the provision of high voltage electricity supply to the site within a time frame set out in such agreement or signed "offer for network connection services". (b) Certification from an Ergon rated contractor that connections for all low voltage electricity supply already exists to each lot. It is anticipated that the parties will now be able to agree on a suitable form of order to conclude the appeal. There will be liberty to apply. ----- -- 9 of 9 --